Public Document
No. 12
0% (EnmttuHtattalilj nf fUaBaarijuaetts.
REPORT
ATTORNEY -GENERAL
FOR THE
Year ending January 17, 1912.
BOSTON:
WEIGHT & POTTEE PRINTING CO., STATE PEINTEES,
18 Post Office Square.
1912.
«£l)e OlommomDMlth of ittossachusetts.
Department of the Attorney-General,
Boston, Jan. 17, 1912.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith my report for the
year ending this day.
Very respectfully,
JAMES M. SWIFT,
Attorney -General.
Stye CommontDealtt) of ittassacfiuseita.
DEPARTMENT OF THE ATTORNEY-GENERAL,
State House.
Attorney-General.
JAMES M. SWIFT.
Frederic B. Greenhalge.
Fred T. Field.
Andrew Marshall.
Henry M. Hutchings.
Engineer of Grade Crossings.
Henry W. Hayes.
Chief Clerk.
Louis H. Freese.
Statement of Appropriation and Expenditures.
Appropriation for 1911, $45,000 00
Expenditures.
For law library, 496 18
For salaries of assistants, 13,745 14
For expert services, 171 27
For clerks, 3,458 33
For office stenographers, 2,400 00
Telephone operator, 480 00
For messenger, 1,200 00
For expenses in the abolition of grade crossings: —
Salary of engineer, $3,222 99
Other expenses incidental thereto, . . 574 36
3,797 35
For office expenses, 2,389 32
For court expenses, 3,661 99
Total expenditures, $31,799 58
Costs collected, 1,936 01
Net expenditures, $29,863 57
5Uje (Unmmottmralttj of fJJaaBarljwiFtta,
Department of the Attorney-General,
Boston, Jan. 17, 1912.
To the Honorable Senate and House of Representatives.
In compliance with Kevisecl Laws, chapter 7, section 8,
I submit my report for the year ending this day.
The cases requiring the attention of this department during
the year, to the number of 5,338, are tabulated below : —
Corporate franchise tax cases, 635
Extradition and interstate rendition, 93
Grade crossings, petitions for abolition of, 103
Indictments for murder, 38
Inventories and appraisals, 175
Land Court petitions, 11
Land-damage cases arising from the taking of land by the Ar-
mory Commissioners, 3
Land-damage cases arising from the taking of land by the Harbor
and Land Commission, 4
Land-damage cases arising from the taking of land by the Charles
River Basin Commission, 29
Land-damage cases arising from the taking of land by the Massa-
chusetts Highway Commission, 14
Land-damage cases arising from the taking of land by the Met-
ropolitan Park Commission, 11
Land-damage cases arising from the taking of land by the Met-
ropolitan Water and Sewerage Board, 13
Land-damage cases arising from the taking of land by the State
Board of Insanity, 8
Land-damage cases arising from the taking of land by the Wren-
tham State School, 1
Land-damage cases arising from the taking of land by the Grey-
lock Reservation Commission, 2
Miscellaneous cases arising from the work of the above-named
commissions, 29
Miscellaneous cases, 223
Petitions for instructions under inheritance tax laws, ... 27
viii ATTORNEY-GENERAL'S REPORT. [Jan.
Public charitable trusts, 110
Settlement cases for support of persons in State Hospitals, . . 11
All other cases not enumerated above, which include suits to re-
quire the filing of returns by corporations and individuals and
the collection of money due the Commonwealth, . . . 3,798
Capital Cases.
Indictments for murder pending at the date of the last
annual report have been disposed of as follows : —
Peter Delorey and James Mantir, indicted in Mid-
dlesex County, March, 1909, for the murder of Annie Mul-
lins, at Arlington, on March 27, 1908. They were arraigned
June 16, 1909, and pleaded not guilty. Frank McDermott,
Esq., Henry H. Winslow, Esq., and John A. E. Maroney,
Esq., were assigned by the court as counsel for the defend-
ants. In November, 1909, the defendants were tried by a
jury before Fox and White, J.J. The result was a verdict
of guilty of manslaughter against Peter Delorey, and a
verdict of guilty of murder in the second degree against
James Mantir. Motion of defendants for a new trial was
denied, and defendants' exceptions were overruled. The de-
fendant Peter Delorey was thereupon sentenced to State
Prison for a term of not more than twenty nor less than
eighteen years; and the defendant James Mantir was sen-
tenced to State Prison for life. The case was in charge of
District Attorney John J. Higgins.
Sarah S. Elmes, indicted in Plymouth County, October,
1910, for the murder of an infant child, at Bridgewater, on
June 4, 1910. She was arraigned March 15, 1911, and
pleaded guilty to manslaughter. This plea was accepted by
the Commonwealth, and the defendant was thereupon sen-
tenced to the Reformatory for Women. The case was in
charge of District Attorney Albert F. Barker.
Walter G. Fall, indicted in Suffolk County, November,
1910, for the murder of Frank A. Rees, at Boston, on Nov.
10, 1910. He was arraigned Nov. 14, 1910, and pleaded not
1912.] PUBLIC DOCUMENT — No. 12. ix
guilty. William A. Morse, Esq., and Francis J. Geogan,
Esq., were assigned by the court as counsel for the defendant.
On Feb. 15, 1911, the defendant retracted his former plea,
and pleaded guilty to murder in the second degree. This plea
was accepted by the Commonwealth, and the defendant was
thereupon sentenced to State Prison for life. The case was
in charge of District Attorney Joseph C. Pelletier.
Walter G. Fall, indicted in Suffolk CoTmty, November,
1910, for the murder of Frederick Schlehuber, at Boston, on
'Nov. 10, 1910. On Feb. 15, 1911, the defendant pleaded
guilty to another indictment and this indictment was placed
on file. The case was in charge of District Attorney Joseph
C. Pelletier.
Carmello Ferro, indicted in Middlesex County, June,
1910, for the murder of Antonio DeLellis, at Framingham,
on April 17, 1910. He was arraigned on June 20, 1910,
and pleaded not guilty. Thomas J. Grady, Esq., and Max-
ham E. Nash, Esq., were assigned by the court as counsel for
the defendant. In June, 1911, the defendant was tried by
a jury before Hardy, J. The result was a verdict of guilty
of manslaughter, and the defendant was sentenced to State
Prison for a term not exceeding seven nor less than five years.
The case was in charge of District Attorney John J. Higgins.
George Robert Freeman", indicted in Hampden County,
May 1910, for the murder of Herbert E. White, at Ludlow,
on Feb. 13, 1910. He was arraigned May 16, 1910, and
pleaded not guilty. William H. McClintock, Esq., and Wal-
lace K. Hardy were assigned by the court as counsel for the
defendant. In May, 1911, the defendant was tried by a
jury before Crosby, J. The result was a verdict of guilty
of murder in the first degree, and the defendant was sen-
tenced to death by electrocution during the week beginning
October 8, 1911. This sentence was commuted to imprison-
ment for life by the Governor, by and with the advice of the
Council. The case was in charge of District Attorney Chris-
topher T. Callahan.
x ATTORNEY-GENERAL'S REPORT. [Jan.
George Gianakos, indicted in Middlesex County, Septem-
ber, 1910, for the murder of Aristides Georgopoulos, at
Lowell, on July 30, 1910. He was arraigned Sept. 29, 1910,
and pleaded not guilty. D. J. Donahue, Esq., and J. C.
Johnston, Esq., were assigned by the court as counsel for the
defendant. On June 23, 1911, the defendant retracted his
former plea, and pleaded guilty to manslaughter. This plea
was accepted by the Commonwealth, and the defendant was
sentenced to State Prison. for a term not exceeding ten nor
less than eight years. The case was in charge of District
Attorney John J. Higgins.
Wassili Ivankowski and Andrei Ipsex, indicted in
Essex County, September, 1910, for the murder of Thomas
A. Landregan, at Lynn, on June 25, 1910. They were
arraigned Oct. 6, 1910, and pleaded not guilty. John P. S.
Mahoney, Esq., was assigned by the court as counsel for
Wassili Ivankowski, and William D. Chappie, Esq., was
assigned by the court as counsel for Andrei Ipsen. In No-
vember, 1910, the defendants were tried by a jury before
Aiken, C.J. The result was a verdict of guilty of murder in
the first degree, and on Nov. 18, 1910, the defendants were
sentenced to death during the week beginning March 5, 1911 ;
which sentence was carried out on March 7, 1911. The case
was in charge of District Attorney W. Scott Peters.
Peter Maxiti, indicted in Worcester County, May, 1910,
for the murder of Charles W. Potter, at Douglas, on Dec. 28,
1909. He was arraigned May 16, 1910, and pleaded not
guilty. Michael T. Flaherty, Esq., Walter B. Kennedy,
Esq., William A. Parshley, Esq., and Michael A. Heneberg,
Esq., appeared as counsel for the defendant. In November,
1910, the defendant was tried by a jury before Harris, J.
The result was a verdict of guilty of murder in the second
degree. The defendant's motion for a new trial was denied,
and he was sentenced to State Prison for life. The case was
in charge of District Attorney George S. Taft.
1912.] PUBLIC DOCUMENT — No. 12. xi
Charles Mazzoea, indicted in Plymouth County, October,
1910, for the murder of Salvatore Morrelli, at Brockton, on
Aug. 21, 1910. He was arraigned Oct. 10, 1910, and pleaded
not guilty. William F. Kane, Esq., and J. E. Crowley, Esq.,
were assigned by the court as counsel for the defendant. In
October, 1911, the defendant was tried by a jury before
Quinn, J. The result was a verdict of guilty of man-
slaughter, and on Oct. 27, 1911, the defendant was sentenced
to State Prison for a term of not more than ten nor less than
eight years. The case was in charge of District Attorney
Albert E. Barker.
Edward J. McXaxli-y, indicted in Hampden County,
December, 1910, for the murder of Margaret E. ITcNanley,
at Springfield, on Nov. 6, 1910. He was arraigned Jan. 3,
1911, and pleaded not guilty. John P. Kirby, Esq., was as-
signed by the court as counsel for the defendant. The de-
fendant later retracted his former plea, and pleaded guilty to
murder in the second degree. This plea was accepted by the
Commonwealth, and the defendant was sentenced to State
Prison for life. The case was in charge of District Attorney
Christopher Callahan.
Edward E. aLeevix, indicted in Suffolk County, Decem-
ber, 1910, for the murder of John W. Carey, at Boston, on
Dec. 10, 1910. He was arraigned Jan. 16, 1911, and pleaded
not guilty. William H. Bent, Esq., was assigned by the court
as counsel for the defendant. In September, 1911, the de-
fendant was tried by a jury before Lawton, J. The result
was a verdict of guilty of murder in the second degree, and
the defendant was sentenced to State Prison for life. The
case was in charge of District Attorney Joseph C. Pelletier.
Yahan Nalbaxdeix, indicted in Essex County, January,
1910, for the murder of Minas K. Moomjian, at Lynn, on
July 18, 1909. He was arraigned April 22, 1910, and
pleaded not guilty. James H. Sisk, Esq., and Miran Sevasly,
xii ATTORNEY-GENERAL'S REPORT. [Jan.
Esq., were assigned by the court as counsel for the defendant.
In February, 1911, the defendant was tried by a jury before
Aiken, J. The result was a verdict of not guilty. The case
was in charge of District Attorney Henry C. Attwill.
Paolo Razzino, indicted in Worcester County, October,
1910, for the murder of Luigi Palumbo, at Worcester, on Oct.
9, 1910. He was arraigned Jan. 27, 1911, and pleaded not
guilty. David F. O'Connell, Esq., and Jeremiah J. Moyni-
han, Esq., were assigned by the court as counsel for the
defendant. Feb. 20, 1911, the indictment as to murder was
nol prossed, leaving it to stand for manslaughter, and the
defendant was tried by a jury before Fox, J. The result
was a verdict of not guilty. The case was in charge of Dis-
trict, Attorney James A. Stiles.
Howard Steward, indicted in Hampden County, Decem-
ber, 1910, for the murder of Thomas Donlin, at Springfield,
on Oct. 1, 1910. He was arraigned Jan. 3, 1911, and pleaded
not guilty. Willmore B. Stone, Esq., was assigned by the
court as counsel for the defendant. The defendant later re-
tracted his former plea, and pleaded guilty to murder in the
second degree. This plea was accepted by the Commonwealth,
and the defendant was sentenced to State Prison for life.
The case was in charge of District Attorney Christopher T.
Callahan.
Indictments for murder found since the date of the last
annual report have been disposed of as follows : —
Saevatore Accamporo, Pasquale Di Lorenzo, Valen-
tino Stjsi and Michele Accomporo, indicted in Suffolk
County, July, 1911, for the murder of Antonio Schiappa,
at Boston, on July 3, 1911. They were arraigned Sept. 7,
1911, and each pleaded not guilty. James H. Vahey, Esq.,
T. J. Grady, Esq., were assigned by the court as counsel for
the defendants. In November, 1911, the defendants were
tried by a jury before Chase, J. The result was a verdict of
guilty of murder in the second degree against Salvatore Ac-
1912.] PUBLIC DOCUMENT — No. 12. xiii
camporo; the other defendants were found not guilty, and
discharged. The defendant Salvatore Accamporo was there-
upon sentenced to State Prison for life. The case was in
charge of District Attorney Joseph C. Pelletier.
William J. Albert, indicted in Bristol County, February,
1911, for the murder of Catherine Albert. He was arraigned
Feb. 15, 1911, and pleaded guilty to murder in the second
degree. Eobert A. Terry, Esq., was assigned by the court
as counsel for the defendant. The plea of the defendant was
accepted by the Commonwealth, and he was thereupon sen-
tenced to State Prison for life. The case was in charge of
District Attorney Joseph T. Kenney.
Edmuxd Berube, indicted in Bristol County, June, 1911,
for the murder of Morris Schwartz. He was arraigned June
20, 1911, and pleaded not guilty. Edward Higginson, Esq.,
was assigned by the court as counsel for the defendant. On
Dec. 26, 1911, the defendant retracted his former plea, and
pleaded guilty to murder in the second degree. This plea
was accepted by the Commonwealth, and the defendant was
thereupon sentenced to State Prison for life. The case was
in charge of District Attorney Joseph T. Kenney.
Fraxk J. Blaskovec, indicted in Middlesex County, Sep-
tember, 1911, for the murder of Frances Wilkinson, at Som-
erville, on July 21, 1911. Nov. 1, 1911, the defendant was
adjudged insane and was committed to the Bridgewater State
Hospital. The case was in charge of District Attorney John
J. Higgins.
Lukas Dardaria^, indicted in Bristol County, June, 1911,
for the murder of John Dardarian. He was arraigned June
20, 1911, and pleaded not guilty. No counsel was assigned
to act for the defendant. On Nov. 23, 1911, the defendant
retracted his former plea, and pleaded guilty to manslaughter.
This plea was accepted by the Commonwealth, and the de-
fendant was thereupon sentenced to State Prison for a term
xiv ATTORNEY-GENERAL'S REPORT. [Jan.
of not more than eighteen years nor less than fifteen years.
The case was in charge of District Attorney Joseph T. Ken-
ney.
GuiSEPrE Di Maio, indicted in Middlesex County, Janu-
ary, 1911, for the murder of Antonio Di Filippo, at Newton,
on Nov. 27, 1910. He was arraigned March IT, 1911, and
pleaded not guilty. John E. Crowley, Esq., was assigned by
the court as counsel for the defendant. In June, 1911, the
defendant was tried by a jury before Hardy, J. The result
was a verdict of not guilty. The case was in charge of Dis-
trict Attorney John J. Higgins.
Thomas Haggerty, indicted in Suffolk County, June,
1911, for the murder of Marie Haggerty, at Boston, on May
3. 1911. He was arraigned Aug. 16, 1911, and pleaded not
guilty. M. F. Kennedy, Esq., and James F. Kenney, Esq.,
were assigned by the court as counsel for the defendant. On
Nov. 2, 1911, the defendant was adjudged insane, and was
committed to the Bridgewater State Hospital. The case was
in charge of District Attorney Joseph C. Pelletier.
Felix Jaxoxis, indicted in Hampshire County, June,
1911, for the murder of Frank Tomel, at Easthampton, on
March 17, 1911. He was arraigned June 13, 1911, and
pleaded not guilty. George P. O'Donnell, Esq., and Rufus
H. Cook, Esq., were assigned by the court as counsel for the
defendant. On Oct. 25, 1911, the defendant retracted his
former plea, and pleaded guilty to murder in the second
degree. This plea was accepted by the Commonwealth, and
the defendant was sentenced to State Prison for life. The
case was in charge of District Attorney Richard W. Irwin,
Stephen S. Taft, Esq., District Attorney pro tern,
Maria Lima, indicted in Middlesex County, November,
1911, for the murder of her infant child, at Lowell, on Oct.
12, 1911, and for concealing the death of said child. She
was arraigned Nov. 27, 1911, and pleaded not guilty. Sher-
1912.] PUBLIC DOCUMENT — Xo. 12. xv
win L. Cook, Esq., and William G. Andrew, Esq., were as-
signed by the court as counsel for the defendant. So much of
said indictment as charged murder was nol prossed on Nov.
27, 1911, and the defendant was tried on the remaining
charges of the indictment by a jury before McLaughlin, J.
The result was a verdict of not guilty on first count, guilty on
second count, and the defendant was thereupon sentenced to
the House of Correction for a term of eleven months. The
case was in charge of District Attorney John J. Higgins.
Michael Pachiouros, indicted in Middlesex County,
June, 1911, for the murder of John Germanakos, at Lowell,
on March 16, 1911. The defendant was arraigned June 16,
1911, and pleaded not guilty. William H. Bent, Esq., and
Bennett Silverblatt, Esq., were assigned by the court as coun-
sel for the defendant. In November, 1911, the defendant was
tried by a jury before McLaughlin, J. The result was a
verdict of not guilty. The case was in charge of District At-
torney John J. Higgins.
Elizabeth Savoy, indicted in Norfolk County, Septem-
ber, 1911, for the murder of her infant child. She was ar-
raigned Sept. 29, 1911, and pleaded guilty to manslaughter.
J. W. McAnarney, Esq., was assigned by the court as counsel
for the defendant. Sept. 29, 1911, the indictment was nol
prossed as to so much thereof as charged more than man-
slaughter and as to so much thereof as charged concealment of
the death of her infant child. The defendant was thereupon
sentenced to the Reformatory for Women. The case was in
charge of District Attorney Albert F. Barker.
Nazif Usex, indicted in Worcester County, May, 1911,
for the murder of Peter Marke, at Southbridge, on Eeb. 4,
1911. He was arraigned June 5, 1911, and pleaded not
guilty. George S. Taft, Esq., was assigned by the court as
counsel for the defendant. In June, 1911, the defendant was
tried by a jury before Aiken, C.J. The result was a verdict
of guilty of manslaughter, and the defendant was thereupon
xvi ATTORNEY-GENERAL'S REPORT. [Jan.
sentenced to State Prison for a term of not more than five
nor less than four years. The case was in charge of District
Attorney James A. Stiles.
The following indictments for murder are now pend-
ing : —
Charles Alesando, indicted in Hampden County, De-
cember, 1911, for the murder of Dominic Salvatore, at
Russell, on June 24, 1911. He was arraigned Dec. 26, 1911,
and pleaded not guilty. Richard J. Morrissey, Esq., was
assigned by the court as counsel for the defendant. No
further action has been taken in this case. The case is in
charge of District Attorney Christopher T. Callahan.
Stefan Borasky, indicted in Hampden County, Decem-
ber, 1911, for the murder of Rose Amansky, at Granville,
on Sept. 27, 1911. He was arraigned Dec. 26, 1911, and
pleaded not guilty. Joseph F. Carmody, Esq., was assigned
by the court as counsel for the defendant. No further action
has been taken in this case. The case is in charge of District
Attorney Christopher T. Callahan.
Harry H. Butts, indicted in Suffolk County, July, 1911,
for the murder of Robert Williamson, at Boston, on June 21,
1911. He was arraigned July 12, 1911, and pleaded not
guilty. Joseph A. Dennison, Esq., was assigned by the court
as counsel for the defendant. No further action has been
taken in this case. The case is in charge of District Attorney
Joseph C. Pelletier.
Peter Cassetti, indicted in Norfolk County, December,
1911, for the murder of Nicholas Cassetti, at Weymouth, on
Oct. 1, 1911. He was arraigned Dec. 22, 1911, and pleaded
not guilty. No further action has been taken in this case.
The case is in charge of District Attorney Albert F. Barker.
Chester S. Jordan, indicted in Middlesex County,
March, 1909, for the murder of Honora C. Jordan, at Somer-
1912.] PUBLIC DOCUMENT — No. 12. xvii
ville, Sept. 1, 1908. He was arraigned April 15, 1909, and
pleaded not guilty. Charles W. Bartlett, Esq., Harvey H.
Pratt, Esq., and Jeremiah S. Sullivan, Esq., were assigned
by the court as counsel for the defendant. In April, 1909,
the defendant was tried by a jury before Stevens and Bell,
J J. The result was a verdict of guilty of murder in the first
degree. The defendant's motion for a new trial was denied,
and exceptions were overruled by the Supreme Judicial
Court. The defendant was thereupon sentenced to death by
electrocution during the week beginning March 12, 1911.
The case was taken to the Supreme Court of the United States
on writ of error, and is now pending in that court. The case
was in charge of District Attorney John J. Higgins.
Harry Marshall and Lena Cusumano, indicted in
Plymouth County, October, 1910, for the murder of Fran-
cisco Cusumano, at Hull, on Sept. 18, 1910. They were
arraigned 'Nov. 29, 1910, and pleaded not guilty. Thomas J.
Grady, Esq., and William J. Coughlan, Esq., were assigned
by the court as counsel for the defendants. In February,
1911, the defendants were tried by a jury before Schofield, J.
The result was a verdict of guilty of murder in the first
degree. Motion of defendants for a new trial was denied,
and defendants' exceptions are now pending. The case is in
charge of District Attorney Albert F. Barker.
Silas ~N. Phelps, indicted in Franklin County, July,
1910, for the murder of Emmet F. Haskins, at Monroe, on
June 12, 1910. He was arraigned July 12, 1910, and dar-
raigned July 21, 1910, and pleaded not guilty. William A.
Davenport, Esq., and Harry E. Ward, Esq., were assigned
by the court as counsel for the defendant. In November,
1910, the defendant was tried by a jury before Schofield, J.
The result was a verdict of guilty of murder in the first
degree. The defendant's exceptions were overruled, and the
defendant entered an appeal from an order overruling a
motion in arrest of judgment, which order was affirmed by the
Supreme Judicial Court, Oct. 20, 1911. On Oct. 25, 1911,
xviii ATTORNEY-GENERAL'S REPORT. [Jan.
the defendant was sentenced to death by electrocution during
the week beginning Dec. 31, 1911. An appeal from this sen-
tence was dismissed and the sentence affirmed by the Supreme
Judicial Court, Dec. 18, 1911. The case was in charge of
District Attorney Richard W. Irwin.
Clarence V. T. Richeson, indicted in Suffolk County,
October, 1911, for the murder of Avis W. Linnell, at Boston,
on Oct. 14, 1911. He was arraigned Nov. 13, 1911, and
pleaded not guilty. William A. Morse, Esq., and Philip R.
Dunbar, Esq., were assigned by the court as counsel for the
defendant. The case is in charge of District Attorney Joseph
C. Pelletier.
Saverio Spano, indicted in Norfolk County, December,
1911, for the murder of Guiseppe Rucher, at Quincy, on
Dec. 3, 1911. He was arraigned Dec. 22, 1911, and pleaded
not guilty. No further action has been taken in this case.
The case is in charge of District Attorney Albert F. Barker.
Bertram G. Spencer, indicted in Hampden County,
May, 1910, for the murder of Martha B. Blackstone, at
Springfield, on March 31, 1910. He was arraigned May 16,
1910, and pleaded not guilty. R. P. Stapleton, Esq., and
C. L. Young, Esq., were assigned by the court as counsel for
the defendant. On Sept. 17, 1910, the defendant was com-
mitted to the Bridgewater State Hospital for observation.
In November, 1911, he was tried by a jury before Crosby, J.,
the trial being conducted by Attorney-General James M.
Swift, assisted by the District Attorney. The result was a
verdict of guilty of murder in the first degree. Defendant's
motion for a new trial is now pending. The case is in charge
of District Attorney Christopher T. Callahan.
Annie Tatosky, indicted in Plymouth County, June,
1911, for the murder of an infant child, at Abington, on May
3, 1911. She was arraigned June 14, 1911, and pleaded
not guilty. No further action has been taken in this case.
The case is in charge of District Attorney Albert F. Barker.
1912.] PUBLIC DOCUMENT — No. 12. xix
Grade Crossings.
Construction has been in progress during the year at Ne-
ponset, Somerville, Lynn, Worcester, Lowell, Weston, Nor-
folk, Somerset, Swansea and Belchertown, and the engineer
of grade crossings has made 34 visits of inspection in con-
nection therewith.
Forty-seven hearings before and conferences with special
commissioners and auditors have been attended by this de-
partment. Statements of expenditures numbering 48 and
amounting to $2,182,670.51 have been examined. Objec-
tions to items amounting to $168,682.89 have been made,
of which amount $10,798.84 have been disallowed, and de-
cisions as to $157,362.69 are pending. During the year, of
objections filed to accounts during 1909, $731.39 have been
disallowed, leaving an amount of $292.81 pending; of ob-
jections made during 1910, $2,528.37 have been disallowed,
and decisions as to $4,412.52 are pending; making a total
for the year 1911 of $14,058.60 disallowed, and decisions as
to $162,068.02 now pending.
Special investigations for the Quincy and Braintree com-
missions have been made by the engineer of grade crossings.
Objection to certain accounts in connection with the
Worcester grade crossings was made, and six hearings have
been held thereon before the auditor, at some of which the
Attorney-General appeared in person, in addition to the en-
gineer of grade crossings and the Assistant Attorney-General
by whom such objections are ordinarily conducted, and other
hearings are to follow.
Under authority of chapter 214 of the Acts of 1911 the
engineer of grade crossings has been employed outside of
this department by the Board of Railroad Commissioners
thirty-four and one-half days.
Entry Fee in Civil Actions.
I call attention again to the recommendation made by my
predecessor in his report of last year, which was as follows : —
R. L., c. 204, § 6, provides that " in civil actions in which the com-
monwealth or a county is the plaintiff no entry fee shall be paid, but
xx ATTORNEY-GENERAL'S REPORT. [Jan.
if the plaintiff prevails it shall be taxed against the defendant."
There are numerous cases in which the Commonwealth is interested,
in which, by a technical construction, the Commonwealth is required
by the clerk to pay an entry fee. This is clearly not within the
intent of the statute, though very likely within its literal meaning.
I therefore suggest that an amendment be made, so that in all civil
actions which are entered by the Commonwealth or a county no
entry fee shall be paid.
Although a draft of bill was submitted in connection with
this recommendation, no legislation was passed thereon. I
respectfully suggest that the amendment he made at this ses-
sion.
Collection of Penalties against Public-service
Corporations.
R. L., c. 121, § 32, provides a forfeiture for failure to file
annual returns, as therein prescribed, on the part of gas and
electric light corporations. The method of collection, as the
law now stands, must he by an action of tort, or criminal com-
plaint, which is a slow and ineffective method in practice. I
recommend that said section be amended so that suits for
penalties may be brought by information in equity in the
Supreme Judicial Court.
St. 1909, c. 483, § 3, provides that a fine shall be paid by
gas companies for furnishing gas below the standard re-
quired, and provides that said fine shall be paid into the treas-
ury of the Commonwealth. The method of collection of this
fine is by an action of tort or the ordinary criminal pro-
cedure for the collection of a fine. This is a slow and in-
effective method in practice, and I recommend that said sec-
tion be amended so that the fine can be recovered by infor-
mation in equity in the Supreme Judicial Court.
Jury Service.
It has been called to my attention that from time to time
it happens that the work in a criminal session gives out, in
counties in which separate sittings of the Superior Court
are established for civil and criminal business, and the jurors
1912.] PUBLIC DOCUMENT — No. 12. xxi
could be advantageously used in a civil session; and some-
times, though less frequently, the work in the civil sessions
gives out, and the jurors could be advantageously used in
the criminal session. For the purpose of enabling the court
to utilize the jurors in such event I recommend an amend-
ment to section 29 of chapter 157 of the Revised Laws, so
that said section shall read as follows : —
In the counties in which separate sittings of the superior court
are established for civil and criminal business, criminal cases only
shall be tried by jury at the criminal sittings, and civil cases only
at the civil sittings, but the jurors summoned for either civil or
criminal business may by order of the court be used interchangeably
for either criminal or civil business, as occasion may require.
Appointment of Appraisers.
It has been called to my attention that an ancient statutory
provision, now R. L., c. 139, § 6, which provides that ap-
praisers of the original inventory of an estate may be ap-
pointed by a disinterested justice of the peace is still some-
times acted under. As the almost uniform, and by far the
better, practice is that such appraisers are appointed by the
Probate Court, I recommend that the above statute be
amended so that appraisers shall be appointed only by the
Probate Court.
United Shoe Machinery Company.
In July the attention of this department was directed to
certain alleged practices and business methods and arrange-
ments employed by the United Shoe Machinery Com-
pany, and an investigation of the same was begun. Before
it was fairly under way it became public that the United
States government, through the Department of Justice, had
been investigating the same matters for some five or six
months, and that the whole subject had been submitted for
consideration to the United States grand jury. The result
of this action was the indictment in the federal court of sev-
eral of the officers of the corporation. At that time I an-
nounced that these indictments would not prevent the con-
tinuance of the investigation by this department, as it
xxii ATTORNEY-GENERAL'S REPORT. [Jan.
seemed to me that the indictment of these officials did not
get at the meat of the objections to the alleged business meth-
ods of the corporation. ' I therefore continued the investi-
gation so far as I was able. Recently, however, a proceed-
ing in equity has been brought in the Circuit Court 'of the
United States, entitled United States of America, petitioner,
v. United Shoe Machinery Company of Neiv Jersey et als.,
defendants, which appears to cover every point of complaint
which has been brought to my attention concerning this mat-
ter. This action covers substantially the same procedure and
ground that would be covered in case of prosecution under
our State statutes. If successful, the result will be much
broader and more far-reaching than any State proceeding
could be, inasmuch as the corporations complained of are
not Massachusetts corporations, and a large part of the opera-
tion of said companies is carried on outside of this Com-
monwealth. It has seemed to me, therefore, advisable to
await the outcome of this petition in equity in the United
States court before attempting to institute proceedings under
our State law.
In this connection I desire to call attention to the fact
that the Attorney-General ordinarily is not the officer of
the State government to discover facts. His principal duty
is to pass upon questions of law, the facts having been fur-
nished by the various departments in connection with which
opinion or action is ought. (See Opinion of Attorney-Gen-
eral Knowlton, 1 Op. Atty.-Gen. 275.) This department
has no means provided for acquiring information and facts
except through voluntary disclosure on the part of such per-
sons as may have knowledge of them. In acquiring the in-
formation obtained in this particular case I have had to
depend largely upon the efforts of the State police and cer-
tain other outside assistance. In a number of instances
persons inquired of have refused to give the information re-
quested or to discuss the matter. The effective way to ac-
quire such information is by inquiry before a grand jury,
where witnesses can be summoned and compelled to disclose
their knowledge and information. In this connection I con-
cur in the recommendation of His Excellency in his inau-
1912.] PUBLIC DOCUMENT — No. 12. xxiii
gural message, in substance that chapter 454 of the Acts of
1908 be amended by striking out, in the first line of sec-
tion 2, the words " or by his direction," so that said section
shall read : " The attorney-general, or a district attorney,
may bring an action," etc.
Department of the Attorney-General.
Without doubt the past year has been the busiest in the
history of this department. This readily appears by com-
parison of the work with that of recent years. For instance,
the number of cases standing upon the dockets of the depart-
ment for 1905 was 2,534; for 1906, 2,858; for 1907, 2,610;
for 1908, 3,39S ; for 1909, 3,321 ; for 1910, 3,363 ; and for
1911, 5,338.
Comparing the official opinions rendered, it appears that
in 1906, 122 opinions were given; in 1907, 113; in 1908,
99; in 1909, 100; in 1910, 165; and in 1911, 246.
The cases disposed of during the year number 4,294, leav-
ing now pending in the department 1,044 cases. It also
appears that the amount of money collected in the way of
fines, forfeitures and other collections is larger than in any
preceding year, amounting to $382,329.17.
It is to be noted that this increased amount of work has
been carried on without any proportional increase in the ex-
pense of the department.
Twelve cases have been argued before the Supreme Court
of the Commonwealth during the year.
There are two cases pending in the United States Su-
preme Court> — the case of C ommonivealth v. Jordan on a
writ of error from his conviction and sentence for murder,
and C ommonivealth v. Baltic Mining Co., involving the con-
stitutionality of the law concerning taxation of foreign cor-
porations.
The case against The Provident Institution for Savings
in Boston, brought under the provisions of St. 1907, c. 340,
and St. 1908, c. 590, §§ 56 and 57, has been decided in favor
of the Commonwealth by the Supreme Court of the United
States and said institution has paid to the Treasurer
$114,729.14 thereunder. Petitions against other banks cov-
xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 1912.
ered by said provisions are in process of filing, whereby, it
is estimated some $500,000 will be turned over to the Treas-
urer of the Commonwealth.
During the year, also, the so-called milk rate cases have
been heard before the Interstate Commerce Commission, in
which an intervening petition was filed by my predecessor.
I attended the hearings of these cases before the Interstate
Commerce Commissioner at the taking of testimony in Bos-
ton. A brief was submitted and argument made at the final
hearing in Washington.
With reference to the order adopted by the General Court
on June 2, 1911, to report as to whether the New York, New
Haven & Hartford Railroad Company has complied with
respect to the Springfield Street Railway Company with
the order of the Supreme Judicial Court under date of June
23, 1908, I have to say that the answer to be given thereto
is of such a special nature and so voluminous in its contents
that I am compiling it in the form of a special report.
After a service of two years as law clerk and six years as
Assistant Attorney-General, Mr. Fred T. Field leaves this
department at the expiration of his official year, to enter upon
private practice. During his term of service he has displayed
marked ability, zeal and efficiency in the performance of his
duties. His departure is a loss to the service of the Com-
monwealth.
Annexed to this report are the principal opinions submitted
during the current year.
Respectfully submitted,
JAMES M. SWIFT,
Attorney-General.
OPINIONS.
Armories — Use for Public Purposes — Rallies of Political
Parties and Meetings for the Discussion of Public Questions.
Under the provision of St. 1908, c. 604, § 140, that " armories . . . shall
not be used except by the organized militia for such military purpose
or purposes incidental thereto as may be designated by the com-
mander-in-chief: provided, however, that the commander-in-chief,
upon terms and conditions to be prescribed by him and upon an
application approved by the military custodian of an armory . . .
may allow the temporary use of such armory for public purposes,"
an armory may be used for rallies of political parties or meetings
for the discussion of questions of public policy which are of interest
or benefit to the community at large.
Jan. 19, 1911.
Brig. Gen. Gardner W. Pearson, Adjutant General.
Dear Sir : — In your communication of January 16 yon state
that you are directed by His Excellency the Governor to request
a written opinion from the Attorney-General upon the question
whether or not State armories may be used for rallies of political
parties and for meetings for the discussion of questions of public
policy.
St. 1908, c. 604, § 140, is as follows : —
Armories provided for the militia shall not be used except by the
organized militia for such military purpose or purposes incidental
thereto as may be designated by the commander-in-chief: provided,
however, that the commander-in-chief, upon terms and conditions
to be prescribed by him and upon an application approved by the
military custodian of an armory provided in any city or town for
the militia, may allow the temporary use of such armory for public
purposes. The compensation fixed by the commander-in-chief for
every such temporary use shall be paid to the treasurer and receiver
general within ten days after the occupation of the armory for such
temporary use ceases, accompanied by the certificate of the quarter-
master general that the sum so paid is the correct amount; and all
moneys so received shall be paid into the treasury of the common-
wealth.
2 ATTORNEY-GENERAL'S REPORT. [Jan.
In an opinion dated Nov. 14, 1907, my predecessor advised
the Adjutant-General that —
A consideration of these statutes shows that it was the intention
of the Legislature to permit a qualified and restricted use of armories
for purposes other than military purposes. The term " public pur-
poses," as used in the existing law, must be taken to impart a still
wider use than primarily permitted, although the Legislature has
not defined its limits. It is a matter of some difficulty to arrive
at a satisfactory definition of the words " public purposes " as
used in said act. The word " public " is defined by the Century
Dictionary to mean " open to all the people, shared in or to be
shared or participated in or enjoyed by people at large; not limited
or restricted to any particular class of the community ; " and there
is nothing in the statute under consideration which shows an inten-
tion of the Legislature to give to it any new meaning or to change
the signification which is given to the word in ordinary speech.
I am of opinion, however, that, speaking generally, the words
" public purposes n are intended to mean some purpose which is of
general interest or benefit to the community at large, to which any
person who desires may obtain admission, either with or without
the payment of a reasonable fee.
In this conclusion I concur, and am of opinion that meetings
of political parties which are of general interest to the commu-
nity at large and to which any person who desires may obtain
admission, as well as meetings of like character for the discus-
sion of questions of public policy, are public purposes within the
provisions of St. 1908, c. 604, § 140, above cited.
You further inquire " whether or not the Governor, as Com-
mander-in-Chief, may allow the temporary use of armories for
such purposes without charge." By reason of the provision that
" the compensation fixed by the commander-in-chief for every
such temporary use shall be paid to the treasurer and receiver
general within ten days after the occupation of the armory for
such temporary use ceases, accompanied by the certificate of the
quartermaster general that the sum so paid is the correct amount,
and all moneys so received shall be paid into the treasury of the
commonwealth/' I am of opinion that the statute does not con-
template that such use should be permitted without compensa-
tion therefor to the Commonwealth.
You further submit for my consideration an instruction, in-
tended to be given to custodians of armories, as follows : —
1912.] PUBLIC DOCUMENT — No. 12. 3
The use of the drill sheds of armories for rallies of political par-
ties or meetings for the discussion of questions of public policy is a
public purpose.
You inquire whether or not such instruction is in accordance
with the existing laws. With the qualification that rallies of
political parties or meetings for the discussion of questions of
public policy are such as to be of general interest or benefit to
the community at large, I am of opinion that the instruction
which you quote in substance agrees with existing laws.
Very truly yours,
James M. Swift, Attorney-General.
Annual Appropriations — Statements of Amounts required for
the Ensuing Fiscal Year — Governor and Council — Verifi-
cation of Estimates — Examination and Audit of Books of
Account.
St. 1910, c. 220, § 1, requiring that every officer or board having charge
of any department, institution or undertaking which receives an
annual appropriation from the treasury of the Commonwealth, shall
annually submit to the Auditor statements in detail showing the
amounts appropriated for the current fiscal year and required for
the ensuing fiscal year, and that the Auditor shall combine such
statements with a like statement relating to his own department in
one document, to be printed and submitted on or before the first
Thursday in January to the Governor and Council for examination,
and by the Governor transmitted to the General Court with such
recommendations as he may deem proper, does not confer upon the
Governor and Council, or upon the Governor alone, any new or addi-
tional authority to examine, for the purpose of verifying or other-
wise investigating such statements, the expenditures or books of
accounts of, or to prescribe for such purpose the method of account-
ing which shall be used by, any State officer or board.
Jan. 21, 1911.
His Excellency the Governor and the Honorable Council.
Gentlemen" : — You have orally required my opinion upon
the question of your authority, under the provisions of St. 1910,
c. 220, to verify or to make investigation with reference to the
estimates submitted to you by officers or boards having charge
of any department, institution or undertaking which receives an
annual appropriation of money from the treasury of the Com-
4 ATTORNEY-GENERAL'S REPORT. [Jan.
monwealth in accordance with such provisions, by examining
and auditing the books and accounts or prescribing the methods
of accounting of such officers or boards.
The statute to which you refer is as follows : —
Section 1. Every officer or board having charge of any depart-
ment, institution or undertaking which receives an annual appro-
priation of money from the treasury of the commonwealth, includ-
ing annual appropriations to be met by assessments, shall, annually,
on or before the fifteenth day of November, submit to the auditor
of the commonwealth statements in detail showing the amount
appropriated for the current fiscal year and the amounts required
for the ensuing fiscal year, with an explanation of the reason for
any increased appropriation, and with citations of the statutes
relating thereto, and with a statement of the expenditures for the
current year and for each of the next preceding two years. The
said estimates shall not include any estimates for special purposes
or objects. The auditor of the commonwealth shall embody the
said statements, with a like statement relating to his own depart-
ment, in one document, which shall be printed, and shall be sub-
mitted on or before the first Thursday in January of each year to
the governor and council for examination, and the governor shall
transmit the same to the general court with such recommendations,
if any, as he may deem proper. The auditor shall also submit his
estimates for the ensuing fiscal year for the ordinary and other
revenue of the commonwealth which shall be made a part of the
document herein provided for. Copies of the document shall be
distributed to the members of the general court.
Section 2. Officers, heads of departments, boards, commissions
and trustees of institutions, who, in their annual reports, or other-
wise, recommend appropriations from the state treasury for special
purposes or objects, including appropriations to be met by assess-
ments in addition to the ordinary running expenses, shall submit
estimates thereof hi detail to the auditor of the commonwealth on
or before the fifteenth day of November in each year, and he shall
classify them and embody them in one document which shall be
printed, and shall be submitted on or before the first Thursday in
January of each year to the governor and council for examination,
and the governor shall transmit the same to the general court with
such recommendations, if any, as he may deem proper. He shall
make recommendation as to how much should be raised by the issue
of bonds and how much should be paid out of current revenue.
Copies of the document shall be distributed to the members of the
general court.
Section 3. The plans, estimates and specifications made in
accordance with the provisions of chapter five hundred and twenty
1912.] PUBLIC DOCUMENT — No. 12. 5
of the acts of the year nineteen hundred and seven, or of amend-
ments thereof, relating to any improvement described in either of
the documents aforesaid, shall at the same time be submitted to the
governor and council.
Section 4. The auditor shall furnish to the governor .and coun-
cil such further information in regard to the revenue, expenditures
and other financial operations of the commonwealth, and in such
form as the governor may require.
Section 5. The governor may, in his discretion, transmit to the
general court from time to time, with his recommendations, if any,
thereon, particular items in either of the said documents, and may
withhold other items for further investigation.
Section 6. Section twenty-six of chapter six of the Revised
Laws, as amended by section six of chapter two hundred and eleven
of the acts of the year nineteen hundred and five and section five
of chapter five hundred and ninety-seven of the acts of the year
nineteen hundred and eight, and all acts and parts of acts incon-
sistent herewith, are hereby repealed.
Section 7. This act shall take effect upon its passage.
It is to be observed that this statute provides that the Auditor
shall in the first instance receive the estimates of State officers
and boards and transmit them to the Governor and Council for
examination, together with estimates for ordinary and other
revenue of the Commonwealth made by him, and that the only
power vested in the Governor with respect to such estimates is
that of making "such recommendations as he may deem proper.
It is also made the duty of the Auditor to furnish to the Gov-
ernor and Council further information in connection with such
estimates regarding the revenue, expenditures and other finan-
cial operations of the Commonwealth in such form as the Gov-
ernor may require.
I am of opinion that this statute does not confer upon the
Governor and Council, or upon the Governor alone, any new or
additional right to examine the expenditures or books of account
of, or to prescribe the method of accounting which shall be used
by, any State officer or board for the purpose of verifying or
otherwise investigating the estimates so required. It is already
provided by St. 1908, c. 597, § 4, that —
Under the direction of the auditor, the supervisor of accounts
shall direct and control all the accounts in all departments, and shall
have full authority to prescribe, regulate and make changes in the
methods of keeping and rendering accounts, and shall see that they
are properly maintained, and that all items are correctly allocated
6 ATTORNEY-GENERAL'S REPORT. [Jan.
between capital receipts and disbursements and operating revenue
and expense. He shall establish in each department a proper
system of accounts, which shall be uniform so far as is practicable.
He shall establish a proper system of accounting for stores, sup-
plies and materials, and may provide, where he deems it necessary,
for a continuing inventory thereof. He may inquire into the meth-
ods of purchasing and handling such stores, supplies and materials
by the departments, reporting to the auditor such changes as may
in his judgment be deemed wise. He shall provide such safeguards
and systems of checking as will insure, so far as is possible, the
proper collection of all revenue due the commonwealth; and, where
he deems it necessary, shall provide that forms and receipts shall
be numbered consecutively, making the departments responsible for
their use or cancellation;
and by section 6 that —
Whenever the word " departments " occurs in this act it shall be
understood to include all departments, boards, commissions, institu-
tions and offices of the commonwealth which incur expense or to
which income accrues, unless the context requires a different inter-
pretation.
Under these provisions of law the Auditor is given full author-
ity to prescribe, regulate and make changes in the methods of
keeping or rendering accounts in all State departments, boards,
commissions and offices, and to see, by audit or otherwise, that
they are properly maintained; and there is nothing in the lan-
guage of St. 1910, c. 220, to warrant a conclusion that by its
enactment the Legislature intended to supersede or modify the
authority of the Auditor under the statutes above cited by con-
ferring upon the Governor and Council any supervision or con-
trol of public expenses or the methods of accounting therefor.
Upon the contrary, it is the obvious intention of the latter
statute that the estimates furnished to the Governor and Council
in accordance with its requirements should be furnished through
the Auditor, and that any additional information which may be
required in the premises should be supplied by him (§4).
The general power of the Governor and Council to investigate
the expenditures of State officers, boards or commissions was
made the subject of an opinion by my predecessor to His Ex-
cellency the Governor, dated April 26, 1909 (Attorney- General's
Report, 1909, p. 31), in which it was stated that —
The Governor and Council may at any time examine such bills
and vouchers in the Auditor's department, and thus familiarize
1912.] PUBLIC DOCUMENT — No. 12. 7
themselves with the expenditures of the Commonwealth as much as
they wish. They may take such measures as they see fit to ascer-
tain that the money appropriated for the various institutions in
the Commonwealth is being- expended in the manner intended by
the Legislature, and may make such personal investigation at the
institutions themselves as may be necessary to make sure that this is
being done; but they have no right to say that the money appro-
priated by the Legislature shall not be expended in the way author-
ized by it. There are various departments under the immediate
supervision of the Governor, and in such departments it is his duty
to see that the money appropriated is properly expended therein.
There are other departments in which it is the duty of the head
of such departments to see that the money appropriated is properly
expended, and for which the Governor is not responsible, and in
which he has no authority except so far as may be necessary to
see that the warrants are drawn in accordance with the appropria-
tions authorized by the Legislature. Should the Governor and
Council be of opinion that the finances of any institution are not
being properly and economically expended, the remedy would be by
removal of the trustees or other officers over whom they have author-
ity, in accordance with the statutes in such case made and provided.
To this extent, under the Constitution and law of the Common-
wealth the Governor and Council have authority to investigate the
expenditures of any department, and to familiarize themselves as
much as they see fit with any of the expenditures of the Common-
wealth.
I am, therefore, forced to the conclusion that, in the investi-
gation of the estimates submitted to the Governor and Council,
under the provisions of St. 1910, c. 220, the Governor and
Council are not authorized to audit the books or accounts of any
officer or board whose estimates are before them for considera-
tion, or to prescribe any method of accounting to be followed
by such officer or board, and that such information as may be
required with respect to matters of finance, in addition to that
supplied by the estimates themselves, is to be furnished by the
Auditor in such form as the Governor may require.
Very truly yours,
James M. Swift, Attorney-General.
ATTORNEY-GENERAL'S REPORT. [Jan.
Civil Service Commission — City of Boston — Appointment to
Office — Investigation — Public Records.
In the performance of the duties required by St. 1909, c. 486, § 10, that
the Civil Service Commission shall make a careful inquiry into the
qualifications of a nominee for office in the city of Boston, under
such rules as they may, with the consent of the Governor and Council,
establish, such commission act in a special and limited capacity under
the authority of that section alone, and they are not controlled by
the general provisions relating to civil service, in E. L., c. 19, and
in the rules formulated thereunder.
Letters and other memoranda received by the Civil Service Commission
in the course of the investigation provided for in St. 1909, c. 486,
§ 10, are not received, and are not required to be received, for filing
within the meaning of E. L., c. 35, § 5, providing that the words
" public records " shall mean " any written or printed book or paper,
any map or plan of the commonwealth or of any county, city or
town which is the property thereof and in or on which any entry
has been made or is required to be made by law, or which any officer
or employee of the commonwealth or of a county, city or town has
received or is required to receive for filing; " and they are not,
therefore, public records as therein defined.
A member of the Legislature has no greater right to inspect letters or
papers which are in the possession of the commission but are not
public records, than has any other member of the public.
Jan. 28, 1911.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir : — By the provisions of section 10 of chapter 486 of
the Statutes of 1909, "An act relating to the administration
of the city of Boston and to amend the charter of the said city/5
certain duties with respect to the appointment of heads of depart-
ments and members of municipal boards in the city of Boston
were vested in the Civil Service Commission upon the receipt
of a certified copy of a certificate of appointment from the mayor
in the form provided in such section : —
The commission shall immediately make a careful inquiry into
the qualifications of the nominee under such rules as they may,
with the consent of the governor and council, establish, and, if they
conclude that he is a competent person with the requisite qualifica-
tions, they shall file with the city clerk a certificate signed by at
least a majority of the commission that they have made a careful
inquiry into the qualifications of the appointee, and that in their
opinion he is a recognized expert, or that he is qualified by educa-
tion, training or experience for said office, as the case may be, and
1912.] PUBLIC DOCUMENT — No. 12. 9
that they approve the appointment. ... If the commission does not
within thirty days after the receipt of such notice file said certifi-
cate with the city clerk the appointment shall be void.
In the performance of these duties the Civil Service Commis-
sion have formulated certain regulations which, so far as mate-
rial, are : —
2. Upon receipt of the said copy of certificate of appointment
the Civil Service Commission shall make such inquiry concerning
the training, experience, character and qualifications of the ap-
pointee as it judges necessary.
3. Upon request from the Civil Service Commission^ the mayor
shall furnish to it such information as it may call for relating to
the age, residence, experience, training, character and qualifications
of the appointee ; and he shall forward to it any and all correspond-
ence, papers, petitions, recommendations and protests in his pos-
session relating to the appointee, all of which shall be returned to
the mayor within thirty days after receipt from the city clerk of
said copy of certificate of appointment.
The city council and city clerk of Boston, and all commissioners
and commissions appointed by the Governor, shall, upon request
from the Civil Service Commission, furnish to it such information
as it may call for relating to the age, residence, experience, train-
ing, character and qualifications of the appointee.
In connection with the careful inquiry which is required by
the statute the commission have invited communications, both
oral and in writing, with reference to persons appointed under
the provisions of St. 1909, c. 486, § 9, and, as you state in your
letter, " have, in fact, used many sources of information — data
furnished in writing by the mayor or by the appointee ; personal
conferences at the State House by the commission with the ap-
pointee and with other citizens; personal investigation by the
individual commissioners; testimony of sworn witnesses taken
at the State House by the commission; official city and State
reports and other documents; reports and notes made by agents
and inspectors employed by the commission; letters written to
the commission voluntarily by various citizens; letters written
by citizens in response to letters of inquiry sent, out by the
commission; letters written by citizens presumably in response
to a general invitation to the public made by the commission
in a notice issued to the press April 6, 1910." The notice to
which you refer was as follows : —
10 ATTORNEY-GENERAL'S REPORT. [Jan.
April 6, 1910.
In order that the Civil Service Commission may fulfill in the most
complete manner possible the duty imposed upon it by chapter 486
of the Acts of 1909 in making " the careful inquiry " therein
required into the qualifications of nominees for the positions of
heads of departments, and in order that no injustice may be done
to any nominee, or to the mayor of the citj^ of Boston, or to the
public, by reason of the failure on the part of the commission to
receive the fullest information, the commission hereby issues this
formal notice that information as to the qualifications of a nominee
presented to the commission at its office in the State House by any
one, in person, or in writing over his signature, will be considered
in the investigation which the commission will undertake under the
rules framed by it and approved by the Governor and Council.
You further advise me that a request in writing has been
made by a member of the present Legislature, in the form fol-
lowing : —
So that your Board may have a definite request before you in
writing, I respectfully submit the following : —
As a member of the Legislature of 1911, and for the purpose of
obtaining accurate information relating to a matter of legislation
before said body, I desire to examine at your office at the State
House, in the presence of the secretary of the Board, all the letters,
petitions, communications, recommendations for and against the
certification of Morris L. Morrison as a member of the board of
assessors, and Joseph P. Lomasney as a member of the board of
health of the city of Boston.
A further request was thereafter made by the said member
that the matter be referred to the Attorney-General, and in
accordance therewith the Civil Service Commission submitted
for the decision of the Attorney- General the following specific
questions : —
(1) Are such letters and papers, described as above, "records of
their proceedings " or " recommendations of applicants received by
them or by any officer authorized to make appointments, or to
employ laborers or others within the scope of such rules," within
the meaning of R. L., c. 19, § 5, and such as are under that statute
required " to be preserved " and " to be open to public inspection ? n
(2) Are such letters and papers "public records," within the
definition prescribed in R. L., e. 35?
1912.] PUBLIC DOCUMENT — No. 12. 11
(3) Are the commissioners under obligation by law to allow an
individual member of the Legislature to inspect such letters and
papers % "
On January 20, in accordance with a request of the said
member, a hearing was given by me, at which the Civil Service
Commission was represented by its secretary, and the said mem-
ber was fully heard upon all the questions raised by his original
communication to the Civil Service Commission and by the
inquiries of the commission as above quoted. To his statements
and arguments I have given most careful consideration. Upon
so much thereof as was addressed to the propriety of permitting
an examination of letters or documents in the nature of evi-
dence for or against persons appointed to office under the pro-
visions of St. 1909, c. 486, § 9, which may be in the possession
of the Civil Service Commission, as a matter of policy or fair-
ness I cannot assume to pass except in so far as such considera-
tions are involved in the construction of the statutes which are
applicable in the premises.
Eeplying specifically to the questions of the Civil Service
Commission, therefore, my opinion is as follows : —
(1) E. L., c. 19, § 5, provides that the commission —
shall keep records of their proceedings and of examinations made
by them or under their authority. Recommendations of applicants
received by them or by any officer authorized to make appointments
or to employ laborers or others, within the scope of such rules, shall
be preserved. Such records and recommendations shall, under reg-
ulations approved by the governor and council, be open to public
inspection.
This provision of law is found in the general statute which
provides for the " selection of persons to fill appointive posi-
tions in the government of the commonwealth and of the several
cities thereof and the selection of persons to be employed as
laborers or otherwise in the service of the commonwealth and
said several cities" (section 6), under rules prepared by the
commission and approved by the Governor and Council, which
include —
The classification of the positions and employments to be filled.
Open competitive and other examinations to test the practical
fitness of applicants.
The filling of vacancies in and the selection of persons for public
12 ATTORNEY-GENERAL'S REPORT. [Jan.
positions and employments in accordance with the results of such
examinations, or in the order of application, or otherwise.
Promotions, if practicable, on the basis of ascertained merit in
the examination and seniority of service.
A period of probation before an appointment or employment is
made permanent.
Preference to veterans in appointment and promotion.
It is clear that in the performance of the duties required by
the provisions of St. 1909, c. 486, § 10, hereinbefore quoted,
the commission act in a special and limited capacity, under the
authority of that section alone. They are not to be con-
trolled by the general provisions relating to civil service, which
are to be found in R. L., c. 19, and in the rules formulated
thereunder. (See section 9.) The provisions of R. L., c. 19,
§ 5, therefore, have no application to the proceedings of the
commission under St. 1909, c. 486, § 10.
(2) R. L., c. 35, § 5, denned the words "public records"
as follows : —
In construing the provisions of this chapter and other statutes,
the words " public records " shall, unless a contrary intention clearly
appears, mean any written or printed book or paper, any map
or plan of the commonwealth or of any county, city or town which
is the property thereof and in or on which any entry has been made
or is required to be made by law, or which any officer or employee
of the commonwealth or of a county, city or town has received or is
required to receive for filing, and any book, paper, record or copy
mentioned in the six following sections. The word "record" shall,
in this chapter, mean any written or printed book, paper, map or
plan.
Speaking of this section, in an opinion dated Sept. 22, 1902
(II. Op. Atty. Gen. 381), the Attorney- General stated that —
This legislative definition cannot be held to include within its
intention every paper which an officer of the Commonwealth receives
and files. It must be limited to such as he is required by law to so
receive for filing. Any other construction must be prejudicial to
the rights and interests of the Commonwealth or its officers, and.
indeed, of parties or persons making communications with such
officers.
And see Attorney- General's Report, 1907, p. 60. This sec-
tion has been construed and this view has been confirmed in the
case of Bound v. Police Commissioner, 197 Mass. 218, where,
at page 220, the court say : —
1912.] PUBLIC DOCUMENT — No. 12. 13
The petitioner contends that such a paper, returned to the
Licensing Board, is a public record under the R. L., c. 35, § 5,
because it is a paper which an officer of the city has received or
is required to receive for filing*. An examination of this section
shows that it relates to books, papers and maps which are intended
for the use of the public. We are of opinion that the returns by
pawnbrokers are not papers received for filing. There are statutes
which require that certain papers be filed in the office of the city
or town clerk, or in some registry, for inspection by all persons
interested. Such papers are " received for filing " within the mean-
ing of the statute; but the statute as to returns by pawnbrokers
makes no provision for filing. The licensing boards may preserve
them in such a way as they choose.
While the facts in the two cases are not identical, I am
bound to follow the construction therein declared. To make
any letter, paper or document in the possession of the Civil
Service Commission a " public document " within the meaning
of E. L., c. 35, § 5, therefore, the commission must have re-
ceived or must be required to receive such letter, paper or docu-
ment for filing under the terms of some particular statute. No
such requirement is to be found in St. 1909, c. 486, § 10. The
commission are broadly authorized to " make a careful inquiry
into the qualifications of the nominee under such rules as they
may, with the consent of the governor and council, establish,"
and, if their conclusion is favorable to such nominee, they are
required to file with the city clerk a certificate to that effect.
This inquiry is to be governed only by their discretion and by
such rules as, with the consent of the Governor and Council,
they may adopt for their own guidance.
The rules so far adopted, which I have already quoted, do
not in my opinion require the filing of any letter, paper or docu-
ment by the commission. They do, in Eule 3, require the mayor
to forward to the commission " any and all correspondence, pa-
pers, petitions, recommendations and protests in his possession
relating to the appointee," and they provide for the return of
the same, after the commission have reached a decision, but
this provision has no bearing upon like documents addressed
to and received by the commission in the course of their in-
quiry, and, so far as it is material at all, suggests an intent
that such matters should not be retained and filed by the com-
mission.
I am therefore constrained to conclude that the letters and
other memoranda to which your inquiry is directed are not
14 ATTORNEY-GENERAL'S REPORT. [Jan.
received for filing, and are not required to be filed, by any
law which has been called to my attention. They are received
by the commission in connection with the specific duties re-
quired by the provisions of St. 1909, c. 486, § 10, for the pur-
pose of aiding the commission in the performance of those
duties. The commission are not required to receive or to retain
and preserve them; and they are retained and preserved, if
at all, only for the information or convenience of the commis-
sion. Since they are not received and are not required to be
received for filing, within the meaning of R. L., c. 35, § o,
they are not public records as defined in that section.
(3) A member of the Legislature, as such, has no greater
right to inspect letters or papers which are in the custody of
the commission, but are not public records, than has any other
member of the public, and his individual rights are to be meas-
ured by those of the public generally.
Very truly yours,
James M. Swift, Attorney-General.
Volunteer Militia — Armory Commission — Construction of
Armories.
The duty of the armory commission, under the provision of St. 1908,
c. 604, § 133, as amended by St. 1909, c. 323, § 1, that " if in their
judgment the needs of the service demand it, subject to the approval
of the commander-in-chief, . . . shall construct armories, not ex-
ceeding three yearly, until the volunteer militia shall be provided
with adequate quarters," is to construct armories until the volunteer
militia are provided with adequate quarters, subject to the limita-
tion that there shall not be under construction in any one year more
than three such armories.
Brig. Gen. Gardner W. Pearson, Adjutant General.
Dear Sir: — Relative to the construction of St. 1908, c. 604,
§ 133, as amended by St. 1909, c. 323, § 1, which, so far as
material, is as follows : —
The armory commissioners shall rebuild, remodel or repair armo-
ries of the first class which have been injured or destroyed by fire,
and may reconstruct, remodel, enlarge or otherwise improve existing
state armories, if in their judgment the needs of the service demand
it, subject to the approval of the commander-in-chief, and, in addi-
tion, shall construct armories, not exceeding three yearly, until the
volunteer militia shall be provided with adequate quarters.
1912.] PUBLIC DOCUMENT — No. 12. 15
you submit the following questions for my opinion : —
1. Must the armory commission build any armories?
2. Must they build from one to three?
3. Must they build three each year?
Assuming that to the first and second questions should be
added the word " yearly/'' I understand your inquiry is in sub-
stance to require my opinion upon the duties of the commis-
sioners with respect to the construction of armories in any given
year.
The duty of the commission seems to be plain. They are
to " construct armories . . . until the volunteer militia shall
be provided with adequate quarters." The provision that they
shall not construct more than three of such armories yearly is
a limitation upon this duty. Except for this limitation the
matter is in the discretion of the commission, and if they in good
faith construct armories as rapidly as possible for the accom-
modation of the volunteer militia they are not required in any
one year to begin the construction of either one, two or three
new armories. I am of the opinion that the limitation above
referred to means that the commission shall not have under
construction in any one year more than three such armories.
Very truly yours,
James M. Swift, Attorney-General.
License — Keeper of Hospital for Care of Insane and Feeble-
minded— Suitable Person — Resident or Consulting Phy-
sician.
Under the provisions of St. 1909, c. 504, § 24, that " the governor and
council may, upon the recommendation of the state board of insanity,
license any suitable person to establish and keep a hospital or private
house for the care and treatment of the insane, epileptic, feeble-
minded, and persons addicted to the intemperate use of narcotics
and stimulants," a physician who is employed by the owner or
owners of such hospital or private house as resident physician in
charge, or who is on the staff of consulting physicians connected
therewith, is not a suitable person to receive such license.
Feb. 8, 1911.
Owex Copp, M.D., Executive Secretary, State Board of Insanity.
Dear Sir : — You have requested my opinion in regard to the
provisions of section 24 of chapter 504 of the Acts of the year
1909, which is as follows : — ■
16 ATTORNEY-GENERAL'S REPORT. [Jan.
The governor and council may, upon the recommendation of the
state board of insanity, license any suitable person to establish and
keep a hospital or private house for the care and treatment of the
insane, epileptic, feeble-minded, and persons addicted to the intem-
perate use of narcotics or stimulants, and may at any time revoke
such license. No such recommendation shall be made unless the
said board is satisfied that the person applying* therefor is a duly
qualified physician, as provided in section thirty-two, and has had
practical experience in the care and treatment of such patients.
Any person owning or maintaining such a hospital or private house
on the date 'of the passage of this act shall be entitled to maintain
the same under the provisions of law in force at that time, except
that every such hospital or house shall be subject to the visitation
and supervision of the state board of insanity.
Your specific inquiries are as follows : —
1. Is a physician, who is employed by the owner or owners as
resident physician in charge, on a sala^ or for a share in the
profits, a proper person to be granted a license under this section?
2. Is a physician, who is not in charge of or residing in such a
hospital or private house and who has no pecuniary interest in the
business, but who is on the staff of consulting physicians, a proper
person to be granted a license under this section?
In my opinion it is contemplated by the statute that a license
" to establish and keep a hospital or private house for the care
and treatment of the insane, epileptic, feeble-minded, and per-
sons addicted to the intemperate use of narcotics or stimulants,"
shall be granted only to a person who is to be the responsible
head of such hospital or private house, that is, "to one who
exercises control or proprietorship " of it. Cf. Commonwealth
v. Kimball, 105 Mass. 465, 467. On this view of the law it is
obvious that the answer to your second inquiry must be in the
negative. Your first inquiry raises a more difficult question,
but in my judgment it must be answered in the same way. The
" physician who is employed by the owner or owners as resident
physician in charge " is not the responsible head of the hospital
or private house in such a sense as to entitle him to be licensed.
Very truly yours,
James M. Swift, Attorney-General.
1912.] PUBLIC DOCUMENT — No. 12. 17
County Treasurer — Salaries of Chris of the Court, County
Commissioners and County Treasurer — Increased Popu-
lation — Readjustment.
Further legislative authority is required before a county treasurer may
lawfully pay increased salaries to the clerks of the courts, the
county commissioners and the county treasurer upon the basis of
increased population as determined by St. 1904, c. 451, § 1.
March 3, 1911.
Frank L. Dean, Esq., Controller of County Accounts.
Dear Sir : — By your letter of February 2 you request my
opinion upon the construction to be given to St. 1904, c. 451,
" An Act relative to the salaries of clerks of the courts, county
commissioners and county treasurers," in which it is provided,
in section 1, that —
The counties of the commonwealth, for the purpose of establish-
ing the salaries of clerks of the courts, county commissioners and
county treasurers, are hereby divided into nine classes, according to
the following table; and the annual salaries of the clerk of the
courts, county commissioners and county treasurer, in full for all
services performed by them, for each county in a class, shall be as
therein specified, payable by the said county in monthly instalments.
Then follow nine classes, A, B, C, D, E, F, G, H and I, of
which classes A and D may be taken as examples.
Class A. Counties having a population of less than fifteen thou-
sand, to wit, the counties of Nantucket and Dukes County; sala-
ries : — Clerk of the courts, six hundred dollars ; commissioners
(Nantucket, none), four hundred dollars; treasurer (Nantucket,
none), three hundred dollars.
Class D. Counties having a population of from sixty thousand
to ninety thousand, to wit, none ; salaries : — Clerk of the courts,
twenty-four hundred dollars; commissioners, twenty-two hundred
dollars; treasurer, eleven hundred dollars.
The precise question upon which you desire to be advised is
whether or not the county treasurer, upon being satisfied by
official information of the result of the latest census, is author-
ized to pay to the clerks of the courts, the county commissioners
and to himself as county treasurer, salaries under the next
higher class in any case where the census shows that a county
18 ATTORNEY-GENERAL'S REPORT. [Jan.
has gained sufficiently in population to be taken from the class
below and placed therein.
The act to which you refer forms one of five statutes passed
in 1904; the other four being chapter 452, " An Act to establish
the salaries of registers of deeds and assistant registers of
deeds ; " chapter 453, " An Act to establish the salaries of the
justices, clerks and assistant clerks of certain police, district
and municipal courts ; " chapter 454, " An Act to establish the
salaries of the chief justice, associate justices, clerks and as-
sistant clerks of the municipal court of the city of Boston ; "
and chapter 455, " An Act to establish the salaries of the judges,
registers and assistant registers of probate." Chapter 452, rela-
tive to the salaries of registers of deeds and assistant registers
of deeds, provides, in section 1, that " registers of deeds shall
receive annual salaries based upon the following scale," and
establishes three classes, A, B, and C. In section 2 it was pro-
vided that —
The salaries of registers of deeds and assistant registers of deeds
hereinbefore specified shall be readjusted in January, nineteen hun-
dred and six, and every five years thereafter, upon the basis of the
average yearly receipts of the respective registries for the five pre-
ceding years, in accordance with the classification set forth in sec-
tion one.
Chapter 455 was substantially similar in form, providing, in
section 1, that —
Judges, registers and assistant registers of probate shall receive
from the treasury of the commonwealth annual salaries based upon
the following scale. If the amount in any case comprised in the
first two classes exceeds an even hundred number of dollars by a
sum less than fifty dollars, the excess shall be deducted; and if the
excess is fifty dollars or more a sum shall be added sufficient to
make the excess an even hundred dollars. . . .
Section 2 provides : —
Salaries of judges, registers, and assistant registers of probate
shall be readjusted in the year succeeding each national or state
census, in accordance with the classification set forth in section one.
Both of these statutes contain express provision for readjustment
at regular periods upon the basis of population or receipts of
monev.
1912.] PUBLIC DOCUMENT — No. 12. 19
Chapters 451 and 453, which establish classes according to
population, contain no such provision for readjustment, and
do not refer to the State or national census, or to any other
official determination of the population upon which the divi-
sions are to be based. They both purport to establish salaries,
and not to establish divisions by which the salaries are to be
determined from time to time.
Chapter 451 has been several times amended. St. 1905,
c. 179; St. 1906, cc. 276, 290; St. 1907, c. 253; St. 1910, c. 537;
and see St. 1907, c. 145, § 2; St. 1909, c. 232. But none of these
amendments is of much assistance in determining the question
now under consideration. In the case of chapter 453, however,
a statute which in form is substantially like chapter 451, the
amendments are more instructive. Thus, in St. 1905, c. 165,
it is provided that —
The police court of Lowell, being a court the judicial district of
which has, and has had since the twenty-fifth day of April in the
year nineteen hundred and four, a population of more than one
hundred thousand, shall be included in class B as denned in section
one of chapter four hundred and fifty-three of the acts of the year
nineteen hundred and four, entitled " An Act to establish the sala-
ries of the justices, clerks and assistant clerks of certain police,
district and municipal courts"; and the salaries of the justice, spe-
cial justices, clerk and assistant clerk of the police court of Lowell
shall be those which are established by said chapter for the courts
included in the said class B, to be so allowed from the first day of
July in the year nineteen hundred and four.
And in St. 1908, c. 323, which, in like terms, transferred the
police court of Lawrence from Class D, where it was placed
by chapter 453, to Class C, such transfer was made by reason
of an increased population which entitled it to be so trans-
ferred. See also St. 1906, c. 325. Of more significance than
either of these, however, is St. 1905, c. 339, which provided for
a specific readjustment after the taking of the decennial census
of the year 1905, to be " effected in each case by the county
treasurer of the county concerned, in accordance with the pro-
visions of said chapter [St. 1904, c. 453] ; and, beginning with
the first day of January in the year nineteen hundred and six,
the said salaries shall be paid according to the said readjust-
ment." And finally, in St. 1910, c. 501, it was provided, in
section 1, that —
20 ATTORNEY-GENERAL'S REPORT. [Jan.
The salaries of the justices, clerks and assistant clerks of the dis-
trict, police and municipal courts, other than the municipal court
of the city of Boston, and the classes into which said courts are
distributed, when the population of the judicial district of each of
said courts as ascertained by the last preceding national or state
census permits it, shall be so readjusted, by the officer paying the
salary, as to correspond with the classes and salaries provided for
by chapter four hundred and fifty-three of the acts of the year
nineteen hundred and four, and acts in amendment thereof and in
addition thereto. Payment of salaries so readjusted shall begin on
the first day of July of the year in which said census is taken.
The obvious purpose of this statute was to establish a method
by which the salaries of the officers included within the provi-
sions of St. 1904, c. 453, might be readjusted in accordance
with the schedules of salaries contained in that chapter without
further recourse to the Legislature, and furnishes the strongest
evidence that without such additional provision the Legislature
did not deem that the statute as originally enacted authorized
such readjustment. Since St. 1904, c. 451, is in form sub-
stantially similar to chapter 453, I can see no reason why the
construction given to the latter chapter should not apply to
the former, and I must, therefore, advise you that in my opinion
further legislative authority is required before the county treas-
urer may lawfully pay increased salaries to the clerks of the
courts, the county commissioners and the county treasurer upon
the basis of an increased population of the county concerned.
Very truly yours,
James M. Swift, Attorney-General.
State Board of Health — Sources of Water Supply — Regula-
tion— Artificial Reservoirs — Boating and Fishing.
E. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part
that the State Board of Health "may make rules and regulations
to prevent the pollution and to secure the sanitary protection of all
such waters as are used as sources of water supply," and "may
delegate the granting and withholding of any permit required by such
rules or regulations to state boards and commissions and to select-
men in towns and to boards of health, water boards and water com-
missioners in cities and towns, to be exercised by such selectmen,
boards and commissions . . . ; and upon complaint of any person
interested said board shall investigate the granting or withholding
of any such permit and make such orders relative thereto as it
1912.] PUBLIC DOCUMENT — No. 12. 21
may deem necessary for the protection of the public health," does
not authorize the State Board of Health, upon petition of certain
inhabitants of a town requesting such Board to cause suitable rules
and regulations to permit fishing in certain reservoirs artificially
constructed and now owned and used as a source of water supply by
such town, to require the water and sewer board thereof to issue
permits for fishing, since the regulation of boating or fishing or of
any use of such reservoirs which does not directly relate to the
preservation of the purity thereof is for such town to establish.
March 7, 1911.
Hexry P. Walcott, M.D., Chairman, State Board of Health.
Dear Sir : — By a communication dated February 25 you
seek my opinion upon certain questions respecting the rights
of the State Board of Health in the matter of a petition which
has been entered by certain inhabitants of the town of Winches-
ter, requesting that the Board cause suitable rules and regula-
tions to permit fishing in certain reservoirs owned and used as
a source of water supply by the town of Winchester. The facts
as presented by the communication of the Board and the papers
annexed thereto, so far as material, appear to be substantially
as follows —
Under the provisions of St. 1872, c. 265, and St. 1873, c. 277,
the town of Winchester was authorized to construct, own and
maintain reservoirs in the territory lying along the easterly
side of the town within its limits and in the adjoining towns
of Medford and Stoneham, and subsequently did construct, and
now owns and maintains, three reservoirs on small streams
which are the headwaters of certain tributaries of the Aberjona
Eiver or Mystic Lake. One of these reservoirs, known as the
North Eeservoir, is situated partly in Stoneham and partly in
Winchester; another, the South Eeservoir, is wholly within the
limits of the city of Medford, and the Middle Eeservoir is situ-
ated chiefly in Stoneham but partly also in Winchester and
Medford. A large part of the area which constitutes the water-
shed of these reservoirs is the property of the town of Winches-
ter and the remaining portion of these watersheds is within
the limits of the metropolitan parks reservation. I am advised,
and, therefore, assume, that the town of Winchester owns in
fee the beds of the several reservoirs and the land surrounding
them, and that none of the three is a great pond or charged
with any of the public rights to which, in the absence of re-
strictive legislation, great ponds are subject.
On April 1, 1909, acting upon the petition of the water and
22 ATTORNEY-GENERAL'S REPORT. [Jan.
sewer board of the town of Winchester, the State Board of
Health adopted certain rules and regulations for the purpose
of preventing the pollution and securing the sanitary protection
of the three reservoirs above mentioned. These rules were
adopted under authority of R. L., c. 113, § 75, and, among other
things, provided : —
13. No person shall bathe in, and no person shall, unless per-
mitted by a written permit of the water and sewer board of the
town of Winchester, fish in, or send, drive or put any animal into,
North Reservoir, so called, in the towns of Stoneham and Winches-
ter, Middle Reservoir, so called, in the towns of Stoneham and
Winchester and the city of Medford, or South Reservoir, so called,
in the city of Medford, said reservoirs being used by the town of
Winchester as sources of water supply. No person other than a
member, officer, agent or employee of said water and sewer board,
or public officer whose duties may so require, shall, unless so per-
mitted by a written permit of said board, enter or go, in any boat,
skiff, raft or other contrivance, on or upon the water of either of
said reservoirs, nor shall enter or go upon, or drive any animal
upon, the ice of either of said reservoirs.
The granting and withholding of permits required by rules 13
and 14 is hereby delegated by the State Board of Health to the
water and sewer board of the town of Winchester.
The petition filed with the State Board of Health recites that
" at divers times since the adoption of the aforesaid Rules and
Regulations by said State Board of Health, they (the peti-
tioners) have made application to the water and sewer board
of the town of Winchester for permits to fish in said reservoirs,
but that said Board has always refused to grant the same/'
and that a petition presented to said Board by the same peti-
tioners, requesting that permission to fish might be issued under
rules and regulations which should be sufficient to preserve the
purity of the water, was refused by the Winchester Water and
Sewer Board. The petition then prays that the State Board
" cause to be prepared forthwith suitable rules and regulations
under which fishing in said reservoirs may be carried on, and
that said Winchester water and sewer board, or such other
board or boards, individual or individuals, as may in the judg-
ment of this Board be deemed expedient, be directed to grant
such permits in accordance with such rules and regulations."
The jurisdiction of the State Board of Health in the premises
1912.] PUBLIC DOCUMENT — No. 12. 23
is founded upon the provisions of E. L., c. 75, § 113, which, as
amended by St. 1907, c. 467, § 1, provides as follows: — ■
Said board may cause examinations of such waters to be made to
ascertain their purity and fitness for domestic use or their liability
to impair the interests of the public or of persons lawfully using
them or to imperil the public health. It may make rules and regu-
lations to prevent the pollution and to secure the sanitary protec-
tion, of all such waters as are used as sources of water supply.
Said board may delegate the granting and withholding of any per-
mit required by such rules or regulations to state boards and com-
missions and to selectmen in towns and to boards of health, water
boards and water commissioners in cities and towns, to be exercised
by such selectmen, boards and commissions, subject to such rec-
ommendation and direction as shall be given from time to time by
the state board of health; and upon complaint of any person inter-
ested said board shall investigate the granting or withholding of
any such permit and make such orders relative thereto as it may
deem necessary for the protection of the public health.
While the duty of the State Board of Health under this and
the preceding section (section 112), which vests in said Board
the general oversight and care of all inland waters and of all
streams and ponds used by any city, town or public institution
or by any water or ice company in this Commonwealth as sources
of water supply, is primarily to prevent pollution and to secure
the sanitary protection of waters which are used as sources of
water supply, it has, by reason of the amendment contained
in St. 1907, c. 467, not only the right to delegate power to
grant or withhold permits to boat, fish or cut ice upon sources
of water supply, but also the duty, upon complaint, to investi-
gate the granting or withholding of such permits, which par-
takes of the nature of an appellate jurisdiction; and, in the case
of a great pond, a petition like the present would probably
require some action upon the part of the Board in the nature
of a review of the proceedings of the State or local authorities
to whom had been delegated the granting and withholding of
any permits required by the rules and regulations of the Board,
and a consideration of their action with respect to the with-
holding or granting of any particular permit or permits con-
cerning which complaint was made by the petitioner.
In the present case, however, upon the assumption already
made, the town of Winchester, in its corporate capacity, owns
the shores, the bed and the waters of all three reservoirs; and,
24 ATTORNEY-GENERAL'S REPORT. [Jan.
while the State Board of Health may restrict their use because
they are sources of water supply, it can have no right, without
the consent of the town, or of the authorized agents of the town,
in the premises, who may be assumed to be the Water and Sewer
Board of Winchester, to require any use thereof which is not
necessary for the purpose of protecting them as such sources
of water supply. In the case of a great pond a rule which
permits fishing or boating either continues an existing public
right or revives one which for a time has been prohibited, but
here the Board is not dealing with a great pond, but with an
artificial reservoir in which the public have no rights, and
which, apart from such regulations as may be necessary to pro-
tect its purity as a source of water supply, is subject to such
use for fishing or boating as the town of Winchester, or its
agents, may see fit to make of it, subject to the general laws
which govern the preservation and the taking of fish.
I am, therefore, of opinion that the State Board of Health
has no authority to require the water and sewer board of
Winchester to issue permits for fishing, and that the regulation
of boating or fishing, or of any use of the reservoirs in question
which is not directly required to preserve the purity thereof, is
for the town of Winchester to establish or determine.
Very truly yours,
James M. Swift, Attorney-General.
Civil Service — City of Boston — Veterinary Inspector, Vet-
erinary Medical Inspector and Veterinarian.
The positions of " veterinary inspector," " veterinary medical inspector "
and " veterinarian " are within the classification established by civil
service rule 7, class 11, which includes " inspectors other than in-
spectors of work, and persons doing similar work, excepting railroad
inspectors, in the service of the Commonwealth or of any city
thereof," and are therefore subject to the civil service law and rules.
March 11, 1911.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir: — In behalf of the Civil Service Commission you
request my opinion as to whether the positions in the health
department of the city of Boston, termed, respectively, " vet-
erinary inspector/' " veterinary medical inspector " and " vet-
erinarian," are classified under the civil service law and rules.
1912.] PUBLIC DOCUMENT — No. 12. 25
You state that the duties of the persons holding such posi-
tions are as follows : —
The duties of the person acting as " veterinary inspector " are
the general inspection of dressed meat and of animals intended for
slaughter at the abattoir. The duties of the " veterinary medical
inspector n and of the two " veterinarians/' whom the board of
health is about to appoint, are stated by the board of health as
follows: the duties are to examine for diseases in animals and to
report to the board of health for its action; to investigate the
sources of outbreaks of diseases and their communication from
animal to animal, and from animal to man; and to examine and
report upon diseases of animals in life and pathological conditions
at the autopsy and on the meat market; and the board of health
states that the successful performance of the work requires the
special qualification of professional training.
The facts stated do not bring the positions within any of
the general statutory exceptions from the application of the
civil service law (R. L., c. 19, § 9), nor am I aware of any
statute which specifically excepts these positions therefrom.
The question is, therefore, whether they are classified under
the civil service rules.
Civil service rule 7, which provides for the classification of
the official service, includes as class 11, — ■
Inspectors other than inspectors of work, and persons doing sim-
ilar work, excepting railroad inspectors, in the service of the com-
monwealth or of any city thereof.
In my opinion the positions in question are classified within
this rule. The word " inspector " has a broad meaning. It
is defined in the Century Dictionary as follows : —
One who inspects or oversees; one whose duty it is to secure by
supervision the proper performance of work of any kind, or to
ascertain by examination the quality or condition of the work, or of
any article offered for sale or transfer; a public officer charged
with such duties; as, the inspectors of election or of police; an
inspector of weights and measures.
The form of the rule itself indicates that the word "in-
spector " is not limited in its meaning to an inspector of work.
Inspectors of work are classified with foremen of laborers, in
class 22. Class 11 includes all other inspectors. Without at-
26 ATTORNEY-GENERAL'S REPORT. [Jan.
tempting to define precisely the meaning of the word " in-
spector/5 I advise yon that in my opinion it is broad enough
to include the positions of veterinary inspector, veterinary medi-
cal inspector and veterinarian, as such positions are described
by you. In my judgment the fact that "the successful per-
formance of the work requires the special qualification of
professional training " does not except the positions from the
application of the civil service law and rules.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Amendment to Constitution — Submis-
sion to People.
"Where a proposed amendment to the Constitution was duly agreed to by
a majority of the Senate and two-thirds of the members of the House
of Eepresentatives in two successive years, as provided in Article
IX. of the Amendments of the Constitution of the Commonwealth
but no further action was taken with respect thereto, it may be
submitted to the people as required by said article by a resolve
passed in the usual manner by a subsequent Legislature.
Russell D. Crane, Esq., House Chairman, Committee on Consti-
tutional Amendments.
Dear Sir : — You have submitted to me a proposed resolve
(House, No. 795) providing for submitting to the people the
article of amendment to the Constitution authorizing the use
of voting machines at all elections. This article provides
that, —
Voting machines or other mechanical devices for voting may be
used at all elections under such regulations as may be prescribed
by law: provided, however, that the right of secret voting shall be
preserved.
The proposed amendment was duly agreed to by a majority
of the senators and two-thirds of the members of the House of
Representatives present and voting thereon during the legisla-
tive session of 1909, and was referred to the General Court next
to be chosen, which in 1910 agreed thereto, as required by
Article IX. of the Amendments to the Constitution of the
1912.] PUBLIC DOCUMENT — No. 12. 27
Commonwealth. No further action was taken by the Legis-
lature of that year, and your present communication requires
my opinion upon the question whether or not the present Gen-
eral Court may submit such proposed amendment to the people,
as provided in the article of the amendment above cited.
Article IX. is in full as follows : —
If, at any time hereafter, any specific and particular amendment
or amendments to the constitution be proposed in the general court,
and agreed to by a majority of the senators and two-thirds of the
members of the house of representatives present and voting thereon,
such proposed amendment or amendments shall be entered on the
journals of the two houses, with the yeas and nays taken thereon,
and referred to the general court then next to be chosen, and shall
be published: and if, in the general court next chosen as aforesaid,
such proposed amendment or amendments shall be agreed to by a
majority of the senators and two-thirds of the members of the
house of representatives present and voting thereon, then it shall
be the duty of the general court to submit such proposed amend-
ment or amendments to the people; and if they shall be approved
and ratified by a majority of the qualified voters, voting thereon
at meeting's legally warned and holden for that purpose, they shall
become part of the constitution of this commonwealth.
The article contains no specific direction as to the precise
time when a proposed amendment shall be submitted to the
people, and does not expressly limit the authority of the Legis-
lature in this respect to the General Court which agrees to
a proposed amendment already passed upon by the General
Court of the previous year, and if such limitation exists it
exists only by necessary implication. I am aware of no decision
of the court upon the point raised by your inquiry, and the
question seems to be one of novel impression. In the absence
of judicial authority in the premises I am inclined to the opinion
that no sufficient reason is apparent for limiting the power of
the General Court to submit to the people a proposed amend-
ment of the Constitution to the particular Legislature by which
such proposed amendment was agreed to; and if no action with
respect to submission was taken by such Legislature, an amend-
ment so adopted may be submitted to the people for their action
by a subsequent Legislature, in the form of a resolve passed
in the usual manner.
Very truly yours,
James M. Swift, Attorney-General.
28 ATTORNEY-GENERAL'S REPORT. [Jan.
Co-operative Bank — Unincorporated Association — Way or
Manner of transacting Business — Savings Bank.
An unincorporated association formed for the purpose of accumulating
a fund for the purchase of real estate and for building thereon, for
making loans and for accumulating a fund to be returned to the
stockholders, the property of which is vested in trustees and the
shares of which mature when they reach the value of $500, with
provision for assignment or withdrawal, and which does not offer
to its members — who are persons having one or more shares of
stock who have signed the articles of association — the money so
accumulated according to the premium or rate of interest paid by
them for priority, but invests such money as the funds of a savings
bank are invested, does not transact "the business of accumulating
the savings of its members and loaning to them such accumulation in
the manner of a co-operative bank " in violation of the prohibition
of R. L., c. 114, § 1.
Qucere, whether the way or manner in which such association transacts
its business might not lead the public to believe that such business
was that of a savings bank.
March 28, 1911.
Hon. Arthur B. Chapin, Bank Commissioner.
Dear Sir : — You have requested my opinion upon certain
questions relative to the Attleborough Savings and Loan Asso-
ciation.
The Attleborough Savings and Loan Association is unincor-
porated. Its purpose, as stated in the preamble to its Articles
of Association, is that " of accumulating a fund for the pur-
chase of real estate and for building thereon, for removing
incumbrances therefrom, for making loans, and for the further
purpose of accumulating a fund to be returned to stockholders."
Any person holding one or more shares of the stock and having
signed the Articles of Association is a member of the association.
Articles of Association, Article 1. The title to the property of
the association is vested in trustees, Article 4. Investments
may be made in loans " on first mortgages of real estate, in
Massachusetts and Rhode Island, upon shares of this association,
and upon such other securities as savings banks are authorized
to take under the laws of Massachusetts/' also " in real estate in
the town of Attleborough," Article 8. Members pay monthly
dues of $2 per share and fines for default of payment, Article
10. Shares mature when they reach the value of $500, Article
13. Provision is made for assignment or withdrawal of shares,
Article 9. You further state that "the money accumulated is
1912.] PUBLIC DOCUMENT — No. 12. 29
not offered to the members according to the premiums or rate
of interest bid by them for priority, but is invested almost
precisely as are the funds of a savings bank."
Your first inquiry is as follows : —
Is this association, on the evidence submitted, transacting the
business of accumulating the savings of its members and loaning
to them such accumulations in the manner of a co-operative bank,
contrary to the provisions of section 1 of chapter 114 of the Revised
Laws?
E. L., c. 114, § 1, provides, in part, that —
No person, and no association or corporation, except foreign asso-
ciations and corporations duly licensed by the board of commis-
sioners of savings banks prior to the fourteenth day of April in
the year eighteen hundred and ninety-six to transact business in
this commonwealth, shall transact the business of accumulating
the savings of its members and loaning to them such accumulations
in the manner of a co-operative bank, unless incorporated in this
commonwealth for such purpose.
I am of opinion that the association in question does not
transact " the business of accumulating the savings of its mem-
bers and loaning to them such accumulations in the manner of
a co-operative bank," contrary to the provisions of the statute
quoted.
It would be difficult to distinguish the manner in which the
association in question transacts the business of accumulating
the savings of its members from that of a co-operative bank.
The association, however, does not loan to them such accumu-
lations in the manner of a co-operative bank. The loaning of
such accumulations to such of the members as make the best
offers is characteristic of a co-operative bank. See Atwood v.
Dumas, 149 Mass. 167, 169; Attorney-General v. Pitcher,
183 Mass. 513, 516. The loaning of money to its members upon
their shares is merely incidental in the case of the association
in question. There are no provisions that such loans shall be
made to those members who offer the greatest premiums or rates
of interest, as in the case of a co-operative bank. E. L., c. 114,
§ 11-
Your second inquiry is as follows : —
In this association soliciting or receiving deposits or transacting
business in the way or manner of a savings bank • contrary to the
provisions of section 16 of chapter 590 of the Acts of 1908?
30 ATTORNEY-GENERAL'S REPORT. [Jan.
St. 1908, c. 590, § 16, provides as follows: —
No corporation, either domestic or foreign, and no person, part-
nership or association except savings banks and trust companies
incorporated under the laws of this commonwealth, or such foreign
banking corporations as were doing business in this commonwealth
and were subject to examination or supervision of the commis-
sioner on June first, nineteen hundred and six, shall hereafter make
use of any sign at the place where its business is transacted having
thereon any name, or other word or words indicating that such
place or office is the place or office of a savings bank. Nor shall
such corporation, person, partnership or association make use of
or circulate any written or printed or partly written and partly
printed paper whatever, having thereon any name, or other word
or words, indicating that such business is the business of a savings
bank; nor shall any such corporation, person, partnership or asso-
ciation, or any agent of a foreign corporation not having an estab-
lished place of business in this commonwealth, solicit or receive
deposits or transact business in the way or manner of a savings
bank, or in such a way or manner as to lead the public to believe,
or as in the opinion of the commissioner might lead the public to
believe, that its business is that of a savings bank.
Though it is not absolutely clear that its way or manner of
transacting business is that of a savings bank, I advise you
that you may properly be of the opinion that the way or man-
ner in which it transacts its business might lead the public to
believe that its business is that of a savings bank.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Public Highways — Use — Erection of
Structures over Public Ways — Eminent Domain — Public
Purpose.
A proposed bill which provides that upon petition and after public
notice and a public hearing the board of street commissioners of the
city of Boston may, with the approval of the mayor, issue a permit
to certain individuals named therein " to construct and maintain a
bridge across Avon Street in said city for the purpose of connecting
buildings owned by them on opposite sides of said street or for the
purpose of a fire escape, on such conditions and subject to such
restrictions as said board may prescribe," purports to confer upon
such individuals an absolute right to be granted by the city of
Boston, and in so far as the grant of such right would be incon-
sistent with the rights of other persons, to require the exercise of
the power of eminent domain without provision for compensation.
1912.] PUBLIC DOCUMENT — No. 12. 31
A proposed bill which authorizes the city of Boston through its mayor,
if it shall sell the whole or a part of its real estate on Mason Street
in said city, " to grant to the purchaser of said estate, and his
successors in title, the right to connect the real estate so sold with
property on Tremont Street opposite said real estate by means of a
covered passageway or bridge over Mason Street," and provides for
the compensation of any person whose property may be injured by
the erection of the structure so authorized, appears to contemplate
the exercise of the power of eminent domain, not for a public pur-
pose but for the benefit of certain individuals who may purchase
the real estate described therein.
Both bills are therefore objectionable upon constitutional grounds.
March 31, 1911.
D. T. Montague, Esq., House Chairman, Committee on Cities.
Dear Sir : — You have submitted to me on behalf of the
joint standing committee on cities certain bills now pending
before that committee, and have stated that my opinion is de-
sired upon the following specific question: "With reference to
House bills numbered 817 and 451, would either or both of
these bills, if passed, be in your opinion constitutional ; or, to put
it in another way, is there any constitutional objection to the
passage of these bills ? "
House Bill No. 817 is entitled "An Act to authorize the
Construction of a Bridge over Avon Street in the City of Bos-
ton," and provides in section 1 that —
Upon petition and after seven days' public notice published in at
least three newspapers published in the city of Boston, and a public
hearing thereon, the board of street commissioners of the city of
Boston may, with the approval of the mayor, issue a permit to Eben
D. Jordan and Edward J. Mitten to build and maintain a bridge
across Avon street in said city for the purpose of connecting build-
ings owned by them on opposite sides of said street, or for the
purpose of a fire escape, on such conditions and subject to such
restrictions as said board may prescribe.
House Bill No. 451 is entitled " An Act to authorize the
Bridging of Mason Street in the City of Boston," and provides
that —
The city of Boston by its mayor is hereby authorized and empow-
ered, if it shall sell the whole or part of its real estate on Mason
street in said city, to grant to the purchaser of said estate and
his successors in title the right to connect the real estate so sold
with property on Tremont street opposite said real estate by means
32 ATTORNEY-GENERAL'S REPORT. [Jan.
of a covered passageway or bridge over Mason street, said covered
passageway to be not more than twenty feet in width and at the
bottom of the floor not less than twenty feet above the street level.
In section 3 provision is made for the compensation of any
person whose property may be damaged by the erection of the
structure so authorized.
I assume that both Avon Street and Mason Street were laid
out and constructed as public highways, and that although the
fee of the land remains in the landowner, the public have ac-
quired in such streets an easement of travel which includes
" every kind of travel and communication for the movement or
transportation of persons or property which is reasonable and
proper in the use of a public street." New England Telephone
& Telegraph Co. v. Boston Terminal Co., 182 Mass. 397, 399;
see also Cheney v. Barker, 198 Mass. 356, 362. The easement
so acquired extends to the use of structures either above or
below the surface of the way, when such structures " are used
by the public or a part of the public, or are held and used in
private ownership for the benefit of the public." New England
Telephone & Telegraph Co. v. Boston Terminal Co., supra;
Sears v. Crocker, 184 Mass. 586, 588. But these uses and the
facilities therefor must be "reasonable in reference to their
effect upon adjacent property, as well as their effect upon other
kinds of public uses of the street," and " a use of the street
which would constitute a grave private nuisance to property
at the side of the street could not have been contemplated by
the law as being acquired by a taking for a highway or street."
Lentell v. Boston & Worcester Street By. Co., 202 Mass. 115,
119. Thus, elevated structures in the street for the use of street
railways or other instrumentalities of transportation have been
declared by the Legislature to impose an additional servitude
upon land taken for street purposes, and provision has been
made for any injury to property caused by them. St. 1894,
c. 548, § 8; and see St. 1903, c. 163, § 3. Lentell v. Boston
& Worcester Street By. Co., supra; Baker v. Boston Elevated
By. Co., 183 Mass. 178. This would seem to have been the
theory upon which one of the two bills now before me (House
Bill No. 817) was drafted, for it contains, in section 3, pro-
vision for compensation to any person whose property may be
injured by the construction of the bridge authorized in section
1. House Bill No. 451, however, contains no such provision,
and, if the structure authorized by it may be considered to be
1912.] PUBLIC DOCUMENT — No. 12. 33
an instrumentality of public travel, transportation or communi-
cation, fairly raises the question whether the erection and main-
tenance of such a structure should be held to be a reasonable
and proper use of a public street, or is a use which was not
included in the original easement and imposes a new servitude
upon the land taken for which compensation must be made.
This question is not free from difficulty. The court has de-
clared, in Sears v. Crocker, 184 Mass. 586, at page 588, that —
Our system, which leaves to the landowner the use of a street
above or below or on the surface, so far as he can use it without
interference with the rights of the public, is just and right, but the
public rights in these lands are plainly paramount and they include,
as they ought to include, the power to appropriate the streets above
or below the surface as well as upon it, in any way that is not
unreasonable, in reference either to the acts of all who have occa-
sion to travel or to the effect upon the property of abutters.
Abutters are bound to withdraw from occupation of streets above
or below the surface whenever the public needs the occupied space
for travel. The necessary requirements of the public for travel
were all paid for when the land was taken, whatever they may be,
and whether the particulars of them were foreseen or not. The
only limitation upon them is that they shall be of a kind which is
not unreasonable.
The question in each case must depend primarily upon public
necessity and the conditions which exist with reference to the
particular locality affected. If the public use of the streets at
or near Avon Street or Mason Street require that there should
be an elevated structure over either or both of those streets, in
order that public travel, transportation or communication may
be maintained between points upon either side of such streets,
I am inclined to the opinion that the erection of such a structure
might well be held to impose no additional servitude upon the
highway beneath.
But it is essential that the need for such means of communi-
cation should be a public need, and that it should be open to
the public. Nothing in either of said bills shows that the
structures therein authorized are required by any public neces-
sity or are to be instrumentalities of public travel. On the
contrary, it seems that they are not designed primarily for the
use of the public, as such, but to serve the convenience of abut-
ting owners and to enhance the value of their property. In
34 ATTORNEY-GENERAL'S REPORT. [Jan.
House Bill No. 817 the permission which, may be granted upon
compliance with the requirements therein set forth is to two
individuals, and is " for the purpose of connecting buildings
owned by them on opposite sides of said street ; " and in House
Bill No. 451 the right to maintain such structure is granted
to the purchasers of certain real estate now held by the city of
Boston, and is made appurtenant thereto.
Where a public highway is laid out and constructed the ease-
ment secured by the public is no more than an easement of
travel. The fee remains in the landowner, who may make any
use of his property not inconsistent with its use as a highway.
Commonwealth v. Morrison, 197 Mass. 199, 205; Cheney v.
Barker, 198 Mass. 356, 362. If the erection and maintenance
of structures like those contemplated by the two bills aforesaid
are not inconsistent with the paramount rights of the public
in the streets over which such structures are to pass, the land-
owner requires no permission from the Legislature to erect them.
" The Legislature is the supreme authority in regard to public
rights in the streets and highways " (Boston Electric Light Co.
v. Boston Terminal Co., 184 Mass. 566, 570), and it may define
or limit the extent of the rights which it deems necessary for
the public, or may even abandon some of them by permitting
uses of' abutting property which, without such permission,
would involve an interference with the public use, provided that
such abandonment does not go far enough to amount to an
appropriation of public property to private uses. The proposed
acts seem to be more than a legislative declaration that the use
of private property in the manner which they describe does
not interfere with the public easement of travel, — or, in other
words, a definition or limitation of the public use, — and are,
in my opinion, objectionable upon constitutional grounds, in
that they assume to confer upon private persons rights with
respect to the use of abutting property which are made para-
mount to the rights of other persons, which, to that extent,
would be an appropriation of those rights, requiring the exer-
cise of the power of eminent domain. In House Bill No. 871
the exercise of this power is clearly contemplated, for it pro-
vides in section 3 for the compensation of any one whose prop-
erty may be injured by the erection of the structure authorized.
House Bill No. 451 contains no such provision, but, since it
purports to confer an absolute right to be granted by the city
of Boston, would necessarily require the exercise of such power
1912.] PUBLIC DOCUMENT — No. 12. 35
in so far as the grant of such right would interfere with the
rights of others. No information has been submitted to me
respecting the exact limits of the property affected by the pro-
posed legislation or the nature of the title by which it is held.
Said property is not even certainly described in the bills them-
selves. For this reason I am necessarily confined to a discus-
sion of the general principles which appear to be applicable in
the premises. These lead me to the opinion that there is con-
stitutional objection to the passage of either of the bills sub-
mitted to me.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Appropriation of Money raised by Taxa-
tion— Public Purpose — Museum of Fine Arts.
The Constitution of the Commonwealth, in chapter V, section II, im-
poses upon the Legislature the duty " in all future periods of this
commonwealth, to cherish the interests of literature and the sciences,
and all seminaries of them," and " to encourage private societies and
public institutions, rewards and immunities, for the promotion of
. . . arts, sciences, . . . and a natural history of the country," and
the appropriation of money in the reasonable performance of the
duty so imposed would be for a public purpose.
A proposed bill authorizing the city of Boston to appropriate money, not
exceeding $50,000 in any single year, for the maintenance and
support of the Museum of Pine x^.rts in said city, subject to certain
conditions to be performed by the trustees of such museum, as
therein prescribed, would therefore be constitutional.
Under existing law, however, the city of Boston has no authority to
appropriate money for such purpose.
March 31, 1911.
D. T. Montague, Esq., House Chairman, Committee on Cities.
Dear Sir : — You have required my opinion upon the follow-
ing question : —
With reference to House Bill No. 1527, is there any constitutional
objection to the passage of this bill; and, if not, does the city of
Boston now have, in your opinion, the right, without additional
legislation, to appropriate money for the purposes named in the
bill?
House Bill No. 1527 authorizes and empowers the city of
Boston to appropriate money, not exceeding $50,000 in any
36 ATTORNEY-GENERAL'S REPORT. [Jan.
single year, for the maintenance and support of the Museum of
Fine Arts, subject to the condition that the trustees thereof —
shall continue to open their buildings and collections for free admis-
sion to the people of Boston the same number of days in the week
as they now do, and that said trustees shall annually report to the
mayor and the school committee of the city of Boston statistics
showing the financial condition of said museum, its income and
disbursements, and the nature and kind of instruction given by
it and the number of its teachers and pupils.
Money raised by taxation may be expended only for a public
purpose. Lowell v. Oliver, 8 Allen, 247, 253; Opinion of the
Justices, 204 Mass. 607, 611. The power of the Legislature
to authorize an appropriation by the city of Boston for the bene-
fit of the Museum of Fine Arts must depend upon whether or
not the purpose for which such institution was established is
a public purpose. In Kingman v. Brockton, 153 Mass. 255,
in discussing a statute authorizing the erection of a memorial
hall at the public expense the court said : —
That statute . . . may be vindicated on the same ground as stat-
utes authorizing the raising of money for monuments, statues, gates
or archways, celebrations, the publication of town histories, parks,
roads leading to points of fine natural scenery, decorations upon
public buildings, or other public ornaments or embellishments, de-
signed merely to promote the general welfare, either by providing
for fresh air or recreation, or by educating the public taste, or by
inspiring sentiments of patriotism or of respect for the memory
of worthy individuals. The reasonable use of public money for
such purposes has been sanctioned by several different statutes, and
the constitutional right of the Legislature to pass such statutes rests
on sound principles.
This language was cited with approval in the case of Attor-
ney-General v. Williams, 174 Mass. 476. See Williams v. Parker,
188 TJ. S. 491; see also Higginson v. Nahant, 11 Allen, 530;
Hubbard v. Taunton, 140 Mass. 467.
I have before me no precise and definite information as to
the purposes for which the Museum of Fine Arts was organized
and is maintained, but I assume that among the objects of that
institution is the promotion of the education and culture of
the public generally in the fine arts, and upon such assumption
I am of opinion that its maintenance may well be held to be
1912.] PUBLIC DOCUMENT — Xo. 12. 37
a public purpose within the principles laid down in the deci-
sions above cited. The Constitution itself imposes upon the
Legislature the duty, " in all future periods of this common-
wealth, to cherish the interests of literature and the sciences,
and all seminaries of them," and " to encourage private socie-
ties and public institutions, rewards and immunities, for the
promotion of agriculture, arts, sciences, commerce, trades, manu-
factures and a natural history of the country" (C. V., § II.) ;
and the appropriation of money in the reasonable performance
of this duty would doubtless be for a public purpose. Attorney-
General v. Williams, supra, p. 480; Ilanscom v. Lowell, 165
Mass. 419; and see Commonwealth v. Boston Advertising Co.,
188 Mass. 348, 351. For authority that the citizens of Boston
may be directly taxed, see Merrick v. Amherst, 12 Allen, 500.
You have further required my opinion as to whether or not
the city of Boston now has the right, without additional legis-
lation, to appropriate money for the purposes named in House
Bill Xo. 1529. In my opinion it has not. The only provision
of law which could now authorize such an expenditure is E. L.,
c. 26, § 28, which is as follows: —
The city council may, by a yea and nay vote of two-thirds of the
members of each branch thereof present and voting, appropriate
money for armories for the use of the state militia, for the celebra-
tion of holidays, and for other public purposes to an amount not
exceeding in any one year one-fiftieth of one per cent of its valua-
tion for such year.
This section was construed in Hubbard v. Taunton, already
cited, in which the court, in refusing to restrain the expendi-
ture of the sum of $200 to pay for twelve public band concerts,
used the following language : —
The word " other " implies that the celebration of holidays is a
public purpose within the meaning of the act, and indicates that
purposes which are public only in that sense are included within its
scope, although they look rather more obviously to increasing the
picturesqueness and interest of life than to the satisfaction of rudi-
mentary wants, which alone we generally recognize as necessary.
We know of no simple and merely logical test by which the limit
can be fixed. It must be determined by practical considerations.
The question is one of degree. But, in reply to the petitioners'
argument, we may say that, if the purpose is within the act, we
do not see whv the citv council mav not create the occasion. Tak-
38 ATTORNEY-GENERAL'S REPORT. [Jan.
ing into account the history and language of the act, the safeguards
attached to the exercise of the power, the smallness of the sum
allowed to be expended, and the fact that it has long been assumed
to be within the power of cities to give such concerts in the open
air, we are not prepared to say that a case is presented for an
injunction.
In view of the language above quoted I do not think that
the section above cited should be held to authorize the expendi-
ture of money for public purposes which are permanent and
enduring, and which may require a large annual appropriation
of money raised by taxation.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Public Highways — License — Use for
Commercial or Advertising Purposes.
A city may constitutionally be authorized to require, and to issue through
its board of supervisors, licenses for the use of specified parts of
public streets therein for the storage and sale of merchandise for
purposes necessary for the construction or repair of works or build-
ings and for commercial or advertising purposes in cases where
the consent of the abutting owner or owners has been obtained. The
issuance of such licenses, if confined within reasonable limits, con-
stitutes a definition by public authority of the public use of a
highway.
April 4, 1911.
Paul I. Lombard, Esq., Joint Committee on Cities.
Dear Sir: — On behalf of the joint committee on cities yon
have requested my opinion " as to the constitutionality of the
enclosed bill entitled i An Act relative to the use of streets in
the city of Springfield.' " More precisely, I assume the ques-
tion to be whether or not the use of the public streets for the
purposes and in the manner described in said act is constitu-
tional.
Section 1 of said proposed bill provides that —
The board of supervisors of the city of Springfield may require
and issue licenses, subject to the provisions hereof, for the use of
specified parts of public streets in said city, for the storage and sale
of merchandise, for purposes necessary for the construction or
repair of works or buildings and for all other purposes requiring
1912.] PUBLIC DOCUMENT — No. 12. 39
the opening of streets, the use thereof for commercial or advertising
purposes or for purposes causing more than the ordinary interrup-
tion or impairment of travel thereon.
Section 2 provides that any person who desires such a license
shall make written application therefor, stating his name, resi-
dence and place of business, and describing the location, shape
and dimensions of the space which he desires to occupy, the
structures which he proposes to use, and the kinds of mer-
chandise which he wishes to store or sell. It further provides
that —
He shall submit as part of his application the written consent to
the issuance of said license on the part of the owner or owners of
the premises in front of which he desires to carry on business and
of the tenants of the ground floor of such premises, if the license
requested is for the sale or storage of merchandise. When the priv-
ilege for which a license is asked is to be exercised in front of the
premises owned by the city of Springfield, the owner's consent
herein provided for shall not be required.
Such a use of the streets does not fall within the limits of
the public easement of travel {Commonwealth v. Morrison,
197 Mass. 199, 203; Haberlil v. Boston, 190 Mass. 358), and
the Legislature could confer no authority in the premises with-
out the consent of the owner of the fee. Such consent, however,
appears to be provided for in the bill submitted to me, and if
the use therein licensed does not amount to such a great and
permanent obstruction as to constitute a public nuisance or an
appropriation of public property to private uses, I am of opin-
ion that the Legislature may authorize the issuance of such
license by the city government of Springfield.
Said act may be construed as permitting the supervisors of
the city of Springfield to define the limits of the public use and
to determine what uses by a private person may be permitted
without conflicting therewith. If confined within reasonable
limits such use would be constitutional.
Very truly yours,
James M. Swift, Attorney-General.
40 ATTORNEY-GENERAL'S REPORT. [Jan.
Constitutional Lair — Taxation — Exemption — ■ Charitable
Corporation — Land acquired by Institution incorporated
for Care of Insane.
A proposed bill which provides that " no private corporation or associa-
tion now existing or hereafter incorporated for the care of the
insane shall acquire land ... to be exempt from taxation without
the consent of the legal voters of the town or governing board of a
city where such land is situated," would not be unconstitutional as
creating an unreasonable exception from the provisions of law for
exemption applicable to property of charitable corporations gener-
ally, or because it delegates to cities and towns power to determine
whether specific land therein which may be acquired by such in-
stitutions shall be included within the exemption applicable to land
owned by charitable institutions generally.
April 12, 1911.
Arthur S. Davis, Esq., Chairman, House Committee on Bills in the
Third Beading.
Dear Sir : — In behalf of the committee on bills in the
third reading of the House of Representatives, you have re-
quested my opinion as to whether House Bill No. 1170, if
enacted, will be constitutional and valid. It provides that —
No private corporation or association now existing or hereafter
incorporated for the care of the insane shall acquire land in a city
or town of the commonwealth to be exempt from taxation without
the consent of the legal voters of the town or governing board of
a city where such land is located.
I am of opinion that the bill, if enacted, will be constitutional
and valid. My reasons for this view follow.
The property of institutions for the care of the insane is
now exempted from taxation so far as it is included within
the provisions of St. 1909, c. 490, Part I., § 5, cl. 3, which
exempts from taxation —
The personal property of literary, benevolent, charitable and sci-
entific institutions and of temperance societies incorporated within
this commonwealth, the real estate owned and occupied by them or
their officers for the purposes for which they are incorporated, and
real estate purchased by them with the purpose of removal thereto,
until such removal, but not for more than two years after such
purchase. Such real or personal property shall not be exempt if
any of the income or profits of the business of such corporation
is divided among the stockholders or members, or is used or appro-
1912.] PUBLIC DOCUMENT — No. 12. 41
priated for other than literary, educational, benevolent, charitable,
scientific or religious purposes, nor shall it be exempt for any year
in which such corporation wilfully omits to bring in to the assessors
the list and statement required by section forty-one.
The effect of the bill in question, if enacted, will be to ex-
clude from this exemption land thereafter acquired by an in-
stitution for the care of the insane, unless at the time such
land is acquired the city or town within which it is situated
votes that it shall be exempt from taxation.
The constitutional provision relative to the taxation of land
requires that taxes shall be reasonable and proportional. Const.
Mass., Part 2, c. I., § 1, Part IV. It is now too late to argue
that this provision prohibits exemptions. Bay v. Lawrence,
167 Mass. 371. " We have . . . constitutional requirements
for the encouragement of literature and science, the diffusion
of education among the people, and the promotion of ' general
benevolence, public and private charity 7 and other kindred
virtues. (Const. Mass., c. 5, § 2.) As taxation of the people
may be imposed for these objects, property used for literary,
educational, benevolent, charitable or scientific purposes may
well be exempted from taxation. Such exemptions do not pre-
vent the taxation of the people from being proportional and
equal/' Opinion of the Justices, 195 Mass. 607, 608-9.
The questions raised by you are, therefore : —
1. Whether land held by an institution for the care of the
insane may be excepted from the provision for exemption ap-
plicable to property of charitable institutions generally.
2. "Whether, if such land may be so excepted, the Legislature
may delegate to the cities and towns in which the land lies
the power of determining whether specific land thereafter ac-
quired by an institution for the care of the insane, charitable
in its nature, shall be included within the exemption applicable
to land owned by charitable institutions generally.
The only limitation upon exemptions is that they must be
reasonable. See Minot v. Winthrop, 162 Mass. 113, 124. The
purpose for which they are made must be proper. See Opinion
of the Justices, supra. They must not be " such as to render
the general tax on property throughout the Commonwealth un-
equal and disproportionate." See Commonwealth v. People s
Five Cents Savings Bank, 5 Allen, 428, 437. It is, however,
"peculiarly within the discretion of the Legislature to deter-
42 ATTORNEY-GENERAL'S REPORT. [Jan.
mine what exemptions should be made in apportioning the
burdens of taxation among those who can best bear them/'
Minot v. Winthrop, supra. Even if it was required that all
persons or institutions similarly situated be treated alike, the
Legislature could undoubtedly find that there was a reasonable
ground for distinguishing between land and other property,
between property already acquired and property to be acquired,
and between institutions for the care of the insane and other
charitable institutions. The first question must, therefore, be
answered in the affirmative.
The question as to whether the Legislature may delegate to
the cities and towns in which the land lies the power of deter-
mining whether specific land thereafter acquired by an institu-
tion for the care of the insane, charitable in its nature, shall
be included within the exemption applicable to land owned
by charitable institutions generally, in turn divides itself into
two, namely: (a) Whether the State may make such a special
exemption; and (b) if the State may do so, whether it may
delegate the power to make such special exemptions to the
cities and towns in which the property is respectively situated.
Both must, in my opinion, be answered in the affirmative.
Since the adoption of the Constitution, and before, the Legis-
lature has made such exemptions and has limited general ex-
emptions in particular cases. See for a collection of statutes
House Document, 1910, No. 1395, appendix B; Phillips Acad-
emy v. Andover, 175 Mass. 118. These statutes have been con-
sidered by the court, though their validity seems not to have
been discussed. See Harvard College v. Kettell, 16 Mass. 204;
Hardy v. Waltham, 7 Pick. 108; Phillips Academy v. Andover,
supra; Rice v. Bradford, 180 Mass. 545 ; Evangelical Baptist
Society v. Boston, 192 Mass. 412. In Northampton v. County
Commissioners, 145 Mass. 108, the court affirmed the constitu-
tionality, in certain aspects, of a special statute in regard to
the taxation of a particular charity. Long acquiescence, there-
fore, furnishes a strong reason for supporting special exemp-
tions of particular charitable institutions, in the absence of
clear objections thereto. There is, however, in my judgment,
no objection on constitutional grounds to such statutes. As
already stated, the justification for a special exemption of a
charitable institution is, that since taxation may be imposed for
the purposes for which such institution is organized, the prop-
erty used for such purposes may be exempted from taxation.
The Legislature may undoubtedly appropriate money raised by
1912.] PUBLIC DOCUMENT — No. 12. 43
taxation for the use of one charitable institution without mak-
ing an appropriation for the use of others of the same class.
The same result is accomplished indirectly by specifically ex-
empting from taxation the property of such institution. The
propriety of such legislation seems to have been recognized by
the Supreme Court of the United States. Grand Lodge v.
New Orleans, 166 U. S. 143, 149; see, however, Baltimore City
v. Starr Church, 106 Md. 281.
As the Legislature may make such a special exemption, so
it may delegate the power to do so. The Legislature may dele-
gate to cities and towns legislative power over subjects which
are proper for municipal control. Stone v. Charlestown,
114 Mass. 214; Opinion of the Justices, 160 Mass. 586, 590;
Brodbine v. Revere, 182 Mass. 598, 600. It has delegated many
powers relating to taxation. In Merrick v. Amherst, 12 Allen,
500, the court sustained as constitutional a statute authorizing
a town to raise money by taxation for an agricultural college
to be established therein by the Commonwealth. It would seem
that the exemption from taxation of the property of an insti-
tution which was used for a public purpose might equally well
be delegated. See Caverly- Gould Co. v. Spring-field, 83 Vt. 396,
403. The language to the contrary in Brewer Brick Co. v.
Brewer, 62 Me. 62, has been criticised. In Gray on Limita-
tions of Taxing Power, p. 292, the author says : — ■
Inasmuch as the delegation of power to municipalities to impose
taxes and to fix the rate is so integral a part of the governmental sys-
tem, it cannot be believed that constitutional requirements of uni-
formity were intended to prohibit such delegations of power. And
if this be so, the Maine decision seems unfounded.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Free Transportation of Letter Carriers in
Uniform on Street Railways — Safety, Health or Proper
Convenience of the Public.
A statute requiring street railway companies to carry free on their pas-
senger cars United States letter carriers in uniform in the city or
town in which such letter carriers are employed, does not tend to
promote the safety, health or proper convenience of the public,
but is an arbitrary enactment in favor of the persons designated,
letter carriers in uniform, and, as such, is unconstitutional and void.
44 ATTORNEY-GENERAL'S REPORT. [Jan.
April 22, 1911.
James W. Kimball, Esq., Clerk of the House of Representatives.
Dear Sir : — I have the honor to acknowledge the receipt of
an order adopted by the Honorable House of Representatives on
the twenty-fourth day of March, 1911, which is as follows: —
Ordered, That the Attorney-General be requested to inform the
House of Representatives whether, in his opinion, a statute requiring
street railway companies to carry free on their passenger cars United
States letter carriers in uniform, in the city or town in which they
are employed, would be constitutional and valid.
Under date of April 10, 1901, Attorney-General Knowlton
advised the Honorable Senate that a bill requiring transporta-
tion of letter carriers at a rate less than that collected from
ordinary passengers was in his opinion unconstitutional so far as
it concerned the Boston Elevated Railway Company, on the
ground that such bill, if enacted, would, impair the obligation
of the contract contained in the charter of that company. II Op.
Atty.-Gen. 261. This opinion was undoubtedly correct, and is
applicable with equal or greater force to a statute such as is
described in the order above set forth.
I am, however, of opinion that such a statute would be un-
constitutional as applied to street railway companies generally.
The right of the Legislature to regulate fares charged by street
railway companies is undoubted, but it cannot, " under pretence
of regulating fares and freights,*7 require a street railway com-
pany " to carry persons or property without reward/* See
Stone v. Farmers Loan & Trust Co., 116 U*. S. 307, 331. The
rate fixed must be reasonable. Obviously, a requirement that
any class of persons (here " United States letter carriers in
uniform " ) be carried free is not a reasonable or proper exer-
cise of the distinctively rate-making power.
If the statute is to be justified at all, it must be justified
under the police power in its broader sense, i.e., the power to
legislate "for the safety, health or proper convenience of the
public.*'* Lake Shore & Michigan Southern Ry. Co. v. Smith,
173 U. S. 684, 698, 699. Legislation for these purposes is not
necessarily bad because it imposes an incidental pecuniary loss
upon the carrier. Atlantic Coast Line R.R. Co. v. North Caro-
lina Corporation Commission, 206 U. S. 1, 24, 25; Interstate
Railway Co. v. Massachusetts, 207 U. S. 79, 87. It cannot, of
course, be assumed that any class of persons can be carried free
1912.] PUBLIC DOCUMENT — No. 12. 45
by a street railway company without some, though perhaps
slight, pecuniary loss to the company. A requirement of such
free transportation cannot be sustained under the police power
unless such requirement is reasonably adapted to promote "the
safety, health or proper convenience of the public." The free
transportation of United States letter carriers as a class, even
though limited to carriers who are in uniform, does not tend
to promote the public safety, the public health or the public
convenience. It does not benefit the public generall}', but is
" an arbitrary enactment in favor of the persons spoken of "
(i.e., United States letter carriers in uniform). See Lake Shore
& Michigan Southern Ry. Co. v. Smith, supra, p. 699. No
reason appears which justifies the discrimination between United
States letter carriers in uniform, as a class, and all other per-
sons. See Lake Shore & Michigan Southern Ry. Co. v. Smith,
supra, pp. 694, 695; Interstate Railway Co. v. Massachusetts,
supra.
For these reasons I am of opinion that a statute " requiring
street railway companies to carry free on their passenger cars
United States letter carriers in uniform, in the city or town in
which they are employed," would not be constitutional and valid.
Very truly yours,
James M. Swift, Attorney-General.
Intoxicating Liquors — License — Licensed Place — Licensed
Premises.
In E. L., c. 100, § 13, as amended by St. 1910, e. 476, § 1, providing in
part that " in cities and towns which vote to authorize the sale of
intoxicating liquors, the number of places licensed for the sale of
such liquors shall not exceed one for each one thousand of the popu-
lation," and that " Nowhere in the commonwealth shall a fourth or
fifth class license be granted to be exercised upon the same premises
with a license of any of the first three classes " with certain ex-
ceptions therein stated, the words " licensed places " must be con-
strued to mean places where a license is to be exercised, and such
places are identical with licensed premises, except where two or
more licenses are granted to the same person to be exercised upon
the same premises.
A proposed bill providing that a licensed place " may consist of one or
more rooms or premises adjoining but having no interior connection
or means of communication with each other," would directly affect
the provisions of E. L., c. 100, § 13, as amended by St. 1910, c. 476,
§ 1, for the reason that under its provisions a license of the fourth
46 ATTORNEY-GENERAL'S REPORT. [Jan.
or fifth class might be exercised with a license of any of the first
three classes at a single licensed place, although in a room or rooms
physically separated from those in which was exercised any lieense
of the first three classes.
May 1, 1911.
Hon. Allen T. Treadway, President of the Senate.
Dear Sir : — I have to reply to an order of the Honorable
Senate requesting my opinion upon the following questions of
law: —
(1) Whether or not the provisions of section 1 of the bill now
pending before the Senate, and printed as Senate Bill No. 454, a
copy of which is transmitted herewith, directly or indirectly nullify
or repeal the provisions of chapter 476 of the Acts of 1910, being
an act relative to the granting of licenses for the sale of intoxicating
liquor?
(2) Is the definition of " licensed place " in the accompanying bill,
printed as Senate Bill No. 454, inconsistent with the meaning of the
" place which may be licensed " under the provisions of chapter 476
of the Acts of 1910?
(3) Does the existing law regarding the sale of intoxicating liquors
permit two separate licensed rooms, if adjoining but having no in-
terior connection or means of communication with each other, to be
counted as one " place licensed for the sale of such liquors " within
the meaning of chapter 476 of the Acts of 1910?
Section 1 of chapter 476 of Statutes of 1910 amended Re-
vised Laws, chapter 100, section 13, by inserting at the ninth
and tenth lines the following provision : —
Nowhere in the commonwealth shall a fourth or fifth class license
be granted to be exercised upon the same premises with a license
of any of the first three classes, except that a licensed innholder,
who has a license of any of the first three classes may likewise be
granted a lieense of the fourth or fifth class for the purpose of
supplying liquor to guests who have resorted to his inn for food or
lodging.
Section 13, therefore, now reads as follows : —
In cities and towns which vote to authorize the granting of licenses
for the sale of intoxicating liquors, the number of places licensed
for the sale of such liquors shall not exceed one for each one thousand
of the population as ascertained by the last preceding national or
state census, but one such place may be licensed in any town having
a population of less than one thousand. In Boston, one such place
1912.] PUBLIC DOCUMENT — No. 12. 47
may be licensed for each five hundred of the population, but in no
event shall the total number of licensed places therein exceed one
thousand. Nowhere in the commonwealth shall a fourth or fifth
class license be granted to be exercised upon the same premises with
a license of any of the first three classes, except that a licensed inn-
holder, who has a license of any of the first three classes may likewise
be granted a license of the fourth or fifth class for the purpose of
supplying liquor to guests who have resorted to his inn for food
or lodging. No more than one license shall be granted by any one
vote of the licensing board. Such licenses shall be numbered in
regular order as granted, and any license granted contrary to, or in
excess of, the provisions of this section shall be void; but in a
town voting as aforesaid at its last annual town meeting which has
less than five thousand permanent residents according to the last
preceding state or national census but has an increased resident
population during the summer months, the selectmen may, on or
before the fifteenth day of May in any year, apply to the chief of
the bureau of statistics of labor to have an enumeration made of the
temporary or summer residents of such town. Said chief shall there-
upon make such enumeration, between the twenty-third and the
twenty-eighth clay of June next following, under such rules as he
shall establish. A person who has not been a resident of such town
for at least three days preceeding the enumeration shall not be
regarded as a temporary or summer resident thereof. Said chief
may employ, for such enumeration, such persons as may be neces-
sary, who shall in all cases be residents of the town if suitable and
competent persons can be found; otherwise, non-residents may be
employed. The chief shall report the total number of such temporary
or summer residents to the selectmen of the town on or before said
twenty-eighth day of June. The expenses incurred in making such
special enumeration shall be paid by the commonwealth. The treas-
urer and receiver general shall thereupon issue his warrant, as pro-
vided in section thirty-four of chapter twelve, requiring the assessors
of such town to assess a tax to the amount of the expense incurred
in making this special enumeration, and such amount shall be col-
lected and paid over to the treasurer and receiver general in the same
manner as other state taxes. The selectmen may, in April, receive
applications for such licenses and investigate and publish the same;
and may grant one such license for each five hundred of such tem-
porary resident population, not including the permanent inhabitants
of such town, as ascertained by said special enumeration, to take
effect on the first day of July and to expire on the first day of
October next following. A selectman, member of a licensing board
or census enumerator who violates any provision of this section
shall be punished by a fine of five hundred dollars.
48 ATTORNEY-GENERAL'S REPORT. [Jan.
Section 18 of chapter 100 of the Revised Laws contains a
definition of the five classes of licenses hereinbefore referred to.
First class. To sell liquors of any kind to be drunk on the
premises.
Second class. To sell malt liquors, eider and light wines containing1
not more than fifteen per cent of alcohol, to be drunk on the premises.
Third class. To sell malt liquors and cider, to be drunk on the
premises.
Fourth class. To sell liquors of any kind, not to be drunk on the
premises.
Fifth class. To sell malt liquors, cider and light wines containing
not more than fifteen per cent of alcohol, not to be drunk on the
premises.
The bill which in the order of the Honorable Senate is stated
to be now pending before that body provides in section 1 that —
A license of the fourth or fifth class to sell intoxicating liquors
may be granted and issued to be exercised with a license of any of
the first three classes in any place licensed for the sale of intoxicating
liquors. Within the meaning of this act a licensed place may consist
of one or more rooms or premises adjoining but having no interior
connection or means of communication with each other. Each li-
cense when so issued shall specify the room or rooms or premises
in such licensed place in which each license is to be exercised and
no sales of intoxicating liquors shall be made under a fourth or fifth
class license in any room or rooms specified in a license of any of the
first three classes, or having, except in licensed inns, any interior
connection or means of communication with the room or rooms
where intoxicating liquor is sold under a license of any of the first
three classes.
The answers to the specific inquiries above quoted must de-
pend upon the definition given to the words " places licensed "
as found in section 13 of chapter 100 of the Revised Laws,
and " licensed premises " as used in said chapter. The latter
term clearly signifies the premises described in the application
for the license, and in the license itself, as those upon which
such license is to be exercised and enjoyed. See R. L., c. 100,
§§ 14, 15 and 17.
Upon careful consideration of these and other provisions con-
tained in chapter 100 of the Revised Laws, I am of opinion
that the " licensed places " referred to in section 13 must be
1912.] PUBLIC DOCUMENT — No. 12. 49
construed to mean places where a license is to be exercised; or,
in other words, the places of business described in the appli-
cation for the license, in the notice of such application and
in the license itself, as provided in sections 10, 13 and 14,
and that in meaning this phrase is identical with " licensed
premises," except in cases where two or more licenses are
granted to the same person to be exercised upon the same
premises, in which case all such licenses, being exercised upon
the same premises, would be exercised at one licensed place,
and the number of licensed places with reference to population
would not be increased thereby.
Upon this construction of the phrases " licensed premises "
and " licensed places/' St. 1910, c. 476, § 1, as hereinbefore
quoted, in providing that fourth and fifth class licenses shall
not be granted to be exercised upon the same premises with
a license of the first three classes, except in the case of a li-
censed innholder, in effect requires that licenses of the fourth
and fifth classes shall not be exercised at licensed places where
a license of the first three classes is exercised, with the result
that the number of licensed places will be increased to the
extent that fourth and fifth class licenses are granted to li-
censees who are not innholders and who must, therefore, exercise
such licenses upon licensed premises not described in any li-
cense of the first three classes. Senate Bill No. 454, to which
the first and second inquiries of the Honorable Senate are
directed, defines a licensed place as " one or more rooms or
premises adjoining but having no interior connection or means
of communication with each other," and provides that a license
of the fourth and fifth classes may be exercised at the same
licensed place with a license of any of the first three classes,
or, in substance, that a licensed place may include two or more
licensed premises described in separate licenses. Such, in my
opinion, being the effect of the proposed bill, I reply specifically
to the inquiries of the Honorable Senate as follows : —
1. I am of opinion that while Senate Bill No. 454 cannot
be said to directly or indirectly nullify or repeal the provisions
of chapter 476 of the Acts of 1910, it does directly affect such
provisions in that, under existing laws, as above construed, a
fourth or fifth class license may not be exercised in the same
licensed place or upon the same premises with a license of the
first three classes, whereas, under the proposed bill a license of
the fourth or fifth class may be exercised with a license of any
50 ATTORNEY-GENERAL'S REPORT. [Jan.
of the first three classes at a single licensed place although not
upon the same licensed premises, with the result that the number
of licensed places will be substantially the same as they were
before the enactment of St. 1910, c. 476, although licenses of
the fourth and fifth classes must still be exercised in a room
or rooms physically separated from the room or rooms in which
was exercised any license of the first three classes.
2. I am of opinion that the definition of " licensed places "
in Senate Bill No. 451 is inconsistent with the definition of
the " place which may be licensed " as referred to in R. L.,
c. 100, § 13, as amended by St. 1910, c. 476, for the reason
that under existing laws a place which may be licensed or a
licensed place is substantially identical with the phrase " li-
censed premises," where only one license is exercised upon such
premises.
3. This inquiry in terms purports to require my opinion upon
the question whether or not existing law regarding the sale
of intoxicating liquor permits two separate licensed rooms to
be counted as one place licensed for the sale of liquor, within
the meaning of R. L., c. 100, § 13, as amended by St. 1910,
c. 476, § 1. Replying, therefore, to the inquiry as phrased,
I am of opinion that under the conditions described therein the
rooms might be considered as a single place " licensed for the
sale of such liquors," within the meaning of the section cited,
if they were both described as the " licensed premises " in an
application for a single license of any one of the five classes,
and were used in the exercise of such license, or if they were
both described in two or more applications for licenses of dif-
ferent classes which may be legally exercised by the same li-
censee, as, for instance, an innkeeper. Upon the other hand,
such rooms could not be counted as one such licensed place if
each were described in a separate application for a license of
any one of the five classes, or if one were described in an appli-
cation for a license for one of the first three classes and the
other were described in an application for a license of the fourth
or fifth class. I assume, however, that the Honorable Senate
in fact desires to be advised whether or not, if a license of any
one of the first three classes be exercised in one of the rooms
described in the inquiry, and a license of the fourth or fifth
class be exercised in the other room so described, the two rooms
together may be counted as one licensed place; and upon this
assumption I am constrained to answer in the negative. Each
1912.] PUBLIC DOCUMENT — No. 12. 51
room, being described as the licensed premises in a separate
license, is, in my opinion, a place licensed for the sale of such
liquors within the meaning of E. L., c. 100, § 13, as amended
by St. 1910, c. 476, § 1.
Very truly yours,
James M. Swift, Attorney-General
Constitutional Laic — Bates — Street anal Elevated Railway
Corporations — Boston Elevated Railway Company — Im-
pairment of Obligation of Contract — Discrimination —
Equal Protection of Law.
A proposed bill, providing that " on all street and elevated railways
in this commonwealth the fares which are now five cents shall be
reduced to three cents between the hours of six and eight in the
morning and five and seven in the evening," would, in the case of
the Boston Elevated Railway Company, be unconstitutional and
void because it would impair the obligation of the contract estab-
lished by the charter of that corporation (St. 1907, c. 500, § 10)
authorizing such corporation to establish and take a toll or fare not
exceeding five cents, which sum should not be reduced by the Legis-
lature during a period of twenty-five years after the passage of
such statute. Such proposed bill would not be unconstitutional as
to other street or elevated railway corporations as constituting so
unjust a discrimination in favor of the Boston Elevated Railway
Company and against such other companies as to deny the latter
the equal protection of the laws.
May 3, 1911.
Hon. Frank P. Bennett, Jr., Chairman, Committee on Street
Railways.
Dear Sir : — You have requested my opinion as to whether
House Bill No. 1370, if enacted, would be constitutional. This
bill is in the following terms : —
Section 1. On all street and elevated railways in this common-
wealth the fares which are now five cents shall be reduced to three
cents between the hours of six and eight in the morning and five
and seven in the evening.
Section 2. Violation of this act shall be punished by fine or im-
prisonment at the discretion of the court.
That the Legislature has the power to regulate the rates of
fare on street and elevated railways within the Commonwealth
cannot be doubted. Dow v. Beidelman, 125 U. S. 680; Smyth
v. Ames, 169 IT. S. ±6Q: Minneapolis d- St. Louis R.R. Co. v.
52 ATTORNEY-GENERAL'S REPORT. [Jan.
Minnesota, 186 IT. S. 257; Interstate Railway Co. v. Massachu-
setts, 207 TJ. S. 79; S. C, sub nomen Commonwealth v. Inter-
state Consolidated Railway Co., 187 Mass. 436. This power,
however, does not extend to the regulation of foreign or inter-
state commerce. Wabash, St. Louis & Pacific R.R. Co. v.
Illinois, 118 TJ. S. 557. It must not be so exercised as to im-
pair the obligation of any contract contained in the charter
of a street or elevated railway company (Georgia Railroad &
Banking Co. v. Smith, 128 U. S. 174, 179; Stone v. Farmers'
Loan & Trust Co., 116 U. S. 307, 325), or to deny to the com-
pany the equal protection of the laws, or to deprive it of prop-
erty without just compensation and without due process of law.
See cases supra.
A rate-regulating statute which exceeds the power of the
Legislature in any of these respects is, of course, unconstitu-
tional. "Whether such a statute is beyond the legislative power
depends upon the facts in each specific case. A rate-regulating
statute may be constitutional as to one street or elevated rail-
way company and unconstitutional as to another. It may be
constitutional at one time as to a street or elevated railway
company and at another time be unconstitutional as to the same
company. Smyth v. Ames, 171 U. S. 361, 365. I cannot,
therefore, give you an opinion of universal application, nor
have I the facts before me upon which to give you an opinion
as to specific cases except as to the Boston Elevated Railway
Company.
In the case of the Boston Elevated Railway Company the bill,
if enacted, would be unconstitutional because impairing the
obligation of the contract contained in the charter of that cor-
poration. St. 1897, c. 500, § 10, authorizes that corporation
to " establish, and take a toll or fare, which shall not exceed
the sum of five cents for a single continuous passage in the same
general direction on the roads owned, leased or operated by it/'
and provides that " this sum shall not be reduced by the legis-
lature during the period of twenty-five years, from and after
the passage of this act," with a proviso that the Board of Rail-
road Commissioners may, upon petition, after notice and hear-
ing, reduce such toll or fare, but that such toll or fare shall
not, without the consent of the corporation, be so reduced as to
yield less than a certain fixed income. This provision, as I
have already advised you in an opinion in regard to the con-
stitutionality of House Bill No. 1164, undoubtedly creates a
1912.] PUBLIC DOCUMENT — No. 12. 53
contract between the Commonwealth and the Boston Elevated
Railway Company. II Op. Atty.-Gen. 261, 426, 429 ; Opinion
of the Attorney- General to the House of Representatives, April
22, 1911. The right to charge a toll or fare of five cents, which
shall not be reduced except in a prescribed manner, is of the
essence of the contract. A change in this particular is clearly
an impairment of the contractual rights of the company under
its charter. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S.
368, 398; Minneapolis v. Minneapolis St. Ry. Co., 215 U. S.
417, 434; see, also, Interstate Ry. Co. v. Massachusetts, supra,
p. 86.
Since the bill, if enacted, would be unconstitutional as to the
Boston Elevated Railway Company, it may be urged that it
would therefore be unconstitutional as to all other street and
elevated railway companies, for the reason that it denies to
them the equal protection of the laws in that it requires them
to carry passengers at a lower rate than that fixed for passengers
upon the lines of that corporation. In the absence of the facts
of each specific case, however, I cannot say that there is not a
reasonable ground for distinction between that corporation and
all other street and elevated railway companies. See Interstate
Ry. Co. v. Massachusetts, supra, p. 85 ; Covington & Lexington
Turnpike Co. v. Sanford, 164 U. S. 578, 597, 598. But even
if the facts of each case do not justify the distinction between
the Boston Elevated Railway Company and other companies,
the fact that the former cannot be subjected to the act in ques-
tion without violating its contractual rights, which are pro-
tected by the Constitution, is probably in itself sufficient to
justify the discrimination. As was said by Mr. Justice Holmes
in Interstate Ry. Co. v. Massachusetts, supm, p. 85: —
If the only ground were that the charter of the Elevated Railway
contained a contract against the imposition of such a requirement,
it would be attributing to the Fourteenth Amendment an excessively
nice operation to say that the immunity of a single corporation pre-
vented the passage of an otherwise desirable and wholesome law.
It may be, though I do not think so, that the bill, if enacted
in its present form, would not be held to be separable, and that
since unconstitutional as to the Boston Elevated Railway Com-
pany it would be unconstitutional as to all street and elevated
railway companies. I cannot, however, conceive of any way in
which this question can be raised, since companies other than
54 ATTORNEY-GENERAL'S REPORT. [Jan.
the Boston Elevated Railway Company could object to the stat-
ute only on the ground that it was unconstitutional as to them.
See Hatch v. Reardon, 204 U. S. 152, 160; Interstate By. Co.
v. Massachusetts, supra. I am therefore of opinion that the
bill, if enacted, would not be unconstitutional as to companies
other than the Boston Elevated Railway Company on the ground
that it discriminated against them.
As to whether it would be unconstitutional as to such other
companies on other grounds, it is, as I have said, impossible to
determine upon the facts before me. Whether in any case it
would be unconstitutional as interfering with foreign or inter-
state commerce, or as impairing the obligation of a contract,
could readily be determined. Whether in any case it deprives
a corporation of its property without just compensation and
without due process of law involves a detailed knowledge as to
the financial condition of the corporation and the amount of
business done by it.
I advise you, therefore, that in my opinion the bill, if enacted,
would be unconstitutional as to the Boston Elevated Railway
Company, and that it would not be unconstitutional as to other
street and elevated railway companies on the ground that it
discriminated between them and the Boston Elevated Railway
Company, but that no further advice can be given as to its
constitutionality as to such other companies upon the facts
before me.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Contract — Boston Elevated Railway
Company — Free Transfers.
St. 1897, c. 500, § 10, which provides that the Boston Elevated Railway
Company may " establish, and take a toll or fare, which shall not
exceed the sum of five cents for a single continuous passage in the
same general direction upon the roads owned, leased or operated
by it," which " sum shall not be reduced by the legislature during
the period of twenty-five years, from and after the passage of this
act," with the further provision that the Board of Railroad Com-
missioners may, upon petition and after notice and a hearing, re-
duce such toll or fare, but that such toll or fare shall not, without
the consent of the corporation, be so reduced as to yield less than a
certain fixed income, and which further provides that " said cor-
poration shall also provide free transfer from elevated to surface
and from surface to elevated cars at all stations of the elevated
1912.] PUBLIC DOCUMENT — No. 12. 55
lines reached by surface lines and from one elevated ear or train to
another at junction points entitling a passenger to a continuous ride
in the same general direction," and such further free transfers on
all the surface lines as may be required by the Board of Eailroad
Commissioners, created a contract between the Commonwealth and
the Boston Elevated Eailroad Company; and a proposed amendment
to the section above quoted, providing in part that such corporation
" may establish for its sole benefit a toll or fare which shall not
exceed the sum of five cents for a single continuous passage between
the terminals and transfer points of said roads, and transfer checks
shall be issued or transfers made on demand without additional
payment, which shall entitle the passenger to a continuous ride from
any station or transfer point to any other station or transfer point
on the system," such transfers to be issued from and between mid-
night and six o'clock in the morning, on cars leaving certain specified
stations, so as to render to passengers the same amount of service
during the hours from midnight to 6 o'clock in the morning for the
same fare as they receive during the other hours of the day, is un-
constitutional and void, for the reason that it changes the require-
ments as to transfers established by such contract.
May 3, 1911.
Hon. Frank P. Bennett, Jr., Chairman, Committee on Street
Railways.
Dear Sir: — You have requested my opinion as to whether
House Bill No. 1164, if enacted, would be constitutional. This
bill is entitled " An Act relative to free transfers on the cars of
the Boston Elevated Eailroad Company," and amends St. 1894,
c. 548, by substituting for section 16 thereof a new section. As
St. 1894, c. 548, § 16, is not now in force, having been repealed
by St. 1897, c. 500, § 22, it is obvious that the bill is not in
proper form. I assume, however, that the intention is to amend
St. 1897, c. 500, § 10, which is the section now in force dealing
with the same subject-matter, and I answer your question upon
that assumption.
From the title of the bill and from the petition which accom-
panies it, I infer that the purpose of the bill is to change the
requirement as to transfers, and I therefore consider primarily
its constitutionality in this aspect.
St. 1897, c. 500, § 10, authorizes the Boston Elevated Bail-
way Company to " establish and take a toll or fare which shall
not exceed the sum of five cents for a single continuous passage
in the same general direction on the roads owned, leased or
operated by it," which " sum shall not be reduced by the legis-
lature during the period of twenty-five years, from and after
56 ATTORXEY-GEXERAL'S REPORT. [Jan.
the passage of this act," with a provision, however, that the
Board of Railroad Commissioners may, upon petition, after
notice and hearing, reduce such toll or fare, but that such toll
or fare shall not, without the consent of the corporation, be
so reduced as to yield less than a certain fixed income. The
section further provides that —
Said corporation shall also provide free transfer from elevated
to surface and from surface to elevated ears at all stations of the
elevated lines reached by surface lines and from one elevated car or
train to another at junction points entitling a passenger to a con-
tinuous ride in the same general direction, and such further free
transfers on all the surface lines of railway owned, leased or oper-
ated by it, as may be satisfactory to or required by the board of rail-
road commissioners.
The proposed act provides, in part, as follows : —
Said corporation may establish for its sole benefit a toll or fare
which shall not exceed the sum of five cents for a single continuous
passage between the terminals and transfer points of said routes.
And transfer checks shall be issued or transfers made on demand,
without additional payment, which shall entitle the passenger to a
continuous ride from any station or transfer point to any other
station or transfer point on the system and said transfers shall be
issued from and between the hours of twelve midnight and six in the
morning on cars leaving and arriving at Adams square, Hanover
street, Scollay square and Northampton street, Boston, and Harvard
square, Cambridge, and Uphams Corner, Dorchester, so as to render
passengers the same amount of service during the hours of twelve
midnight and six in the morning for the same fare as they receive
during the other hours of the day.
The provisions of St. 1897, c. 500, § 10, undoubtedly created
a contract between the Commonwealth and the Boston Elevated
Railway Company (II Op. Atty.-Gen. 261, 426, 429; Opinion
of the Attorney-General to the House of Representatives, April
22, 1911), and this contract is still in force. The right to
charge a toll or fare of a fixed amount which shall not be
reduced except in a prescribed manner is of the essence of the
contract. So is the limitation as to the transfers which may
be required. A change in the rate other than in the prescribed
manner, or, what is equivalent thereto, a change in the require-
ments as to transfers, is an impairment of the contractual
1912.] PUBLIC DOCUMENT — No. 12. 57
rights of the company. See Detroit v. Detroit Citizens' St. Ry.
Co., 184 U. S. 368, 398; Minneapolis v. Minneapolis St. Ry. Co.,
215 U. S. 417, 434; see also, Interstate Ry. Co. v. Massachusetts,
207 U. S. 79, 86.
The proposed act clearly changes the requirements as to trans-
fers. It substitutes for a requirement that the corporation shall
provide " such further free transfers on all the surface lines
of railway owned, leased or operated by it, as may be satis-
factory to or required by the board of railroad commissioners,"
certain absolute requirements. It is immaterial that the rail-
road commissioners might make even more stringent require-
ments than are made by the proposed act. The corporation is
entitled to have the requirements made in the manner fixed
by its contract. To this extent at least, the bill, if enacted,
would be unconstitutional. I do not imply that there are not
other aspects in which it would be unconstitutional.
Very truly yours,
James M. Swift, Attorney-General.
Governor — Statement or Estimate of Proposed Expenditures
— Investigation of Officers, Departments or Institutions of
the Commonwealth — Employment of Agents or Experts.
The authority of the Governor under St. 1910, c. 220, § 1, in substance
requiring that certain statements and estimates should be submitted
to the Governor and Council, and that the Governor should transmit
the same to the General Court with such recommendations, if any,
as he might deem proper, was not extended by the provisions of
St. 1911, c. 82, authorizing him " to employ such persons as he may
deem proper to make such investigation of any of the commissions,
departments or institutions of the commonwealth as he believes is
necessary to enable him to carry out the provisions of chapter two
hundred and twenty of the acts of the year nineteen hundred and
ten," and his power to investigate, by means of agents, investiga-
tors or experts employed under the provisions of the chapter last
cited, any officer, department or institution, must be predicated upon
the existence of a statement of proposed expenditures and of other
matters required by St. 1910, c. 220, which is to be transmitted to
the Legislature.
It follows, therefore, that after the Governor has transmitted to the
Legislature the statements or estimates of expenditure in relation
to any particular officer, department or institution there is no longer
authority or occasion for any such investigation.
58 ATTORNEY-GENERAL'S REPORT. [Jan.
May 11, 1911.
Hon. Elmer A. Stevens, Treasurer and Receiver-General.
Dear Sir : — You submit for my consideration a communica-
tion dated May 8, 1911, in which you say, in part, that —
Under authority of His Excellency the Governor, given by chapter
82 of the Acts of the year 1911, on or about the middle of March
last, Mr. Harvey S. Chase began an investigation of the department
of the Treasurer and Receiver-General. He was granted free access
to every book and record in the department and there was shown
and explained to him everything he desired.
On March 28 he rendered a report to the Governor, the Executive
Council and the joint committee on ways and means. This report
was sent to the Legislature by the Governor and referred to the joint
committee on ways and means.
and, further, that Mr. Chase —
has demanded of me the privilege of further investigating this de-
partment and thus covering the same ground of his previous investi-
gation.
I desire, therefore, to be advised of the extent of the authority
for investigating this department given by chapter 82 of the acts
of the General Court of this year.
You further state that Mr. Chase was appointed by the Gov-
ernor to conduct an investigation, on March 17, 1911, by a
written authority, in part as follows : —
Acknowledging your favor of to-day, you are hereby authorized
to conduct an investigation in regard to the offices of the Treasurer,
... in accordance with the provisions of the legislative act approved
March 2, 1911, a copy of which is hereto attached.
Said chapter 82 of the Acts of 1911 did not extend the gen-
eral power of the Governor with respect to investigations, as
denned and described in an opinion rendered ta the Governor
by the Attorney-General, dated April 26, 1909. The statute
was passed solely for the purpose set forth therein, namely, to
enable the Governor " to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hun-
dred and ten," which is the so-called " Walker act."
The effect of this latter statute was determined by the Su-
preme Court in an opinion of the justices to the Senate, dated
April 7, 1911, which is, in part, as follows: —
1912.] PUBLIC DOCUMENT — No. 12. 59
The St. of 1910, c. 220, has made but a very small change in the
law of the Commonwealth. . . .
The only new provision in this particular is the requirement that
it [estimates and statements] shall be submitted " to the governor
and council for examination, and the governor shall transmit the
same to the general court with such recommendations, if any, as
he may deem proper." . . . Under this statute, after the document
has been printed it is to be formally submitted to the Governor and
Council for examination, as well as distributed to the members of
the General Court; w7hile under the former statute the governor was
left to obtain a copy as he might. Under the present statute he is
to transmit it to the General Court, so that they may know that he
has had an opportunity to examine it, and he may make recommenda-
tions or not, as he chooses. . . . The only material effect of this
statute is to give a legislative invitation to the Governor to examine
the documents prepared by the Auditor, and to make recommenda-
tions upon the subjects contained in them if he chooses, and also to
give him an implied assurance that his recommendations as to the
amount of the appropriations will receive respectful consideration.
The duty and power of the Governor in the premises, there-
fore, being confined to the transmission of the statements of
estimates for appropriations submitted to the Auditor by the
various State officers, boards and commissions, and transmitted
by the Auditor to the Governor, to be accompanied by a recom-
mendation or not, as he sees fit, it follows that his power to
investigate any officer, department or institution must be predi-
cated upon the existence of a statement of proposed expendi-
tures and of other matters required by St. 1910, c. 220, which
may be transmitted by him to the Legislature. The employ-
ment of agents, investigators and " experts " is only such as
the Governor believes is necessary to enable him to carry out
the provisions of said St. 1910, c. 220. If there are no such
estimates for the current year before him for transmission, and
upon which before transmission he seeks further information,
it follows that there is no authority or occasion for any investi-
gation under said St. 1910, c. 220, or St. 1911, c. 82.
With reference to this you state that —
The regular appropriations for salaries and expenses of this de-
partment were approved by the Governor on February 11, being
chapter 26 of the acts of this year, and on February 17 His Excel-
lency sent a special message to the House of Representatives recom-
mending the enactment of a bill authorizing the payment of the sum
of $343,691, the sinking fund requirements for the payment of the
60 ATTORNEY-GENERAL'S REPORT. [Jan.
direct debt of the Commonwealth for the year 1911, and $167,833.33
for the payment of certain serial bonds falling due during said year.
This bill was passed and approved by His Excellency on March 17,
being chapter 157 of the acts of this year.
It appears, therefore, that when Mr. Chase was first appointed
by the Governor the statement or estimate of expenses from the
department of the Treasurer, which had been before the Gov-
ernor under the requirements of said St. 1910, c. 220, had
already been transmitted to the Legislature by the Governor,
and the appropriation had been made and approved by the
Governor. Further, it appears that the statement with refer-
ence to the sinking funds had also been transmitted to the
Legislature and had been enacted into law, with . the approval
of the Governor. So far, then, as relates to the department
of the Treasurer itself, or to the sinking fund requirements, the
Governor did not have before him any statement or estimate
under the provisions of said St. 1910, c. 220. There was, there-
fore, no ground for an investigation by the Governor, or his
agent, " to enable him to carry out the provisions of chapter
two hundred and twenty of the acts of the year nineteen hun-
dred and ten," as specified in St. 1911, c. 82. I am of opinion,
therefore, that so far as relates to the operation, maintenance
and management of the department of the Treasurer and
Receiver-General Mr. Chase was without authority from the
beginning, and that the investigation that has been made was
made by the consent and with the acquiescence of the Treasurer.
I am of opinion, therefore, that as Mr. Chase has no authority
to conduct an investigation into the management or methods
or details of the department of the Treasurer and Receiver-
General, you are within your rights in refusing him permission
so to do.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Public Park — Change of Use — Bacfc
Bay Fens — Proprietary Rights.
It is within the power of the Legislature to authorize the park commis-
sioners of the city of Boston to permit the erection of a public
schoolhouse upon land known as the Back Bay Fens, acquired in
fee by the city of Boston under authority of St. 1875, c. 185,
which provided in section 3 that such commissioners should " have
1912.] PUBLIC DOCUMENT — No. 12. 61
the power to locate within the limits of the city of Boston one
or more public parks, and for that purpose from time to time
to take in fee, by purchase or otherwise, any and all such lands as
said board may deem desirable therefor, ..." since the proposed
use of the land in question is undoubtedly for a public use and no
proprietary rights will be affected thereby.
Mat 11, 1911.
Hon. Allen T. Treadway, President of the Senate.
Deae Sie : — I have the honor to acknowledge the receipt of
an order of the Honorable Senate requiring my opinion upon
the following question of law : " Are the provisions of section
1 of the bill printed as Senate, No. 441, now pending in the
Senate, a copy of which is transmitted herewith, constitu-
tional?"
The section to which the order refers is as follows : —
Section 1. The park commissioners of the city of Boston are
hereby authorized, upon the request of the schoolhouse commis-
sioners of the said city, with the approval of the school committee
of said city, to permit the erection of a building for the high school
of commerce within the limits of the Back Bay Fens in said city of
Boston.
The Back Bay Fens, so called, were acquired in 1877 by the
park commissioners of the city of Boston, under authority of
St. 1875, c. 185. This statute provided in section 3 that said
commissioners should " have power to locate within the limits
of the city of Boston one or more public parks; and for that
purpose, from time to time, to take in fee, by purchase or other-
wise, any and all such lands as said board may deem desirable
therefor ; . . ." By section 6 it was provided that —
The fee of all lands taken or purchased by said board under this
act shall vest in the city of Boston, and said city shall be liable to
pay all damages assessed or determined, as provided in the preceding
section, and all other costs and expenses incurred by said board in
the execution of the powers vested in them by this act. Said city
shall also be authorized to take and hold in trust or otherwise any
devise, grant, gift or bequest that may be made for the purpose of
laying out, improving or ornamenting any parks in said city.
Section 17 contained a provision making the act effective upon
acceptance by a majority of the legal voters of the city of Bos-
ton present and voting; and the act was accepted in accordance
62 ATTORNEY-GENERAL'S REPORT. [Jan.
with such provision on June 9, 1875. I am informed by the
corporation counsel of the city of Boston that the park commis-
sioners acquired title by purchase and without condition, and
that in order to perfect the title of the city said lands were
subsequently taken in fee under authority of the provision of
St. 1875, c. 185, § 3, above quoted.
From this statement of the situation it appears that the Back
Bay Fens are held for park purposes and that the fee therein
is in the city of Boston. The question is whether it is within
the power of the Legislature to authorize the park commis-
sioners of said city to permit the erection of a public school-
house upon this land now held for park purposes.
This question must, in my opinion, be answered in the
affirmative. The proposed use of the land in question is un-
doubtedly for public purposes. The legal title to the land,
though acquired at the expense of the city, is held by it in trust
for the public. Holt v. City Council of Somerville, 127 Mass.
408. The Legislature represents the interests of the public
and controls the use which is made of the park. No action on
the part of tax-paying citizens or voters or of the city council is
required. Codman v. Crocker, 203 Mass. 147, 152, 153. The
power of the Legislature in this respect is extensive. In Com-
monwealth v. Davis, 162 Mass. 510, 511, the court pointed out
that " when no proprietary right interferes, the Legislature
may end the right of the public to enter upon the public place
by putting an end to the dedication to public uses. So it may
take the lesser step of limiting the public use to certain pur-
poses." On this principle it may, it seems, subject to this
limitation, change the public use. Cf. Mt. Hope Cemetery v.
Boston, 158 Mass. 509, 511. This principle is, therefore, broad
enough to justify the proposed act if such act does not affect
proprietary rights. Upon the facts before me it does not appear
that there are any proprietary rights which will be affected by
the erection of a schoolhouse in the park. Upon that assump-
tion, the provisions of section 1 of the bill are, therefore, con-
stitutional.
Very truly yours,
James M. Swift, Attorney-General.
1912.1 PUBLIC DOCUMENT — No. 12. 63
Constitutional Law — Taxation — National Banks — Tax on
Deposits.
A proposed bill, in substance imposing upon all or certain of the deposits
in national banks within the Commonwealth an annual tax of not
more than one-half of one per cent., if enacted, would be unconstitu-
tional as a tax upon the property of the depositors or upon the
property of the bank because it is not proportional within require-
ment of the Constitution of Massachusetts, Part IT., c. 1, § 1, Art.
IV., that taxes levied upon property must be " proportional and
reasonable."
Such a bill would also be unconstitutional as a tax upon the property
of the bank because it is in conflict with Eevised Statutes of the
United States, § 5219, which restricts the power of a State to tax
national banks to a taxation of the shares of stock in the names of
the shareholders and to an assessment of the real estate of the bank.
As an excise upon the privileges of the depositors, such bill would be
unconstitutional because the mere right to take and hold property
cannot be made the subject of an excise tax; and as an excise upon
any privileges of the bank, it would be unconstitutional because it
would be in conflict with the provisions of Eevised Statutes of the
United States, $ 5219, above cited.
May 13, 1911.
Norman H. White, Esq., Chairman, Committee on Ways and Means.
Dear Sir : — In behalf of the committee on ways and means
of the House of Representatives you have requested my opinion
as to whether or not House Bill No. 1827 is constitutional,
"and whether the State can legislate on a matter of this kind
.pertaining to national banks."
House Bill No. 1827 is as follows: —
Section 1. The provisions of chapter three hundred and forty-
two of the acts of the year nineteen hundred and nine shall apply
to national banks having a place of business in the commonwealth
of Massachusetts, and said provisions shall only apply to such of
the deposits therein referred to as do not exceed in amount the
limits imposed upon deposits in savings banks by section forty-six
of chapter five hundred and ninety of the acts of the year nineteen
hundred and eight and acts in amendment thereof and addition
thereto.
Section 2. This act shall take effect upon its passage.
St. 1909, c. 342, referred to in this bill, imposes upon
" every trust company having a savings department, ... an
annual tax on the amount of its deposits therein," substantially
such as is imposed upon savings banks (St. 1909, c. 490, Part
64 ATTORNEY-GENERAL'S REPORT. [Jan.
III., §§ 21-23), — that is, "an annual tax of one half of one
per cent on the amount of its deposits," — except that for the
years 1910, 1911 and 1912 a smaller rate is fixed; and section
4 exempts from local taxation deposits taxed nnder the provi-
sions of that act. St. 1908, c. 590, § 46, as amended, referred
to in the bill, permits savings banks to " receive on deposit
from any person not more than one thousand dollars/' and to
allow interest thereon, " and upon the interest accumulated
thereon, until the principal, with the accrued interest, amounts
to two thousand dollars." See St. 1909, c. 491, § 7. The effect
of the bill, if enacted and valid, would be to impose upon all
or certain of the deposits in the national bank an annual tax of
not more than one-half of one per cent. It is not necessary
for me to consider the construction of the act, since upon any
construction it is, in my opinion, invalid upon fundamental
grounds.
The Constitution of this Commonwealth contains two provi-
sions authorizing taxation, which are to be found in Part II.,
c. I., § I., Art. IV. The General Court is authorized to " im-
pose and levy proportional and reasonable assessments, rates
and taxes, upon all the inhabitants of, and persons resident,
and estates lying, within the said commonwealth; and also to
impose and levy reasonable duties and excises upon any produce,
goods, wares, merchandise, and commodities whatsoever, brought
into, produced, manufactured, or being within the same; . . ."
In substance, the first provision authorizes proportional and
reasonable taxes upon property; the second, reasonable excises
upon privileges.
Section 5219 of the Revised Statutes of the United States
" is the measure of the power of a State to tax national banks,
their property or their franchises. By its unambiguous provi-
sions the power is confined to a taxation of the shares of stock
in the names of the shareholders and to an assessment of the
real estate of the bank. Any state tax therefore which is in
excess of and not in conformity to these requirements is void."
Owensboro National Bank v. Oivensboro, 173 U. S. 664, 669.
See also Third National Bank of Louisville v. Stone, 174 U. S.
432,
The tax sought to be imposed by the bill in question would
be unconstitutional as a tax upon the property of the depositors
or upon the property of the bank because not proportional
(Opinion of the Justices, 195 Mass. 607) ; and as a tax upon
1912.] PUBLIC DOCUMENT — No. 12. 65
the property of the bank would be void because in conflict
with the federal statute referred to. It would be unconstitu-
tional as an excise upon the privileges of the depositors, for the
depositors are merely owners of money on deposit, that is,
creditors of the bank, and " the mere right to own and hold
property " such as this " cannot be made the subject of an excise
tax" (Opinion of the Justices, supra, p. 614): and would be
void as an excise upon any privilege of the bank, because in
conflict with the federal statute referred to. The tax cannot
in any view be considered as a tax on the " shares of stock in
the names of the shareholders " or " an assessment of the real
estate of the bank." See Owensboro National Bank v. Owensboro,
supra.
Very truly yours,
James M. Swift, Attorney-General.
Citizen — Voters — Formation of Credit Union.
Under the provision of St. 1909, c. 419, § 3, that " seven or more citizens
of this commonwealth who have associated themselves by an agree-
ment in writing for the purpose of forming a credit union, may . . .
become a corporation . . .," the persons signing such agreement need
not be voters.
May 24, 1911.
Hon. Arthur B. Chapin, Bank Commissioner.
Dear Sir: — By your letter of May 23 you require my opin-
ion "as to whether the law (St. 1909, c. 419, § 3) requires all
of the applicants for a credit union to be citizens in the sense that
they must be voters."
The section cited provides that —
Seven or more citizens of this commonwealth who have associated
themselves by an agreement in writing for the purpose of forming a
credit union may, with the consent of the board of bank incorpora-
tion, become a corporation upon complying with all the provisions
of section three of chapter one hundred and fourteen of the Revised
Laws, except those which relate to the limit of capital to be accu-
mulated.
Your letter states you have before you an agreement of asso-
ciation signed " by seven applicants, only five of whom are
naturalized citizens of this Commonwealth." I assume the two
remaining applicants are unnaturalized aliens.
66 ATTORXEY-GEXERAL'S REPORT. [Jan.
The language of the section above quoted is explicit and re-
quires that all the parties to the agreement therein provided for
must be citizens of the Commonwealth. An unnaturalized alien
is not a citizen of the United States, and therefore cannot be-
come even by residence a citizen of the Commonwealth. It
follows that the board of bank incorporation may not consent to
the formation of a corporation by such applicants.
Replying to your specific inquin', however, I have to advise
you that the act does not require that citizens who may associate
themselves for the purpose of forming a credit association should
be voters. A citizen is not necessarily a voter.
Very truly yours,
James M. Swift, Attorney-General
Mercantile Establishment — Premises of Telegraph Company.
Premises maintained by a telegraph company do not constitute a mer-
cantile establishment within the provision of St. 1909, c. 514, § 17,
that " ' mercantile establishments ' shall mean any premises used for
the purpose of trade in the purchase or sale of any goods or mer-
chandise, and any premises used for the purposes of a restaurant
or for publicly providing and serving meals."
May 31, 1911.
Gen. J. H. Whitney, Chief of the Massachusetts District Police.
Dear Sir: — By a communication dated May 19 you request
my opinion upon the question whether or not the Postal Tele-
graph Company and similar corporations are to be considered
as mercantile establishments, and therefore as coming within
the provision of St. 1909, c. 514, § 56, that " no child under
the age of fourteen years, and no child who is over fourteen
and under sixteen years of age who does not have a certificate
as required by the four following sections . . . shall be em-
ployed in any factory, workshop or mercantile establishment."
The act in which the above provision of law is found is a
codification of the laws relating to labor, and in section 17 cer-
tain words and phrases as used in such codification, including
the phrase " mercantile establishments," are defined. The pro-
vision is as follows : —
" Mercantile establishments " shall mean any premises used for
the purposes of trade in the purchase or sale of any goods or mer-
chandise, and any premises used for the purposes of a restaurant
or for publicly providing and serving meals.
1912.] PUBLIC DOCUMENT — No. 12. 67
I am of the opinion that the premises maintained by the
Postal Telegraph Company are not used for the purposes of
trade in the purchase or sale of any goods or merchandise, or
for the purposes of a restaurant or for publicly providing and
serving meals. It follows, therefore, that such premises are
not to be considered as a mercantile establishment.
Very truly yours,
James M. Swift, Attorney-General.
Hours of Labor — Vacations — Persons employed at State
House — Governor — Governor and Council.
Neither the Governor nor the Governor and Council have any power to
determine the hours of labor or the length of vacations for persons
employed at the State House.
June 1, 1911.
His Excellency Eugene X. Foss, Governor.
Sir : — You have requested my opinion as to " what power,
if any, the Governor or the Governor and Council have with
regard to determining the hours of labor for employees at the
State House, and with regard to the length of their vacations."
In my opinion neither the Governor nor the Governor and
Council have any power in regard to the hours of labor for
emplo}Tees at the State House, or in regard to their vacations,
except so far as they may have power over employees in the
executive department. The hours of labor of the different em-
ployees are to be determined, in my opinion, by the head of the
department in which such employee is employed. So long as
such heads of departments act reasonably there is apparently
no authority in any one to interfere.
I am aware that on July 15, 1872, the Council adopted the
following order : —
Ordered, That all persons employed in the various departments in
the State House shall be on duty daily from 9 o'clock a.m. to 4
o'clock p.m., with an intermission of one hour for dinner; and that a
vacation not longer than one month be allowed to each employee.
This was apparently adopted under authority of St. 1866,
c. 67, which gave to the Executive Council the right to fix the
office hours of the departments. This statute, however, was
repealed by St. 1879, c. 236.
Very truly yours,
James M. Swift, Attorney-General.
68 ATTORXEY-GEXERAL'S REPORT. [Jan.
Constitutional Law — Governor — Bills and Resolves — Action
— Five Days Sundays — Holidays.
Under the provision of the Constitution of the Commonwealth, Part II.,
e. I., § I., Art. II., that " if any bill or resolve shall not be returned
by the governor within five days after it shall have been presented,
the same shall have the force of a law," the governor is to be allowed
five full days, beginning at 12 o'clock midnight next following the
time when the bill is presented, in which to exercise his right either
to signify his approval by signing such bill or to return it with his
objections in writing to the Senate or House of Eepresentatives.
In computing such period of five days, Sunday is to be excluded and
holidays included.
June 1, 1911.
His Excellency Eugene X. Foss, Governor.
Sir : — I have the honor to reply to the inquiry of Your
Excellency, transmitted to me through your secretary, whether
or not, under the provision of the Constitution of the Common-
wealth, Part the Second, Chapter I., section I., Article II.,
" if any bill or resolve shall not be returned by the governor
within five days after it shall have been presented, the same shall
have the force of a law," the five days may be construed to begin
upon midnight of the day on which the bill is presented to the
Governor, exclusive of Sundays and holidays.
I am of opinion that in acting under the constitutional pro-
vision above quoted the Governor is to be allowed five full days,
beginning at 12 o'clock midnight next following the time when
the bill is presented, in which to exercise his right either to
signify his approval of such bill by signing it or to return it
with his objections, in writing, to the Senate or House of Repre-
sentatives, and that in the computation of such periods of five
days Sundays are to be excluded.
With reference to the question of holidays, I have not been
able to find any judicial decisions on the point. It is a general
rule, however, that anything may be legally done on a holiday
which is not expressly prohibited, and that as to the legality of
business done, holidays are different from Sundays. My con-
clusion from the cases I have examined on this point is that
in the case of Sunday it is to be inferred that no work shall be
done, but that in the case of a holiday any work may be done
which is not prohibited by law. There is no prohibition upon
the Governor forbidding him to veto a bill on a holiday, and
I therefore assume that he may do so. As he may express his
1912.] PUBLIC DOCUMENT — Xo. 12. 69
veto on a holiday, I am of the opinion that the better rule is
to include the holiday as one of the five days allowed under the
constitutional provision.
Very truly yours,
James M. Swift, Attorney-General.
Statute — Presumption of Lawful Passage — Administrative
Officers.
The presumption arising from the proper custody and due authentication
of an act of the Legislature that such act was passed in accord-
ance with the requirements of the Constitution, should be regarded
as binding upon administrative officers, and such act should be re-
garded by them as having " the force of a law."
June 7, 1911.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir : — In behalf of the Civil Service Commission you
request my opinion as to whether St. 1911, c. 119, which is en-
titled " An Act relative to qualifications for examination by
the civil service commission,'7 has the " force of a law." This
act, after having passed both branches of the General Court,
was " laid before the Governor for his revisal," and was by him
returned to the House of Eepresentatives, in which branch it
originated, without his approval. Thereupon, as appears from
the journal, a quorum being present, more than two-thirds of
the members present but less than two-thirds of the entire
membership (unless the members paired in favor be counted)
agreed to pass it. Thereafter, it was sent to the other branch,
and was approved by two-thirds of the members present. You
seek my advice as to whether upon these facts the act was legally
passed; that is. whether the constitutional requirement for the
passage of a bill over the Governor's veto, that two-thirds of
the Senate or House of Eepresentatives, in which it originated,
should agree to pass it (Const., Part II., c. I., § I., Art. II.),
was complied with.
The bill is now deposited with the Secretary of the Common-
wealth, who, under the Constitution (Part II., c. II., § IV., Art.
II.), has the custody of the records of the Commonwealth. It
bears the statements, signed, respectively, by the speaker of the
House and the president of the Senate, that it was passed to be
enacted by those branches. It also bears the statement, signed
by the speaker and by the clerk of the House, that the bill,
70 ATTORXEY-GEXERAL'S REPORT. [Jan.
" having been returned to the House of Representatives by His
Excellency the Governor with his objections thereto in writing,
is passed by the House of Representatives notwithstanding said
objections, two-thirds of the members having voted in the
affirmative;" and the statement, signed by the president and
by the clerk of the Senate, that it " has been passed in concur-
rence by the Senate, the objections of His Excellency the Gov-
ernor to the contrary notwithstanding, two-thirds of the members
present having approved the bill." Said bill is, therefore, in
the proper custody and duly authenticated, and is presumed
to have been enacted in accordance with constitutional require-
ments. Whether such presumption can be overcome by refer-
ence to the legislative journals is a matter upon which the
courts are not in agreement. The Supreme Court of the United
States holds that a bill which is in proper custody and duly
authenticated is conclusive evidence of its execution and valid
enactment (Field v. Clark, 143 U. S. 649; Flint v. Stone-
Tracy Co., 220 U. S. 107), and the same view is held by nu-
merous State courts. Other State courts take a different view.
Without expressing an opinion as to the view which is likely
to be adopted by the Supreme Judicial Court of this Common-
wealth when the case comes before it, I advise you that the
presumption arising from proper custody and due authentication
should be regarded as binding upon administrative officers, and
that said act should be regarded by your commission as having
the " force of a law." I do not, of course, intend by so advis-
ing you to imply that if the journals were referred to it would
appear that the bill was not legally enacted. Upon careful con-
sideration I have concluded that I ought not to express an
opinion in answer to that inquiry.
Very truly yours,
James M. Swift, Attorney-General.
Corporation — Charter — Purpose — Holding Company — Ac-
quisition of Stock of Domestic Street Raihvay, Gas and
Electric Light Corporations.
Under the provisions of St. 1903, c. 437, § 7, as amended by St. 1906,
c. 286, § 7, that " three or more persons may associate themselves
by a written agreement of association with the intention of form-
ing a corporation under general laws for any lawful purpose which
is not excluded by the provisions of section one except to buy and
sell real estate," a corporation may be organized for the purpose
1912.] PUBLIC DOCUMENT — No. 12. 71
" to buy and hold a majority of the shares of the capital stock of
any street railway, gas and electric light companies organized under
the laws of this commonwealth to do business within this common-
wealth."
June 9, 1911.
Hon. William D.'T. Trefry, Commissioner of Corporations.
Dear Sir : — You request my opinion as to whether " a cor-
poration may be organized under chapter -137 of the Acts of the
year 1903 for the following purpose : ' to buy and hold a ma-
jority of the shares of the capital stock of any street railway,
gas and electric light companies organized under the laws of
this Commonwealth to do business within this Commonwealth.' "
It is well established in this Commonwealth that a corpora-
tion may be organized under the general law^s for the purpose
of acquiring the stock of other corporations under the provisions
of St. 1903, c. 4:37, § 7, as amended by St. 1906, c. 286, § 7,
which is as follows : —
Three or more persons may associate themselves by a written
agreement of association with the intention of forming a corporation
under general laws for any lawful purpose which is not excluded by
the provisions of section one except to buy and sell real estate.
By section 1, as amended by St. 1910, c. 385, it is provided
that the purposes excluded from its provisions are : —
the purpose of carrying on the business of a bank, savings bank,
co-operative bank, trust company, surety or indemnity company, or
safe deposit company, or to corporations organized under general or
special lawTs of this commonwealth for the purpose of carrying on
within the commonwealth the business of an insurance company,
railroad, electric railroad or street railway company, telegraph or
telephone company, gas or electric light, heat or power company,
canal, aqueduct or water company, cemetery or crematory company,
or to any other corporations which now have or may hereafter have
the right to take or condemn land within the commonwealth, or to
exercise franchises in public ways granted by the commonwealth or
by any county, city or town; but, except as hereinbefore provided,
the provisions of this section shall not be construed to prohibit the
organization of a corporation under the provisions of this act for
the purpose of carrying on any lawful business outside of this com-
monwealth.
The question is then presented whether the ownership of stock
for purposes of investment or control is a lawful purpose under
the foregoing provisions of law.
72 ATTORNEY-GENERAL'S REPORT. [Jan.
In and of itself the ownership of stock is undoubtedly a law-
ful purpose; and if expressly authorized, stock may be acquired
and held for purposes of investment or bought and sold for pur-
poses of profit. It is only when contrary to public policy as
declared by express statute or by the principles of common law
that such holding will become unlawful. Is such acquisition
and ownership unlawful when the stock to be owned and the
corporations to be controlled are not business corporations but
public-service corporations, such as gas and electric light or
street railwa}' companies? I am aware of no provision of law
which expressly forbids such ownership in the case of public-
service corporations.
It has been suggested that the organization of a business cor-
poration to acquire the stock of or to control public-service
corporations is in effect the organization of public-service cor-
porations under the business corporation law (St. 1903, c. 437),
which constitutes a violation of so much of section 1 as provides
that it shall not apply to the corporations enumerated, including
street railway companies and electric light companies. In my
opinion, however, this contention is disposed of by the language
of the court in Pullman Car Co. v. Missouri Pacific Co., 115 U. S.
587, and in Peterson v. Chicago, Rock Island & Pacific Ry. Co.,
205 U. S. 364, 391, where the court said: —
It is true that the Pacific company practically owns the controlling
stock in the Gulf company, and that both companies constitute ele-
ments of the Rock Island system. But the holding of the majority
interest in the stock does not mean the control of the active officers
and agents of the local company doing business in Texas. That fact
gave the Pacific company the power to control the road by the
election of the directors of the Gulf company, who could in turn
elect officers or remove them from the places already held; but this
power does not make it the company transacting the local business.
This record discloses that the officers and agents of the Gulf com-
pany control its management. The fact that the Pacific company
owns the controlling amounts of the stock of the Gulf company, and
has thus the power to change the management, does not give it
present control of the corporate property and business.
This conclusion, however, is based upon the assumption that
the holding corporation is organized in good faith to conduct
the business of acquiring and owning the stock specified, and is
not a device or trick to avoid the consequences of illegal acts
or to accomplish a purpose which would not be permitted to a
public-service corporation.
1912.] PUBLIC DOCUMENT — No. 12. 73
The question whether the organization of a holding company
for the purpose of acquiring the stock of and controlling a public-
service corporation is against public policy as tending to create
a monopoly is a more difficult one. Numerous cases in other
jurisdictions have decided contrary to such organization. In
this Commonwealth, however, it appears to be the established
policy to restrict competition in the case of such public-service
corporations as gas and electric light companies and street rail-
way companies, subject to regulation by the State. See TV eld
v. Gas and Electric Light Commissioners, 197 Mass. 556, 558.
Indeed, it may be said that in this Commonwealth all public-
service corporations are so supervised and controlled by the
public authorities that there is no longer unrestricted competi-
tion, upon the theory that the rights of the public are better
served by careful regulation than by unregulated competition.
In this Commonwealth, also, there appears to be no public
policy opposed to the creation of holding companies, so called,
even when they are for the purpose of holding the stock of
public-service corporations. Thus, by St. 1909, c. 519, the
Boston Railroad Holding Company was incorporated for the
purpose " of acquiring and holding the whole or any part of
the capital stock, bonds and other evidences of indebtedness of
the Boston and Maine Railroad, and of voting upon all certifi-
cates of stock so acquired and held . . " For many years
voluntary associations, resembling in many of their attributes
corporations, have been organized and are maintained to acquire
the stock of public-service corporations.
I am, therefore, of the opinion that the public policy of the
Commonwealth does not appear to be opposed to the creation
of holding companies created for the purpose of acquiring and
holding the stock of street railways or gas and electric light
companies, and that a provision authorizing such acquisition
and holding, in the charter of a business corporation organized
under the general laws, would not express an unlawful purpose
as against public policy. That is, in my opinion a corporation
may be organized under chapter 437 of the Acts of 1903 for
the purposes set forth in your inquiry.
Very truly yours,
James M. Swift, Attorney-General.
74 ATTORNEY-GENERAL'S REPORT. [Jan.
Hours of Labor — Dumping Inspectors — Civil Engineer.
Dumping inspectors employed by the Board of Harbor and Land Com-
missioners, whose duty it is " to see that all material which is to be
dumped in tidewater is transported and dumped in its proper locality,
none of it being deposited in any other place," are not " workmen,
laborers or mechanics" within the meaning of St. 1911, c. 494, § 1,
providing that " the service of all laborers, workmen and mechanics
now or hereafter employed by the commonwealth ... is hereby
restricted to eight hours in any one calendar day."
The further provision of such section that " engineers shall be regarded
as mechanics within the meaning of this act " does not extend to or
include persons who follow the profession of civil engineering.
June 24, 1911.
Hon. Heman A. Harding, Board of Harbor and Land Commis-
sioners.
Dear Sir : — You have requested my opinion with reference
to the standing of dumping inspectors under the provision of
section 1 of chapter 494 of the Statutes of 1911, that "the
service of all laborers, workmen and mechanics now or hereafter
employed by the commonwealth ... is hereby restricted to
eight hours in any one calendar day."
You state that the duties of dumping inspectors, who are civil
service appointees, are, " To see that all material which is to
be dumped in tidewater is transported and dumped in its proper
locality, none of it being deposited in any other place. The
inspectors are quartered on the towboats towing the loaded scows
to sea. They practically live on the boats. They are required
to be on duty from the time the towboat starts with the tow
until the material is dumped. They cannot leave the towboat
at that time, and have to remain until she returns to her wharf
or anchorage. They are not required to do any service on the
return trip. As soon as the scows are dumped they may turn
into their bunks and sleep until she returns to her dock or
anchorage. They are fed on board the towboat."
The duties of a dumping inspector, as defined by you, appear
to require special knowledge and powers of supervision, and do
not appear to involve any manual labor, which has generally been
regarded as an important element in the words " laborers, work-
men and mechanics." Meands v. Park, 95 Me. 527; Bloom v.
Richards, 2 Oh. St., 387, 401; Savannah & C. R. Co. v. Cal-
lahan, 49 Ga. 506, 511; Adams v. Goodrich, 55 Ga. 233, 234.
I am, therefore, of the opinion that a dumping inspector is not
1912.] PUBLIC DOCUMENT — No. 12. 75
a laborer, workman or mechanic within the meaning of the
statute.
You further inquire whether the statute, by virtue of the
provision that " engineers shall be regarded as mechanics within
the meaning of this act/' extends to and includes the chief en-
gineer and several assistant engineers, draftsmen and helpers
who do such civil engineering work as the commission may re-
quire. I am of opinion that the word " engineers," as used in
St. 1911, c. 494, § 1, is not to be construed to include persons
who follow the profession of civil engineering. Whether or not
those who assist them in the performance of such duties are to
be regarded as laborers, workmen or mechanics must- depend
upon the nature of the services which they perform.
Very truly yours,
James M. Swift, Attorney-General.
Towns — Water Supply — Indebtedness — Vote — Two-thirds
Majority.
A town which accepts by a majority vote an act authorizing it to supply
itself and its inhabitants with water, in incurring debt therefor
must comply with the provisions of E. L., c. 27, § 8, requiring a
two-thirds vote in order that it may incur debt for such purpose.
July 7, 1911.
Charles F. Gettemy, Esq., Director, Bureau of Statistics.
Dear Sir : — You request my opinion as to " whether a town
which accepts, by a majority vote, an act authorizing it to supply
itself and inhabitants with water may incur debt therefor with-
out being required to comply with the provisions of section 8
of chapter 27 of the Revised Laws, which makes necessary a
two-thirds vote in order that it may incur debt for such a pur-
pose." I infer that your inquiry is made with especial reference
to the town of West Brookfield, which town, by chapter 373 of
the acts of this year, is authorized to supply itself and its in-
habitants with water. Section 5 of this act is as follows : —
Said town, for the purpose of paying the necessary expenses and
liabilities incurred under the provisions of this act, may issue from
time to time bonds, notes or scrip to an amount not exceeding
thirty thousand dollars. Such bonds, notes or scrip shall bear on
their face the words. Town of West Brookfield Water Loan, Act
of 1911; shall be payable at the expiration of periods not exceed-
ing thirty years from the dates of issue; shall bear interest, pay-
76 ATTORNEY-GENERAL'S REPORT. [Jan.
able semi-annually, at a rate not exceeding four and one half per
cent per annum; and shall be signed by the treasurer of the town
and countersigned by the water commissioners hereinafter provided
for. Said town may sell such securities at public or private sale,
upon such terms and conditions as it may deem proper: provided,
that the securities shall not be sold for less than their par value.
Section 10 is as follows : —
This act shall take effect upon its acceptance by a majority vote
of the legal voters of the town of West Brookfield present and
voting thereon at a legal meeting called for the purpose within
three years after its passage; but it shall become void unless the
town of West Brookfield shall begin to distribute water to consumers
in said town within three years after the date of the acceptance of
this act as aforesaid. For the purpose of being submitted to the
voters as aforesaid this act shall take effect upon its passage.
As appears from the section last quoted, the general provi-
sions of the act do not take effect until " its acceptance by a
majority vote of the legal voters of the town of West Brookfield
present and voting thereon at a legal meeting called for the pur-
pose within three years after its passage." If the act is so
accepted, the town is authorized to issue " bonds, notes or scrip
to an amount not exceeding thirty thousand dollars." Such
bonds, notes or scrip, however, if issued, must be issued in ac-
cordance with a vote of the town. There is nothing in the act
from which it is to be implied that the vote by which the act
is accepted is also a vote to issue bonds, notes or scrip. In
voting to issue bonds, notes or scrip the town must, of course,
follow the statutory requirements. So far as the special act
prescribes the details of such issue it is to be followed; in other
respects the general law controls. Cf. I Op. Atty.-Gen., 263.
The special act does not state whether the vote to issue bonds,
notes or scrip shall be a majority or a two-thirds vote. The
general law (R. L., c. 27, § 8) requires, in the case of a town,
" a vote of two thirds of the voters present and voting at a town
meeting/' and, in the case of a city, " of two thirds of all the
members of each branch of the city council." It follows that
" a vote of two thirds of the voters present and voting " is re-
quired to authorize the issue of bonds, notes or scrip under
authority of the act here in question. The correctness of this
view appears from the fact that it is expressly provided by gen-
eral law (E. L., c. 27, § 21) that where a city accepts by a vote
1912.] PUBLIC DOCUMENT — No. 12. 77
of two-thirds of the legal voters an act to supply it with water,
" a vote of the majority of the members of each branch of the
city council " is sufficient to authorize the issue of bonds. By
this statute it is recognized that in cases not within this excep-
tion a vote " of two thirds of all the members of each branch of
the city council " or " of two thirds of the voters present and
voting at a town meeting ", as the case may be, is necessary.
Cf. St. 1876, c. 19.
Very truly yours,
James M. Swift, Attorney-General.
Attorney-General — Duties — Limit of Time — Constitutional
Law — Referendum — Matter of Local Self-government.
The Senate has no authority to fix a limit of time within which the
Attorney-General is to perform his duties or any of them.
A provision in a proposed bill that " this act shall be submitted to the
qualified voters of the Commonwealth at the next State election,
in answer to the question, ' Shall a law enacted by the General Court
of the year 1911 relative to the development of the Port of Boston
and authorizing the expenditure of $9,000,000 for that purpose, be
accepted ' . . . " does not fall within the exception permitting a
referendum in matters of local self-government, and would, there-
fore, be unconstitutional.
July 13, 1911.
Henry D. Coolidge, Esq., Clerk of the Senate.
Sir : — I have the honor to transmit herewith my opinion in
response to the following order to the Honorable Senate, dated
July 12, 1911 : —
Ordered, That the Attorney-General be requested to furnish to
the Senate forthwith his opinion on the following question : Whether
the following pending amendment of the Senate Bill relative to the
development of the port of Boston (printed as Senate, No. 570),
referring the measure by referendum to the voters of the Common-
wealth, is constitutional, to wit : striking out section 19 and insert-
ing in place thereof the following new section : — " Section 19.
This act shall be submitted to the qualified voters of the common-
wealth at the next state election in answer to the question ' Shall
a law enacted by the general court of the year nineteen hundred
and eleven relative to the development of the port of
Boston and authorizing the expenditure of nine million
dollars for that purpose be accepted?' If a majority of
NO.
the voters voting thereon vote in the affirmative, this act shall there-
upon take effect ; otherwise it shall be null and void."
78 ATTORXEY-GEXERAL'S REPORT. [Jan.
The form of the order compels me to respectfully remind the
Honorable Senate that it has no authority to fix the limit of
time within which the Attorney-General shall perform his duties
or any of them. Therefore, so much of the order as requires
my opinion forthwith I respectfully disregard. My desire, how-
ever, to assist the Honorable Senate in the performance of its
duties, as well as the deference I owe that honorable body, has
caused me to give attention to the question submitted as early
as I could consistently with the other duties of my office.
In my opinion the proposed referendum as set forth in said
order is unconstitutional within the principles now well estab-
lished in this Commonwealth, as stated in the Opinion of
the Justices, 160 Mass. 586, and in the decisions and discussions
in the following cases : Brodbine v. Revere, 182 Mass. 598 ;
Graham v. Roberts, 200 Mass. 152; and Wyeth v. Cambridge
Board of Health, 200 Mass. 474; and in the opinion of my
learned predecessor, Attorney-General Malone, to the committee
on the judiciary, under date of April 3, 1907 (Attorney- Gen-
eral's Report, 1907, p. 14). While the proposed legislation in
some respects may be said to be a statute of local concern, it
appears that the expenses are to be borne by the State at large,
and the referendum is directed to the voters of the State at large.
Said referendum, therefore, does not come within the exception
permitting a referendum in matters of local self-government,
within the meaning of said decisions.
Very truly yours,
James M. Swift, Attorney-General.
'Attorney-General — Opinion — Statement of Facts — Monopo-
lies — Public Policy — Legislature.
The Attorney-General is not required to express an opinion upon any
case or to take any other action relative thereto upon the request
of a State officer, board or commission unless sufficient facts are
stated to enable him to come to a definite conclusion in the premises.
The determination of the attitude of the Commonwealth toward monop-
olies is primarily a function of the Legislature, and does not fall
within the scope of the duties of the Attorney-General.
July 14, 1911.
His Excellency Eugene N. Foss, Governor.
Sir: — To your letter of July 3, 1911, I have been giving as
careful and earnest consideration as the contents thereof permit.
In it you make the following statements : —
1912.] PUBLIC DOCUMENT — No. 12. 79
Complaints are current that the prosperity of the shoe industry
in this Commonwealth has been seriously impaired and is further
threatened by the existence of a monopoly in shoe machinery. . . .
It is represented that practically all the shoe machinery in use
in Massachusetts is owned by a single corporation which, though
organized under the laws of another State, has its principal office
here. It is practically impossible for any shoe manufacturer to
buy his machinery or any part of it, He can secure it only upon
lease and upon terms arbitrarily fixed by this corporation, which
is said to be without competition in the manufacture of shoe
machinery. The company has since the date of its organization,
by various methods, acquired or destroyed the business of every
competitor. It accordingly now has a complete and absolute monop-
oly of the entire field. . . .
Complaints are rife that the corporation has used its power to
the disadvantage of our local industry. It has enforced oppressive
terms and has discriminated against localities, and in a measure
has discriminated against manufacturers here in favor of those
located in other States. There is a well-founded current belief that
the arbitrary restrictions imposed by this monopoly are responsible
for the depression of the industry of which our manufacturers are
beginning seriously to complain.
I call your attention to the fact that within the year last past,
when its monopoly was threatened by competition, this corporation
acquired the machines, the manufacturing plants and the patents
of a prominent, independent shoe machinery manufacturer. If this
transaction could have been prevented it would have afforded dis-
tinct relief and protection against the present situation of absolute
monopoly and autocratic control. It is of importance now to
determine whether the current belief as to its invalidity is justified,
and if so, what remedy may be applied.
You then proceed as follows : —
Assuming the facts to be as outlined above, I respectfully request
your opinion upon the following points : —
1. Is the existing law sufficient to enable you, as the chief law
officer of the Commonwealth, successfully to accomplish the destruc-
tion of this monopoly, or the relief in any measure of the shoe in-
dustry of the Commonwealth from the power of this corporation
absolutely to control and dominate our shoe manufacturers'?
2. Was the acquisition by this corporation of the shoe machinery,
the manufacturing plants and the letters patent of an independent
manufacturer in September, 1910, in violation of any existing law
of the Commonwealth?
3. If, in your opinion, the existing law is insufficient to give re-
lief, what other or further legislation is in your opinion necessary
or expedient to curb or break the power of this alleged monopoly?
80 ATTORXEY-GEXERAL'S REPORT. [Jan.
From a legal standpoint, and as a basis for an opinion that
will be of any value whatever, I am nnable to find in your letter
anything that permits or enables me to come to any conclusion.
It contains no statement of facts or evidence such as is necessary
as a basis for legal consideration or action.
However, the deference that I owe to the office of the Chief
Executive of this Commonwealth has led me to consider said
letter in a broad and general way as a request from you for
(1) a statement as to existing law, and (2) a statement as to
the necessity or expediency of further legislation concerning the
subject of manufacturing monopoly in this Commonwealth. So
far as I am able I advise you, therefore, along the lines of these
inquiries.
As to Existing Law. — There are now upon the books three
statutes which bear upon the subject of monopolies.1 These are
R. L., c. 56, § 1 ; St. 1907, c. 469 ; and St. 1908, c. 454. There
are also important common law principles, a consideration of
which would be essential to any complete statement of the law
of monopolies. Unless, however, it appears that no relief can
be obtained under the statutes cited, it is unnecessary to con-
sider whether relief could be obtained apart from these statutes.
R. L., c. 5Q, § 1, prohibits making " it a condition of the sale
of goods, wares or merchandise that the purchaser shall not sell
or deal in the goods, wares or merchandise of any other person,
firm, corporation or association," and imposes a penalty for the
violation of the provisions of the section. There is no sug-
gestion in your letter that these provisions have been violated
by the corporation to which you refer.
St. 1907, c. 469, prohibits inserting in or making " it a con-
dition or provision of any sale or lease of any tool, implement,
appliance or machinery that the purchaser or lessee thereof shall
not buy, lease or use machinery, tools, implements or appliances
or material or merchandise of any person, firm, corporation or
association other than such vendor, or lessor," and imposes a
penalty for the violation of the provisions of the act.
If Your Excellency has any evidence or sources from which
such evidence might be obtained of the violation of either of
the foregoing statutes, I have to advise you that the same should
be submitted to the district attorney for the district in which
such violation was committed, since he has charge of the adminis-
tration of the criminal law in that regard.
i The effect of St. 1911, c. 503, is limited to procedure.
1912.] PUBLIC DOCUMENT — No. 12. 81
St. 1908, c. 454, is entitled " An Act relative to monopolies
and discriminations in the sale of articles or commodities in
common use." Its first and second sections are as follows : —
Section 1. Every contract, agreement, arrangement or combina-
tion in violation of the common law in that thereby a monopoly in
the manufacture, production or sale in this commonwealth of any
article or commodity in common use is or may be created, estab-
lished or maintained, or in that thereby competition in this state
in the supply or price of any such article or commodity is or may
be restrained or prevented, or in that thereby, for the purpose of
creating, establishing or maintaining a monopoly within this state
of the manufacture, production or sale of any such article or
commodity, the free pursuit in this state of any lawful business,
trade or occupation is or may be restrained or prevented, is hereby
declared to be against public policy, illegal and void.
Section 2. The attorney-general, or, by his direction, a district
attorney, may bring an action in the name of the commonwealth
against any person, trustee, director, manager, or other officer or
agent of a corporation, or against a corporation, to restrain the
doing in this commonwealth of any act herein forbidden or declared
to be illegal, or any act in, toward or for the making or consum-
mation of any contract, agreement, arrangement or combination
herein prohibited, wherever the same may have been made. The
superior court shall have jurisdiction to restrain and enjoin any act
herein forbidden or declared to be illegal.
Obviously, this statute is of broad application. It is impossi-
ble for me, however, to advise you either as to the probable
outcome of a proceeding brought thereunder against the cor-
poration to which you refer, or as to the legality of the contract
in question, without having a complete knowledge of the facts
involved. I therefore respectfully suggest that you submit to
me the facts and evidence upon which your conclusions are based,
that I may institute proceedings under this statute if the facts
appear to justify such action. It is impossible for me to predi-
cate any opinion or official action upon manifest hearsay or
assumptions.
As to the Necessity or Expediency of Further Legislation. —
For the purpose of advising you as to the necessity or expediency
of further legislation I have the same need of detailed informa-
tion as to the facts as for the purpose of advising you as to the
application of existing law. Furthermore, the determination
of the Commonwealth's attitude toward monopoly is primarily
82 ATTORNEY-GENERAL'S REPORT. [Jan.
a legislative function, and does not fall within the scope of the
duties of the Attorne}T- General.
It is as much my earnest desire as it is that of Your Excel-
lency that the laws of the Commonwealth shall be strictly en-
forced, and that such corrections or amendments shall be pro-
vided as may appear necessary in any proper case. Manifestly,
however, action or legislation based upon insufficient informa-
tion and evidence would result in disaster and confusion, a
result which Your Excellency, I assume, as well as I myself,
would greatly deplore.
Very respectfully yours,
James M. Swift, Attorney-General.
Charles River Basin — Metropolitan Parle Commission — Lech-
mere Canal — Authority to iciden and deepen.
The Metropolitan Park Commission, under the provisions of St. 1903,
c. 465, which in section 4 required the Charles River Basin Commis-
sion to " dredge navigable channels in the basin " and to " dredge
Lechmere canal to such depths as will afford to and at the wharves
thereon not less than seventeen feet of water up to and including
Sawyer's lumber wharf, and not less than thirteen feet of water
from said wharf to the head of the canal at Bent street," and of
St. 1909, c. 524, § 1, by which such commission succeeded to " all
the powers, rights, duties and liabilities " of the Charles River Basin
Commission, has authority to widen a part of Lechmere Canal, to
reinforce the adjoining land by piling and to dredge the part of the
canal so widened to the depth prescribed in said chapter 465.
Aug. 1, 1911.
George Lyman Rogers, Esq., Secretary, Metropolitan Park Com-
mission.
Dear Sir : — You have requested my opinion in behalf of the
Metropolitan Park Commission as to whether it has authority
under St. 1903, c. 465, and St. 1909, c. 524, to widen a part of
Lechmere Canal, to reinforce the adjoining land by piling and
to dredge the part of the canal thus widened to the depth pre-
scribed in said chapter 465.
By St. 1909, c. 524, § 1, the Metropolitan Park Commission
succeeds to " all the powers, rights, duties and liabilities " of
the Charles Eiver Basin Commission. By St. 1903, c. 465, § 4,
the Charles Eiver Basin Commission was required to " dredge
navigable channels in the basin," and to " dredge Lechmere canal
1912.] PUBLIC DOCUMENT — No. 12. 83
to such depths as will afford to and at the wharves thereon not
less than seventeen feet of water up to and including Sawyer's
lumber wharf, and not less than thirteen feet of water from said
wharf up to the head of the canal at Bent street." The section
further provided as follows : —
The commission shall do all such dredging and all strengthening
of the walls of the canals and of the basin where dredging is done
by the driving of prime oak piles two feet on centres along the
front of said wharves or walls, and all removing and relocating of
pipes and conduits made necessary by such dredging, so that vessels
requiring a depth of water not exceeding the respective depths
above prescribed can lie alongside of, and in contact with, the
wharves; and this work shall be done in such manner as to cause
the least possible inconvenience to abutters, and shall be finished
on or before the completion of the dam; and after the walls or
wharves have been so strengthened, all repairs on or rebuilding of
the walls and wharves shall be done by the abutters.
The commission shall do such dredging in the basin outside of the
channels aforesaid as may be necessary for the removal of sewage,
sludge or any offensive deposit; shall do such other dredging as
it shall deem proper, and shall take all proper measures for the
destruction of malarial mosquitoes in the basin and its vicinity.
The part of the canal in question is northwest of Commercial
Avenue and runs from Commercial Avenue to the point where
the canal turns toward the south. The canal is here 100 feet
wide and is bounded on the southwest by land of the heirs of
John T. Scully. The southwest side of this part of the canal is
an " open shore." It is proposed that the heirs of John T. Scully
allow a part of their land to become a part of the canal, and that
the commission reinforce the adjoining land by piling and
dredge the canal to a width of 115 feet. Your inquiry is as to
whether this proposed scheme may legally be carried out.
So far as the widening of the canal is concerned I am of
opinion that there can be no legal objection to permitting the
abutting owners to allow their land to become a part of the canal
to the extent proposed. So far as the dredging of the canal is
concerned the only express requirement here material is that
it be dredged " to such depths as will afford to and at the wharves
thereon not less than seventeen feet of water . . . ." If as a
matter of fact the proposed dredging is reasonably incidental
to the fulfilling of this requirement, such dredging is authorized.
So far as the driving of piles is concerned, the statute makes cer-
84 ATTORNEY-GENERAL'S REPORT. [Jan.
tain specific requirements. Even if these express requirements
do not apply in front of open shores, the commission is author-
ized to " take such measures as are necessary to protect the
channel of the canals." I advise you, therefore, as my predeces-
sor advised the Charles River Basin Commission in reply to a
similar inquiry, that " if ... in your opinion, as a matter of
fact, the driving of the piles in question is a reasonable method
of protecting a channel dredged under the statutory requirement
that Lechmere canal be dredged, you have . . . authority to do
such driving of piles."
Very truly yours,
James M. Swift, Attorney-General.
Taxation — Bonds of Domestic Electric Light Corporation
secured by Mortgage on Real Estate and Personal Property
— Exemption.
The bonds of a domestic electric light corporation secured by a mortgage
of real estate within the Commonwealth and of personal property
are not exempt from taxation under the provisions of St. 1909,
c. 490, Part I., § 4, cl. 2, that personal estate, for the purpose of
taxation, shall not include " any loan on mortgage of real estate,
taxable as real estate, except the excess of such loan above the
assessed value of the mortgaged real estate."
Aug. 11, 1911.
Hon. W. D. T. Trefry, Tax Commissioner.
Dear Sir : — You have requested my opinion as to whether
the mortgage bonds of the Boston Electric Light Company, a
domestic corporation, are exempt from taxation. The bonds in
question are secured by a mortgage of real estate within the
Commonwealth and of personal property. The amount of the
issue of bonds is less than the assessed valuation of the mortgaged
real estate.
The bonds are taxable under St. 1909, c. 490, Part I., § 4, cl. 2,
which provides that personal estate for the purpose of taxation
shall include " money at interest, and other debts due the person
to be taxed more than he is indebted or pays interest for; but
not including in such debts due him or indebtedness from him
any loan on mortgage of real estate, taxable as real estate, except
the excess of such loan above the assessed value of the mortgaged
real estate," unless such bonds constitute a "loan on mortgage
of real estate, taxable as real estate," within the meaning of the
1912.] PUBLIC DOCUMENT — No. 12. 85
statute. In Brooks v. West Springfield, 193 Mass. 190, it was
held that bonds secured by mortgage of real estate in this Com-
monwealth, real estate in other States and personal property-
were not exempt from taxation under this statute, then E. L.,
c. 12, § 4. The principles therein laid down are applicable to
bonds secured by mortgage of real estate in this Commonwealth
and personal property. They are, in my opinion, applicable
though the amount of the issue of bonds is less than the assessed
valuation of the mortgaged real estate, as in the case of the
bonds in question. I advise you, therefore, that the mortgage
bonds of the Boston Electric Light Company are taxable.
Very truly yours,
James M. Swift, Attorney-General.
Extradition — Governor — Duty of Executive — Discretion.
Where the papers accompanying the demand of the Executive of another
State for the arrest and extradition of an alleged fugitive from the
justice of that State appear to be legal and in proper form, and
no question is raised as to the identity of the person demanded, or
testimony offered to contradict the sworn evidence in the affidavits
accompanying such demand that on or about the date of the alleged
crime such person was in the demanding State and thereafter left
it and has been found within the Commonwealth, it is the duty of
the Governor to honor such demand, and he has no legal discretion
to refuse to honor it, even if upon full hearing he should be of
opinion that under all the circumstances the interests of justice
would be served by such refusal.
Sept. 11, 1911.
His Excellency Eugene N. Foss, Governor.
Sir : — In the matter of the demand of the Executive of Con-
necticut for the extradition of Nathan Berman and Louis
Brooks, Your Excellency has requested my opinion as to
"whether, in view of the fact that the requisition papers have
been found by me to be in proper form, and of other admitted
facts/' Your Excellency would have " any legal discretion to deny
the requisition of the Governor of Connecticut even if upon full
hearing " Your Excellency " should be of opinion that under all
the circumstances the interests of justice would be served by
denying the requisition."
In reply I have the honor to advise Your Excellency that the
duties of the Governor of this Commonwealth with reference to
the demand upon him from the Executive of another State for
86 ATTORNEY-GENERAL'S REPORT. [Jan.
the extradition of an alleged fugitive from justice, who has been
charged with crime in the demanding State and has been found
within this Commonwealth, are prescribed in clear and un-
equivocal terms in the Constitution of the United States and in
the Revised Statutes of the United States.
The Constitution of the United States provides, in Article IV.,
section 2, as follows : —
A person charged in any state with treason, felony, or other
crime, who shall flee from justice, and be found in another state,
shall, on demand of the executive authority of the state from which
he fled, be delivered up to be removed to the state having juris-
diction of the crime.
In discussing this provision of the Constitution, the Supreme
Court of the United States, in Kentucky v. Dennison, 24 How.
(U. S.) 66, said: —
Looking, therefore, to the words of the Constitution — to the
obvious policy and necessity of this provision to preserve harmony
between States, and order and law within their respective borders,
and to its early adoption by the colonies, and then by the Confeder-
ated States, whose mutual interest it was to give each other aid
and support whenever it was needed — the conclusion is irresistible,
that this compact engrafted in the Constitution included, and was
intended to include, every offence made punishable by the law of
the State in which it was committed, and that it gives the right
to the Executive authority of the State to demand the fugitive from
the Executive authority of the State in which he is found; that
the right given to " demand " implies that it is an absolute right ;
and it follows that there must be a correlative obligation to deliver,
without any reference to the character of the crime charged, or to
the policy or laws of the State to which the fugitive has fled.
The duty of providing by law the means of carrying this pro-
vision of the Constitution into execution, from the nature of the
duty and the object in view, devolved upon Congress, and, Con-
gress, therefore, passed the act of 1793, February 12, which, as
codified in the Revised Laws of the United States, section 5278,
provides as follows : —
Whenever the executive authority of any State or Territory de-
mand any person as a fugitive from justice, of the executive au-
thority of any State or Territory to which such person has fled,
and produces a copy of an indictment found or an affidavit made
1912.] PUBLIC DOCUMENT — No. 12. 87
before a magistrate of any State or Territory, charging the person
demanded with having committed treason, felony or other crime,
certified as authentic by the governor or chief magistrate of the
State or Territory from which the person so charged has fled,
it shall be the duty of the executive authority of the State or Terri-
tory to which such person has fled to cause him to be arrested and
secured, and to cause notice of the arrest to be given to the execu-
tive authority making such demand, or to the agent of such authority
appointed to receive the fugitive, and to cause the fugitive to be de-
livered to such agent when he shall appear. If no such agent appears
within six months from the time of the arrest, the prisoner may be
discharged. All costs or expenses incurred in the apprehending,
securing and transmitting such fugitive to the State or Territory
making such demand shall be paid by such State or Territory.
In discussing the provision of the act of 1793, in the same case
{Kentucky v. Dennison), the Supreme Court of the United
States said: —
The demand being thus made, the act of Congress declares that
" it shall be the duty of the Executive authority of the State " to
cause the fugitive to be arrested and secured, and delivered to the
agent of the demanding State. The words " it shall be the duty,"
in ordinary legislation, imply the assertion of the power to command
and to coerce obedience. But looking to the subject-matter of this
law, and the relations which the United States and the several States
bear to each other, the court is of opinion the words " it shall be the
duty " were not used as mandatory and compulsory, but as declara-
tory of the moral duty which this compact created when Congress
had provided the mode of carrying it into execution. The act does
not provide any means to compel the execution of this duty, nor in-
flict any punishment for neglect or refusal on the part of the
Executive of the State; nor is there any clause or provision in the
Constitution which arms the government of the United States with
this power.
And, further, the court said : —
It does not purport to give authority to the State Executive to
arrest and deliver the fugitive, but requires it to be done, and the
language of the law implies an absolute obligation which the State
authority is bound to perform. And when it speaks of the duty of
the Governor, it evidently points to the duty imposed by the Con-
stitution in the clause we are now considering. The performance
of this duty, however, is left to depend on the fidelity of the State
Executive to the compact entered into with the other States when it
88 ATTORNEY-GENERAL'S REPORT. [Jan.
adopted the Constitution of the United States, and became a member
of the Union. It was so left by the Constitution, and necessarily
so left by the act of 1793."
See also McNichols v. Pease, 207 U. S. 100, and cases there
cited.
The provisions of the Constitution of the United States and
of the Revised Statutes of the United States above quoted are
the supreme law of the land with reference to extradition, and
no statute of this Commonwealth can impose restrictions or
limitations upon the operation of this law of the United States.
No statute of this Commonwealth, therefore, can alter the duty
imposed upon the Executive of this Commonwealth by the Con-
stitution and laws of the United States. For this reason the
provision of the Revised Laws of Massachusetts, chapter 217,
section 12, that the Governor may consider the question of the
expediency of complying with an application for extradition, is
to be construed as giving Your Excellency the right to consider
questions of expediency or discretion only upon applications by
this Commonwealth upon other States, or upon demands for
persons held here in custody to answer for crimes against this
Commonwealth or the United States, or by force of any civil
process.
This ruling is in harmony with the settled practice in this
Commonwealth and with the opinion of one of my predecessors
in this office, given on Aug. 21, 1902, in which the Governor of
this Commonwealth was advised as follows, in response to a
request for an opinion not only as to the law of the case but also
as to the expediency of the Governor's favorable action upon the
demand of the Executive of North Carolina for the extradition
of a negro who contended that mob violence would prevent him
from having a fair trial in a southern State : —
I am of opinion, however, that my investigation must be confined
to the legal aspects of the case, and that Your Excellency's action
must be controlled by the requirements of the Constitution and
statutes of the United States, and that the Massachusetts statutes
cannot be operative except in so far as is consistent with the federal
law. Upon this view, the right of Your Excellency to consider ques-
tions of expediency or discretion exists only upon applications for
requisition going from this Commonwealth, or upon demands for
persons held here in custody to answer for crimes against this Com-
monwealth, or the United States, or by force of any civil process.
(II Op. Atty.-Gen. 368.)
1912.] PUBLIC DOCUMENT — No. 12. 89
The case now before Your Excellency is not a case which falls
within the class in which the law may be said to authorize the
exercise of discretion, and the scope of proper inquiry by Your
Excellency as a guide to action is, therefore, narrowly limited
by law. Certain questions of law and of fact are, however, open
to Your Excellency's inquiry. The duty to surrender to the
demanding State the alleged fugitives does not arise unless the
demand is in proper form. Your Excellency, therefore, is jus-
tified in inquiring into the technical sufficiency of the application
for extradition and the accompanying documents.
In accordance with the long-established practice, upon receipt
of the extradition papers by Your Excellency from the Executive
of Connecticut, they were referred to the Attorney-General for
an opinion as to whether, as matter of law, the papers were in
proper form and the requisition might lawfully be complied
with.
In accordance with Your Excellency's request, I examined
the papers in these cases with reference to their technical suffi-
ciency. The law requires that the person demanded shall be
charged with the commission of an offence against the laws of the
demanding State, in these cases Connecticut. It is immaterial
under the law whether the offence charged is a crime under the
laws of this Commonwealth. If a crime is substantially charged
in the papers, that is sufficient, and it is immaterial that the
complaint or indictment is inartificially drawn or is imperfect
as a matter of pleading, if it substantially charges a crime.
Pierce v. Creecy, 210 U. S. 387, and cases cited. In my opinion
the papers in these cases satisfied that requirement of the law.
Your Excellency is also justified in satisfying yourself that the
persons demanded are fugitives from justice. The term " fugi-
tive from justice " is frequently misunderstood, for the reason
that it is popularly supposed that to be a fugitive from justice
one must have fled to escape detection or avoid prosecution.
That, however, is not the legal meaning of the term as defined by
the United States Supreme Court. In Roberts v. Eeilly, 116
U. S. 80, at page 97, the court said: —
To be a fugitive from justice, in the sense of the act of Congress
regulating the subject under consideration, it is not necessary that
the party charged should have left the State in which the crime is
alleged to have been committed, after an indictment found, or for
the purpose of avoiding a prosecution anticipated or begun, but
simply that having within a State committed that which by its laws
90 ATTORNEY-GENERAL'S REPORT. [Jan.
constitutes a crime, when he is sought to be subjected to its criminal
process to answer for his offence he has left its jurisdiction and is
found within the territory of another.
The motive with which the demanded person left the demand-
ing State is, therefore, not material to the decision of the ques-
tions presented for Your Excellency's determination in this
Commonwealth. It appeared by sworn evidence in the papers
accompanying the demand of the Governor of Connecticut that
the persons demanded were in Connecticut at the time when the
crime is alleged to have been committed, and that they subse-
quently left the State and have been found within this Common-
wealth. Nothing appeared to contradict that statement, and
Your Excellency is, in my opinion, justified in finding that re-
quirement of the law satisfied. See Appleyard v. Massachusetts,
203 U. S. 222.
Your Excellency may also satisfy yourself that the persons
demanded are in fact the persons now held in this Commonwealth
under the fugitive warrant. No question was raised as to the
matter of identity; and it appeared by sworn evidence in the
papers that the persons now held under the fugitive warrant in
this Commonwealth are the persons demanded by the Executive
of Connecticut.
The affidavits in the papers appear to have been taken before
magistrates under the law of Connecticut. No question as to
the good faith of the Executive of Connecticut was raised. The
papers were certified as authentic by the Executive of Connecti-
cut; that certification of the papers by that Executive in itself
sufficiently authenticates the complaints or affidavits as being
sworn to before a magistrate, and such certification, under the
ruling of the United States Supreme Court, precludes Your Ex-
cellency from going behind such certificate to the truth of the
facts so stated. In the case of Kentucky v. Dennison, cited above,
the court said : —
It will be observed that the judicial acts which are necessary to
authorize the demand are plainly specified in the act of Congress;
and the certificate of the Executive authority is made conclusive as
to their verity when presented to the Executive of the State where
the fugitive is found. He has no right to look behind them, or to
question them, or to look into the character of the crime specified
in this judicial proceeding. The duty which he is to perform is,
as we have already said, merely ministerial — that is, to cause the
1912.] PUBLIC DOCUMENT — No. 12. 91
party to be arrested and delivered to the agent or authority of the
State where the crime was committed.
The constitution of the United States, in Article IV., section 1,
provides that —
Full faith and credit shall be given in each state to the public
acts, records, and judicial proceedings of every other state. And
the congress may by general laws prescribe the manner in which
such acts, records and proceedings shall be proved, and the effect
thereof.
I have already quoted above the law enacted by Congress with
respect to requisitions; and since the proof of these records and
judicial proceedings of the State of Connecticut complies with
the requirements of the statutes, that proof is to be accepted by
Your Excellency as conclusive.
After careful consideration of all these matters, I have re-
ported to Your Excellency that the demand of the Executive of
Connecticut was proper in form, and that the requisition might
lawfully be complied with.
Since, therefore, the demand of the Executive of Connecticut
appears to be in proper form, and since the specified facts con-
cerning which Your Excellency may lawfully inquire have been
established in the manner prescribed by law, I must advise Your
Excellency that, under the provisions of the Constitution and
laws of the United States and of this Commonwealth, Your Ex-
cellency has no legal discretion to deny the requisition of the
Governor of Connecticut.
In reply to the further inquiry of Your Excellency as to
whether the petitioners have been afforded by me opportunity
for a full hearing at which they could present all proper objec-
tions to the granting of the application, I have the honor to reply
that counsel for Mr. Brooks and Mr. Berman was, at his request,
afforded an opportunity for a full hearing upon all points which
I am authorized by law to investigate and consider in cases of
demands by other States upon this Commonwealth, and that
representatives of labor organizations interested were present,
and that opportunity was given to every person present to speak
upon the points in issue, or to ask for information. The ques-
tions of the innocence or guilt of the persons involved, or of the
justice or injustice of the prosecution of the charge were not
inquired into, since those questions may be tried only in Con-
92 ATTORNEY-GENERAL'S REPORT. [Jan.
necticut, the State having jurisdiction of the offence charged,
and may not lawfully be inquired into by me.
Counsel for both the complainant and Mr. Brooks and Mr.
Berman were heard at length. Counsel for Mr. Brooks and Mr.
Berman discussed thoroughly and forcibly the matter of the
technical sufficiency of the papers, and attacked the validity of
the papers on various points. The arguments were taken down
by a stenographer, and all objections were carefully noted. After
careful consideration of all contentions I reached the conclusion
which I have already stated herein, and notified the offices of both
counsel for the complainant and for Mr. Brooks and Mr. Berman
of my decision.
In reply to the further inquiry whether, if Your Excellency
should honor the requisition of the Governor of Connecticut,
"the petitioners will still have ample opportunity of applying
to the courts of this Commonwealth for such protection as they
may be legally entitled to under the laws of Massachusetts," I
advise you that Revised Laws of Massachusetts, chapter 217,
section 14, provides that —
A person who is arrested upon such a warrant shall not be de-
livered to such agent of a state or territory until he has been notified
of the demand for his surrender and has had an opportunity to apply
for a writ of habeas corpus, if he claims such right of the officer who
makes the arrest.
If, therefore, Your Excellency honors the requisition by issu-
ing the executive warrant, Mr. Brooks and Mr. Berman, under
this provision of the statutes, are entitled to be given the oppor-
tunity to petition for a writ of habeas corpus, if they claim the
right to so apply. In such a proceeding the lawfulness of the
extradition would be passed upon by the court, but the warrant
of Your Excellency would, according to the language of the Su-
preme Court in Davis' Case, 122 Mass. 324, be held to be " prima
facie evidence, at least, that all necessary legal prerequisites have
been complied with, and, if the previous proceedings appear to
be regular, is conclusive evidence of the right to remove him (the
prisoner) to the state from which he fled."
Very respectfully yours,
James M. Swift, Attorney-General.
1912.1 PUBLIC DOCUMENT — No. 12. 93
Governor — Appropriations for State Commissions, Departments
or Institutions — Employment of Persons to investigate
Statements and Estimates — Contract — Compensation.
Under the provisions of St. 1911, c. 82, that "the governor is hereby
authorized to employ such persons as he may deem proper to make
such investigation of any of the commissions, departments or insti-
tutions of the commonwealth as he believes is necessary to enable
him to carry out the provisions of chapter two hundred and twenty
of the acts of the year nineteen hundred and ten," and that for such
purpose he may "expend such sums out of the amount authorized
by chapter five hundred and forty-nine of the acts of the year nine-
teen hundred and eight as may be approved by the governor and
council," the governor, acting independently of the council, has no
power to determine, by contract or otherwise, the rate of compensa-
tion to be paid to the persons employed by him to make the required
investigations.
Since the purpose of St. 1910, c. 220, providing in substance that state-
ments or estimates for appropriations for State commissions, depart-
ments or institutions shall annually be submitted to the Governor
and Council, and transmitted by the Governor to the Legislature,
with such recommendations as he may deem necessary, the Governor
and Council may not legally allow persons employed under authority
of St. 1911, c. 82, above cited, compensation for investigations or for
reports thereon made since the prorogation of the General Court for
the year in which they were employed, nor compensation for time
spent in appearing before the joint committee on ways and means
of the General Court to explain their reports or to be questioned in
regard to them, or for time spent in explaining their charges for
services to the council or to any committee thereof.
Sept. 27, 1911.
E. F. Hamlin, Esq., Executive Secretary.
Dear Sir : — On behalf of the committee on finance, accounts
and warrants of the Council you request my opinion upon the
following questions : —
1. Has the Governor, acting independently of the Council, the
power to determine conclusively, by contract or otherwise, the rate
of compensation to be paid to the persons employed by him under
the provisions of chapter 82 of the Acts of the year 1911?
2. Can the Governor and Council legally allow such persons com-
pensation, to be paid from the treasury of the Commonwealth, 1st,
for time spent in appearing before the joint committee on ways and
means of the General Court to explain their reports or be questioned
in regard to them; 2d, for time spent in explaining their charges for
services to the Council or its committees; 3d, for any services per-
formed since the prorogation of the General Court of the present
year; and if so, for what services'?
94 ATTORNEY-GENERAL'S REPORT. [Jan.
St. 1911, c. 82, is as follows: —
The governor is hereby authorized to employ such persons as he
may deem proper to make such investigation of any of the commis-
sions, departments or institutions of the commonwealth as he believes
is necessary to enable him to carry out the provisions of chapter two
hundred and twenty of the acts of the year nineteen hundred and
ten. Such persons shall report in writing to the governor, and copies
of every report shall, at the same time, be sent by said persons to
the governor's council and to the joint committee on ways and means
of the general court. For this purpose the governor may expend
such sums out of the amount authorized by chapter five hundred and
forty-nine of the acts of the year nineteen hundred and eight as may
be approved by the governor and council.
In my opinion the first question must be answered in the nega-
tive. The act provides specifically that "the governor may ex-
pend such sums ... as may be approved by the governor and
council." While the person may be designated and employed by
the Governor, the compensation is to be fixed by the Governor
and Council.
The second question concerns the basis for the allowance of
compensation. It requires consideration of the duties and powers
provided by law, as set forth in St. 1910, c. 220, and St.
1911, c. 82.
The effect of St. 1910, c. 220, has been judicially determined
by the Supreme Judicial Court in an Opinion of the Justices to
the Senate, dated April 7, 1911, which in part is as follows: —
The St. of 1910, e. 220, has made but a very small change in the
law of the Commonwealth. . . .
The only new provision in this particular is the requirement that
it (estimates and statements) shall be submitted "to the governor
and council for examination, and the governor shall transmit the
same to the General Court, with such recommendations, if any, as
he may deem proper." . . . Under this statute, after the document
has been printed, it is to be formally submitted to the governor
and council for examination, as well as distributed to the members
of the General Court; while under the former statute the governor
was left to obtain a copy as he might. Under the present statute
he is to transmit it to the General Court, so that they may know
that he has had an opportunity to examine it, and he may make
recommendations or not, as he chooses. . . . The only material effect
of this statute is to give a legislative invitation to the governor to
examine the documents prepared by the auditor and to make recom-
mendations upon the subjects contained in them if he chooses, and
1912.] PUBLIC DOCUMENT — No. 12. 95
also to give him an implied assurance that his recommendations as
to the amount of the appropriations will receive respectful considera-
tion.
The effect of both statutes was passed upon in an opinion of
the Attorney-General to the Treasurer and Eeceiver General,
dated May 11, 1911, which in part is as follows: —
The duty and power of the Governor in the premises, therefore,
"being confined to the transmission of the statements of estimates for
appropriations submitted to the Auditor by the various State officers,
boards and commissions and transmitted by the Auditor to the
Governor, to be accompanied by a recommendation or not, as he
sees fit, it follows that his power to investigate any officer, depart-
ment or institution must be predicated upon the existence of a state-
ment of proposed expenditures and of other matters required by
St. 1910, c. 220, which may be transmitted by him to the Legislature.
The employment of agents, investigators and " experts " is only such
as the Governor believes is necessary to enable him to carry out the
provisions of said St. 1910, c. 220. If there are no such estimates
for the current year before him for transmission, and upon which
before transmission he seeks further information, it follows that
there is no authority or occasion for any investigation under said
St. 1910, c. 220, or St. 1911, c. 82.
Answering, first, the third subdivision of the second question
submitted, the Governor and Council may not legally allow per-
sons employed under authority of St. 1911, c. 82, compensation
for any investigation or report thereon made since the proroga-
tion of the General Court.
As to the other subdivisions of the second question submitted,
it is to be observed that the services for which payment may be
made under St. 1911, c. 82, are the making of investigations and
the making of reports in writing upon such investigations. There
is no express provision for payment of compensation for the
explanation of such reports to the ways and means committee,
nor is there any implication that such reports shall require oral
explanation. In my opinion it cannot fairly be implied that the
persons employed under said statute were to have compensation
for oral explanations of their written reports. The examination
of such persons before the ways and means committee upon the
subjects of their reports appears to be of the same kind as the
examination of any persons appearing before such committee as
witnesses. Their right to compensation would be the right which
96 ATTORNEY-GENERAL'S REPORT. [Jan.
witnesses ordinarily have to compensation for appearance before
such committees. See R. L., c. 6, § 51; R. L., c. 204, § 21.
As to the second subdivision of the second question submitted,
I am of opinion that the explanation to the Council of charges for
services is not a service performed for the Commonwealth but by
the persons interested, in their own behalf, for which they are
not entitled to extra compensation. So far as appears in your
communication they appeared voluntarily before the Council.
If, however, they do not so appear, but are summoned, their
standing is only that of witnesses. In that case they would be
entitled only to the witness fees provided by law. See R. L.,
c. 175, § 7; R. L., c. 204, § 2.
Very truly yours,
James M. Swift, Attorney-General.
Constitutional Law — Public Office — Truant Officer — Woman.
Under existing statutes a woman may not be appointed to or exercise
the duties of the office of truant officer, as established by E. L.,
c. 46, § 12, although there appears to be no constitutional objection
thereto.
Sept. 28, 1911.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir : — The Civil Service Commission desires my opin-
ion upon the question whether or not a woman may be appointed
to the position of truant officer, an office which is included within
the classified civil service by Civil Service Rule 7, clause 19.
Truant officers, under the provisions of section 12 of chapter 46
of the Revised Laws, are appointed by the school committees of
the several cities and towns, and the duties to be performed by
such officers are to be found in section 13 of the same chapter,
which is as follows : —
Truant officers shall inquire into all cases arising under the pro-
visions of sections one and six of chapter forty-four and sections
three, four and five of this chapter", and may make complaints and
serve legal processes issued under the provisions of this chapter.
They shall have the oversight of children placed on probation under
the provisions of section seven. A truant officer may apprehend
and take to school, without a warrant, any truant or absentee found
wandering about in the streets or public places thereof. (See also
R. L., c. 44, § 1, and St. 1909, c. 514, §§ 62-65.)
1912.] PUBLIC DOCUMENT — No. 12. 97
From a consideration of the provisions of law above cited, and
of the earlier statutes upon the same subject (see St. 1873, c. 262;
St. 1874, c. 233, § 2; St. 1894, c. 498, § 20, and St. 1898, c. 496,
§§ 33 and 36), it appears that a truant officer is authorized to
serve legal process in all cases relating to truancy, to arrest
truants under certain circumstances without a warrant, and to
enter into factories, workshops or mercantile establishments for
the purpose of obtaining information with relation to the em-
ployment of minors. This, in my opinion, constitutes a truant
officer a public officer within the definition laid down in Attor-
ney-General v. Drolian, 169 Mass. 534, which is as follows: —
Without attempting an exhaustive definition of what constitutes
a public office, we think that it is one whose duties are in their nature
public, that is, involving in their performance the exercise of some
portion of the sovereign power, whether great or small, and in whose
proper performance all citizens, irrespective of party, are interested,
either as members of the entire body politic, or of some duly estab-
lished division of it.
At common law a woman could not perform the duties of a
public officer. Thus, in Robinsons Case, 131 Mass. 376, at page
378, the court, after discussing several offices, concludes: —
And we are not aware of any public office, the duties of which must
be discharged by the incumbent in person, that a woman was ad-
judged to be competent to hold, without express authority of statute,
except that of overseer of the poor, a local office of an administrative
character, in no way connected with judicial proceedings. (Page
379.)
In that case it was held that a woman could not, without statu-
tory authority, be examined for admission as an attorney and
counsellor of the Supreme Judicial Court.
There are numerous opinions of the justices relative to the
incumbency by women of positions and offices in the public
service. Thus, in 107 Mass. 604, the justices held that a woman
could not constitutionally hold the office of justice of the peace.
In 115 Mass. 602, the justices, in reply to the question, " Under
the Constitution of this Commonwealth can a woman be a mem-
ber of the school committee ? " limiting themselves to the effect
of the Constitution upon the capacity of a woman to hold such
office, and without interpreting existing statutes, held that the
question should be answered in the affirmative. It is to be ob-
98 ATTORNEY-GENERAL'S REPORT. [Jan.
served, however, that, as in the case of attorneys at law (see St.
1882, c. 139), a special act was passed authorizing women to act
as members of a school committee. See St. 1874, c. 389. In 150
Mass., at pages 586, 591, the justices declared that —
The clause of the Constitution which provides for the appointment
of notaries public, interpreted with reference to the history and
nature of the office and the long-continued and constant practice of
the government here and the usage elsewhere, cannot be considered
as authorizing the Governor, by and with the advice and consent
of the Council, to appoint women to be notaries public.
In 165 Mass. 599, the justices rendered an opinion that an act
providing for the appointment of women to be notaries public
would be unconstitutional. In an Opinion of the Justices in
136 Mass. 578, it was held that under St. 1879, c. 291, § 2,
authorizing the Governor, with the advice and consent of the
Council, to appoint nine persons as a State Board of Health,
Lunac}'' and Charity, he might appoint a woman as a member of
such board, but this opinion was based upon what the justices
declared to be the established policy of the Legislature, evidenced
by numerous statutes, that women might serve upon such boards.
See, St. 1868, c. 153, § 1 ; St. 1870, c. 370, § 10; St. 1873, c. 166;
St. 1877, c. 195, § 1.
The principle upon which these opinions are based constrains
me to hold that in the present case, although the Constitution
would not prevent a woman from holding the office of truant
officer, such office is a public office requiring the exercise of gov-
ernmental functions; and that unless expressly authorized by
statute the incumbent should not be a woman. This view is con-
firmed by a consideration of the following cases in which special
legislation for that purpose was enacted : Overseers of the Poor,
St. 1886, c. 150; Commissioners of Deeds and similar duties,
St. 1883, c. 252; Assistant Probation Officers in the Municipal
Court of the City of Boston, St. 1897, c. 266. See, further, St.
1907, c. 261.
The following provisions, among others, authorizing the ap-
pointment of women to public offices, are found in the Revised
Laws : —
C. 165, § 4, which provides that the assistant clerk for the
county of Hampden may be a woman.
C. 25, § 62, which provides that an assistant town clerk may
be a woman.
C. 20, § 19, which provides that in counties in which there is
1912.] PUBLIC DOCUMENT — No. 12. 99
no assistant clerk of courts the county commissioners may ap-
point a clerk pro tempore, who may be a woman.
C. 76, § 24, which provides that there shall be a board of regis-
tration in dentistry, consisting of five persons, male or female.
C. 222, § 1, which provides that there shall be a board of
prison commissioners, consisting of five persons, two of whom
shall be women.
C. 22, § 8, which provides that registers of deeds may, subject
to the approval of the Superior Court, appoint an assistant regis-
ter of deeds, who may be a woman.
C. 164, § 17, which provides that the assistant registers of
probate in the counties of Bristol, Hampden and Hampshire may
be women.
C. 108, § 1, which provides that the inspection department of
the district police shall consist of the chief of said force, thirty-
three male and two female members.
I am therefore of opinion that, under existing statutes, a
woman may not be appointed to or exercise the duties of the
office of truant officer.
Very truly yours,
James M. Swift, Attorney-General.
Water Supply — Great Ponds — State Board of Health — Con-
trol and Regulation — Public Rights — Cities and Towns.
Under the provisions of R. L., c. 75, §§ 112 and 113, as amended by St.
1907, c. 467, vesting in the State Board of Health the "oversight
and care of all inland waters and of all streams and ponds used by
any city, town or public institution ... as sources of water supply,"
and providing that it may regulate and control the exercise of the
public rights of boating, fishing, skating or taking ice, and may
delegate the power of granting or withholding permits to the local
authorities, " and upon complaint of any person interested . . .
shall investigate the granting or withholding of any such permit
and make such orders relative thereto as it may deem necessary for
the protection of the public health," a city or town may prohibit the
public right of boating or fishing upon a great pond used as a source
of water supply only in cases where such prohibition is necessarily
involved in the use of such great pond as a source of water supply,
and where complaint is made with respect to the granting or with-
holding of a permit by the local authorities, if such board considers
that the issuance of the permit so withheld would not endanger the
purity of the source of water supply, it may make such order in the
premises as it deems necessary for the protection of the public
health, and may doubtless require the issuance of the permit.
100 ATTORNEY-GENERAL'S REPORT. [Jan.
Oct. 3, 1911.
C. E. McGillicuddv, Esq., State Board of Health.
Dear Sir : — In a letter dated September 30 you state that by
vote of the State Board of Health you were authorized to submit
certain questions for my determination. These questions are
as follows : —
Query 1. — Can any town or city absolutely prevent fishing and
boating* upon a natural great pond, even though the town or city
claims to own in fee the surrounding property of the great pond
which has been taken for a water supply?
Query 2. — Can the State Board of Health issue a permit to boat
and fish on a great pond, when the properly delegated authorities
of a town or city refuse to issue a permit to fish and boat to an
individual on a great pond which has been taken for a water supply
by a town or city?
The facts upon which your questions arise appear to be as
follows: in 1909, the town of Concord, acting under authority
of St. 1884, c. 201, § 2, took the water from a certain pond,
which I assume to be a great pond, for the purposes of water
supply, and thereafter petitioned the State Board of Health to
make rules and regulations to prevent the pollution and to secure
the sanitary protection of the waters of such pond, under the
provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467,
§ 1, which provides that —
Said board may cause examinations of such waters to be made to
ascertain their purity or fitness for domestic use or their liability to
impair the interests of the public or of persons lawfully using them
or to imperil the public health. It may make rules and regulations
to prevent the pollution and to secure the sanitary protection, of all
such waters as are used as sources of water supply. Said board may
delegate the granting and withholding of any permit required by
such rules or regulations to state boards and commissions and to
selectmen in towns and to boards of health, water boards and water
commissioners in cities and towns, to be exercised by such selectmen,
boards and commissions, subject to such recommendation and direc-
tion as shall be given from time to time by the state board of health ;
and upon complaint of any person interested said board shall in-
vestigate the granting or withholding of any such permit and make
such orders relative thereto as it may deem necessary for the pro-
tection of the public health.
On April 7, 1910, the State Board of Health duly made certain
rules and regulations, containing, among others, the regulation
that —
1912.] PUBLIC DOCUMENT — No. 12. 101
No person shall bathe in, and no person shall, unless permitted by
a written permit of the board of water and sewer commissioners of
the town of Concord, fish in, or send, drive or put any animal into,
Nagog Pond, so called. ... No person other than a member, officer,
agent or employee of said board of water and sewer commissioners,
or public officer whose duty may so require, shall, unless so permitted
by a written permit of said board, enter or go, in any boat, skiff,
raft or other contrivance, in or upon the water of said Nagog Pond,
nor shall enter or go upon, or drive any animal upon, the ice of said
pond.
Acting under this authority the board of water and sewer
commissioners of the town of Concord have refused to permit
boating and fishing thereon, and one of the persons so refused
has petitioned the board to act, under the provisions of E. L.,
c. 75, § 113, as amended by St. 1907, c. 467, § 1, providing that
upon complaint of any person interested the State Board of
Health "shall investigate the granting or withholding of any
such permit and make such orders relative thereto as it may
deem necessary for the protection of the public health."
The questions which you submit are not in terms limited to
the specific facts above stated, which appear from the papers
accompanying your communication, but I assume that they were
framed with those facts in view, to determine the duty of your
board in the premises.
It is well established that the appropriation of the waters,
or any part thereof, of a great pond by a town for purposes of
water supply under legislative authority, does not take away the
rights of the public in such pond " excepting so far as they are
necessarily lost in the exercise of a right conferred upon the
town to use the waters of the pond as a source of water supply."
II Op. Atty.-Gen. 239, 240; Rocl-port v. Webster, 174 Mass. 385.
It follows, therefore, that unless the public use of a great pond
for boating or fishing is so far inconsistent with its use as a
source of water supply as to be necessarily lost in the exercise
of the right acquired by a town, such town would have no right
to absolutely prohibit boating or fishing.
Under the provisions of E. L., c. 75, § 113, as amended by St.
1907, c. 467, § 1, it is to be observed that the State Board of
Health is vested with authority to make rules and regulations
" to prevent the pollution and to secure the sanitary protection "
of all waters which are used as sources of water supply, and,
acting under this provision, may require that persons who desire
102 ATTORNEY-GENERAL'S REPORT. [Jan.
to exercise the public right of boating or fishing shall secure
permits either from the Board itself or from the local board to
whom the authority to issue such permits has been delegated, or
may forbid the exercise of such public rights altogether. See
Sprague v. Minon, 195 Mass. 581.
Replying specifically to your first inquiry, therefore, I am of
opinion that a city or town is authorized to prohibit the public
right of fishing or boating upon a great pond used as a source
of water supply only in cases where such prohibition is necessarily
involved in the use of such great pond as a source of water
supply.
Your second inquiry calls for my opinion upon the powers of
the State Board of Health acting under the provisions of R. L.,
c. 75, § 113, as amended by St. 1907, c. 467, § 1, already cited.
Under these provisions of law the Board may make rules and
regulations to protect sources of water supply, and may prohibit
the exercise of the public rights of boating and fishing in or
upon such sources of water supply, except to such persons as may
receive a permit therefor. The authority to issue such permits
may be delegated, among others, to selectmen in towns and to
boards of health, water boards or water commissioners in cities
and towns, to be exercised under the direction of the State Board
of Health. Where complaint is made in any case with respect
to the granting or withholding of such permit by the Board to
whom the issuance thereof has been delegated, the Board shall
investigate the matter and make such orders relative thereto as
may be deemed necessary for the protection of the public health.
If, upon due investigation, the Board in any case determines that
a permit withheld by the local authorities may be issued without
endangering the purity of the sources of water supply, they may
make such order in the premises as they deem necessary for the
protection of the public health, and such order may doubtless
require the issuance of the permit. In such a case, therefore,
the State Board of Health may issue or cause to be issued a
permit to boat and fish, notwithstanding that the properly dele-
gated authorities of a city or town have previously refused to do
so, provided that such issuance is not inconsistent with the proper
protection of the public health.
Very truly yours,
James M. Swift, Attorney-General.
1912.] PUBLIC DOCUMENT — No. 12. 103
Lyman and Industrial Schools — Trustees — Lyman Fund —
Income — Purchase of Land — Title.
Under the provisions of St. 1911, c. 566, § 3, that the Trustees of the
Massachusetts Training Schools " succeed to the trusts, right, powers
and duties " of the trustees of the Lyman and Industrial Schools,
and of E. L., c. 86, § 1, that the board of trustees of the Lyman and
Industrial Schools should be " a corporation for the purpose of tak-
ing, holding and investing in trust for the commonwealth any grant,
devise, gift or bequest made for the use of any institution of which
they are trustees," the trustees of the Massachusetts Training Schools
may purchase, from the accumulated income from the Lyman Fund
and Lyman Trust Fund, so called, land for the use of the Lyman
School.
The title to the land so purchased should be taken in the name of the
trustees, in trust for the Commonwealth.
Without express or implied authority from the Legislature, title to land
cannot be taken in the name of the Commonwealth by any public
officer or board.
Oct. 18, 1911.
Charles M. Davenport, Esq., Trustee of the Massachusetts Training
Schools.
Dear Sir : — In behalf of the trustees of the Massachusetts
Training Schools you have requested my opinion upon certain
questions hereinafter quoted.
Your first question is as follows : —
Have the trustees of the Massachusetts Training Schools (see Acts
1911, c. 566), the successors to the trustees of the Lyman School (as
provided in R. L., c. 86), the right to purchase land for the use of
the Lyman School from the accumulated income from the Lyman
Fund and Lyman Trust Fund, so called?
In replying to this inquiry I assume that the language of the
gift of the Lyman Fund and the Lyman Trust Fund, so called,
is broad enough to authorize the proposed expenditure of accu-
mulated income, and that the only point upon which you desire
my advice is as to the statutory authority of the trustees. As
to the statutory authority of the trustees, my opinion is that they
have the right to purchase land for the use of the Lyman School
from the accumulated income of these funds. I base this opinion
upon the statutory provision (St. 1911, c. 566, § 3) that the
trustees of the Massachusetts Training Schools " succeed to the
trusts, rights, powers and duties " of the trustees of the Lyman
104 ATTORNEY-GENERAL'S REPORT. [Jan.
and Industrial Schools; and upon the statutory provision (R. L.,
c. 8Q, § 1) that the board of trustees of the Lyman and Indus-
trial Schools was " a corporation for the purpose of taking, hold-
ing and investing in trust for the commonwealth any grant,
devise, gift or bequest made for the use of any institution of
which they are trustees." If the trustees of the Massachusetts
Training Schools have the right to expend the accumulated in-
come in question for the use of the Lyman School, and if they
have the right to receive grants of land, it follows that they may
expend such accumulated income in the purchase of land.
Your second question is as follows : —
If they have this right, how should the title be taken, whether in
the name of the trustees, or directly in the name of the Common-
wealth?
In my opinion title should be taken in the name of the trus-
tees, in trust for the Commonwealth.
Your third question is as follows : —
Can the Commonwealth take title without legislative sanction, it
being in the nature of a gift to the Commonwealth, if purchased by
income from accumulated funds, and without appropriation therefor?
Title to land cannot be taken in the name of the Common-
wealth by any board or officer who has not express or implied
authority from the Legislature to do so. As I have advised you
in answer to your first inquiry, I am of opinion that there is
statutory authority for the trustees of the Massachusetts Train-
ing Schools to take title in the name of the trustees, in trust
for the Commonwealth, to land purchased with accumulated
income of trust funds.
Very truly yours,
James M. Swift, Attorney-General.
Trust Company — Savings Department — Board of Investment
— Member as Endorser on Note for Money Loaned by Cor-
poration.
Under the provisions of St. 1908, c. 520, § 2, that all loans or investments
of deposits in the savings department of a trust company " shall be
made in accordance with statutes governing the investment of de-
posits in savings banks," and of St. 1908, c. 590, § 44, that no mem-
ber of a board of investment of a savings bank shall borrow or use
1912.] PUBLIC DOCUMENT — No. 12. 105
any portion of the funds of such bank or " be surety for loans to
others or, directly or indirectly ... be an obligor for money bor-
rowed of the corporation," a member of the board of investment
of a trust company cannot legally be an endorser upon a personal
note for money loaned by such company to any person.
Nov. 3, 1911.
Hon. Arthur B. Chapin, Bank Commissioner.
Dear Sir : — You have requested my opinion " as to whether
a member of the board of investment of a trust company can be
an endorser on a personal note for money loaned by said trust
company to a borrower without violating the provisions of sec-
tion 2 of chapter 520, Acts of 1908, as restricted by section 44
of chapter 590, Acts of 1908."
Section 1 of chapter 520 of Statutes of 1908 is as follows : —
Every trust company soliciting or receiving deposits (a) which
may be withdrawn only on presentation of the pass-book or other
similar form of receipt which permits successive deposits or with-
drawals to be entered thereon; or (b) which at the option of the
trust company may be withdrawn only at the expiration of a stated
period after notice of intention to withdraw has been given; or (c)
in any other way which might lead the public to believe that such
deposits are received or invested under the same conditions or in
the same manner as deposits in savings banks; shall have a savings
department in which all business relating to such deposits shall be
transacted.
Section 2 provi des that —
All such deposits shall be special deposits and shall be placed in
said savings department, and all loans or investments thereof shall
be made in accordance with the statutes governing the investment
of deposits in savings banks. The duties of the board of investment
relative to the investment of such deposits shall be performed by a
board or committee appointed by the board of directors of such cor-
poration.
Section 44 of chapter 590 of Statutes of 1908 provides that —
No president, treasurer, member of a board of investment or officer
of such corporation charged with the duty of investing its funds
shall borrow or use any portion thereof, be surety for loans to others
or, directly or indirectly, whether acting individually or as trustee
holding property in trust for another person, be an obligor for money
borrowed of the corporation; . . .
106 ATTORNEY-GENERAL'S REPORT. [Jan.
It was the obvious purpose of the Legislature, in St. 1908,
c. 520, § 2, to make the investment or loan of deposits in the
savings department of a trust company subject to the same regu-
lations and restrictions that are applicable to the investment or
loan of deposits in savings banks, and one of these restrictions
is that no member of a board of investment or investment com-
mittee shall borrow or use any of such deposits, or be surety
for loans made to others than himself. It follows, therefore, in
my opinion, that a member of a board of investment of a trust
company cannot legally be an endorser on a personal note for
money loaned by such company to any person.
Very truly yours,
James M. Swift, Attorney-General.
Labor Laws — Mercantile or Manufacturing Establishment —
Restaurant — Establishment maintaining Lunch Room and
Food Salesroom.
An establishment which maintains a lunch room, and also a food sales-
room from which supplies are sent to other lunch rooms maintained
by the same establishment at other places and lunches are sent to be
served at certain high, Latin and normal schools, the receipts of
such food salesroom being a little over one-eighth of the total re-
ceipts, is not, by reason of the maintenance of such food salesroom,
excluded from the definition of " mercantile establishment " in St.
1909, c. 514, § 17, that such establishment " shall mean any premises
used for the purposes of trade in the purchase or sale of any goods
or merchandise, and any premises used for the purposes of a res-
taurant or for publicly providing and serving meals," and is not,
therefore, a " manufacturing establishment," defined by the same
section as " any premises, room or place used for the purpose of
making, altering, repairing, ornamenting, finishing or adapting for
sale any article or part of an article."
Nov. 6, 1911.
Gen. J. H. Whitney, Chief, Massachusetts District Police.
Dear Sir : — You have requested my opinion as to whether
the New England Kitchen, so called, maintained by the Women's
Educational and Industrial Union of Boston, is a manufacturing
or a mercantile establishment within the meaning of those terms
as used in the laws relating to labor. The facts, I understand,
are these : At the New England Kitchen, which is situated on
Charles Street, there is a lunch room and a food salesroom.
From this place is sent the food which the Union serves for
lunches at the high, Latin and normal schools. From it also are
1912.] PUBLIC DOCUMENT — No. 12. 107
sent supplies to the place of business of the Union on Boylston
Street, where are maintained three lunch rooms, with a common
kitchen, and a food salesroom. Eeceipts from sales of food at
the food salesroom of the New England Kitchen constitute
about one-ninth of the total receipts of the New England Kitchen,
and a little over one-eighth of such total receipts exclusive of
supplies sent to Boylston Street. You state that " it is to be
noted that the establishment in question [by which I infer that
you refer to the New England Kitchen and not to the
Union's place of business on Boylston Street] may be considered
principally as a restaurant; also that it is a general custom in
restaurants to sell such foods as are served therein to persons
desiring to use the same off the premises." St. 1909, c. 514,
§ 17, contains the following definitions of " manufacturing
establishments " and " mercantile establishments " as those terms
are used in the laws relative to the employment of labor : —
" Manufacturing establishments " shall mean any premises, room
or place used for the purpose of making, altering, repairing, orna-
menting, finishing or adapting for sale any article or part of an
article.
" Mercantile establishments " shall mean any premises used for
the purposes of trade in the purchase or sale of any goods or mer-
chandise, and any premises used for the purposes of a restaurant
or for publicly providing and serving meals.
The labor laws contain distinct provisions applicable to " man-
ufacturing establishments " and to " mercantile establishments."
See, for example, St. 1909, c. 514, § 47, and § 48, as amended
by St. 1911, c. 484, § 1. The definitions must therefore be re-
garded as mutually exclusive. If an establishment is within one
of the definitions it is not within the other. The New England
Kitchen is, on your statement, to be " considered principally
as a restaurant." A restaurant is in express terms within the
definition of " mercantile establishments. It is, therefore, imma-
terial that but for such express inclusion it might be considered
as within the definition of "manufacturing establishments." I
infer that your inquiry is as to whether the fact that the New
England Kitchen maintains a food salesroom excludes it from
the definition. As you have stated, the sale at a restaurant of
food to be used off the premises is a usual practice, and one which
must be taken to have been in the mind of the Legislature when
it defined " mercantile establishments " as including restaurants.
108 ATTORNEY-GENERAL'S REPORT. [Jan.
The receipts from sales at the food salesroom of the New Eng-
land Kitchen are a comparatively small part of the total receipts
of the establishment; in other words, the food salesroom is inci-
dental to the lnnch room, or restaurant. Without attempting to
state precisely where the line is to be drawn, I advise yon that
in my opinion, from the facts stated, the New England Kitchen
is not by reason of its maintaining a food salesroom excluded
from the definition of " mercantile establishments." It is a
mercantile rather than a manufacturing establishment.
Yery truly yours,
James M. Swift, Attorney-General.
Election — Death of Candidate on Morning of Election Day —
Failure to elect — Special Election — Governor.
Where a candidate for the office of clerk of the courts died on the morn-
ing of the day of the election, but as the fact of his death was not
generally known and his name was upon the official ballot the
highest number of votes was cast for him, there was a failure to
elect, and the Governor should cause a precept to be issued for the
election of such officer in accordance with the provisions ,of St.
1907, c. 560, § 306.
Nov. 27, 1911.
His Excellency Eugene N. Foss, Governor.
Sir : — You have requested my opinion as to whether William
C. Nevin was elected clerk of the courts for the county of Dukes
County at the last State election and as to whether a new elec-
tion will be necessary.
It appears that the name of Samuel Keniston was upon the
official ballot as a candidate for such office and that the highest
number of votes was cast for him. It further appears that said
Keniston died on the morning of election day before the open-
ing of the polls. It does not appear to what extent the fact of
the death of said Keniston was known to the voters of the
county, but it is not claimed by the said Nevin that such fact
was generally known.
Upon these facts I am of opinion that said Xevin was not
elected clerk of the courts for said county, but that there was a
failure to elect. This view is supported by authority. Hoives v.
Perry, 92 Ky. 260; State v. Walsh, 7 Mo. App. 142; State v.
Speidel, 62 Ohio St. 156. It is an application of the principle
that where the person receiving the highest number of votes is
ineligible there is a failure to elect, and the person receiving the
1912.] PUBLIC DOCUMENT — No. 12. 109
next highest number is not elected. This rule seems to be com-
mon to England and America. In England, however, and in
one or more States of the United States it seems that this rule
does not apply where the voters at the time of the election have
notice of the ineligibility. The weight of authority in America
seems to be, however, that the fact of notice is immaterial.
Bowker et al., Petitioners ; Loring and Eussell, Election Cases,
282, and note; Cooley, Const. Lim. (7th ed.) 931, 932; Dillon,
Municipal Corporations (5th ed.), § 373, and note. I am
aware of no authority which, in the absence of evidence that
the fact of the death of said Keniston was generally known to
the voters of Dukes County at the time of the election, would
hold said Nevin to have been elected clerk of the courts. Ac-
cording to the weight of authority in this country he would not
have been elected even if it appeared that the fact of the death
of said Keniston was generally known.
Since there has been a failure to choose a clerk of the courts,
St. 1907, c. 560, § 306, becomes applicable. This section pro-
vides that the Governor shall cause a precept to be issued for
the election of such officer.
Very truly yours,
James M. Swift, Attorney-General.
City or Town — Tuberculosis Hospital — Maintenance of Ward
or Beds in Private Hospital or General City or Town Hos-
pital— Subsidy from Commonwealth.
The maintenance by a city or town of a tuberculosis ward or bed or beds
in a private tuberculosis hospital or in a general city or town hospital
does not fulfil the requirements of St. 1911, c. 597, § 1, which pro-
vides that " every city or town which establishes and maintains
a tuberculosis hospital shall be entitled to receive from the com-
monwealth a subsidy of five dollars per week for each patient who
is unable to pay for his support, or whose kindred bound by law to
maintain him are unable to pay for the same."
Dec. 4, 1911.
Arthur Drixkwater, Esq., Trustee of Hospitals for Consumptives.
Dear Sir : — You have submitted to me three inquiries rela-
tive to the construction of St. 1911, c. 597, entitled " An Act to
encourage and promote the building and use of tuberculosis hos-
pitals in cities and towns." This statute, in section 1, provides
that —
Every city and town which establishes and maintains a tuberculosis
hospital shall be entitled to receive from the commonwealth a sub-
110 ATTORNEY-GENERAL'S REPORT. [Jan.
sidy of five dollars per week for each patient who is unable to pay
for his support, or whose kindred bound by law to maintain him
are unable to pay for the same, but the city or town shall not be-
come entitled to this subsidy unless, upon examination authorized
by the trustees of hospitals for consumptives, the sputum of such
patients be found to contain bacilli of tuberculosis, and unless the
hospital be subject to the inspection of, and be approved by, said
trustees.
Your inquiries are substantially whether or not a city or town
is entitled to the subsidy above provided for (1) if it maintains
in a private tuberculosis hospital a tuberculosis ward or bed or
beds; (2) if it maintains a tuberculosis ward in a general city or
town hospital, or a bed or beds for tuberculous patients in such
hospitals ; and (3) if it maintains a tuberculosis ward in a private
general hospital or a bed or beds for tuberculous patients in such
hospital.
I am of opinion that all three of these inquiries should be
answered in the negative. The purpose of the statute is obviously
as stated in the title, " to encourage and promote the building
and use of tuberculosis hospitals ; " or, in other words, to furnish
an inducement to cities and towns to erect and maintain hos-
pitals for persons afflicted with tuberculosis where such patients
may be cared for and treated. It follows, therefore, that cities
and towns which maintain wards or beds in private hospitals or
in general city hospitals are not entitled to the subsidy provided
for in the section above quoted.
Very truly yours,
James M. Swift, Attorney-General.
Commonwealth — Employees — Retirement — Massachusetts
Agricultural College — Teachers and Employees.
The Massachusetts Agricultural College is a public charitable corporation
organized for educational purposes, and is not, strictly speaking, a
State institution and its teachers and employees are not eligible to
participate in the retirement system established by St. 1911, c. 532,
for employees of the Commonwealth.
Dec. 4, 1911.
F. Spencer Baldwin, Esq., Department of the Treasurer and
Receiver-General.
Dear Sir : — You have requested my opinion as to whether
teachers and employees of the Massachusetts Agricultural Col-
lege are eligible for participation in the retirement system for the
1912.] PUBLIC DOCUMENT — No. 12. Ill
employees of the Commonwealth, established by chapter 532 of
the acts of the present year. Only employees of the Common-
wealth are eligible for such participation. By the terms of the
statute " the word ' employee ' means any person on the pay roll
of the commonwealth, whether employed in the direct service of
the commonwealth or in the metropolitan district service, who
regularly gives his whole time to that service " (section 1). The
teachers and employees of the Massachusetts Agricultural Col-
lege are not, in my opinion, employees of the Commonwealth,
within this definition. Under date of June 13, 1910, my prede-
cessor advised the House of Representatives that the Massachu-
setts Agricultural College was " a public charitable corporation
organized for educational purposes," and that it was not " in the
strict sense of the words ... a State institution." Attorney-
GeneraFs Report, 1910, pp. 45, 48, 49. Since that time the Mass-
achusetts Agricultural College has transferred its property to the
Commonwealth under authority of St. 1911, c. 311. That statute
did not, however, change the nature of the institution. Its teach-
ers and employees are, therefore, employees of a public charitable
corporation and not of the Commonwealth, even though con-
siderable sums of money are appropriated by the Commonwealth
for the support of the corporation.
Very truly yours,
James M. Swift, Attorney-General.
Civil Service — Vendor of Intoxicating Liquors — Druggist —
Sixth-class License.
A druggist who holds a sixth-class license to sell intoxicating liquors is a
" vendor of intoxicating liquors " within the meaning of E. L., c. 19,
§ 16, providing that " no . . . vendor of intoxicating liquors shall
be appointed to or retained in any office, appointment or employment
to which the provision of this chapter shall apply."
Dec. 11, 1911.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir : — In behalf of the Civil Service Commission you
have requested my opinion as to whether a druggist who holds a
sixth-class license to sell intoxicating liquors is a " vendor of
intoxicating liquors " within the meaning of section 16 of chapter
19 of the Eevised Laws.
Chapter 19 of the Eevised Laws deals with the civil service.
Section 16 of this chapter is as follows: —
112 ATTORNEY-GENERAL'S REPORT. [Jan.
No person habitually using intoxicating liquors to excess and no
vendor of intoxicating liquors shall be appointed to or retained in
any office, appointment or employment to which the provisions of
this chapter apply.
Licenses of the sixth class are " licenses to retail druggists and
apothecaries to sell liquors of any kind for medicinal, mechanical
or chemical purposes only, and to such persons only as may cer-
tify in writing for what use they want them." R. L., c. 100, § 18.
I am of opinion that a druggist who holds a sixth-class license,
and by virtue thereof sells intoxicating liquors, is a " vendor of
intoxicating liquors " within the meaning of the civil service
statute quoted. It may be that the reasons which in the mind
of the Legislature make the holder of a license of one of the first
five classes an improper person for appointment under the civil
service law do not apply to the holder of a sixth-class license. A
holder of a sixth-class license who sells intoxicating liquors there-
under is, however, clearly within the ordinary meaning of the
words " vendor of intoxicating liquors." In my judgment, the
intention of the Legislature to exclude the holder of such a
license from the statutory prohibition is not clear enough to
justify a. departure from the ordinary construction of the phrase.
Very truly yours,
James M. Swift, Attorney-General.
Savings Banks — Legal Investment — Bonds of Terminal Cor-
porations — Railroad.
By providing in St. 1908, e. 590, § 68. el. 3, subdivision a, that deposits
in savings banks and the income derived therefrom may be invested
" in the bonds or notes, issued in accordance with the laws of this
commonwealth, of a railroad corporation incorporated therein, . . .
or in the first mortgage bonds of a terminal corporation incorporated
in this commonwealth,,' and in subdivision c of cl. 3 of said § 68,
as amended by St. 1909, c. 491, § 8, that such deposits and the income
derived therefrom may be invested " in the first mortgage bonds of a
railroad corporation incorporated in any of the New England states,
the railroad of which is located wholly or in part therein," the
Legislature intended to restrict the investment of such deposits and
income to the first mortgage bonds of terminal companies incor-
porated within the Commonwealth.
The Portland Terminal Company, a corporation organized under the laws
of the State of Maine for the purpose of establishing, maintaining,
operating and developing a terminal in the city of Portland, and
1912.] PUBLIC DOCUMENT — No. 12. 113
authorized to acquire and hold any or all of the franchises, rights
or properties of certain railroad corporations within the territory
designated as such terminal, which within such territory operates
trains, issues time-tables, sells tickets therefor, and generally en-
gages in the business of a common carrier of passengers, baggage
and express, may, however, be construed to be a " railroad corpora-
tion " within the meaning of St. 1908, c. 590, § 68, el. 3, subdivision
c, as amended by St. 1909, c. 491, % 8, above quoted.
Dec. 21, 1911.
Hon. Arthur B. Chapin, Bank Commissioner.
Dear Sir : — You have submitted for my opinion the follow-
ing request: "Will you kindly give me your opinion as to
whether the bonds of the Portland Terminal Company will be
legal investments for Massachusetts savings banks, if in proper
form."
While your question is a broad one, from the correspondence
and memoranda accompanying your letter I assume that the
specific point of inquiry is whether or not the bonds of the Port-
land Terminal Company would be legal investments for Massa-
chusetts savings banks, or, in other words, whether the Portland
Terminal Company is to be considered as a railroad, under the
provisions of St. 1908, c. 590, § 6S, cl. 3, subdivision c, as
amended by St. 1909, c. 491, § 8, which, in substance, provides
that deposits in savings banks, and the income derived there-
from, shall be invested only as follows : —
c. In the first mortgage bonds or assumed first mortgage bonds
or in the bonds secured by a refunding mortgage as described in para-
graphs (3) or (4) of subdivision g, of a railroad corporation incor-
porated in any of the New England states, the railroad of which is
located wholly or in part therein, which have been guaranteed as to
principal and interest by a railroad corporation described in sub-
divisions a or b which is in possession of and is operating its own
road.
Said company was incorporated under the laws of Maine, by
chapter 96 of the Acts of 1887, entitled " An Act providing for
a Union Railway Station at Portland." Section 1 of that act
named the incorporators and provided that the corporation
should be authorized " to erect, maintain, manage and govern
a union railway station in Portland, for passengers, with con-
venient approaches, tracks, round houses, car sheds, signal
towers and all other convenient and usual appurtenances of
114 ATTORNEY-GENERAL'S REPORT. [Jan.
union railway stations; and for those purposes (was) authorized
to purchase, lease or otherwise obtain the right to occupy so
much as may be convenient therefor, of the tracks and road-bed
of any railroad company, with the consent of the company own-
ing or controlling such tracks or road-bed, and also to acquire,
hold and dispose of all such lands and buildings and other prop-
erty, real or personal, as may be convenient for the purposes
aforesaid." By section 2 a provision was made for such rules and
regulations for the government of such union station and its
grounds and approaches as might be consistent with the laws of
the State of Maine and the ordinances of the city of Portland.
This section also contained a provision that any railroad entering
Portland might have the common use of the station. In sec-
tion 4 it was provided that any railroad company whose tracks
had entered or might thereafter enter the city of Portland
should have the lawful right to purchase, hold and dispose of
shares in the capital stock or bonds, scrip or other negotiable
promises issued by the Union Railway Station Company, " or
guaranty to other purchasers or holders thereof, the payment of
said bonds, scrip, or other promises or any part thereof."
This chapter was amended during the present year by chap-
ter 189 of the laws of the State of Maine for 1911, by which the
name of the corporation was changed to the Portland Terminal
Company. By section 2 it was provided that the railroad ter-
minal created by the act should include within its limits any or
all the properties of the Union Railway Station Company, the
Boston & Maine Railroad, the Maine Central Railroad Company,
the leasehold interests of the Maine Central Railroad as lessee
of the Portland & Ogdensburg and of the Portland & Rumford
Falls Railroad, situated in the cities of Portland, South Port-
land or Westbrook; and any or all the properties in such cities
of any other railroad company using the terminal facilities
under agreement with the terminal corporation. Section 3 was
as follows : —
For the establishment, maintenance, operation and development
of such railroad terminal, and for the regulation of railroad business,
passenger, freight and express, within its limits, the Portland Ter-
minal Company may acquire by contract, purchase or lease from the
Boston & Maine Railroad and the Maine Central Railroad Company,
or from any other railroad company using or desiring to use said
terminal, all or any part of the railroad franchises, rights or proper-
ties within the limits of said terminal, including lands, rights of way,
1912.] PUBLIC DOCUMENT — No. 12. 115
tracks, road-beds, bridges, wharves, water rights, round-houses, rail-
road repair shops, stations, or other buildings; and all title to the
same or any interests therein, or any right of exercise or operation
thereof or to manage the same, within the limits aforesaid; nothing
herein contained, however, shall authorize the Portland Terminal
Company to acquire or to renew the use of the abandoned railroad
location from Woodfords to the junction with the belt line, so called,
running from the foot of Preble street to the Union station in Port-
land. The tracks on said abandoned location and Pitt street bridge,
so called, over the same to be removed by the Boston & Maine Rail-
road at its own expense within three months after this act takes effect.
Within the limits of said terminal for the purpose of making
changes and improvements therein and for all the purposes of its
charter, the terminal company shall have the same powers of eminent
domain as said railroad companies have by law; damages for real
estate taken by condemnation to be estimated and paid in the same
manner as provided by law in cases of lands taken for railroad uses.
Any corporation owning, operating, or controlling the same is
hereby authorized to make sale, lease or conveyance to the said ter-
minal company of property which the company is hereby authorized
to acquire.
The Portland Terminal Company is hereby authorized to purchase
or build railway repair shops within its limits and to operate the
same under its own management.
Within the railroad locations included in the terminal the terminal
company may locate according to law and build, maintain and
operate electric railroads; and may purchase or lease, maintain and
operate electric street railroads within the limits of said terminal.
Section 6 provided as follows : —
The Boston & Maine Railroad and the Maine Central Railroad
Company, and any other railroad company using the terminal
facilities by agreement with the terminal company, are each hereby
authorized to guarantee the payment of the bonds issued by the
Portland Terminal Company under this act, and to lease or convey
to said Portland Terminal Company any or all property within the
limits of said terminal.
Under these provisions said Portland Terminal Company is
authorized, within the limits of the railroad terminal established
for the purpose, to operate railroads, both steam and electric,
and the amount of trackage comprised within the cities men-
tioned in the act is of considerable extent. It is, therefore, in a
broad sense a " railroad " company, as held in Coughlan v.
116 ATTORNEY-GENERAL'S REPORT. [Jan.
Cambridge, 166 Mass. 268, and in Wall v. Piatt, 169 Mass. 398;
and see Attorney-General' s Report, 1906, p. 39. When this last
opinion was given, however, the statutes relating to investments
for savings banks contained no mention of a terminal company,
as such. This first appears in St. 1908, c. 590, § 68, cl. 3, sub-
division a, in which it is provided that investments may be made
as follows : —
In the bonds or notes, issued in accordance with the laws of this
commonwealth, of a railroad corporation incorporated therein the
railroad of which is located wholly or in part therein, which has paid
in dividends in cash an amount equal to not less than four per cent
per annum on all its outstanding issues of capital stock in each fiscal
year for the five years next preceding such investment, or in the first
mortgage bonds of a terminal corporation incorporated in this com-
monwealth and whose property is located therein, which is owned and
operated, or the bonds of which are guaranteed as to principal and
interest, or assumed, by such railroad corporation.
The evident intention of the Legislature to distinguish be-
tween terminal companies within Massachusetts and those out-
side of this Commonwealth is significant, and leads me to the
conclusion that it was not intended to permit investment by sav-
ings banks in the bonds of a terminal corporation, as such,
organized and actually situated in some other New England
State.
In the present case, while the matter is not entirely free from
difficulty, I am of opinion that the bonds of the Portland Ter-
minal Company may be considered bonds of a railroad corpora-
tion, and therefore legal investments for savings banks so far as
this specific inquiry is concerned.
I have been informed, and assume to be facts, that the Port-
land Terminal Company has exercised its authority to take over
the property of the Boston & Maine Railroad and the Maine
Central Railroad within the terminal limits established by the
act ; that it runs regular passenger trains from Union Station in
Portland to Portland Junction on the Grand Trunk Railroad;
that it owns fifteen locomotives, rents six, and owns its own
equipment of flat cars, derrick cars, and other rolling stock,
and operates passenger cars ; that it issues time-tables and adver-
tises the arrival and departure of its trains; that it sells its own
passenger tickets and receives the compensation therefor; and
that it employs a large number of people, including engineers,
1912.] PUBLIC DOCUMENT — No. 12. 117
firemen, brakemen, conductors, baggage-masters, freight agents,
ticket agents, ticket sellers and lost-article agents. Within its
limits, therefore, it seems to be doing the business of a common
carrier of passengers, baggage and express. It therefore appears
that said corporation, in addition to being a terminal company,
is a railroad company within the meaning of the provisions of
law hereinbefore cited.
The foregoing conclusion is upon the assumption that said
bonds, when issued, will be in all other respects in accordance
with the requirements of our statute. It appears, however, that
a part of the property to be covered by the mortgage securing
said bonds is subject to a prior consolidated mortgage of the
Maine Central Railroad maturing April 1, 1912. This, in my
opinion, will prevent said bonds from becoming legal invest-
ments for Massachusetts savings banks until after the expira-
tion of said mortgage on April 1, 1912.
Very truly yours,
James M. Swift, Attorney-General.
118 ATTORNEY-GENERAL'S REPORT. [Jan.
INDEX TO OPINIONS.
PAGE
Amendment of Constitution, submission to people, .... 26
Appropriations, annual, verification of estimates by Governor and Council, 3
Armories, construction of, . . . . . . . . .14
Use of, for public purposes, ........ 1
Attorney-General, limit of time for performance of duties, ... 77
Statement of fact necessary as basis for opinion, .... 78
Back Bay Fens, erection of schoolhouse in; constitutional law, . . 60
Bank, co-operative, way or manner of transacting business, ... 28
Banks, national, tax on deposits in; constitutional law, ... 63
Boating and fishing, regulation of, on artificial reservoir used as water
supply, .......... 20
Bonds of domestic electric light company, taxation of, when secured by
mortgage of real and personal property, ..... 84
Boston, appointees to office in, investigation by Civil Service Commission, 8
Boston Elevated Railway Company, fixing rates of fare on; impairment
of obligation of contract, . . . . . . .51
Law requiring free transfers on: constitutional law, . . .54
Charles River basin, widening Lechmere Canal, ..... 82
Cities and towns, control and regulation of great ponds used as sources of
water supply, ......... 99
Citizens, formation of credit union by, ...... 65
Civil service, holder of sixth-class license as vendor of intoxicating liquors, 111
Veterinary inspector, veterinary medical inspector and veterinarian, 24
Civil Service Commission, investigation of appointees to office in city of
Boston, .........
Clerks of the courts, readjustment of salaries of, .
Constitutional law, appropriation of money raised by taxation for Museum
of Fine Arts; public purpose, .....
Change of use of public park by erection of schoolhouse, .
Fixing rates of fare on street and elevated railway companies, .
Free transportation of letter carriers in uniform on street railways,
Law requiring free transfers on Boston Elevated Railway Company
impairment of obligation of contract, ....
Period for action by Governor on bills and resolves,
Referendum on matter of local self-government,
Right of woman to hold public office, .....
Submission of amendment of Constitution to people,
Tax on deposits in national banks, .....
Taxation of land acquired by charitable institution for care of insane
exemption, ........
Use of public highways; erection of structures over,
Use of public highways for commercial or advertising purposes,
Co-operative bank, way or manner of transacting business,
Corporation, domestic electric light, taxation of bonds secured by mortgage
of real and personal property, .....
May be legally organized under general laws to acquire stock of do-
mestic street railway, gas and electric light companies,
Terminal bonds of, as legal investment for savings banks,
17
35
60
51
43
54
68
77
96
26
63
40
30
38
28
84
70
112
1912.] PUBLIC DOCUMENT — No. 12. 119
PAGE
County commissioners, readjustment of salaries of, . . . .17
County treasurers, readjustment of salaries of, . . . . .17
Druggist holding sixth-class license, vendor of intoxicating liquors under
civil service law, . . . . . . . . .111
Election, death of candidate on election day, special election, . . 108
Extradition, exercise of discretion by Governor, ..... 85
Gas and electric light companies, domestic, corporation may be organized
under general laws to hold stock of, ..... 70
Governor, authority to employ agents or experts to investigate State
departments or institutions in connection with estimates of pro-
posed expenditures, ........ 57
Employment of persons to investigate estimates of annual appropri-
ations; compensation, ........ 93
Exercise of discretion by, in matters of extradition, ... 85
Period of five days for action on bills and resolves by, how computed, 68
Verification of statements and estimates of annual appropriations,
powers to examine and audit books, ..... 3
Great ponds used as water supply, control and regulation of, by cities and
towns; public rights, ........ 99
Health, State Board of, regulation of great ponds used for water supply, 99
Right to regulate boating and fishing on artificial reservoir, . . 20
Highways, erection of structures over, public use, .... 30
Use of, for commercial or advertising purposes, . . . .38
Inspector, under civil service rules includes veterinary inspector, veteri-
nary medical inspector and veterinarian, of City of Boston, . 24
Intoxicating liquors, holder of sixth-class license vendor of, under civil
service laws, . . . . . . • • .111
Licensed place; licensed premises, ...... 45
Investigation of State departments or institutions in connection with
statements of proposed expenditures, ..... 57
Labor, hours of, dumping inspectors and civil engineers, . 74
Labor laws, mercantile or manufacturing establishment; restaurant, . 106
Lechmere Canal, in Charles River basin, widening of, . . . .82
Legislature, determination of public policy toward monopolies for, . . 78
License for sale of intoxicating liquors, licensed place; licensed premises, 45
Keeper of hospital for feeble-minded and insane, . . . .15
Of use of highways for commercial or advertising purposes, . . 38
Sixth-class, holder of, vendor of intoxicating liquors under civil
service laws, . . . . . . • • .111
Lyman and Industrial Schools, use of income of trust fund for, to pur-
chase land, .......-• 103
Massachusetts Agricultural College, employees of, not employees of
Commonwealth, . . . . . . • • .110
Mercantile establishment, premises of; telegraph company, . 66
Mercantile or manufacturing establishment under labor laws; restaurant, 106
Metropolitan Park Commission, authority to widen Lechmere Canal, . 82
Monopolies, determination of public policy toward, for Legislature, . 77
Officers, administrative, bound by presumption of lawful passage of
statute, 69
Portland Terminal Company, bonds of, as legal investment for savings
banks, . . . . . . . • • .112
Public office, death of candidate for, on election day, special election, . 108
Public park, erection of schoolhouse in; constitutional law, ... 60
Public records, papers in custody of Civil Service Commission relating to
appointees to office in Boston, ...... 8
120 ATTORNEY-GENERAL'S REPORT. [Jan. 1912.
Public rights in great ponds used for water supply, regulation of, by
cities and towns, ......... 99
Rallies of political parties, use of armories for, as public purpose, . . 1
Rates of fare on street and elevated railways, constitutionality of law fix-
ing, 51
Restaurant as mercantile or manufacturing establishment, under labor
laws, 106
Salaries of clerks of court, county commissioners and county treasurers,
readjustment of, . . . . . . . . .17
Savings banks, legal investments, bonds of terminal corporations as, . 112
State departments or institutions, investigation of, by agents of Governor
in connection with estimates of proposed expenditures, . . 57
Statute, presumption of lawful passage binding upon administrative
officer, .......... 69
Street railways, constitutionality of law fixing rates of fare on, . . 51
Constitutionality of law requiring free transportation of letter car-
riers in uniform, ......... 43
Domestic corporation may be organized under general laws to hold
stock of, .......... 70
Taxation, appropriation of money raised by, for Museum of Fine Arts, 35
Bonds of domestic electric light company secured by mortgage on
real and personal property, ....... 84
Of land of charitable institution for care of insane, exemption, . . 40
Tax on deposits in national banks, ...... 63
Telegraph company, premises of, not a mercantile establishment, . . 66
Terminal corporation may be in fact a railroad, . . . . .112
Towns, vote for appropriation for water supply, ..... 75
Truant officer, right of woman to hold office of, . . . . .96
Trust company, member of board of investment as endorser on note for
money loaned by corporation, ...... 104
Water supply, appropriation for, by towns, majority, .... 75
Great ponds as source of, regulation by cities and towns, . . 99
Sources of, regulation of fishing and boating on artificial reservoir, . 20
Woman, right to hold public office as truant officer, . . . .96
Workmen, laborers and mechanics, hours of labor for; dumping inspectors;
civil engineers, ......... 74
Volunteer militia, construction of armories for, ..... 14
LIST OF CASES
IN WHICH THE
ATTOENET-GENEKAL
HAS APPEARED
During the Year 1911.
GRADE CROSSINGS.
Notices have been served upon this department of the filing
of the following petitions for the appointment of special com-
missioners for the abolition of grade crossings : —
Berkshire County.
Adams. Hoosac Valley Street Railway Company, petitioners.
Petition for abolition of Commercial Street crossing in
Adams. George W. Wiggin, William W. McCiench and
Edmund K. Turner appointed commissioners. Commis-
sioners' report filed. Frank H. Cande appointed auditor.
Auditor's fourth report filed. Pending.
Great Barrington, Selectmen of, petitioners. Petition for the
abolition of a grade crossing in the village of Housatonic in
said town. John J. Flaherty, Edmund K. Turner and
Stephen S. Taft appointed commissioners. Commissioners'
report filed. Frank N. Nay appointed auditor. Auditor's
third report filed. Pending.
Lanesborough, Selectmen of, petitioners. Petition for abolition
of Valley Eoad and Glen Eoad crossings. Eailroad Com-
missioners appointed commissioners. Commissioners' report
filed. Auditor's first report filed. Pending.
North Adams. Hoosac Valley Street Railway Company, peti-
tioners. Petition for abolition of Main Street crossing,
known as Braytonville crossing, in North Adams. Edmund
K. Turner, William W. McCiench and Joseph P. Magenis
appointed commissioners. Commissioners' report filed.
Frank H. Cande appointed auditor. Auditor's first report
filed. Pending.
North Adams, Mayor and Aldermen of, petitioners. Petition
for abolition of State Street and Furnace Street crossings.
Edmund K. Turner, David F. Slade and William G.
McKechnie appointed commissioners. Commissioners' re-
port filed. Pending.
Pittsfield, Mayor and Aldermen of, and Directors of Boston &
Albany Railroad Company, petitioners. Petition for the
124 ATTORNEY-GENERAL'S REPORT. [Jan.
abolition of Hubbard and Gates avenues and Jason Street
crossings in Pittsfield. Thomas W. Kennefick, William
Sullivan and Charles M. Ludden appointed commissioners.
Commissioners' report filed. Patrick J. Ashe appointed
auditor. Auditor's first report filed. Disposed of.
Pittsfield, Mayor and Aldermen of, petitioners. Petition for
abolition of Merrill crossing in Pittsfield. Thomas W. Ken-
nefick, Frederick L. Green and Edmund K. Turner ap-
pointed commissioners. Pending.
Stockbridge, Selectmen of, petitioners. Petition for the abolition
of "River Road" crossing in Stockbridge. James B. Car-
roll, Edward B. Bishop and Luther Dean appointed com-
missioners. Commissioners' report filed. Wade Keyes ap-
pointed auditor. Auditor's second report filed. Pending.
Stockbridge, Selectmen of, petitioners. Petition for abolition of
South Street crossing. Railroad commissioners appointed
commissioners. Commissioners' report filed. A. W. DeGoosh
appointed auditor. Auditor's first report filed. Pending.
Stockbridge. Berkshire Railroad, petitioner. Petition for aboli-
tion of Glendale station crossing. Pending.
West Stockbridge, Selectmen of, petitioners. Petition for
abolition of grade crossing at Albany Street. Pending.
Bristol County.
Attleborough, Selectmen of, petitioners. Petition for abolition
of West Street, North Main Street and other crossings in
Attleborough. James R. Dunbar, Henry L. Parker and
William Jackson appointed commissioners. Commissioners'
report filed. Chas. P. Searle appointed auditor. Auditor's
seventh report filed. Pending.
Fall River, Mayor and Aldermen of, petitioners. Petition for
abolition of Brownell Street crossing and other crossings in
Fall River. John Q. A. Brackett, Samuel N. Aldrich and
Charles A. Allen appointed commissioners. Commissioners'
report filed. Fred E. Jones appointed auditor. Auditor's
nineteenth report filed. Pending.
Mansfield. Directors of New York, New Haven & Hartford
Railroad Company, petitioners. Petition for abolition of
grade crossing at North Main, Chauncey, Central, West,
School and Elm streets in Mansfield. Samuel L. Powers,
Stephen S. Taft and Wm. Jackson appointed commis-
sioners. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 125
New Bedford, Mayor and Aldermen of, petitioners. Petition for
abolition of certain grade crossings in New Bedford. George
F. Eichardson, Horatio G. Herrick and Wm. Wheeler ap-
pointed commissioners. Commissioners' report filed. Fred
E. Jones appointed auditor. Auditor's fifteenth report
filed. Pending.
Somerset. New York, New Haven & Hartford Eailroad Com-
pany, petitioner. Petition for abolition of grade crossing at
Wilbur Avenue. James D. Colt, Henry H. Baker and
Louis Perry appointed commissioners. Commissioners' re-
port filed. Pending.
Swansea. New York, New Haven & Hartford Eailroad Com-
pany, petitioner. Petition for abolition of grade crossing at
Eiver Eoad. James D. Colt, Henry H. Baker and Louis
Perry appointed commissioners. Commissioners' report
filed. Pending.
Taunton, Mayor and Aldermen of, petitioners. Petition for
abolition of grade crossings at Danforth and other streets in
Taunton. Thomas M. Babson, George F. Swain and Edwin
U. Curtis appointed commissioners. Pending.
Essex County.
Gloucester. Boston & Maine Eailroad, petitioner. Petition for
abolition of crossings at Magnolia Avenue and Brays cross-
ing. Arthur Lord, Moody Kimball and P. H. Cooney ap-
pointed commissioners. Commissioners' report filed. Pend-
ing.
Gloucester. Directors of Boston & Maine Eailroad, petitioners.
Petition for abolition of grade crossing between Washing-
ton Street and tracks of Boston & Maine Eailroad. Pend-
ing.
Haverhill, Mayor and Aldermen of, petitioners. Petition for
abolition of Washington Street and other crossings in
Haverhill. George W. Wiggin, William B. French and Ed-
mund K. Turner appointed commissioners. Commissioners'
report filed. Fred E. Jones appointed auditor. Auditor's
eleventh report filed. Pending.
Ipswich, Selectmen of, petitioners. Petition for abolition of
High Street and Locust Street crossings. Geo. W. Wiggin,
Edmund K. Turner and William F. Dana appointed com-
missioners. Commissioners' report filed. Fred E. Jones ap-
pointed auditor. Auditor's second report filed. Pending.
126 ATTORNEY-GENERAL'S REPORT. [Jan.
Lawrence. Boston & Maine Railroad, petitioner. Petition for
abolition of crossings at Chickering Street. Moody Kimball,
James C. Poor and John M. Grosvenor, Jr., appointed
commissioners. Pending.
Lawrence, Mayor and Aldermen of, petitioners. Petition for
abolition of crossing at Merrimac and other streets in
Lawrence. Pending.
Lynn, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Summer Street and other crossings on Saugus
branch of Boston & Maine Railroad and Market Street and
other crossings on main line. George W. Wiggin, Edgar R.
Champlin and Edmnnd K. Turner appointed commis-
sioners. Commissioners' report filed. Edward A. McLaugh-
lin appointed auditor. Auditor's first report filed. Pend-
ing.
Lynn, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of grade crossings at Pleasant and Shepard streets, Gas
Wharf Road and Commercial Street, on the Boston, Revere
Beach & Lynn Railroad. Pending.
Salem. Directors of Boston & Maine Railroad, petitioners. Peti-
tion for the abolition of grade crossings at Bridge, Wash-
ington, Mill, North, Flint and Grove streets in Salem.
Patrick H. Cooney, George F. Swain and William A. Dana
appointed commissioners. Pending.
Salem, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Lafayette Street crossing in Salem. Pending.
Franklin County.
Deerfield, Selectmen of, petitioners. Petition for abolition of
" Upper Wisdom Road " crossing. Edmund K. Turner, Cal-
vin Coolidge and Hugh P. Drysdale appointed commis-
sioners. Commissioners' report filed. Lyman W. Griswold
appointed auditor. Auditor's first report filed. Pending.
Greenfield, Selectmen of, petitioners. Petition for the abolition
of Allen and Russell streets crossings in Greenfield. Ed-
mund K. Turner, Walter P. Hall and Fred D. Stanley
appointed commissioners. Stephen S. Taft appointed au-
ditor. Auditor's first report filed. Pending.
Northfielcl, Selectmen of, petitioners. Petition for abolition of
crossing on road to South Yernon. Edmund K. Turner,
Charles W. Hazelton and Charles H. Innes appointed com-
missioners. Commissioners' report filed. Pending.
1912.J PUBLIC DOCUMENT — No. 12. 127
Hampden County.
Palmer, Selectmen of, petitioners. Petition for abolition of
Burley's crossing in Palmer. Pending.
Eussell, Selectmen of, petitioners. Petition for abolition of Mont-
gomery Eoad crossing. Eailroad Commissioners appointed
commissioners. Commissioners' report filed. Thomas W.
Kennefick appointed auditor. Auditor's second report filed.
Pending.
Westfield, Attorney-General, petitioner. Petition for abolition
of grade crossings at Lane's and Lee's crossings in West-
field. Patrick H. Cooney, Kichard W. Irwin and Franklin
T. Hammond appointed commissioners. Pending.
Hampshire County.
Amherst, Selectmen of, petitioners. Petition for abolition of
grade crossings at Whitne}7, High and Main streets. Eail-
road commissioners appointed commissioners. Pending.
Belchertown, Selectmen of, petitioners. Petition for the aboli-
tion of crossing of road from Belchertown to Three Eivers
and road from Bondville to Ludlow. Edmund K. Turner,
F. G. Wooden and George P. O'Donnell appointed com-
missioners. Commissioners' report filed. Pending.
Easthampton, Selectmen of, petitioners. Petition for abolition
of grade crossing at Holyoke Eoad, Mt. Tom crossing.
Pending.
Ware, Selectmen of, petitioners. Petition for abolition of Maple
Street and Gilbertville Eoad crossings in Ware. Alpheus
Sanford, Everett C. Bumpus and William W. McClench ap-
pointed commissioners. Commissioners' report filed. John
W. Mason appointed auditor. Auditor's second report filed.
Disposed of.
Middlesex County.
Acton, Selectmen of, petitioners. Petition for abolition of Great
Eoad crossing in Acton. Benj. W. Wells, George Burrage
and William B. Sullivan appointed commissioners. Com-
missioners' report filed. Fred Joy appointed auditor. Pend-
ing.
Belmont, Selectmen of, petitioners. Petition for abolition of
crossings at Waverley station. Thomas W. Proctor, Pat-
rick H. Cooney and Desmond FitzGerald appointed com-
missioners. Pending.
128 ATTORNEY-GENERAL'S REPORT. [Jan.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Marble Street crossing. Pending.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Concord Street crossing. Pending.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Waverly Street crossing. Pending.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Bishop Street crossing. Pending.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Hollis and Waushakum streets crossings. Pending.
Framingham, Selectmen of, petitioners. Petition for the abo-
lition of Claflin Street crossing. Pending.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Middlesex and Thorndike streets crossings. Pend-
ing.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Boston Eoad or Plain Street, School, Walker and
Lincoln streets crossings. Arthur Lord, David F. Slade and
Henry A. "VVyman appointed commissioners. Commissioners'
report filed. Pending.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Middlesex, Thorndike and Lincoln streets and Bos-
ton Eoad grade crossings. Disposed of.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of crossing at Western Avenue and Fletcher Street.
Pending.
Maiden. Directors of Boston & Maine Railroad Company, peti-
tioners. Petition for abolition of Medford Street and other
crossings in Maiden. Geo. W. Wiggin, Robert 0. Harris
and Edmund K. Turner appointed commissioners. Com-
missioners' report filed. Fred E. Jones appointed auditor.
Auditor's third report filed. Pending.
Maiden, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Pleasant and Winter streets crossing in Maiden.
George W. Wiggin, Edmund K. Turner and Fred Joy ap-
pointed commissioners. Commissioners' report filed. Win-
field S. Slocum appointed auditor. Auditor's third report
filed. Pending.
Marlborough, Mayor and Aldermen of, petitioners. Petition for
abolition of Hudson Street crossing in Marlborough. Walter
Adams, Charles A. Allen and Alpheus Sanford appointed
commissioners. Commissioners' report filed. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 129
Natick. Boston & Worcester Street Bailway Company, petition-
ers. Petition for alteration of Worcester Street crossing in
Natick. Geo. W. Wiggin, Edmund K. Turner and Larkin
T. Trull appointed commissioners. Commissioners' report
filed. Theo. C. Hurd appointed auditor. Auditor's second
report filed. Pending.
Newton, Mayor and Aldermen of, petitioners. Petition for the
abolition of Concord Street and Pine Grove Avenue cross-
ings in Newton. George W. Wiggin, T. C. Mendenhall and
Edmund K. Turner appointed commissioners. Pending.
Newton, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of crossings on main line in Newton. Theo. C. Hurd
appointed auditor. Auditor's eleventh report filed. Dis-
posed of.
Newton, Mayor and Aldermen of, petitioners. Petition for the
abolition of Glen Avenue and nine other crossings in New-
ton. Geo. W. Wiggin, T. C. Mendenhall and Edmund K.
Turner appointed commissioners. Commissioners' report
filed. Patrick H. Cooney appointed auditor. Auditor's
sixteenth report filed. Pending.
North Eeading, Selectmen of, petitioners. Petition for aboli-
tion of Main Street crossing in North Eeading. Alpheus
Sanford, George N. Poor and Louis M. Clark appointed
commissioners. Report of commissioners filed. Pending.
Somerville, Mayor and Aldermen of, petitioners. Petition for
abolition of Park Street, Dane Street, Somerville Avenue
and Medford Street crossings in Somerville. George W.
Wiggin, George F. Swain and James D. Colt appointed
commissioners. Commissioners' report filed. Patrick H.
Cooney appointed auditor. Auditor's sixth report filed.
Pending.
Wakefield, Selectmen of, petitioners. Petition for abolition of
Hanson Street crossing in Wakefield. Pending.
Waltham, Mayor and Aldermen of, petitioners. Petition for
abolition of South Street crossing in Waltham. Geo. F.
Swain, and Geo. A. Sanderson appointed com-
missioners. Pending.
Waltham, Mayor and Aldermen of, petitioners. Petition for
abolition of Moody Street, Main Street, Elm Street, Eiver
Street, Pine Street, Newton Street and Calvary Street
crossings in Waltham. Arthur Lord, Patrick H. Cooney
and George F. Swain appointed commissioners. Pending.
130 ATTORNEY-GENERAL'S REPORT. [Jan.
Watertown, Selectmen of, petitioners. Petition for abolition of
grade crossings at Cottage, Arlington, School, Irving and
other streets in Watertown. Pending.
Weston, Selectmen of, petitioners. Petition for abolition of
Church Street, Pigeon Hall and Concord Eoad crossings.
Railroad Commissioners appointed commissioners. Commis-
sioners' report filed. Joseph W. Lund, Esq., appointed
auditor. Pending.
Weston, Selectmen of, petitioners. Petition for abolition of
grade crossings at Central Avenue, Conant Road, Church
and Viles streets. Pending.
Winchester, Selectmen of, petitioners. Petition for the aboli-
tion of crossing at Winchester station square. George W.
Wiggin, George F. Swain and Arthur Lord appointed com-
missioners. Pending.
Norfolk County.
Braintree, Selectmen of, petitioners. Petition for the abolition
of the Pearl Street crossing at South Braintree. Patrick H.
Cooney, Frank N. Nay and George F. Swain appointed com-
missioners. Pending.
Braintree. Directors of New York, New Haven & Hartford
Railroad Company, petitioners. Petition for abolition of
grade crossing at School, Elm, River and Union streets in
Braintree. John L. Bates, Winfleld S. Slocum and Arthur
H. Wellman appointed commissioners. Pending.
Brookline. Directors of Boston & Albany Railroad Company,
petitioners. Petition for the abolition of Kerrigan Place
crossing in Brookline. William Sullivan, Henry M. Hutchins
and Wade Keyes appointed commissioners. Commissioners'
report filed. Henry M. Hutchins appointed auditor. Au-
ditor's first report filed. Pending.
Canton. Directors of New York, New Haven & Hartford Rail-
road Company, petitioners. Petition for abolition of Ded-
ham Road crossing in Canton. Samuel L. Powers, Stephen
S. Taft and Wm. Jackson appointed commissioners. Com-
missioners' report filed. Pending.
Dedham, Selectmen of, petitioners. Petition for the abolition of
Eastern Avenue and Dwight Street crossings in Dedham.
Alpheus Sanford, Charles Mills and J. Henry Reed ap-
pointed commissioners. Commissioners' report filed. Fred
E. Jones appointed auditor. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 131
Foxborough. Directors of New York, New Haven & Hartford
Eailroad Company, petitioners. Petition for abolition of
grade crossing at Cohasset and Summer streets in Fox-
borough. Samuel L. Powers-, Stephen S. Taft and Wm.
Jackson appointed commissioners. Commissioners' report
filed. Pending.
Hyde Park and Dedham, consolidated petitions. See Dedham.
Hyde Park, Selectmen of, petitioners. Petition for abolition of
Fairmount Avenue and Bridge Street crossings in Hyde
Park. Boyd B. Jones, Edmund K. Turner and Fred Joy
appointed commissioners. Thomas W. Proctor appointed
auditor. Auditor's third report filed. Pending.
Needham, Selectmen of, petitioners. Petition for abolition of
Charles Eiver Street crossing in Needham. Pending.
Norfolk. Agreement approved by the Eailroad Commissioners
for the abolition of crossing at Grove Street, near City
Mills station. Pending.
Quincy. Directors of New York, New Haven & Hartford Eail-
road Company, petitioners. Petition for abolition of Saville
and Water streets crossings in Quincy. John L. Bates,
Winfield S. Slocum and Arthur H. Wellman appointed
commissioners. Pending.
Sharon. Directors of New York, New Haven & Hartford Eail-
road Company, petitioners. Petition for abolition of grade
crossing at Depot, Garden and Mohawk streets in Sharon.
Samuel L. Powers, Stephen S. Taft and Wm. Jackson ap-
pointed commissioners. Commissioners' report filed.
Pending.
Walpole, Selectmen of, petitioners. Petition for abolition of
Oak Street crossing and other crossings in Walpole. Dana
Malone, Edmund K. Turner and Henry A. Wyman ap-
pointed commissioners. Commissioners' report filed. N. L.
Sheldon appointed auditor. Auditor's fourth report filed.
Pending.
West wood. Directors of New York, New Haven & Hartford
Eailroad Company, petitioners. Petition for abolition of
Green Lodge Street crossing in Westwood. Samuel L.
Powers, Stephen S. Taft and Wm. Jackson appointed com-
missioners. Commissioners' report filed. Pending.
132 ATTORNEY-GENERAL'S REPORT. [Jan.
Suffolk County.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Dudley Street crossing in Dorchester. Thomas Post,
Fred Joy and Edmund K. Turner appointed commissioners.
Commissioners' report filed. James D. Colt appointed au-
ditor. Auditor's tenth report filed. Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Dorchester Avenue crossing in Boston. F. N.
Gillette, Charles S. Lilley and Charles Mills appointed
commissioners. Commissioners' report filed. Fred Joy ap-
pointed auditor. Auditor's thirty-first report filed. Dis-
posed of.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Austin Street, Cambridge Street and Perkins Street
crossings in Charlestown. Henry S. Milton, Edward B.
Bishop and Henry G. Taft appointed commissioners. Com-
missioners' report filed. Fred Joy appointed auditor. Au-
ditor's twelfth report filed. Disposed of.
Boston. New York, New Haven & Hartford Railroad Company,
petitioners. Petition for abolition of Neponset and Granite
avenues crossings in Dorchester. Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Freeport, Adams, Park? Mill and Walnut streets and
Dorchester Avenue crossings. James R. Dunbar, Samuel
L. Powers and Thomas W. Proctor appointed commis-
sioners. Commissioners' report filed, Arthur H. Wellman
appointed auditor. Auditor's tenth report filed. Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Congress Street crossing in Boston. George W.
Wiggin, Edward B. Bishop and Charles A. Allen appointed
commissioners. Commissioners' report filed. Fred E. Jones
appointed auditor. Auditor's twenty-seventh report filed.
Disposed of.
Boston, Mayor and Aldermen of, petitioners. Petition for the
abolition of the Essex Street crossing in Brighton. George
W. Wiggin, William B. French and Winfield S. Slocum
appointed commissioners. Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Blue Hill Avenue and Oakland Street crossings in
Boston. William B. French, Arthur H. Wellman and
George A. Kimball appointed commissioners. Commission-
1912.] PUBLIC DOCUMENT — No. 12. 133
ers' report filed. Fred E. Jones appointed auditor. Audi-
tor's twenty-first report filed. Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of all crossings in East Boston. George W. Wiggin,
William B. French and Edward B. Bishop appointed com-
missioners. Commissioners' report filed. Winfield S. Slo-
cum appointed auditor. Auditor's fourteenth report filed.
Pending.
Boston, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of crossings at Saratoga, Maverick and Marginal
streets in East Boston. Eailroad Commissioners appointed
commissioners. Commissioners' report filed. . Pending.
Eevere, Selectmen of, petitioners. Petition for abolition of Win-
throp Avenue crossing in Revere of the Boston, Revere
Beach & Lynn Railroad. Pending.
Revere, Selectmen of, petitioners. Petition for abolition of Win-
throp Avenue crossing in Revere. George W. Wiggin,
Everett C. Bumpus and Charles D. Bray appointed commis-
sioners. Commissioners' report filed. Fred E. Jones ap-
pointed auditor. Auditor's fourth report filed. Disposed of.
Worcester County.
Blackstone. Directors of New York, New Haven & Hartford
Railroad Company, petitioners. Petition for abolition of
Mendon Street crossing in Blackstone. Railroad Commis-
sioners appointed commissioners. Commissioners' report
filed. William S. Dana appointed auditor. Auditor's first
report filed. Disposed of.
Clinton, Selectmen of, petitioners. Petition for abolition of
Sterling, Water, Main, High and Woodlawn streets cross-
ings. George W. Wiggin, William E. McClintock and
James A. Stiles appointed commissioners. Pending.
Fitchburg, Mayor and Aldermen of, petitioners. Petition for
abolition of Rollstone Street crossing in Fitchburg. Ed-
mund K. Turner, Edwin U. Curtis and Ernest H. Vaughan
appointed commissioners. Commissioners' report filed.
James A. Stiles appointed auditor. Auditor's fourth report
filed. Pending.
Harvard. Boston & Maine Railroad, petitioner. Petition for
abolition of a grade crossing near Harvard station. Pend-
ing.
134 ATTORNEY-GENERAL'S REPORT. [Jan.
Holden, Selectmen of, petitioners. Petition for abolition of
Dawson's crossing and Cedar Swamp crossing in Holden.
Charles A. Allen, Arthur P. Rugg and Henry G. Taft ap-
pointed commissioners. Commissioners' report filed. H.
L. Parker appointed auditor. Auditor's first report filed.
Pending.
Hubbardston, Selectmen of, petitioners. Petition for abolition
of Depot Road crossing in Hubbardston. Pending.
Leominster, Selectmen of, petitioners. Petition for abolition of
Water, Summer, Mechanic and Main streets crossings.
George W. Wiggin, George F. Swain and Charles D. Barnes
appointed commissioners. Pending.
Southborough, Selectmen of, petitioners. Petition for abolition
of crossing on road from, Southborough to Framingham.
Samuel W. McCall, Louis A. Frothingham and Eugene C.
Hultman appointed commissioners. Commissioners' report
filed and recommitted. Pending.
Southborough, Selectmen of, petitioners. Petition for abolition
of Main Street crossing at Fayville in Southborough.
Pending.
West Boylston. Boston & Maine Railroad Company, petitioners.
Petition for abolition of Prescott Street crossing. Pending.
Worcester, Mayor and Aldermen of, petitioners. Petition for
abolition of crossings at Exchange, Central and Thomas
and other streets. Arthur Lord, George F. Swain and Fred
Joy appointed commissioners. Pending.
Worcester, Mayor and Aldermen of, petitioners. Petition for
abolition of Grafton Street crossing and eight other cross-
ings, including alterations of Union Station. James R.
Dunbar, James H. Flint and George F. Swain appointed
commissioners. Commissioners' report filed. James A.
Stiles appointed auditor. Auditor's forty-first report filed.
Pending.
1912.1 PUBLIC DOCUMENT — No. 12. 135
CASES ARISING IN THE COURTS
UNDER THE
Acts relative to Inheritance and Succession Taxes.
Petitions for Instructions.
Bristol County.
Stavers, John W., estate of. Caroline Stavers, administratrix.
Pending.
Essex County.
Nichols, Mary C, estate of. Frank 0. Woods, executor. Pend-
ing.
Sheridan, Mary F., estate of. Daniel M. Crowley, administrator.
Decree.
Franklin County.
Tilton, Chauncey B., estate of. Otis Hager et ah., trustees,
petitioners. Disposed of.
Hampshire County.
Welton, Walter B., estate of. Henry W. Kidder, administrator.
Pending.
Middlesex County.
Bray, Mellen, estate of. ^lellen 1ST. Bray et al., executors.
Decree.
Elliott, Mary E., estate of. Henry C. Davis, executor. Petition
for abatement of tax. Eeserved for full court. Eescript.
Perry, Emery B., estate of . Thomas Weston, executor. Pending.
Proudfoot, David, et al. v. Third Congregational Society in
Cambridge et al. Pending.
Eugg, George H., estate of. Phineas C. Kinney, executor. Ee-
served for full court. Eescript.
Scott, Julia A., estate of. Emma E. Doty, executrix. Pending.
Whitney, Henry, estate of. William B. Durant, administrator.
Attorney-General waived right to be heard.
136 ATTORNEY-GENERAL'S REPORT. [Jan.
Norfolk County.
Fisher, Charles H., estate of. Lydia M. Fisher, executrix.
Pending.
Tobin, Ellen A., estate of. William Sullivan, executor. Pending.
Tobin, Lawrence, absentee, estate of. Howard A. Wilson, re-
ceiver, petitioner. Pending.
Plymouth County.
Blenkinsop, James S., estate of. John R. Mills, administrator.
Petition for abatement of inheritance tax. Pending.
Suffolk County.
Baker, Charlotte A., estate of. Frank N". Nay et als., executors.
Pending.
Baxter, Helen F., estate of. Carlton W. Baxter, executor. Peti-
tion for abatement of inheritance tax. Rescript.
Belknap, Henry, estate of. Francis Peabody, Jr., et al., execu-
tors. Pending.
Kelly, Thomas, estate of. Harriet L. Kelly, petitioner. Pend-
ing.
Lincoln, Annie Preston, estate of. State Street Trust Com-
pany, trustee. Rescript.
McCarthy, John A., estate of. Andreas Blume, executor.
Decree.
Sweetser, Frank D., estate of. Charles X. Barne}7, administrator
c. t. a. Reserved for full court. Pending.
Wharton, Nancy Willing, estate of. Laurence Minot et al.,
trustees. Reserved for full court. Rescript.
Worcester County.
Buck, Horace B., estate of. Frank G. Fay, administrator. At-
torney-General waived right to be heard.
Gage, Thomas H., estate of. T. Hovey Gage, administrator.
Decree.
Whitcomb, Rebecca, estate of. Carl M. Blair, administrator.
Decree.
1912.1 PUBLIC DOCUMENT — No. 12. 137
Inventories.
Barnstable County.
Clark, Achsah S., estate of. Lewis F. Clark, administrator.
Pending. Unable to locate.
Smith, Clara P., estate of. Heman N". Smith, administrator.
Dismissed.
Berkshire County.
Cadron, William H., estate of. Nellie Cadron, administratrix.
Dismissed.
Jeter, Minta M., estate of. Eobert A. Jeter, administrator.
Final decree.
Kelly, Jnlia, estate of. James O'Brien, executor. Dismissed.
Mahanna, Bridget, estate of. Timothy E. Mahanna, executor.
Dismissed.
Roberts, Herbert I., estate of. Lura M. Roberts, administratrix.
Pending.
Ty meson, Edward, estate of. William E. Tymeson, administra-
tor. Pending.
Urell, Michael, estate of. Ellen Urell, executrix. Dismissed.
Wolfe, William D., estate of. Orlando C. Bidwell, administrator.
Dismissed.
Bristol County.
Boulanger, Michael, estate of. Charles Latraverse, executor.
Dismissed.
Correia, Joseph, estate of. Manuel Correia, administrator. Dis-
missed.
Gibbs, Lizzie F., estate of. C. P. Sherman, executor. Dismissed.
Jeudy, Caroline Kurz, estate of. Francis Jeud}^, executor. Dis-
missed.
Rogers, Helen A., estate of. James W. Richardson, adminis-
trator. Disposed of.
Essex County.
Agganes, Louis N"., estate of. George P. Agganes, administrator.
Pending. Unable to locate.
Callahan, Howard P., estate of. Annie F. Callahan, adminis-
tratrix. Dismissed.
Cook, Katherine F., estate of. Thomas M. Cook, administrator.
Pending. Unable to locate.
138 ATTORNEY-GENERAL'S REPORT. [Jan.
Crowley, James E., estate of. Mary E. Crowley, administratrix.
Dismissed.
Curran, Hanorah, estate of. Patrick Curran, administrator.
Dismissed.
Delfuocco, Teresa, estate of. Venanzio Delfuocco, administrator.
Dismissed.
Donovan, Daniel J., estate of. Snsan A. Donovan, administra-
trix. Final decree.
Duffy, Catherine M., estate of. Michael J. Duffy et al., execu-
tors. Dismissed.
Goodrich, William B., estate of. Priscilla F. Goodrich, adminis-
tratrix. Dismissed.
Grandmaison, Abraham, estate of. Vena A. Grandmaison, ad-
ministratrix. Pending. Unable to locate.
Harris, Henry W., estate of. Rebecca Harris, administratrix.
Pending. Unable to locate.
Hayes, John J., estate of. Ellen T. Sullivan, administratrix.
Dismissed.
Hollingshead, Samuel W., estate of. Benjamin B. Hanson, ad-
ministrator. Dismissed.
Mulry, Winifred T., estate of. William A. Mulry et ah, execu-
tors. Dismissed.
Eoche, Alice, estate of. John O'Brien, Jr., administrator. Dis-
missed.
Swiderski, Frank, estate of. Josie Swiderski, administratrix.
Dismissed.
Tallouse, Ethel M., estate of. Fred Tallouse, administrator.
Pending. Unable to locate.
Walshe, Edward, estate of. John B. Walshe, administrator.
Final decree.
Hampden County.
Kurlej, Maryanna Eusin, estate of. Waldyslaw Kurlej, exec-
utor. Pending. Unable to locate.
Noble, Leonard E., estate of. Julia F. Noble, executrix. Dis-
missed.
Premont, Eosalie Poulin, estate of. Isidore Lusignan, executrix.
Dismissed.
Tessier, Marie L., estate of. Charles E. Moreau, administrator.
Dismissed.
1912.1 PUBLIC DOCUMENT — No. 12. 139
Hampshire County.
Keating, Ellen, estate of. Honora L. Finn, administratrix. Dis-
missed.
McGrath, Robert, estate of. Margaret McGrath, executrix. Dis-
missed.
McKenna, Jerry C, estate of. Mary McKenna, administratrix.
Dismissed.
Werner, Andrew J., estate of. Bertha Werner, administratrix.
Pending. Unable to locate.
Middlesex County.
Boudreau, Walter J., estate of. Jane Bondreau, administratrix.
Dismissed.
Brown, Belmore N"., estate of. Anna E. Brown, administratrix.
Pending. Unable to locate.
Chadbourne, Marshall W., estate of. Addie Chadbonrne, execu-
trix. Pending.
Clark, George E., estate of. T. Frank Clark et ah, administra-
tors. Final decree.
Crowdle, Annie M., estate of. Mary L. Murphy, executrix.
Dismissed.
DeAngelis, Antonio, estate of. Fredericco DeAngelis, adminis-
trator. Dismissed.
Dubinka, Piotr, estate of. Stasia Wolska, administratrix. Dis-
posed of.
Fairbank, Abbie B., estate of. George W. Fairbank, adminis-
trator. Dismissed.
Flynn, James F., estate of. Mary F. Flynn, administratrix.
Dismissed.
Friel, Hannah G., estate of. Charles H. Friel, administrator.
Dismissed.
Keefe, Bridget, estate of. John T. Keefe, executor. Dismissed.
Kenney, Mary E., estate of. Andrew J. Rady, administrator.
Dismissed.
Kleinau, John, estate of. Dorothy S. Kleinau, administratrix.
Dismissed.
Lavender, Stephen S., estate of. Robert M. Lavender, adminis-
trator. Dismissed.
Long^, Asa P.. estate of. Ella M. Longley, administratrix.
Final decree.
140 ATTORNEY-GENERAL'S REPORT. [Jan.
Masson, Joseph, estate of. Louis H. Masson, administrator.
Dismissed.
McKinnon, INeil A., estate of. Margaret G. McKinnon, execu-
trix. Dismissed.
Morrissey, Richard J., estate of. John J. Morrissey, adminis-
trator. Dismissed.
Nichols, James, estate of. Maud M. Nichols, administratrix.
Dismissed.
Plunkett, James, estate of. Owen Tighe, executor. Dismissed.
Pratt, David G., estate of. Eva H. Pratt, administratrix.
Pending. Unable to locate.
Stanton, Catherine, estate of. Thomas Brennan, executor. Dis-
missed.
Staples, Mary E., estate of. Mabel D. Thirierge, executrix.
Pending. Unable to locate.
Zwicker, William B., estate of. Ella M. Zwicker, administra-
trix. Disposed of.
Norfolk County.
Butler, William H., estate of. Lizzie F. Butler, administratrix.
Dismissed.
Collins, Michael, estate of. Bridget Collins, executrix. Dis-
missed.
Crowther, Rebecca, estate of. J. William Crowther, adminis-
trator. Dismissed.
McPherson, Mary A., estate of. Duncan McPherson, adminis-
trator. Pending.
Wadsworth, Dexter E., estate of. Kate A. Wadsworth, special
administratrix. Dismissed.
White, Asher A., estate of. Samuel White, special administra-
tor. Dismissed.
Plymouth County.
Hovey, Anna H., estate of. Daisy L. Fisher, administratrix.
Dismissed.
Peres, John, estate of. James F. Kiernan, administrator. Dis-
missed.
Russell, Patrick, estate of. William J. Coughlan et ah, executors.
Pending.
Suffolk County.
Babson, John M., estate of. Annie R. Bohaker, administratrix.
Dismissed. ,
Bailey, John, estate of. James Bailey, administrator. Dis-
missed.
1912.] PUBLIC DOCUMENT — No. 12. 141
Bithwell, William, estate of. Mary A. Bithwell, administratrix.
Dismissed.
Boardman, Henry W., estate of. William Greenwood, adminis-
trator. Dismissed.
Bonner, Laura E., estate of. Joseph A. Bonner, administrator.
Dismissed.
Brown, Carlan A., estate of. Mary E. Brown, executrix. Dis-
missed.
Campana, Michael E., estate of. George Campana, administra-
tor. Pending. Unable to locate.
Carty, Patrick, estate of. Mary T. Carty, administratrix. Dis-
missed.
Clayton, Frank H., estate of. Minnie A. Clayton, executrix.
Pending.
Colbert, James, estate of. James E. Colbert, administrator. Dis-
missed.
Costello, Bridget, estate of. Bridget A. Costello, administratrix.
Pending.
Costello, Catherine, estate of. Michael W. Costello, executor.
Final decree.
Crowley, Daniel J., estate of. Patrick J. Crowley, administra-
tor. Pending. Unable to locate.
Dion, Louise L., estate of. Napoleon J. Dion, administrator.
Disposed of.
Driscoll, John J., estate of. Catherine Driscoll, administratrix.
Pending.
Dyer, Willie H. S., estate of. Ethel M. Dyer, executrix. Dis-
missed.
Evans, Margaret A., estate of. William E. Burke, administrator.
Dismissed.
Fahey, Thomas, estate of. Thomas Fahey, administrator. Dis-
missed.
Fallon, Jennie E., estate of. John B. Fallon et ah, executors.
Final decree.
Fallon, John F., estate of. Annie McNally, administratrix.
Disposed of.
Fargo, Martha, estate of. Anna F. Rogers, executrix. Pending.
Unable to locate.
Fournier, Eleanor, estate of. Thomas J. Fournier, administra-
tor. Dismissed.
Fournier, Loraine, estate of. Thomas J. Fournier, administra-
tor. Dismissed.
142 ATTORNEY-GENERAL'S REPORT. [Jan.
Frothinghani, Edwin, estate of. Mattie M. Frothinghani, ad-
ministratrix. Disposed of.
Gerrish, Jennie L., estate of. Herbert W. Angier, administrator.
Pending.
Gleason, Michael J., estate of. Annie Gleason, administratrix.
Pending.
Goodale, George L., estate of. William P. Martin, executor.
Pending.
Gray, James N., estate of. Helen F. Eaton, administratrix.
Pending.
Gray, Mary D., estate of. William P. Gray, administrator.
Pending.
Griffith, Edward, estate of. George A. Griffith, administrator.
Pending.
Ham, Henrietta J., estate of. Edwin A. Bayley et al., adminis-
trators. Dismissed.
Hanson, Mary N., estate of. Andrew Hanson, administrator.
Pending.
Hardy, Lylie M., estate of. Lucy B. Hoadley, administratrix.
Pending.
Harrington, Mary, estate of. Joseph A. Sheehan, administrator.
Pending.
Hedrington, Ellen, estate of. Joseph A. Sheehan, administra-
tor. Dismissed.
Heffernan, Patrick, estate of. John J. Heffernan, administrator.
Dismissed.
Hogstrom, Victor, estate of. Maria Hogstrom, administratrix.
Dismissed.
Home, Norman S., estate of. Irene S. Home, administratrix.
Disposed of.
Howard, May, estate of. John E. Nolan, administrator. Dis-
missed.
Hurvitz, Isaac, estate of. Jennie Hurvitz, administratrix. Dis-
missed.
Jame, Rebecca, estate of. Barnet Jame, administrator. Pend-
ing.
Jordan, Lena, estate of. Frida Jordan, administratrix. Pending.
Kalis, Abraham, estate of. Joseph Kalis, administrator. Pend-
ing. Unable to locate.
Kane, Bridget, estate of. Mary Kane, administratrix. Dis-
missed.
Kelly, Ellen, estate of. C. I. Quirk, administrator. Dismissed.
1912.] PUBLIC DOCUMENT — No. 12. 143
Kenney, Martin, estate of. James J. Kenney, administrator.
Pending.
Keohane, Hannah, estate of. Nora Coughlin, administratrix.
Dismissed.
Killeen, Margaret A., estate of. Henry P. Moltedo, executor.
Decree.
King, David J., estate of. Elizabeth King, administratrix.
Pending. Unable to locate.
Lydon, Mary A., estate of. Hannah Doole}7, administratrix.
Dismissed.
Marble, Edward D., estate of. Bertha A. Granger, administra-
trix. Dismissed.
Marchant, Henry G., estate of. Lawrence Bond, executor. Dis-
missed.
McCallion, Bridget M., estate of. Bichard Minton, administra-
tor. Dismissed.
McCarthy, Maria, estate of. John McCarthy, administrator.
Pending. Unable to locate.
McGann, Patrick, estate of. Margaret Sheehan, administratrix.
Pending.
Mclnnis, Florence, estate of. Daniel Mclnnis, administrator.
Dismissed.
McKeen, William, estate of. Katherine M. McKeen, adminis-
tratrix. Disposed of.
McKenney, Johannah, estate of. Johannah M. Gallagher, admin-
istratrix. Dismissed.
McLaughlin, Michael, estate of. Catherine McLaughlin, admin-
istratrix. Dismissed.
Mikolajczak, Mary, estate of. Joseph Mikolajczak, administra-
tor. Decree.
Moffatt, Lydia L., estate of. Stella A. Simpson, administratrix.
Dismissed.
Murphy, John E., estate of. Thomas Murphy, administrator.
Pending.
Murtagh, Pose, estate of. John J. Murtagh, administrator. Dis-
missed.
Nagle, David J., estate of. Julia B. Nagle, executrix. Dismissed.
O'Brien, Mary, estate of. Frank O'Brien, administrator. Dis-
missed.
Powers, William, estate of. Nellie Powers, administratrix. Dis-
missed.
144 ATTORNEY-GENERAL'S REPORT. [Jan.
Quinn, Timothy F., estate of. Catherine C. Quinn, administra-
trix. Dismissed.
Reddish, Michael H., estate of. Mary Reddish, administratrix.
Dismissed.
Reilly, Honora, estate of. Annie F. Reilly, administratrix. Dis-
missed.
Rozander, Hannah, estate of. Emma Crane, administratrix.
Dismissed.
Russell, Patrick F., estate of. Mary E. Russell, administratrix.
Dismissed.
Sanders, Abbie 0., estate of. Thornton E. Sanders, adminis-
trator. Dismissed.
Schmidt, John Joseph, Jr., estate of. John Joseph Schmidt,
administrator. Dismissed.
Scollard, Michael J., estate of. Joseph P. Costello, executor.
Dismissed.
Shacat, Isidore C, estate of. Hyman Shacat, administrator.
Pending. Unable to locate.
Sirvain, Marcelin, estate of. Aglar Sirvain, executor. Pending.
Slattery, Teresa M., estate of. Natabia G. Crotty, administrator.
Dismissed.
Smith, Calvin B., estate of. Francis S. Smith, executor. Final
decree.
Spafford, Iasac B., estate of. Isaac B. Spafford, Jr., adminis-
trator. Final decree.
Sribikr, Longina, estate of. Anastasia Sribikr, administratrix.
Pending. Unable to locate.
Steeves, Henry S., estate of. Austin E. Greene, administrator.
Dismissed.
Strid, August, estate of. Elma Strid, administratrix. Pending.
Unable to locate.
Sullivan, Daniel, estate of. William T. Sullivan, administrator.
Pending.
Swan, Alice C, estate of. Lillian W. Wells, administratrix.
Dismissed.
Thorner, Elmina, estate of. Morris Thorner, administrator.
Pending.
Tower, Abby A., estate of. F. A. Appleton, administrator. Dis-
missed.
Trengove, William E., estate of. Charles T. Trengove, adminis-
trator. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 145
Vincent, Alexander, estate of. William Vincent, administrator.
Pending.
Wagner, Stephen G., estate of. Mary A. Wagner, administratrix.
Pending.
Whitehouse, Frank N., estate of. Mary E. Whitehouse, execu-
trix. Dismissed.
Williams, Sarah M., estate of. John H. Williams, administrator.
Pending.
Woods, Patrick, estate of. Jane Woods, administratrix. Dis-
missed.
Wren, Cornelius, estate of. Edward C. Wren, administrator.
Pending.
Young, Ellen, estate of. Catherine Driscoll, executrix. Dis-
missed.
Worcester County.
Bartlett, Frederick P., estate of. Carrie E. Bartlett, administra-
trix. Dismissed.
Dorsey, Catherine, estate of. Timothy Dorsey, administrator.
Pending.
Gouch, Mary, estate of. Mark N". Skerrett et al., executors.
Dismissed.
Kumin, Nathan, estate of. Bessie Kumin, executrix. Dismissed.
Leonard, Ellen, estate of. Mary A. Martin, administratrix.
Dismissed.
O'Shea, Margaret M., estate of. Michael J. O'Shea, administra-
tor. Dismissed.
Smith, Everett W., estate of. Charlotte J. B. Smith, adminis-
tratrix. Dismissed.
146 ATTORNEY-GENERAL'S REPORT. [Jan.
PUBLIC CHARITABLE TRUSTS.
Berkshire County.
Mason, Mary A., estate of. Frank H. Wright, petitioner. Pe-
tition for leave to compromise will. Decree.
Bristol County.
Rowland, Sylvia Ann, estate of. Henry H. Crapo, petitioner.
Petition for appointment as trustee. Attorney-General
waived right to be heard.
Matthes, Cornelia P., estate of. Charles E. Hunt, administrator.
Petition for instructions. Decree.
Matthes, Cornelia P., estate of. Charles E. Hunt, administrator.
Petition for instructions. Pending.
Matthes, Cornelia P., estate of. Charles E. Hunt, administrator.
Petition for instructions. Pending.
Essex County.
Atwood, Margaret, estate of. Henry B. Little et als., petitioners.
Petition for appointment of petitioners as trustees. Pend-
ing.
Bertram, Mary A., estate of. Alden P. White, executor. Pe-
tition for instructions. Decree.
Coburn, Abbie A., estate of. William A. Donald et al., trustees.
Petition for allowance of fourth and fifth and final accounts.
Attorney- General waived right to be heard.
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 ac-
cepted. Petition dismissed. Petitioner appealed. Pending.
Essex Institute, petitioner. Petition for instructions. Pending.
Hallihan, Dennis F., estate of. Stephen J. Birmingham, peti-
tioner. Petition for appointment of trustee. Attorney-
General waived right to be heard.
Haskins, Leander M., estate of. Grafton Butman, petitioner.
Petition for appointment of trustee. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 147
Hawks, Esther H., estate of. Frank W. Atkins et al., executors.
Petition for instructions. Decree.
Healy, Jeremiah J., estate of. Dennis Healy, executor. Peti-
tion for instructions. Pending.
Needham, Alice, estate of. Salem Monthly Meeting of Friends,
petitioner. Petition for instructions. Pending.
Otis, Margaret Sigourney, estate of. Philip Dexter et al., execu-
tors. Petition for instructions. Pending.
Kobbins, Mary B., estate of. Charles E. Sawyer, trustee. Peti-
tion for instructions. Pending.
Ropes, Eliza 0., estate of. Charles W. Richardson et al., execu-
tors. Petition for appointment of trustee and for instruc-
tions. Decree. Appeal. Rescript.
RopeSj Eliza 0., estate of. Charles W. Richardson et ah, execu-
tors. Petition for instructions. Decree.
Ropes, Eliza 0., estate of. Civic League of Salem, petitioner.
Petition for appointment of trustee. Attorney-General
waived right to be heard.
Ropes, Eliza 0., estate of. Edward S. Morse et als., petitioners.
Petition for appointment of trustees. Attorney- General
waived right to be heard.
Ropes, Mary P., estate of. Charles W. Richardson et al., admin-
istrators. Petition for instructions. Decree.
Ropes, Mary P., estate of. Charles W. Richardson et al., admin-
istrators. Petition for instructions. Decree.
Ropes, Mary P., estate of. Charles W. Richardson et al., execu-
tors. Petition for appointment of trustee and for instruc-
tions. Decree. Appeal. Rescript.
Ropes, Mary P., estate of. Civic League of Salem, petitioner.
Petition for appointment of trustee. Attorney- General
waived right to be heard.
Ropes, Mary P., estate of. Edward S. Morse et als., petitioners.
Petition for appointment of trustees. Attorney- General
waived right to be heard.
Smith, John, estate of. J. Duke Smith, trustee. Petition for
instructions. Pending.
Franklin County.
Stratton, Abigail, estate of. Frank H. Montague et al., trustees.
Petition for allowance of tenth account. Pending.
Tilton, Chauncy B., estate of. Petition for appointment of trus-
tee. Assented to the appointment of Arthur G. Clapp.
148 ATTORNEY-GENERAL'S REPORT. [Jan.
Williams, Ebenezer H., estate of. Irving H. Childs, petitioner.
Petition for appointment of trustee. Attorney- General
waived right to be heard.
Hampden County.
Allen, Ethan, estate of. Springfield Safe Deposit and Trust
Company, trustee, petitioner. Petition for allowance of
third account. Pending.
Whiting, H. Amelia, v. The Women's Union Temperance Or-
ganization. Petition for injunction to prevent defendant
corporation from exceeding its powers under charter.
Decree.
Hampshire County.
Gaylord, George H., petitioner. Petition for termination of
trust fund created for Russell Society. Pending.
Moore, Philomela C, estate of. Herbert Sabin et al., petitioners.
Petition for instructions. Pending.
Russell Church in Hadley. Francis S. Reynolds, trustee. Peti-
tion for instructions. Pending.
Middlesex County.
Bennett, Eleanor, estate of. Joseph Jaquith et als., petitioners.
Petition for appointment of trustees. Pending.
Choate, Lydia G., estate of. Ellen M. Dow et als., trustees.
Petition for allowance of first, second and third accounts.
Attorney-General waived right to be heard.
Copeland, Sarah E., estate of. Alba A. Giles, executor. Peti-
tion for instructions. Pending.
Copeland, Sarah E., estate of. Alba A. Giles, executor. Peti-
tion for allowance of second account. Pending.
Hammond, George P., estate of. Elizabeth F. Johnson, execu-
trix, petitioner. Petition for instructions. Pending.
Holbrook, Adin, estate of. Alonzo Stearns et al., executors.
Petition for appointment of trustee without surety on bonds.
Attorney-General waived right to be heard.
Litchfield, William, estate of. Henry W. Bragg, administrator.
Petition for instructions. Pending.
Martin, Webster Warner, estate of. Wesley T. Lee et al., trus-
tees. Petition for allowance of sixth account. Account al-
lowed.
1912.] PUBLIC DOCUMENT — No. 12. 149
Shepard, Obed C, estate of. Charles H. Sherman, executor.
Petition for leave to adjust by compromise controversy in
regard to allowance of will. Eeserved for the full court.
Tabor, Frances F., estate of. Charles S. Norris, executor. Peti-
tion for instructions. Pending.
Thompson, Emulus, estate of. Melvin G. Rogers, administrator.
Petition for instructions. Pending.
Ward, Winthrop, estate of. Francis H. Brown et als., petition-
ers. Petition for appointment of trustees. Pending.
White, Daniel, estate of. Winslow Warren et ah, trustees. Peti-
tion for allowance of sixteenth, seventeenth and eighteenth
accounts. Pending.
Whitney, Caroline A. P., estate of. Henry R. Hayes, adminis-
trator. Petition for allowance of third account. Pending.
Norfolk County.
Adams, Levi, estate of. Goerge W. Bullard et ah, trustees of
the Second Congregational Church of Medway, petitioners.
Petition for instructions. Decree.
Mann, Jonathan, estate of. John F. Brown et ah, executors.
Petition for instructions. Pending.
Sanderson, Julia A., estate of. Marshall L. Perrin, executor.
Petition for instructions. Pending.
Sanderson, Julia A., estate of. Marshall L. Perrin, executor.
Petition for authority to purchase an annuity for H. H.
Brown. Pending.
Plymouth County.
Pitcher, James S. H., estate of. Oliver W. Cobb, trustee. Peti-
tion for distribution of trust estate. Pending.
Suffolk County.
Appleton, William, estate of. J. Morris Meredith et ah, trus-
tees. Petition for instructions. Decree.
Ashton, Elisha V., estate of. Charles P. Curtis et ah, trustees.
Petition for allowance of fifth to eleventh accounts, inclu-
sive. Pending.
Ashton, Elisha V., estate of. Charles P. Curtis et ah, trustees.
Petition for instructions. Decree.
Atkins, Henry Holly. William Warren Vaughn et ah, trustees.
Petition for allowance of seventh to tenth accounts, inclu-
sive. Pending.
150 ATTORNEY-GENERAL'S REPORT. [Jan.
Bird, John H., estate of. George A. Thayer et ah, trustees.
Petition for allowance of thirty-third, thirty-fourth and
thirty-fifth accounts. Accounts allowed.
Bird, John H., estate of. George A. Thayer et ah, trustees.
Petition for allowance of thirty-sixth account. Attorney-
General waived right to be heard.
Boston Dispensary, petitioner. Petition for leave to sell real
estate. Pending.
Bradstreet, Charlotte A., estate of. Moses Williams et ah, peti-
tioners. Petition for appointment as trustees. Pending.
Brigham, Peter Bent, estate of. Edmund D. Codman et ah,
trustees. Petition for allowance of first to fourth accounts,
inclusive. Attorney-General waived right to be heard.
Brown, Josiah W., estate of. Sewall F. Abbott et ah, trustees.
Petitions for instructions. Pending.
Cazenove, Sarah Elizabeth, estate of. George H. Richards, trus-
tee. Petition for instructions. Pending.
Church Street Methodist Episcopal Church, Trustees of, peti-
tioner. Two petitions for leave to mortgage real estate.
Attorney-General waived right to be heard on both petitions.
Clapp, Mary H., estate of. Richard C. Humphreys, trustee.
Petition for allowance of first and final account. Attorney-
General waived right to be heard.
Clapp, Mary H., estate of. Silas E. Parsons, petitioner. Peti-
tion for appointment of trustee. Assented to the appoint-
ment of Silas E. Parsons.
Clay, R. Richard, estate of. Thomas J. Kenny, trustee. Peti-
tion for allowance of third and final account. Attorney-
General waived right to be heard.
Clay, R. Richard, estate of. Thomas J. Kenny, trustee. Petition
for leave to terminate trust by paying certain legacies. At-
torney-General waived right to be heard.
Devens, Sarah A. W., estate of. Laurence Minot et ah, trustees.
Petition for allowance of thirty-fourth account. Attorney-
General waived right to be heard.
Drury, Michael, estate of. Charles E. Cotting, trustee. Petition
for allowance of first to seventh and final accounts, inclu-
sive. Pending.
Forbes, Sarah S., estate of. James S. Russell, petitioner. Peti-
tion for appointment of trustee. Attorney-General waived
right to be heard.
1912.] PUBLIC DOCUMENT — No. 12. 151
Gardner, Ellen K., estate of. Herbert I. Boyer, trustee. Peti-
tion for allowance of first account. Attorney- General
waived right to be heard.
Geyer, Mary French, estate of. Charles H. Cary, trustee. Peti-
tion for allowance of second account. Attorney-General
waived right to be heard.
Geyer, Mary French, estate of. George H. Cary, petitioner.
Petition for appointment of trustee. Attorney-General
waived right to be heard.
Gurney. Elizabeth F., estate of. Warren Avenue Baptist Church
v. Attorney- General. Petition for instructions. Pending.
Haven, George, estate of. Herbert Parker et al., trustees. Peti-
tion for instructions. Pending.
Lawrence, Abbott, estate of. John Lawrence et ah, trustees.
Petition for allowance of twenty-first account. Attorney-
General waived right to be heard.
Locke, Elbridge W., estate of. Otis Merriam et al., trustees.
Petition for allowance of seventh and eighth accounts. Ac-
counts allowed.
Mabie, William I., et ah, v. Edwin S. Gardner and Attorney-
General. Petition for instructions regarding a public char-
itable trust under will of Mary Eedding. Pending.
Nute, Lewis W., estate of. Charles H. Moulton et als., trustees.
Petition for allowance of eighteenth, nineteenth, twentieth
and twenty-first accounts. Accounts allowed.
Patterson, Adoniram Judson, estate of. Joseph Houghton et
ah. executors. Petition for instructions. Decree.
Pine, James A., estate of. Frank W. Grinnell, trustee. Petition
for instructions. Pending.
Potter, Sarah E., estate of. New Bedford Free Public Library,
petitioner. Petition for instructions. Pending.
Rufus S. Frost General Hospital v. Attorney-General. Petition
for leave to sell certain real estate. Attorney- General waived
right to be heard.
Rust, Nancy E., estate of. Henry A. Wyman et al., trustees.
Petition for instructions. Pending.
Saint Paul's Church, Wardens and Vestry of, v. Attorney- Gen-
eral. Petition for authority to borrow money. Attorney-
General waived right to be heard.
Snow, Sophia J., estate of. Gorham Rogers, trustee. Petition
for allowance of sixth account. Attorney- General waived
right to be heard.
152 ATTORNEY-GENERAL'S REPORT. [Jan.
Thompson, Thomas, estate of. John F. Moors, petitioner. Peti-
tion for appointment of trustee. Pending.
Thorndike, George L., estate of. Albert E. Clary et al., trustees.
Petition for allowance of first account. Account allowed.
Thorndike, George L., estate of. Albert E. Clary et ah., execu-
tors. Petition for allowance of first to fifth and final ac-
counts. Accounts allowed.
Thorndike, George L., estate of. William A. Morrison, surviv-
ing trustee. Petition for allowance of second account. Ac-
count allowed.
Tyler Street Day Nursery Company v. Attorney- General. Peti-
tion for instructions. Pending.
Walshe, Genevieve B., estate of. Neil McNeil et al., trustees.
Petition for allowance of first and final account. Attorney-
General waived right to be heard.
Warren, Caroline, estate of. Rackemann, Felix, et al. v. Harriet
E. Coffin et al. Petition for instructions. Decree.
Weber, Frederick E., estate of. Arthur L. Howard et al., peti-
tioners. Petition for appointment of trustees. Attorney-
General waived right to be heard.
Wellesley Boys' Club, R. K. Sawyer et ah., trustees of, petition-
ers. Petition for instructions. Pending.
Whitney, Sarah W., estate of. Charles A. Stone, trustee. Peti-
tion for leave to sell real estate. Pending.
Wild, Catherine H., estate of. Charles P. Bowditch, trustee.
Petition for allowance of nineteenth and final account. At-
torney-General waived right to be heard.
Willard Hospital, The, v. The Frances E. Willard Settlement
et ah. Petition for instructions. Pending.
Worcester County.
Bemis, George, estate of. Myron A. Young et al., petitioners.
Petition for appointment of trustees. Attorney- General
waived right to be heard.
Brooks, Sarah, estate of. Thomas H. Russell, petitioner. Peti-
tion for appointment of trustee. Thomas H. Russell ap-
pointed trustee.
Fletcher, Ezra W.. estate of. Edward Whitin et al., trustees.
Petition for leave to transfer trust fund. Attorney- General
waived right to be heard.
Foster, Richard W., estate of. Catherine E. Foster et al., execu-
tors. Petition for instructions. Disposed of.
1912.] PUBLIC DOCUMENT — No. 12. 153
Grout, Eliza P.. estate of. Robert L. Carter et ah., trustees.
Petition for allowance of sixth account. Pending.
Pierce, Ellen M.. estate of. Joseph A. Lovering, administrator.
Petition for instructions. Pending.
Pierce, William D., estate of. Romeo E. Allen, executor. Peti-
tion for instructions. Decree.
Williams, Henry, estate of. Reason T. Lee et als., trustees of
the Bethel African Methodist Episcopal Church, petitioners.
Petition for instructions. Pending.
Winch, Ellen M. B.. estate of. Charles W. Perkins et al.. execu-
tors. Petition for allowance of first, second and third and
final accounts. Accounts allowed.
154 ATTORNEY-GENERAL'S REPORT. [Jan.
SUITS CONDUCTED BY THE ATTORNEY-GENERAL
In Behalf of State Boards and Commissions.
The following cases have been reported to this department by
State boards and commissions, to be conducted by the Attorney-
General, or under his direction.
1. Metropolitan Park Commission.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by the said
commission.
Middlesex County.
Allen, Herbert F., v. Commonwealth. Settled.
Blais, Eugenia V., v. Commonwealth. Settled.
Blais, Michael, v. Commonwealth. Settled.
Debbins, Robert W., et al. v. Commonwealth. Settled.
Kerr, William B., v. Commonwealth. Settled.
Northrup, Stephen C, v. Commonwealth. Settled.
Patterson, Mary J., v. Commonwealth. Settled.
Phelan, Patrick, v. Commonwealth. Settled.
Robinson, Sumner, et al. v. Commonwealth. Pending.
Suffolk County.
Hurley, John J., v. Commonwealth. Settled.
"Welch, Mary E., et als. v. Commonwealth. Settled.
2. Metropolitan Water and Sewerage Board.
Petition to the Supreme Judicial and Superior Courts for
assessment of damages alleged to have been sustained by the
taking of land, and rights and easements in land, by said board.
Middlesex County.
Ward. Oporto A., et als v. Commonwealth. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 155
Norfolk County.
Goddard, George A., v. Commonwealth. Pending.
Worcester County.
Allen, Byron D., v. Commonwealth. Pending.
Allen, Byron D., v. Commonwealth. Pending.
Bradley, Patrick, v. Commonwealth. Pending.
Cutting, Louis, administrator, v. Commonwealth. Pending.
Kendall, Sanford C, v. Commonwealth. Pending.
Keyes, Henry F., v. Commonwealth. Pending.
Knight, Asa E., v. Commonwealth. Pending.
"Welch, James E., v. Commonwealth. Pending.
Wood, James H., et al. v. Commonwealth. Pending.
Wood, J. Frank, et als. v. Commonwealth. Pending.
Wood, J. Frank, et als. v. Commonwealth. Pending.
3. Massachusetts Highway Commission.
Petitions to the Superior Court for a jury to assess damages
alleged to have been sustained by the taking of land, or injury to
land, by said commission. Under agreement with this Common-
wealth most of these cases are defended by the various towns in
which the land is situated.
Bristol County.
Cooper, Frederick P., v. Commonwealth. Pending.
Lincoln, Benjamin A., v. Commonwealth. Settled.
Seabury, Phcebe W., v. Commonwealth. Pending.
Talbot, Joseph, v. Commonwealth. Pending.
Essex County.
Bishop, Emeline, v. Commonwealth. Pending.
Donovan, John, v. Commonwealth. Pending.
Perley, Osborne, v. Commonwealth. Pending.
Hampshire County.
Flagg, Lucretia Taft, v. Commonwealth. Pending.
Taft, Kate P., v. Commonwealth. Pending.
Middlesex County.
bourse, Joseph P., v. Commonwealth. Pending.
156 ATTORNEY-GENERAL'S REPORT. [Jan.
Norfolk County.
McLaughlin, Nancy Mv et al. v. Commonwealth. Pending.
Worcester County.
Hill, Everett, v. Commonwealth. Dismissed.
Sullivan, Kate, v. Commonwealth. Dismissed.
Warren, Alice E. M., v. Commonwealth. Dismissed.
4. Board of Harbor and Land Commissioners.
Petitions to the Superior Court for assessment of damages
alleged to have heen sustained by the taking of land by said
commissioners.
Suffolk County.
Butler, Philip H., v. Commonwealth. Pending.
East Boston Company v. Commonwealth. Pending.
Lamb, George, et al. v. Commonwealth. Pending.
Lamb, George, et al. v. Commonwealth. Pending.
5. Charles River Basix Commissioners.
Petitions to the Superior Court for assessment of damages al-
leged to have been sustained by the taking of land by said com-
missioners.
Suffolk County.
Allen, Henry F., v. Commonwealth. Settled.
Apthorp, Octave L., v. Commonwealth. Pending.
Barstow, Catherine A., v. Commonwealth. Pending.
Brown, Rebecca W., et al. v. Commonwealth. Pending.
Cotting, Charles E., et al., trustees, v. Commonwealth. Pending.
Edmands, Katherine B., r. Commonwealth. Pending.
Fields, Annie, v. Commonwealth. Pending.
Homans, Helen A., v. Commonwealth. Settled.
Hooper, James R., v. Commonwealth. Pending.
Hooper, Robert C. et al. v. Commonwealth. Pending.
Hutchins, Edward W., v. Commonwealth. Settled.
Inches, Louise P., v. Commonwealth. Pending.
Jewell, Edward, v. Commonwealth. Pending.
Xiles, Sarah F., et al. v. Commonwealth. Pending.
Parker, George W., et al. v. Commonwealth. Pending.
Pierce, Katherine C, v. Commonwealth. Pending.
Pierce. Wallace L.. v. Commonwealth. Settled.
1912.] PUBLIC DOCUMENT — No. 12. 157
Prince, Fannie L., v. Commonwealth. Pending.
Prince, Lillian C, /;. Commonwealth. Pending.
Sears, Mary C, v. Commonwealth. Pending.
Sears, Eichard D., v. Commonwealth. Pending.
Shaw, Francis, v. Commonwealth. Pending.
Sleeper, Maria W., v. Commonwealth. Settled.
Stanton, Esther H., v. Commonwealth. Settled.
Tarbell, Arthur P., et al. v. Commonwealth. Pending.
Taylor, Georgianna 0., v. Commonwealth. Pending.
Taylor, Mary M., v. Commonwealth. Pending.
Whitney, Christiana S., et al. v. Commonwealth. Pending.
Williams, John D., trustee, v. Commonwealth. Pending.
6. Armory Commissioners.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by said com-
missioners.
Suffolk County.
Brooks, Ellen A., et al. v. Commonwealth et al. Settled.
Lyons, Ellen E., v. Commonwealth et al. Settled.
Mahoney, Agnes, v. Commonwealth. Settled.
7. Greylock Reservation Commission.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by said com-
mission.
Berkshire County.
Phillips. Dewey, v. Commonwealth. Settled.
Smith, Clarence M., v. Commonwealth. Settled.
8. State Board of Insanity.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by the said
board.
Suffolk County.
Beatty, John F., v. Commonwealth. Pending.
Callahan, Frank J., et al. v. Commonwealth. Pending.
Callahan, George A., et al. r. Commonwealth. Pending.
Flint, James H., et al.. trustees, v. Commonwealth. Pending.
Fourth National Bank of Boston v. Commonwealth. Settled.
158 ATTORNEY-GENERAL'S REPORT. [Jan.
Holbrook, Wellington, et al. v. Commonwealth. Pending.
Kile}7, Daniel J., v. Commonwealth. Pending.
Shea, Julia A., et als., trustees, v. Commonwealth. Pending.
9. Teustees of the Wrentham State School.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by said
trustees.
Norfolk County.
Soderberg, Annie L., v. Commonwealth. Settled.
10. Miscellaneous Cases from Above Commissions.
Essex County.
Cilley, Orran G., v. Cattle Bureau. Petition to recover the value
of cattle condemned by Cattle Bureau. Pending.
Peed, William H., v. Commonwealth. Claim for damages on
account of injury to horse on State highway in Gloucester.
Pending.
Tremblay, Paul, v. Commonwealth. Action of tort for injuries
caused Vy defect in State highway in East Boston. Pending.
Middlesex County.
Hogan, James, v. Commonwealth. Petition to recover for ma-
terials furnished to contractor in construction of boulevard
in Quincy. Settled.
International Automobile and Vehicle Tire Company v. Com-
monwealth. Petition to recover damages caused by con-
struction of bridge across Charles River under St. 1903,
c. 391. Pending.
Whitney, Arthur E., v. Commonwealth. Bill in equity to enjoin
the Commonwealth from filling in Abajona River in Win-
chester. Pending.
Suffolk County.
Austin Engineering and Construction Company v. Common-
wealth. ; Bill to recover on contract with Park .Commission.
Settled.
Davis, James A., et al. v. Commonwealth et al. Petition to re-
cover for labor and materials used in construction of sewer.
Pending.
1912.] PUBLIC DOCUMENT — No. 12. 159
De las Casas, William B., et al., Metropolitan Park Commission,
petitioners. Petition for appointment of commissioners to
apportion payments from the cities and towns in the metro-
politan parks district. Decree.
De las Casas, William B., et al. v. Sewer Commissioners of
Eevere. Petition for injunction to restrain town from
obstructing sewer built by the Park Commission for bath
house. Pending.
Doherty, James, v. Edward W. Everson et al. and Metropolitan
Water and Sewerage Board. Action of tort. Damages
caused by blasting. Pending.
Doherty, James, v. Commonwealth. Petition for assessment of
damages caused by blasting for metropolitan sewer. Pend-
ing.
Eastman, Charles Albert, v. Board of Eegistration in Medicine.
Bill in equity to enjoin Board from revoking certificate.
Pending.
Ellinwood, Balph E., Commonwealth v. Petition to restrain re-
spondent from infringing park regulations on Eevere boule-
vard. Pending.
G. M. Byrne Company v. Commonwealth. Suit for payment of
money claimed to be due on contract. Pending.
Gibbons, William H., v. Commonwealth. Damage caused by
blasting in construction of metropolitan sewer. Pending.
Kinmond, John D., v. Commonwealth. Action of tort to recover
for injuries caused by defect in State highway in Salisbury.
Pending.
Lake, Alexander G., v. Commonwealth. Action of tort to recover
for injuries caused by defect in State highway in Natick.
Pending.
McGinniss, Margaret T., Commonwealth v. Bill in equity to re-
strain defendant from encroaching on land of the Common-
wealth. Pending.
Natick, Commonwealth v. To recover for use of water of Lake
Cochituate. Dismissed.
Xational Contracting Company et al., Commonwealth v. Action
of contract to recover on bond. Pending.
Xiland, Michael, v. Commonwealth. Petition for assessment of
damages caused by blasting for metropolitan sewer. Pend-
ing.
Xiland, Michael, v. Edward W. Everson et al. and Metropolitan
Water and Sewerage Board. Action of tort. Damages
caused by blasting. Pending.
160 ATTORNEY-GENERAL'S REPORT. [Jan.
Xormile, Francis, v. Commonwealth of Massachusetts et al. Peti-
tion for a jury to assess damages caused by construction of
sewer in Roxbury. Pending.
Xormile, Francis, v. Edward W. Everson & Co. and Henry H.
Sprague et al. Action of tort. Pending.
Old Colony Construction Company, Commonwealth v. Action
of contract to recover on bond. Pending.
Pacific Surety Company v. Commonwealth et al. (McBride
& Co.). Petition to recover from McBride & Co. certain
sums expended by petitioner. Pending.
Thomas, Lyman P., v. George M. Quirk et al. Action to re-
cover for labor and materials furnished in construction of
State highway. Pending.
Worcester County.
Lamb, Arnoline M., v. Commonwealth. Petition to recover dam-
ages caused by change in grade of highway in Boylston.
Pending.
11. State Boards of Charity and Ixsaxity.
Actions of contract pending in the Superior Court to recover
charges for the support of persons in State hospitals.
Suffolk County.
Chapin, Treasurer, v. Charles A. Mullin. Pending.
Stevens, Treasurer, v. Joseph C. Colligan. Pending.
Stevens, Treasurer, v. Granville S. Dow. Pending.
Stevens, Treasurer, v. Lowell. Pending.
Stevens, Treasurer, v. Lowell. Settled.
Stevens, Treasurer, v. New Bedford. Pending.
Stevens, Treasurer, v. Quincy. Pending.
Stevens. Treasurer, v. Emma C. Russell, guardian. Pending.
Stevens, Treasurer, v. John Shea, guardian. Settled.
Stevens, Treasurer, r. George M. Sterns, administrator. Settled.
Stevens. Treasurer, ?'. Stoughton. Pending.
1912.1 PUBLIC DOCUMENT — No. 12. 161
MISCELLANEOUS CASES.
A. C. Lawrence Leather Company v. Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Ahmeek Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1010 paid by foreign corpora-
tion. Pending.
Allouez Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1011 paid by foreign corporation.
Pending.
American Axe & Tool Company, The, v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
American Can Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
American Chicle Company r. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
American Dyewood Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
American Eadiator Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
America Soda Fountain Company. Attorney-General ex rel. v.
Dumping material into tide water. Pending.
American Soda Fountain Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
American Steel and Wire Company of Xew Jersey v. Common-
wealth. Petition to recover excise tax for the year 1910 paid
by foreign corporation. Pending.
American Steel and Wire Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
162 ATTORNEY-GENERAL'S REPORT. [Jan.
American Sugar Refining Company v. Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
American Woolen Company v. Commonwealth. Petition to re-
cover excise tax for the }rears 1909 and 1910 paid by foreign
corporation. Pending.
American Writing Paper Company et at., Attorney-General v.
Petition for an injunction to restrain respondents from
dumping material into tide water. Discontinued as to
American Writing Paper Company. Disposed of.
Ames Shovel and Tool Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Amesbury & Salisbury Gas Company, Commonwealth v . Action
to recover penalty on account of sulphuretted hydrogen in
gas. Disposed of.
Amoskeag Manufacturing Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1910 paid by foreign
corporation. Pending.
Anderson, Mary J., administratrix of the estate of Elizabeth P.
Anderson, Attorney- General ex rel. v. Petition to recover
inheritance tax. Pending.
Androscoggin Mills, The, v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Arizona Commercial Copper Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Armstrong Cork Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Ashland Emery and Corundum Company v. Commonwealth.
Petition to recover excise tax for the }7ear 1911 paid by for-
eign corporation. Pending.
Atlas Tack Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Baltic Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending in the United States Supreme Court on writ of
error.
Baltic Mining Company v. Commonwealth. Petition to recover
1912.] PUBLIC DOCUMENT — Xo. 12. 163
excise tax for the year 1911 paid by foreign corporation.
Pending.
Barry, Edward P., v. Albert P. Langtry et al. Petition for writ
of mandamus to compel the Secretary of the Commonwealth
to correct an alleged mistake in counting of ballots. Dis-
missed.
Bates Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Belding Bros. & Company v. Commonwealth.' Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Bingham Mines Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Bohemia Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Boston v. Commonwealth. Sewer assessment on Butherford
Avenue, Charlestown. Pending.
Boston & Maine Bailroad v. Deerfleld et ah Alteration of Cheap-
side Bridge in Deerfleld, crossing a State highway. Attor-
ney-General waived right to be heard.
Boston & Northern Street Bailway Company. Claim for amount
expended in rela}ring water pipes in Washington Street,
Lrynn, destroyed by electric currents. Pending.
Breakwater Company v. Commonwealth. Petition to recover ex-
cise tax for the year 1911 paid by foreign corporation.
Pending.
Brennan, James M., v. Charles E. Woodbury, Superintendent.
Action of tort for personal injuries. Pending.
Brookside Mills v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
Br}me, Andrew W., et als. v. Commonwealth et al. Petition to
recover money in hands of Commonwealth. Pending.
Burr, Arthur E., trustee, v. Commonwealth. Action to recover
money held by Commonwealth, and belonging to H. P. Cum-
mings Company. Pending.
Butland, Francis A., Attorney-General ex rel. v. Information
in the nature of quo warranto to try the title of the re-
spondent to the office of call fireman in Lawrence. Dis-
posed of.
164 ATTORNEY-GENERAL'S REPORT. [Jan.
Canada, Atlantic & Plant Steamship Company Ltd. v. Common-
wealth. Petition to recover excise taxes for the years 1905,
1906, 1907, 1908 and 1909 paid by foreign corporation.
Pending.
Centennial Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Champion Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpo-
ration. Pending.
Champion Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911. Paid by foreign corpo-
ration. Pending.
Chapin, Arthur B., Bank Commissioner, v. Sonthbridge Savings
Bank. Petition for injunction. Disposed of.
Charles H. Schieren Company v. Commonwealth. Petition to
recover excise tax for the }7ear 1911 paid by foreign corpo-
ration. Pending.
Chase, Stephen A., et ah v. Adam H. Dickey et ah Petition to
compel conveyance of real estate. Pending.
Cheney Brothers v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
Coblents, Salenda E., executrix of the will of Arthur A. Aver-
ille, Attorney-General ex reh v. Petition to recover inheri-
tance tax. Pending.
Columbian National Life Insurance Company v. Commonwealth.
Petitions for abatement of franchise tax paid in 1903, 1904,
1905, 1906 and 1907. Pending.
Commonwealth v. Boston. Action to recover money expended
in changing grade of Bowdoin Street. Pending.
Commonwealth v. New York, New Haven & Hartford Railroad
Company. Action of tort for damage to property of Massa-
chusetts Reformatory, caused by fire. Pending.
Commonwealth v. Worcester. To recover for land taken from
the Commonwealth. Pending.
Conant, Nellie M., v. Mary F. Conant et al. Action of tort.
Disposed of.
Conant, Nellie M., v. Hosea M. Quimby. Action of tort. Pend-
ing. Disposed of.
Consolidation Coal Company v. Commonwealth. Petition to
recover excise tax for year 1909 paid by foreign corporation.
Pending.
1912.] PUBLIC DOCUMENT — No. 12. 165
Consolidation Coal Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Consolidation Coal Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Continental Gin Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Copper Range Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Copper Range Consolidated Company v. Commonwealth. Peti-
tion to recover excise tax for the }^ear 1911 paid by foreign
corporation. Pending.
Crockett, Sara L., estate of H. L. Harding et al., executors.
Petition of Treasurer and Receiver-General to collect tax
on said estate. Pending.
Cullen, Maurice F., executor of the will of Thomas Cullen,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Currier, John E., administrator of the estate of Caroline E.
Currier, Attorney- General ex rel. v. Petition to recover
inheritance tax. Pending.
Davis Sewing Machine Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Dean, John J., et al., executors of the will of Thomas H. Buck-
ley, Attorney-General ex rel. v. Petition to recover inheri-
tance tax. Pending.
Dewey, Henry S., v. State Officers. Actions to replevy copies
of notes of proceedings in the case of Dewey v. Good Gov-
ernment Association. Pending.
Dolan, Arthur W., Register of Probate and Insolvency for the
County of Suffolk, petitioner. Petition for authority to
pay to the Treasurer and Receiver-General money deposited
with said register to secure payment of fees. Pending.
Donahue, Frank J., r. Commonwealth. Petition for writ of
mandamus to compel the Secretary of the Commonwealth
to correct ballots on which the petitioner's name had been
misspelled. Dismissed.
166 ATTORNEY-GENERAL'S REPORT. [Jan.
East Butte Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1910 paid by foreign
corporation. Pending.
Eddy, Mary Baker G., estate of. Henry M. Baker, executor,
petitioner. Petition for probate of a foreign will. Decree.
Appeal by Treasurer and by Attorney-General. Decree
affirmed.
Eclgerly, Frank EL, et al. v. Cattle Bureau. Bill to recover for
horse killed by order of Cattle Commissioner under R. L.,
c. 90. Pending.
Edwards Manufacturing Company v. Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Elm River Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid b}r foreign corpo-
ration. Pending.
Empire Accident Corporation, Attorney-General ex rel. v. Peti-
tion for injunction and appointment of a receiver. Chan-
ning H. Cox appointed receiver.
Ennis, John D., et ah, administrators of the estate of Edmund
Walsh, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Everett, Willard S., executor of the will of Elizabeth Davis,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Farr Alpaca Company v. Commonwealth. Petition to recover
franchise tax for the year 1911 paid by domestic corpora-
tion. Pending.
Field, John Q. A., executor of the will of Caroline AYood, Attor-
ne}'-General ex rel. v. Petition to recover inheritance tax.
Pending.
Fields, Annie, v. Charles River Basin Commission. Bill to
enjoin Commonwealth from interfering with riparian rights
on Charles River. Pending.
Fifield, George W., executor of the will of Ruth S. Shaw, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
Fowler, Charles F., executor of the will of Eliza E. Crocker,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Framingham, town of, petitioner. Petition to register title to
land in Framingham. Attorney-General waived right to be
heard.
1912.] PUBLIC DOCUMENT — No. 12. 107
Frankfort Marine and Plate Glass Company v. Commonwealth.
Petition to recover deposit with Treasury. Decree.
Frontenag Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Galvin, Stephen P., administrator of the estate of Calvin R.
Baker, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Gardner Gas, Fuel and Light Company, Commonwealth v. To
recover penalty on account of sulphuretted hydrogen in gas.
Disposed of.
Gardner Gas, Fuel and Light Compaq, Commonwealth v. Ac-
tion to recover penalty on account of sulphuretted hydro-
gen in gas. Pending.
Georgia Home Insurance Company v. Commonwealth. Action
to compel Treasurer and Eeceiver-General to return bond
deposited with him by said company. Pending.
Globe-Wernicke Compaq, The, v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Gordon-Nash Library, petitioner. Petition to register title to
land in Somerville. Attorney-General waived right to be
heard.
Grant Nail and Supply Company, The, v. Commonwealth. Peti-
tion to recover franchise tax for the year 1911 paid by
domestic corporation. Pending.
Grant, Robert, Judge of Probate, v. William W. Risk et ah
Contract on bond as public administrator. Pending.
Gratiot Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Great Atlantic & Pacific Tea Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Great Western Cereal Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Greenfield Savings Bank v. Commonwealth. Petition to recover
tax for 1910.
Griffin Wheel Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
168 ATTORNEY-GENERAL'S REPORT. [Jan.
H. J. Heinz Company v. Commonwealth. Petition to recover
excise tax for the }Tear 1911 paid by foreign corporation.
Pending.
Haddock v. Provident Securities and Banking Company. Peti-
tion for application of fund held in court. Attorney-Gen-
eral waived right to be heard.
Harrington, Charles C, executor of the will of Elizabeth A.
Harrington, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Haverhill, city of, v. Ansel J. Cheney. Appeal from ruling of
factory inspector. Appeal dismissed.
Herbert, John, executor of the will of Edward T. CWdrey. At-
torney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Herwig, Mary. Petition for writ of habeas corpus. Pending.
Hickey-Riedman Compaq, Attorne}7-General ex rel. v. Bill in
equity to enjoin defendant from discharging waste into
Assabet River. Pending.
Houghton Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Howe, Theodore C, et als., petitioners. Petition to register title
to land in Chariest own. Attorney-General waived right to
be heard.
Howes Brothers Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Hurley, Edwin L., executor of the will of Elizabeth F. Hurley,
Attorne}r-General ex rel. v. Petition to recover inheritance
tax. Final decree.
International Automobile and Vehicle Tire Company v. Com-
monwealth. Petition for damages to petitioner's property
caused by change of east branch of Charles River by Park
Commission. Pending.
International Trust Company v. Commonwealth et al. Petition
to recover bonds deposited with the Treasurer and Receiver-
General. Final decree.
Isle Royale Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Italian Catholic Cemetery Association, Attorney-General ex rel.
u. Petition for use of the Attornev-General's name in a
1912.] PUBLIC DOCUMENT — No. 12. 169
proceeding in the nature of quo warranto to ascertain and
determine whether the respondent had forfeited its char-
ter. Use of name denied.
Jackson Company v. Commonwealth. Petition to recover excise
tax for the year 1910 paid by foreign corporation. Pending.
Jenney, E. C, executor of the will of Maria P. Stark, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Pending.
John P. Squire Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Keyes, "Wade, executor of the will of Annie E. Bobinson, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Settled.
Keystone Watch Case Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Lake Milling, Smelting and Penning Company v. Common-
wealth. Petition to recover excise tax for the year 1911
paid by foreign corporation. Pending.
Lamont-Corliss Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Lanston Monot}Tpe Machine Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
LaSalle Copper Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Laurium Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Leland, Percy F., petitioner. Petition to register title to land
in Natick. Pending.
Libby, George W., administrator of the estate of Oliver Libb}r,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Little, George T., et dl.t executors of the will of Eachel R.
Thayer, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Little, Henry B., petitioner. Petition to register title to land
in Peabody. Decree.
170 ATTORNEY-GENERAL'S REPORT. [Jan.
Locomobile Company of America, The, v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Low, Ivers M., Attorney-General, ex reh v. Petition for use of
the Attorney-General's name in an information in equity to
restrain the respondent from interfering with the use of
a public highway in Weymouth. Use of name refused.
Lyman, Charles E., v. Commissioners on Fisheries and Game.
Petition for annulment of an order of said commissioners.
Pending before full court.
Macfarlane, Ada. Petition to register title to land in Winthrop.
Decree.
Mahar, Joseph P., executor of the will of Thomas J. Rehill,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Manchester, Abraham, executor of the will of Abraham E. Man-
chester, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Manitou Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Maritime Insurance Company v. Commonwealth et ah Bill to
recover bonds deposited with the Treasurer and Receiver-
General. Decree.
Massachusetts Baptist Missionary Society, petitioner. Petition
to register title to land in Boston. Attorney-General
waived right to be heard.
Massachusetts Consolidated Mining Company, The, v. Common-
wealth. Petition to recover excise tax for the year 1911
paid by foreign corporation. Pending.
Mayflower Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
McCann, Charles J., et ah v. Charles Warren et als., Civil Serv-
ice Commissioners. Petition for writ of mandamus to
compel certification of the petitioners' names by the Civil
Service Commissioners. Decree. Appeal by petitioners.
McGuirk, Ann, executrix of the will of Terrence, Farley, Attor-
ney-General ex reh v. Petition to recover inheritance tax.
Pending.
Mclnnis, Catherine F._ Geary, executrix of the will of Michael
Connor, Attorney-General ex rel. v. Petition to recover
inheritance tax. Dismissed.
1912.] PUBLIC DOCUMENT — No. 12. 171
Mclntire, Charles H., trustee under the will of Maria T. Clark,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Metropolitan Life Insurance Company v. Commonwealth. Peti-
tion to recover excise taxes for the years 1909 and 1910
paid by foreign corporation. Pending.
Metropolitan Life Insurance Company v. Frank H. Hardison,
Insurance Commissioner. Petition for review, under St.
1907, c. 576, § 75. Kescript.
Michigan Smelting Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Middleborough, town of, Commonwealth v. Action to recover
penalty on account of sulphuretted hydrogen in gas.
Pending.
Moore, William H., et ah, executors of the will of Edward W.
Murray, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Morgan, Thomas, et ah, executors of the will of Martha Frank-
land, Attorney-General ex rel. v. Petition to recover inher-
itance tax. Pending.
Morse, Electra A., et ah v. David Ferguson et ah Action of
tort. Pending.
Munroe, Susan L., administratrix of the estate of Lawton I.
Ware, Attorney-General ex rel. v. Petition to recover inher-
itance tax. Final decree.
Murphy, James S., administrator c. t. a. of the estate of Charles
H. Young, Attorne}'-General ex rel. v. Petition to recover
inheritance tax. Pending.
Murplry, Mary E., executor of the will of Delia Martin, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
N. K. Fairbank Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Nashua Manufacturing Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
National Calfskin Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
National Contracting Company v. Commonwealth. Petition to
recover under E. L., c. 201. Pending.
172 ATTORNEY-GENERAL'S REPORT. [Jan.
New England Dressed Meat and Wool Company v. Common-
wealth. Petition to recover excise tax for the year 1910
paid by foreign corporation. Pending.
New England Home for Little Wanderers, petitioner. Petition
to be allowed use of Attorney-General's name in an infor-
mation to prevent a breach of trust in the administration
of trust funds. Use of name granted.
New England Maple Syrup Company v. Henry P. Walcott
et ah. Bill in equity for an injunction. Pending.
North Packing and Provision Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1910 paid by foreign
corporation. Pending.
O'Connell, Joseph P., v. Commonwealth et al. Bill to recover
money in hands of Commonwealth belonging to Austin
Engineering and Construction Company. Pending.
O'Donohue, Lillie B., executrix of the will of Joseph J. O'Dono-
hue, Attorney- General ex rel. v. Petition to recover inherit-
ance tax. Pending.
Ohls, Frederick W., et al., State Board of Charity v. Action to
recover on bond. Pending.
Old Colony Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Oliver Typewriter Company, The, v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Order of Owls, Attorney-General ex rel. v. Petition for injunc-
tion. Dismissed without prejudice.
Osceola Consolidated Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Osman, Charles F., v. Commonwealth et al. Bill in equity to
reach and apply funds in the hands of respondents.
Pending.
Oxford Linen Mills v. Commonwealth. Petition to recover ex-
cise tax for the year 1911 paid by foreign corporation.
Pending.
Parker, Galen A., executor of the will of Martha E. Temple,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Pepperell Manufacturing Company, The, v. Commonwealth.
Petition to recover excise tax for the year 1910 paid by
foreign corporation. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 173
Pocahontas Fuel Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Porter, Bose M., v. Frank H. Hardison. Action of tort. Pend-
ing.
Powers, Wilbur H. Petition to register title to land in Win-
throp. Decree.
Pratt, Fred B., et al., executors of the will of Eliza J. Pratt,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Providence Ice Company v. Commonwealth. Petition to recover
excise tax for the years 1910 and 1911 paid by foreign cor-
poration. Pending.
Provident Institution for Savings, Attorney-General v. Petition
to withdraw deposits under St. 1907, c. 340. Eescript.
Writ of error. Pending in the Supreme Court of the United
States. Eescript.
Quincy, city of, Attorney-General ex rel. v. Petition to recover
penalty for failure to instal water meters. Pending.
Eafferty, Ann, administratrix of the estate of Alice Cumiskey,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Decree. Eescript.
Eice & Hutchins, Inc., v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Eice & Hutchins, Incorporated, v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Eichardson Silk Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Eiedl, Joseph, administrator of the estate of Michael Eiedl,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Eing, Joseph A., et al., administrators of the estate of Ellen
M. Bresnahan, Attorney-General ex rel. v. Petition to
recover inheritance tax. Final decree.
Eitchie, Christina, v. Treasurer and Eeceiver-General. Action
of contract under E. L., c. 128, § 96. Pending.
Eockland Trust Company, petitioner. Petition to register title
to land in Scituate. Attorney-General waived right to be
heard.
174 ATTORNEY-GENERAL'S REPORT. [Jan.
Russell-Miller Milling Company v. Commonwealth. Petition to
-recover excise tax for the year 1910 paid by foreign corpo-
ration.. Pending.
S. S. White Dental Manufacturing Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
Seager Engine Works v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Sears, David, et al., petitioners. Petition to register title to
land on Chapel and Colchester streets, Brookline. Attor-
ney-General waived right to be heard.
Shannon Copper' Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Shapleigh, Samuel B., executor of the will of Ellen L. Shap-
leigh, Attorney- General ex rel. v. Petition to recover inher-
itance tax. Pending.
Shepard & Morse Lumber Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Sill, Alfred B., executor of the will of Alonzo C. Emmons, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
St. Mary's Mineral Land Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Stafford Company v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
Stone, Ann Elizabeth, Attorney-General v. Information for col-
lection of inheritance tax. Pending.
Stone, Frank Victor, Attorney-General v. Information for col-
lection of inheritance tax. Pending.
Stone, Ralph Edgarton, Attorney-General v. Information for
collection of inheritance tax. Reserved for full court.
Rescript.
Stone, Stephen Stoddard, Attorney-General v. Information for
collection of inheritance tax. Pending.
Stonghton Mills, Incorporated, Attorney-General ex rel. v. Bill
in equity to enjoin defendant from discharging waste into
Xeponset River. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 175
Swift & Co. v. Commonwealth. Petition to recover excise tax
for the years 1910 and 1911 paid by foreign corporation.
Pending.
Tamarack Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Tarbell, Arthur P., v. Boston Athletic Association et al. Bill
in equity to enjoin defendant from building a boathouse on
Charles Biver basin. Pending.
Thomas, Mary and Nicholas, Attorney-General ex rel. v. Peti-
tion for use of Attorney-General's name in an information
in equity to enjoin the respondents from interfering with
the use of a public way in Sharon. Use of name granted.
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 trie pay-
ment of money under St. 1883, c. 259, and St. 1891, c.
397. Disposed of.
Trimountain Mining Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Turley, Thomas J., et al., administrators of the estate of Mary
Benson, Attorne}r-General ex rel. v. Petition to recover
inheritance tax. Pending.
Union Copper Land and Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
Union Square Methodist Episcopal Church, petitioner. Peti-
tion to register title to land in Charlestown. Pending.
United States Fidelity and Guaranty Company v. Common-
wealth. Bill in equity to collect money paid creditors of
Shanahan, Casparis Company. Dismissed.
United States Badiator Corporation v. Commonwealth. 'Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
United States Worsted Company v. Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Victoria Copper Mining Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
176 ATTORNEY-GENERAL'S REPORT. [Jan.
Vining, Floretta, executrix of the will of Elizabeth Jacobs, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Walen, William W., administrator of the estate of Almira C.
Walen, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Walpole Rubber Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Waltham Watch Company v. Commonwealth. Action to recover
corporation tax for 1908. Pending.
Waltham Watch Company v. Commonwealth. Action to recover
corporation tax for 1909. Decree.
Warren Brothers Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Webster, Jackson, administrator of the estate of Annette L.
Webster, Attorney- General ex rel. v. Petition to recover
inheritance tax. Final decree.
Welch, Mary Ann, executrix of the will of Thomas Welch, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Welch, William J., v. John A. Campbell. Action of tort. Pend-
ing.
Welch, William J., v. Hosea M. Quimby, superintendent. Ac-
tion of tort. Pending.
Welsbach Street Lighting Company of America v. Common-
wealth. Petition to recover excise tax for the year 1911 paid
by foreign corporation. Pending.
Westborough Insane Hospital, Trustees of, v. Daniel A. Dorsey
et al. Petition to recover for breach of contract. Dis-
posed of.
Westinghouse, Church, Kerr & Co. v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Whitaker, Elbridge J., executor of the will of Oliver Everett,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
White Pine Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
1912.] PUBLIC DOCUMENT — No. 12. 177
Winona Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Winslow Brothers & Smith Company, Attorney- General ex rel. v.
Bill in equity to restrain defendant from discharging waste
into Neponset River. Pending.
Yale & Towne Manufacturing Company, The, v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by for-
eign corporation. Pending.
York Manufacturing Company v. Commonwealth. Petition to
recover excise tax assessed on foreign corporation. Pending.
York Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
178
ATTORNEY-GENERAL'S REPORT.
[Jan.
COLLECTIONS.
Collections have been made by this department as follows: —
Corporation taxes for the year 1910, overdue and referred
by the treasurer of the Commonwealth to the Attorney-
General for collection, $136,446 64
Interest, M02 78
Costs, L • • • 1,936 01
Miscellaneous, 208,518 39
Total, $348,203 82
The following table shows a detailed statement of the Corporation
Taxes: —
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
A. Baab & Company, Inc., .
A. C. & M. L. Felkin Company,
A. E. Gloyd Shoe Company,
A. H. Demond Company, .
A. H. Ordway Company,
A. Homer Skinner Lumber Com
pany,
A. I. Asher Pants Company,
A. Lowenstein & Sons, Inc., .
A. P. Nardini Company,
A. Varnerin Company, Inc.,
A. W. Chesterton Company,
Abbott-Detroit-Boston Company
Adams Square Company,
Adco, Inc., ....
Addison Building Company,
Alden Brothers Company, .
Aldis Owen Hall's System of Busi-
ness Enterprises, Inc.,
Alfred H. Aldrich Company,
Alley & Emery, Inc.,
Almy Uniform Company,
Alpha Investment Company,
American Builders Finish Com
pany,
$35 20
58 50
44 00
88 00
10 56
598 40
100 32
149 60
88 00
67 58
1,005 80
114 40
92 40
8 80
35 20
64 94
10 77
9 96
660 00
145 20
20 00
23 23
$0 25
25
34
62
04
3 89
30
8 23
58
25
4 00
68
53
08
44
08
10
82
35
10
$35 45
58 75
44 34
88 62
10 60
602 29
100 62
157 83
88 58
67 83
1,009 80
115 08
92 93
8 88
35 20
65 38
10 85
10 06
677 82
149 55
20 10
23 23
1912.]
PUBLIC DOCUMENT — No. 12.
179
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
American Cloak Company, .
American Clothing Company,
American Color and Chemical
Company, ....
American Cultivator Publishing
Company, ....
American Electric Sign Company
American Fireworks Company,
American Grocery Company,
American Knitting Company,
American Narrow Fabric Com-
pany,
American Paper Stock Company
American Respirator Company,
American Stable Company, .
American Tannery Engineering
Company, ....
Anderson's, Inc.,
Aristo Company,
Arthur C. Harvey Company,
Atlantic Rubber Company, .
Atlantic Telegraph Company of
Massachusetts, .
Atlas Glue and Gelatine Company,
Atlas Manufacturing Company,
Atwood-Gould Company,
Atwood Preserving Company,
Austin Ford & Son Company,
Austin Furniture Company, .
Auto Renting Company,
Automatic Gas Lighting Equip
ment Company, .
Automobile League of New Eng
land, Inc., ....
B. F. Smith Construction Com
pany,
Baer Clothing Company,
Bartlett Box and Lumber Com
pany,
Barton-Child Company,
Baseball Magazine Company,
Bay State Cotton Corporation,
Bay State Hame Company, .
Bay State Realty Company,
Beacon Investment and Supply
Company, ....
Beatty Construction Company,
Belisle Printing and Publishing
Company, ....
Belmont Pharmacy,
Belmont Spring Water Company,
$136 99
$0 89
176 00
53
7 55
-
44 00
1 70
11 03
11
50 68
2 68
724 24
1 45
107 36
35
137 28
34
88 00
2 64
11 61
69
35 20
20
12 67
43
116 16
46
213 84
1 92
1,108 80
2 77
53 68
36
70 40
15
93 47
28
24 57
-
825 44
4 64
26 92
67
179 23
90
176 88
1 34
108 41
8 02
17 45
08
95 04
-
270 00
90
61 60
41
239 36
94
72 16
49
47 74
32
14,833 77
64 28
31 15
31
21 12
73
88 00
2 90
73 92
22
69 08
42
30 80
07
186 77
1 31
$137 88
176 53
7 55
45 70
11 14
53 36
725 69
107 71
137 62
90 64
12 30
35 40
13 10
116 62
215 76
1,111 57
54 04
70 55
93 75
24 57
830 08
27 59
180 13
178 22
116 43
17 53
95 04
270 90
62 01
240 30
72 65
48 06
14,898 05
31 46
21 85
90 90
74 14
69 50
30 87
188 08
180
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
Benj . N. Moore & Sons Company,
Benson Furniture Company,
Berkshire Mineral Company,
Beverly Chemical and Supply
Company, ....
Bianco Brothers Company, .
Blake Pump and Condenser Com
pany,
Bloodine Corporation, .
Bon-Ton Millinery Company,
Boston & Haverhill Dispatch
Company, ....
Boston Arena Company,
Boston Book Company,
Boston Brokerage Company,
Boston Camera Exchange, Inc.,
Boston Cold Storage Company,
Boston Cycle and Sundry Com-
pany,
Boston Electric Garage Company
Boston Furnace Company, .
Boston Gas Engine Company,
Boston Self-Locking Block Com-
pany,
Bow Ridge Development Com-
pany,
Bridge Street Drug Company,
Brighton Coal Company,
Brighton Dressed Meat Company
British Tea Table, Inc.,
Broadway Pharmacy, Inc., .
Brockton Die Company,
Brockton Ideal Shoe Company,
Brockton Lumber and Construc-
tion Company, .
Brookline Press,
Brown Garage and Carriage Com-
pany, . . . _ .
Brown-Talbot Machinery Com-
pany,
Brown Wales Company,
Builders' Iron and Steel Company,
Bull Dog Clip Manufacturing
Company, ....
Bullard Company, .
Bunkio Matsuki Corpn.,
Burleigh & Martin, Incorp., .
Burleigh Rock Drill Company,
Burn's River Ice Corpn.,
Butler Beef Company, .
Butman & Cressey Company,
$1,775 84
10 88
42 24
9 60
60 72
79 20
93 49
57 20
26 40
559 18
1,320 00
21 12
35 20
719 40
798 16
116 16
40 48
52 80
47 52
16 19
35 20
141 15
44 66
43 29
35 20
79 51
424 95
39 28
10 56
88 00
102 78
1,094 72
237 60
59 66
73 65
8 97
57 02
8 62
92 40
528 00
269 28
$11 84
09
29
04
29
70
1 33
14 53
7 70
14
1 05
20 14
5 45
62
27
1 32
20
16
70
31
77
24
59
83
74
35
69
2 74
2 97
1 40
73
1 57
04
25
2 11
6 28
$1,787 68
10 97
42 53
9 64
61 01
79 90
94 82
57 20
26 40
573 71
1,327 70
21 26
36 25
739 54
803 61
116 78
40 75
54 12
47 72
16 35
35 90
141 46
44 66
45 06
35 44
81 10
427 78
40 02
10 56
88 35
103 47
1,097 46
240 57
61 06
74 38
8 97
58 59
8 66
92 65
530 11
275 56
1912.
PUBLIC DOCUMENT — No. 12.
181
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
C. A. Cook Company, .
$405 29
$0 81
$406 10
C. B. Williamson, ....
44 00
22
44 22
CD. Wright Company,
176 00
3 52
179 52
C. F. Leteney Company,
105 60
78
106 38
C. H. Annable Lumber Company,
267 52
1 78
269 30
C. Sargent Bird, Inc.,
61 60
29
61 89
C. W. Luce & Co., Inc.,
516 52
11 36
527 88
C. W. Wilcox & Son Company, .
70 40
-
70 40
Cacocum Fruit and Products
Company,
24 00
07
24 07
Cahill Manufacturing Company, .
13 37
05
13 42
Carl Seaberg Company,
26 40
08
26 48
Carroll Construction Company, .
111 93
2 80
114 73
Carter Press of Baltimore Corpn.,
12 32
-
12 32
Central Dry Goods Company,
123 20
82
124 02
Central Garage, Incorporated,
29 56
25
29 81
Central Inter-State Express Com-
pany,
8 80
13
8 93
Chandler Machine Company,
178 69
1 16
179 85
Charles E. Perry Company, .
252 08
1 08
253 16
Charles H. Morej^ Company,
8 40
54
8 94
Charles Holmes Leather Working
Machinery Company.
64 41
-
64 41
Charles J. Jacobs Company,
26 40
-
26 40
Charles S. Gove Company, .
114 40
76
115 16
Chase & Baker Company,
166 88
95
167 83
Chattel Loan Company,
1,272 97
8 69
1,281 66
Cheney & Thomson Company, .
102 08
1 65
103 73
Choate Drug and Chemical Com-
pany,
110 00
83
110 83
Circular Loom Products Com-
pany,
308 17
1 39
309 56
Citizens' Loan Association, .
120 15
2 72
122 87
Clapp & Abercrombie Company,
22 88
-
22 88
Clapp-Eastham Company, .
17 60
-
17 60
Coates Clipper Manufacturing
Company,
158 40
3 26
161 66
Cobb & White Company,
37 31
1 07
38 38
Cohannet Silver Company, .
650 32
17 24
667 56
Collins Hardware Company,
1,848 00
12 94
1,860 94
Colonial Bed Company,
65 12
1 95
67 07
Colonial Clothing Company,
151 06
76
151 82
Colonial Cranberry Company,
23 05
12
23 17
Columbia Comb Company, .
177 76
50
178 26
Columbia Electric Engineering
Company,
23 35
23
23 58
Common Sense Gum Company, .
143 47
4 28
147 75
Conant & Donelson Company,
267 87
6 96
274 83
Conant Whiting & Co., Incorpo-
rated,
6 35
-
6 35
Concord Drug Company of Lowell,
61 60
1 23
62 83
182
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
Congress Bowling Alleys, Inc.,
$7 39
_
$7 39
Continental Wood Screw Com-
pany,
1,050 94
$2 10
1,053 04
Converse Rubber Shoe Company,
1,250 04
4 37
1,254 41
Coulter Coal and Lumber Com-
pany,
168 08
1 26
169 34
Coveney Building Company,
39 07
18
39 25
Craftsman Press, Inc., .
7 56
18
7 74
Crane Puller Company,
85 64
43
86 07
Crocker Drug Company,
26 40
15
26 55
Crowley & Gold Company, .
176 00
2 71
178 71
Crown Novelty Company, .
290 40
8 71
299 11
Crown Packing Company,
79 20
53
79 73
Cummings Machine Works, .
158 40
1 08
159 48
Curtis & Cameron, Incorporated,
79 20
41
79 61
D. Caro & Co., Inc.,
24 64
12
24 76
D. F. O'Connell Company, .
107 80
75
108 55
Dadmun Company,
105 60
3 15
108 75
Daley & Wanzer Allerton Express
Company,
97 68
50
98 18
Daley's Nantasket Express Com-
pany,
72 45
38
72 83
Dalton-Ingersoll Manufacturing
Company,
640 64
4 38
645 02
Davies Rose & Co., Limited,
72 33
50
72 83
Derrin Ice Cream Company,
40 92
27
41 19
Desmond-Hayden Shoe Company,
66 88
1 79
68 67
Diadem Manufacturing Company,
99 44
42
99 86
Dill Cattle Company, .
100 00
53
100 53
Dorchester Ice Company,
505 91
3 37
509 28
Dr. Rudolph Mertin, Inc., .
103 48
2 38
105 86
Driscoll & Co., Inc.,
45 76
34
46 10
Dukelow & Walker Company,
42 24
42
42 66
Durant Company, ....
176 00
1 45
177 45
Dustbane Manufacturing Com-
pany,
79 18
52
79 70
Dyke Mill,
33 08
14
33 22
E. A. Smith Company, Inc.,
7 04
07
7 11
E. G. Tutein & Co., Inc., .
167 55
4 14
171 69
E. H. Friedrich Company, .
576 40
5 77
582 17
E. H. Saxton Company,
237 60
1 04
238 64
E. H. Smith Company, .
158 40
1 27
159 67
E. L. LeBaron Foundry Com-
pany, ......
58 71
40
59 11
E. L. Smith Company, .
105 60
42
106 02
E. R. Brown Beer Pump Com-
pany,
56 10
3 20
59 30
E. T. Slattery Company,
2,024 00
13 83
2,037 83
E. Van Noorden Company, .
393 55
92
394 47
East Douglas Clothing Company,
26 40
17
26 57
East Coal Company,
200 64
1 34
201 98
1912.1
PUBLIC DOCUMENT — No. 12.
183
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
Eastern Counter Company, .
$43 04
$0 29
$43 33
Eastern Electric Company of New
Bedford,
70 40
38
70 78
Eastern Furniture Company,
35 90
-
35 90
Eastern Handle Company, .
49 63
2 08
51 71
Eastern Oil and Rendering Com-
pany,
20 50
-
20 50
Eastern Paper Stock Company, .
10 50
05
10 61
Eastern Rag and Metal Company,
6 86
-
6 86
Eastern Sanitary-Products Com-
pany, . . .
48 40
97
49 37
Easthampton Co-operative As-
sociation,
31 02
-
31 02
Eaton Candy Company,
21 12
27
21 39
Economy Drug Company, .
42 24
29
42 53
Edward A. Tucker, Inc.,
6 33
07
6 40
Edwards & Finkelstein Company,
55 96
1 65
57 61
Eldridge Ice Cream Company,
68 64
33
68 97
Electric Maintenance Company, .
15 66
-
15 66
Elk Flint Bottle Company, .
88 44
2 92
91 36
Elk River Milling Company,
46 56
-
46 56
Elliott Specialty Company, .
13 20
13
13 33
Emanuel Wasserman Company, .
105 60
56
106 16
English & Flett, Inc., .
238 86
68
239 54
Enterprise Comb Company,
52 80
-
52 80
Enterprise Company of Pittsfield,
70 40
50
70 90
Eureka Valve Company,
35 20
-
35 20
Everett Foundrv Company, .
44 00
26
44 26
F. B. Taylor & Son, Inc., .
352 00
70
352 70
F. H. Lane Company, .
281 60
1 40
283 00
F. M. Bill Company of Boston, .
755 04
1 88
756 92
F. S. McDermott Company,
88 00
1 00
89 00
16 57
34
16 91
Fall River, Warren & Taunton Ex-
press Company, ....
5 28
04
5 32
Fay Welding and Manufacturing
Company,
17 60
-
17 60
Feldman & Co., Inc.
18 48
10
18 58
Felton Turner Heating Company,
165 88
88
166 76
Ferguson Coal Company,
318 56
2 54
321 10
Ferris Wheel Amusement Com-
pany, Inc.,
17 60
05
17 65
Fink Cigar Company, .
44 00
-
44 00
Fitchburg Real Estate and Loan
Company,
132 79
4 11
136 90
Foley's Clothing Store, Inc.,
96 80
35
97 15
Forbes Manufacturing Company,
137 24
3 37
140 61
Francis Dike, Inc., ....
105 60
5 28
110 88
Frank A. Andrews Company,
152 31
4 27
156 58
Frank P. Brown Company, .
33 79
21
34 00
Franklin Clothing Company,
105 60
71
106 31
184
ATTORNEY-GENERAL'S REPORT.
[Jan.
Franklin Press, Inc.,
Fred A. Day Corporation,
Fred E. Squire Company,
Fred S. & A. D. Gore Corporation,
Frederick C.Warren Construction,
Company,
Frederik Peterson Company,
Freeman Clothing Company,
Freeman-Cotting Coat Company,
Frye & Crawford Drug Company,
G. H. Chessman Company, .
G. W. Lord Company, .
G. W. Peterson Company, .
Gardner Autumobile Company,
Gardner Gas, Fuel and Light Com
pany,
Garnett Leather Company, .
Geddis Remedy Company, .
George A. Turner Company,
George C. Mellville Company,
George D. Jewett Bag Company,
George E. Feast Company, .
George E. Smith Company, .
George F. Vester Company, .
George G. Snow Company, .
George H. Sallaway Company,
George P. Bingham Company,
Globe Credit Company,
Globe Gas Light Companj^, .
Globe Mattress Manufacturing
Company,
Golden Grain Farming Company,
Goldman Brothers Company,
Goodale Comb Company,
Goodwin Company,
Graham Company, .
Granfield's Pharmacy, Inc., .
Greek American Fruit and Candy
Company,
Greendale Gas Engine Company,
Grocers Supply Company, Limited
Guarantee Plate Works,
H. A. Johnson Company,
H. A. Rich Company, .
H. C. & C. D. Castle, Incorporated
H. C. Girard Company,
H. E. Lindbladh Company, .
H. F. Curtis Company, .
H. M. Kinports Company, . .
H. W. Vinson Company,
Hackett Brothers Company,
Collected on
Account
of Corporation
Tax for 1910.
$17 60
105 60
153 03
88 00
10 56
6 54
21 12
82 72
35 20
88 00
160 51
8
11
SO
ss
50 16
94 60
18 14
35 20
176 00
13 72
110 15
52 80
44 00
1,936 00
162 20
88 00
75 68
132 00
105 60
126 20
61 60
102 08
20 38
66 00
105 60
17 60
40 30
48 57
21 12
3,064 98
188 10
139 04
140 80
22 88
44 00
140 80
211 20
83 84
Interest.
Totals.
$0 37
69
46
4 54
04
06
82
18
22
40
18
31
61
11
20
3 52
3 30
20
30
38 72
1 27
2 64
85
58
90
40
44
15
50
70
1 02
20
31
20 42
1 22
67
70
12
31
4 20
3 63
21
$17 97
106 29
153 49
92 54
10 60
6 60
21 12
83 54
35 38
88 22
160 91
8 98
11 88
50 47
95 21
18 25
35 40
179 52
13 72
113 45
53 00
44 30
1,974 72
163 47
90 64
75 68
132 85
106 18
127 10
62 00
102 52
20 53
66 50
106 30
18 62
40 50
48 88
21 12
3,085 40
189 32
139
141
23
44 31
145 00
214 83
84 05
71
50
00
1912.1
PUBLIC DOCUMENT — No. 12.
185
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
Hampden Creamery Company, .
$132 49
$0 86
$133 35
Hampden Shoe Company,
264 00
1 71
265 71
Harrington Press Company, .
14 92
11
15 03
Harrison Drug Company,
44 35
31
44 66
Harry Eldredge Goodhue Com-
pany,
126 72
59
127 31
Hartshorn Company,
17 16
09
17 25
Harvard Baking Powder Company,
53 41
-
53 41
Haverhill Construction Company,
128 77
84
129 61
Healey Sewer Machine and Con-
struction Company, .
77 90
52
78 42
Healy "^urnishing Company,
14 08
17
14 25
Henry F. Farrow Company,
101 90
66
102 56
Henry H. Tuttle Company, .
462 00
2 93
464 93
Hertig Furnace Company,
52 80
35
53 15
Highland Drug Company,
42 24
13
42 37
Highland Paint and Wall Paper
Company,
105 60
37
105 97
Hillcrest Farm, Incorporated,
17 31
-
17 31
Hilton & Sons Express, Inc.,
88 88
2 38
91 26
Hingham Seam Face Granite
Company, ' .
54 12
1 54
55 66
655 81
1 75
657 56
Hoagland Curtis Drug Company,
1,232 00
9 85
1,241 85
Hodgson, Kennard & Co., Inc., .
615 38
5 89
621 27
Holyoke Base Ball Association, .
88 00
2 06
90 06
Hooper Printing Company, .
65 82
65
66 47
Houghton Heel and Leather Com-
pany, _.
210 76
65
211 41
Housatonic Water Works Com-
pany,
79 20
50
79 70
Hoyt Company, . . . .
396 00
2 64
398 64
Huberman Oil Company,
36 96
92
37 88
Human Life Publishing Company,
500 00
3 33
503 33
Huntt's Lunch Company,
492 80
1 72
494 52
Ideal Dental Laboratory Incorpo-
rated,
25 34
17
25 51
Ima-Fibre Company,
10 56
22
10 78
International Bedding Company,
91 48
-
91 48
Interstate Express Company of
Fall River,
9 50
-
9 50
Inter-State Lumber Company,
167 20
1 14
168 34
Interstate Oil Company,
40 12
30
40 42
Inter-Trust Security Company, .
76 26
76
77 02
Investors Corporation Company, .
84 12
1 00
85 12
Irving F. Moore Amusement Com-
pany,
19 36
19
19 55
Isaac H. Dinner Company, .
52 80
-
52 80
Italian Importing Company, In-
corporated,
31 68
-
31 68
J. A. Cloutier Company,
84 48
—
84 48
186
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
J. C. Fraser & Sons Company,
$110 72
$0 28
$111 00
J. G. Blount Company,
322 08
1 40
323 48
J. G. Bridge Company, .
356 64
9 27
365 91
J. G. Walker & Son Corporation,
224 11
1 40
225 51
J. H. Chandler Company,
107 71
72
108 43
J. H. Folkins Company,
318 56
1 91
320 47
J. Lerner Company, Inc.,
52 80
2 76
55 56
J. Nardi Company,
63 88
1 84
65 72
J. T. Tighe Company, .
387 20
2 58
389 78
J. W. Greenhalgh Company,
23 86
12
23 98
J. W. Luther Company,
246 40
1 50
247 90
J. W. Jordan Company,
61 07
-
61 07
James B. Wood & Son Company
237 60
-
237 60
James Barrett Manufacturing
1
Company,
202 40
67
203 07
Jenks- Williams Paving Company,
14 08
-
14 08
Jeremiah Clark Machinery Com-
pany,
176 29
97
177 26
Jewish Publishing Company o:
New England,
44 00
2 06
46 06
John C. DeLaney Moulding Com-
pany,
24 64
17
24 81
John C. Frohn Company,
44 00
2 72
46 72
John Cashman & Sons Com-
pany,
264 00
1 71
265 71
John Cavanagh & Son Building
■
Moving Company,
198 00
2 66
200 66
John F. Ryan Company,
616 00
21 42
637 42
John Foster Company, .
908 51
6 35
914 86
John J. Cluin Company,
48 40
28
48.68
John T. Scully Foundation anc
I
Transportation Company,
184 80
78
185 58
Jordan & Bradley, Inc.,
12 32
36
12 68
Jordan Drug Company,
13 20
10
13 30
Joseph Andrews Lumber Com-
•
pany,
24 64
53
25 17
Joseph M. Bradley Company,
30 80
30
31 10
K. A. Kelly Company, .
44 54
47
45 01
K. G. Laham & Company, .
16 89
-
16 89
Kaleva Store Company,
57 72
35
58 07
Keilty Company,
202 03
1 47
203 50
Keniston Engineering Company
88 00
57
88 57
Kennedy Ideal Carbureter Com-
pany,
21 12
06
21 18
Kenney Brothers Company,
87 12
22
87 34
King Mining Company,
85 00
1 42
86 42
Kinney Heating and Supply Com
pany,
36 25
36 25
Kissell Kar Kompany, .
66 31
66
66 97
Kleno Manufacturing Company,
17 60
10
17 70
Knox Automobile Company,
6,271 67
46 00
6,317 67
1912.1
PUBLIC DOCUMENT — No. 12.
187
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
Kress Brothers Carriage Com-
pany,
L. & L. Bakery Company, .
Labelle Gas Regulator Company
Lamere & Robinson Company,
Lang and Jacobs Company, .
Laundry Specialty Company,
Lawrence B. Smith Company,
Lawrence Market Company,
Lawrence Produce Company,
Leavitt's Scotch Polish Com-
pany, . .
Leominster Fine Tool and Ma
chine Works, Incorporated,
Leominster Novelty Company,
Leona Mining Company,
Leslie Manufacturing Company,
Lever Cream Separator Company
Lewis F. Small, Incorporated,
Linscott Motor Company, .
London Harness Company, .
Lovell & Covel Company,
Lovells, Incorporated, .
Lynch Heel Company, .
Lynn Hebrew Mutual Loan As-
sociation, ....
McPherson Brothers Company,
Macalaster, Wiggin Company,
MacLean Produce Company,
Magee Furnace Company, .
Magnet Photo Materials Com-
pany,
Maine State Creamery Company,
Majestic Company,
Maiden Grain Company,
Manhattan Collar Company,
Manhattan Company, .
Manhattan Market Company,
Manufacturers Shoe Trimming
Company, ....
Manufacturing Equipment and
Engineering Company,
Marathon Egyptian Cigarette
Company, ....
Marshall-Hackel Company, .
Marston Shoe Company,
Martel Motor Car Company,
Massachusetts Aktzia, Incorpo-
rated,
Massachusetts & Rhode Island
Despatch Express Company,
$61 60
17 77
7 95
61 88
96 80
17 60
228 80
79 20
144 53
23 14
26 40
95 04
68 81
569 65
40 20
17 60
230 56
660 00
349 53
70 40
44 00
12 67
31 15
82 72
35 20
3,910 20
19 48
26 40
140 80
153 12
101 90
6 33
352 00
58 08
213 40
14 36
203 96
13 55
63 36
29 60
15 84
$0 39
03
65
92
18
87
19
20
24
3 99
25 06
40
1 53
7 59
1 22
35
32
06
28
25
26 72
70
1 00
30
77
1 70
2 45
14
6 12
1 47
20
10
$61 99
17 77
7 95
61 91
97 45
17 60
229 72
79 38
145 40
23 33
26 60
95 28
72 80
594 71
40 20
18 00
232 09
667 59
350 75
70 75
44 32
12 73
31 43
82 97
35 20
3,936 92
19 48
26 40
141 50
154 12
102 20
6 33
352 77
59 78
215 85
14 50
210 08
13 55
64 83
29 80
15 94
188
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
Massachusetts Caloric Bath Com-
pany, $39 60 ! $0 55 $40 15
Massasoit Company, . . . 313 28 i 2 19 315 47
Matheson Vail Company, . 42 24 2 11 44 35
Mellish & Byfield Manufacturing
Company, 72 16 58 72 74
Melvin Bancroft Company, . 61 60 25 j 61 85
Metropolitan Air Goods Com-
pany, _ | 82 72 I 20 82 92
Metropolitan Lithograph and
Publishing Company,
Miller-Richards Manufacturing
Company,
Milliken & Robie, Incorporated,
Minard's Liniment Manufacturing
Company, ....
Miscoe Spring Water Company,
Mitchell Press, ...
Morse-Gemmell Company, .
Motor Specialties Company,
Muir's Laundry, Incorporated,
Mulliken Oil Company,
Murch & Loomis Company,
Murphy Coal & Wood Company,
National Matzo Company of
~3IBoston,
National Self- Warning Fire Alarm
Company,
Neponset River Coal Company, .
New Can Company,
New England Cereal Company, .
New England Cigar Box Com-
pany,
New England Cloak and Suit
Company,
New England Discount Company,
New England Motor Vehicle
Company, . ... 63 36 63 I 63 99
New England Office Furniture
Company, 70 40 1 83 72 23
New England Reed Company, . 452 35 3 02 455 37
New England Shoe Manufactur-
ing Company, .... 75 32 - 75 32
New England Society Incorpo-
rated, 22 17 - 22 17
New England Trading Company, 61 60 55 62 15
Newton Graphic Publishing Com-
pany, 32 56 11 32 67
New Stock Opera Company, . 26 40 95 27 35
North Main Market Company, . 133 05 42 133 47
North Shore Leather Company, . 17 60 84 18 44
313 28
10 43
323 71
350 24
7 00
357 24
26 40
66
27 06
94 37
98
95 35
35 20
22
35 42
10 91
63
11 54
35 55
25
35 80
46 00
1 38
47 38
61 60
1 30
62 90
52 80
2 34
55 14
110 00
73
110 73
299 20
76
299 96
63 36
42
63 78
34 81
1 60
36 41
120 52
-
120 52
237 60
6 41
244 01
30 00
12
30 12
34 71
-
34 71
153 12
1 02
154 14
259 38
2 51
261 89
1912."
PUBLIC DOCUMENT — No. 12.
189
Collected on
Account
of Cor?' oi
Interest.
Totals.
Tax for 1910.
Noyes & Dewar Company, .
$61 60
$1 31
$62 91
Oak Island Grove Company,
40 00
14
40 14
Oakley Steel Foundry Company,
271 62
3 26
274 88
Office Specialties De Luxe, In-
corporated,
85 36
68
86 04
Old Colony Box Company, .
2,231 52
45 60
2,277 12
Old South Lunch, Incorporated, .
52 80
35
53 15
Oleic Company, Incorporated,
9 15
-
9 15
Overland Motor Company of
Boston,
188 46
1 24
189 70
Oxidite Manufacturing Company,
27 52
19
27 71
P. Creedon Company, .
225 28
4 50
229 78
P. J. Ferguson, Incorporated,
26 40
41
26 81
P. R. Glass Company, .
94 51
2 85
97 36
P. Reilly & Son Leather Com-
pany,
176 00
1 76
177 76
Page & Symmes Company, .
123 20
2 63
125 83
Palatable Distilled Water Com-
pany,
5 28
34
5 62
Paleface Shooting Grounds Cor-
poration,
10 27
14
10 41
Parisian Jewelry Company, .
22 42
-
22 42
Parker & Page Company,
1,241 29
8 07
1,249 36
Parker J. Webber Company,
84 48
-
84 48
Parker Transmission and Appli-
ance Company, ....
18 18
08
18 26
Parker-Turco Company,
48 64
32
48 96
Pastime Theatre Company of
Lawrence, Inc., ....
126 72
2 53
129 25
Pattinson Manufacturing Com-
pany,
36 96
23
37 19
Peabody Supply Company, .
70 40
47
70 87
Pean Medical Company,
29 77
12
29 89
Peoples Drug Store Company,
26 40
18
26 58
People's Furniture Company,
105 60
85
106 45
Perkins & Co., Inc.
344 96
10 31
355 27
Peter F. Connolly Company,
17 60
10
17 70
Photo Supply Company,
24 64
61
25 25
Pierce & Barnes Company, .
17 60
14
17 74
Plymouth Manufacturing Com-
pany,
44 00
30
44 30
Point Breeze Company,
57 72
-
57 72
Polish Co-operative Market, In-
corporated,
23 93
47
24 40
Polonia Baking Company,
6 33
30
6 63
Post Office Pharmacy, Incor-
porated,
52 80
25
53 05
Pratt-Reid Shoe Company, .
2,200 00
11 00
2,211 00
Premier Leather Company, .
77 44
77
78 21
Prexite Comb Company,
209 44
1 68
211 12
Prudential Supply Company,
123 55
1 11
124 66
190
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
Purity Confectionery Company,
$58 08
$0 66
$58 74
Quincy New System Wet Wash
Company,
9 50
02
9 52
Quinsigamond Lake Steamboat
Company,
105 60
2 53
108 13
R. C. Goudey Company,
118 27
52
118 79
R. H. Messer Compairy,
85 80
57
86 37
R. L. Cleveland Company, .
173 18
1 17
174 35
R. L. Morgan Company,
1,870 88
28 75
1,899 63
R. M. Bucknam & Co., Incorpo-
rated,
23 14
21
23 35
Randall-Faichney Company,
931 53
5 89
937 42
Ray-Lawson Granite Company, .
14 16
24
14 40
Regal Comb and Novelty Com-
pany, Incorporated, .
114 40
33
114 73
Reliance Motor Bus Company, .
96 80
65
97 45
Remington Manufacturing Com-
pany,
7 92
-
7 92
Remington Tool and Machine
Company,
36 74
24
36 98
Revere & Winthrop Co-operative
Ice Company, ....
19 71
-
19 71
Rhode Island Machinery Com-
pany,
15 48
08
15 56
Robert R. McNutt, Inc.,
224 40
6 72
231 12
Robert S. Jones Company, .
21 82
-
21 82
Rosengard Furniture Company, .
121 44
30
121 74
Rowe Contracting Company,
295 68
74
296 42
Roxbury Shoe Thread Company, .
176 00
1 17
177 17
Royal Shoe Company, .
118 97
70
119 67
Ruff Bros. Company,
67 58
1 58
69 16
Russ, Eveleth & Ingalls Com-
pany,
1,121 98
43 59
1,165 57
S. A. Ryan & Co., Incorporated,
61 60
22
61 82
S. D. Viets Company, .
620 20
9 02
629 22
S. L. Gabriel Company,
29 92
-
29 92
S. M. Howes Company,
1,589 28
10 86
1,600 14
Salem Barrel Company,
52 80
38
53 18
Salem Box Companj^,
54 20
-
54 20
Samano American Company,
10 00
-
10 00
Samson Draught Spring Com-
pany,
78 14
52
78 66
Samuel Ward Company,
1,663 20
6 09
1,669 29
Saskatchewan Investment Com-
pany,
45 45
30
45 75
Satuit Cranberry Company, .
35 30
39
35 69
Savory Express Company, .
67 58
96
68 54
Sayles & Jenks Manufacturing
Company,
974 68
2 60
977 28
Scandinavian Co-operative Gro-
cery Union,
64 32
19
64 51
1912.1
PUBLIC DOCUMENT — No. 12.
191
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
Schipper Bros. Coal Mining Com
pany (Inc.), ....
Sectional Rubber Tire Company
Seth W. Fuller Company,
Shadduck & Normandin Company
Shapleigh Coffee Company, .
Shawmut Waxed Paper Com-
pany,
Sheedy Amusement Company,
Sheedy Theatre Company, .
Sheldon Brothers Company,
Shepard Clark Company,
Sherry Shoe Company, .
Shultz-Goodwin Company, .
Silas Pierce & Co., Limited, .
Small Maynard & Co., Incor-
porated, ....
Smith & McNault Company,
Smith & Wallace Company, .
Society for Americana, Inc., .
Somerset Coal Company,
Somerville Sun Publishing Com-
pany, . . .
Soule Art Publishing Company,
Southgate Machinery Company,
Southgate Press, The, — T. W
Ripley Company,
Spatula Publishing Company,
Springfield Loan Association,
St. Clairs' (Inc.), .
Stadden's Art Shop, Incorpo
rated,
Standard Credit Company, .
Standard Leather Company of
Brockton, ....
Standard Lens Company,
Standard Publishing Company,
Standard Stoneware Company,
Stetson Coal Company of Bos
ton,
Storer & Gelotte Company, .
Suffolk Supply Company,
Sylvia Steamboat Company, .
Svmonds & Poor Carbonator Com
Pany,
T. H. O'Donnell & Co., Inc.,
Tarr Marine Paint Company,
Taunton Evening News,
Taxi Motor Cab Company of
Boston, ....
Taylor & Barker Company, .
$34 00
61 88
123 28
95 04
340 89
49 28
22 50
25 00
22 00
890 85
54 56
714 56
2,195 98
528 00
80 96
897 42
54 91
89 76
10 56
161 92
174 66
682 88
38 72
10 73
387 20
203 63
79 62
48 57
15 91
83 42
22 70
832 48
67 21
23 23
88 00
589 60
184 80
144 84
158 40
422 40
45 32
$0 26
1 44
80
64
1 13
34
27
14
6 09
16
4 44
14 64
3 33
54
02
60
40
1 28
4 60
20
07
7 78
2 00
16
60
25
16
2 50
69
22
26 91
7 39
1 90
1 10
16 88
91
$34 26
63 32
124 08
95 68
342 02
49 62
22 77
25 00
22 14
896 94
54 72
719 00
2,210 62
531 33
81 50
897 42
57 93
90 36
10 56
162 32
175 94
687 48
38 92
10 80
394 98
205 63
79 78
48 57
16 51
83 67
22 86
834 98
67 21
23 92
88 22
616 51
192 19
146 74
159 50
439 28
46 23
192
ATTORNEY-GENERAL'S REPORT.
[Jan,
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1910.
Telepost Company of Massachu-
setts,
$176 00
$0 76
$176 76
Thayer Woolen Company, .
278 08
56
278 64
Therapeutic Publishing Company,
21 12
17
21 29
Thissell Company, ....
35 20
24
35 44
Thomas D. Gard Company, In-
corporated,
74 41
75
75 16
Thomas H. Logan Company,
880 00
2 20
882 20
Thomas J. Shea Company, .
24 64
16
24 80
Thomas O'Callahan Company, .
44 00
60
44 60
Thompson Construction Com-
pany,
30 97
18
31 15
Tichnor Brothers, Incorporated,
242 88
3 48
246 36
Times Newspaper Company,
161 04
3 33
164 37
Trombfy Jewelry Company, .
226 82
1 54
228 36
Truscott Boat Manufacturing
i
Company of Massachusetts, .
44 00
35
44 35
Tudor Press, Inc., ....
200 46
8 82
209 28
Turva Co-operative Store Com-
pany,
41 07
82
41 89
Umbagog Camp Company, .
6 33
-
6 33
Union Furniture Company, .
161 92
1 07
162 99
Union Loan Association,
107 71
10 80
118 51
Union Optical Company,
33 17
33
33 50
Union Parlor Furniture Company,
35 20
-
35 20
Union Seal Company, .
42 94
13
43 07
Union Shoe Compairy, .
77 61
23
77 84
Union Tool Company, .
20 87
-
20 87
Unique Amusement Company,
8 34
07
8 41
Unique Theatre Company of
Boston,
123 20
1 04
124 24
United Building Company, .
5 80
05
5 85
United Cloak and Suit House
Company,
19 36
-
19 36
United Hospitals Drug Company,
32 20
21
32 41
United Sewing Machinery Com-
pany, . ....
63 36
78
64 14
Utica Treeing Machine Company,
13 27
04
13 31
V. H. Moody Shoe Company,
221 40
55
221 95
Vigosan Medicine Company,
39 79
1 31
41 10
Vinton Manufacturing Company,
44 95
1 84
46 79
Vulcan Manufacturing Company,
88 00
2 20
90 20
W. A. Norton Company,
35 20
-
35 20
W. E. Chipman Company, .
17 68
09
17 77
W. E. Richards Company, .
440 00
-
440 00
W. F. Godber Company,
183 46
1 83
185 29
W. G. Hall Fur Company, .
158 40
3 74
162 14
W. H. I. Hayes Company, .
140 80
94
141 74
W. H. Magrath Cigar Company,
16 49
48
16 97
W. K. Farrington Press,
89 76
54
90 30
W. L. Waples Company,
61 24
3 55
64 79
1912.]
PUBLIC DOCUMENT — No. 12.
193
Collected on
Account
of Corporation
Tax for 1910.
Interest.
Totals.
W. N. Hamel Clothing Company,
W. P. Goode Brush Company, .
W. T. Shackley & Son Companj'-,
W. W. Spaulding Company, In-
corporated, ....
Wade Machine Company,
Wadleigh Company,
Walker Bros. Dyeing and Bleach-
ing Company,
Walker Drug Company,
Walworth Construction and Sup
ply Company,
W'arner Box Companj^, .
Warren Automobile Company,
Warren, Brookfield & Spencer
Street Railway Company,
Waverly Liquor Company, .
Wellington-Pierce Company,
Wheeler & Shaw, Inc.,
White Eagle Bottling Company,
White Smith Music Publishing
Company, ....
Whitman Pharmacal Company,
Whittier Woodenware Company,
William Allen Sons Company,
William H. Franklin Brass
Foundry Company,
William L. Browne Electric Com
Com
pany, . _ .
William Morris, Inc.,
Wire Bound Packing Case
pany of Massachusetts,
Winter Hill Motor Company,
Woburn Degreasing Company,
Woman's Shop, Incorporated,
Wood, Clarke Press, Inc.,
Woodberry Press, .
Woodward & Cochey, Incorpo
rated, . ...
Wordell Plumbing Company,
Workers Co-operative Company,
Woronoco Heating and Plumbing
Company,
Worthington Transportation Com-
pany, ....
Young & Follett Company,
$130 06
71 28
193 60
242 00
89 76
119 32
46 81
21 12
124 52
35 72
79 20
188 32
52 80
388 66
537 09
24 64
1,003 32
24 39
475 20
288 64
33 00
107 71
88 00
67 63
44 00
151 36
264 00
12 81
70 40
108 59
70 40
12 58
88 00
25 76
35 20
($136,446 64
$2 13
1 35
1 35
80
28
31
24
24
47
35
1 23
16 17
2 33
70
2 62
5 48
21
03
4 08
1 35
29
45
1 24
13
42
34
2 03
17
2 04
$130 06
73 41
194 95
243 35
89 76
120 12
47 09
21 12
124 83
35 96
79 44
188 79
53 15
389 89
553 26
24 64
1,005 65
25 09
477 82
294 12
33 21
107 74
92 08
68 98
44 29
151 81
265 24
12 94
70 82
108 93
70 40
12 58
90 03
25 93
37 24
$1,302 78
$137,749 42
194
ATTORNEY-GENERAL'S REPORT.
[Jan.
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200 ATTORNEY-GENERAL'S REPORT. [Jan.
RULES OF PRACTICE
In Interstate Rendition.
Every application to the Governor for a requisition upon the
executive authority of any other State or Territory, for the de-
livery up and return of any offender who has fled from the
justice of this Commonwealth, must be made by the district or
prosecuting attorney for the county or district in which the
offence was committed, and must be in duplicate original papers,
or certified copies thereof.
The following must appear by the certificate of the district or
prosecuting attorney : —
(a) The full name of the person for whom extradition is
asked, together with the name of the agent proposed, to be
properly spelled.
(b) That, in his opinion, the ends of public justice require
that the alleged criminal be brought to this Commonwealth for
trial, at the public expense.
(c) That he believes he has sufficient evidence to secure the
conviction of the fugitive.
(d) That the person named as agent is a proper person, and
that he has no private interest in the arrest of the fugitive.
(e) If there has been any former application for a requisition
for the same person growing out of the same transaction, it
must be so stated, with an explanation of the reasons for a
second request, together with the date of such application, as
near as may be.
(/) If the fugitive is known to be under either civil or crim-
inal arrest in the State or Territory to which he is alleged to
have fled, the fact of such arrest and the nature of the pro-
ceedings on which it is based must be stated.
(g) That the application is not made for the purpose of en-
forcing the collection of a debt, or for any private purpose what-
ever; and that, if the requisition applied for be granted, the
criminal proceedings shall not be used for any of said objects.
1912.] PUBLIC DOCUMENT — No. 12. 201
(h) The nature of the crime charged, with a reference, when
practicable, to the particular statute defining and punishing the
same.
(i) If the offence charged is not of recent occurrence, a satis-
factory reason must be given for the delay in making the appli-
cation.
1. In all cases of fraud, false pretences, embezzlement or
forgery, when made a crime by the common law, or any penal
code or statute, the affidavit of the principal complaining wit-
ness or informant 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 di-
rectly 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 jus-
tice 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 accompanied 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 fur-
nished upon an application.
5. The official character of the officer taking the affidavits or
depositions, and of the officer who issued the warrant, must be
duly certified.
202 ATTORNEY-GENERAL'S REPORT. [Jan. 1912.
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 certified 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 sen-
tence, the application may be made by the jailer, sheriff, or other
officer having him in custody, and shall be accompanied by cer-
tified copies of the indictment or information, record of con-
viction and sentence upon which the person is held, with the
affidavit of such person having him in custody, showing such
escape, with the circumstances attending the same.
8. No requisition will be made for the extradition of any
fugitive except in compliance with these rules.
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