ITTORNEY- GENERAL'S REPOB
1914
Public Document
No. 12
(2lt|( QlDmmnttm^aUti ttf MunButlfiXBtttjSL
REPORT
ATTORNEY-GENERAL
Year ending January 20, 1915.
BOSTON:
WEIGHT & POTTEE FEINTING CO., STATE PEINTEES,
32 DEENE STEEET.
1915.
Ql\)t €0tnm0nwealth of illaseacljueetts
Department of the Attorney -General,
Boston, Jan. 20, 1915.
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,
THOMAS J. BOYNTOJS^,
Attorney-General.
^l)t iHommaniucaltli of iflassacljusetts
DEPARTMENT OF THE ATTORNEY-GENERAL,
State House.
A ttorney-G eneral.
THOMAS J. BOYNTON.
Assistants.
Thomas P. Riley.
Roger Sherman Hoar.
Leon R. Eyges.
Arthur E. Seagrave.
John W. Corcoran.
James J. Bacigalupo.
Chief Clerk.
Louis H. Freese.
Statement of Appropriation and Expenditu
RES.
Appropriation for 1914, |-q qqq
00
Expendit2(res.
For law library, $1,108 30
For salaries of assistants, 18 722 o&
For clerks, ... - o^a 4a
' 0,304 44
For office stenographers, 3 OQS 07
For telephone operator, o'^S 00
For expenses in ice investigation, 1 309 45
For expenses in the abohtion of grade crossings: —
Salary of engineer, |;[9q 3^
Other expenses incidental thereto, . 208 15
398 53
For office expenses, . . . 7 510 94
For court expenses, . . - pm 00
^ ' 0.6OI 22
Total expenditures, $43,699 63
Costs collected, 2,470 62
Net expenditures, $41,228 91
®1|? (Enmmottutfaltli of fMaasarl^ua^tta
Department of the Attorney-General,
Boston, Jan. 20, 1915.
To the Honorable Senate and House of Bepreseniatives.
In compliance with Kevised Laws, chapter 7, section 8,
I submit my report for the year ending this day.
The cases requiring the attention of this department dur-
ing the year, to the number of 0,356, are tabulated below: —
Corporate francliise tax cases, 795
Extradition and interstate rendition, 122
Grade crossings, petitions for abolition of, 98
Indictments for murder, 40
Inventories and appraisals, 168
Land Court petitions, 68
Land-damage cases arising from the taking of land b}^ the Harbor
and Land Commission, 4
Land-damage cases arising from the taking of land by the Charles
River Basin Commission, 23
Land-damage cases arising from the taking of land by the Massa-
chusetts Highwa}^ Commission, 22
Land-damage cases arising from the taking of land by the
Directors of the Port of Boston, 2
Land-damage cases arising from the taking of land by the Met-
ropolitan Water and Sewerage Board, 7
Land-damage cases arising from the taking of land by the State
Board of Insanity, 6
Land-damage cases arising from the taking of land by the Mt.
Everett Reservation Commission, 1
Land-damage cases arising from the taking of land by the
Armorj^ Commissioners, 2
Miscellaneous cases arising from the work of the above-named
commissions, 29
jMiscellaneous cases, 519
Petitions for instructions under inheritance tax laws, ... 49
Public charitable trusts, . . 107
Settlement cases for support of persons in State Hospitals, . 28
All other cases not enumerated above, which include suits to re-
quire the fihng of returns by corporations and individuals and
the collection of money due the Commonwealth, . . . 4,266
viii ATTORNEY-GENERAL'S REPORT. [Jan.
Capital Cases.
Indictments for murder pending at the date of the last
annual report have been disposed of as follows: —
Theresa Bernard, indicted in Suffolk County, Novem-
ber, 1913, for the murder of John R. Bernard, on Oct. 6,
1913. She was arraigned Nov. 13, 1913, and pleaded not
guilty. Richard S. Teeling, Esq., was assigned by the court
as counsel for the defendant. On April 14, 1914, the de-
fendant was committed to the Massachusetts School for the
Feeble-minded. The case was in charge of District Attorney
Joseph C. Pelletier.
John F. Branagan, indicted in INIiddlesex County, June,
1913, for the murder of Bridget Hall, at Natick, on May 24,
1913. He was arraigned June 19, 1913, and pleaded not
guilty. Edward L. ]McManus, Esq., was assigned by the
court as counsel for the defendant. On Sept. 9, 1913, the
indictment was nol prossed and the defendant placed on
probation. The case was in charge of District Attorney
Wilham J. Corcoran.
John Bufulini, indicted in Essex County, July, 1913,
for the murder of Emilio Marchocci, at Swampscott, on July
14, 1913. He was arraigned July 16, 1913, and pleaded not
guilty. James H. Sisk, Esq., and William H. Sisk, Esq.,
were assigned by the court as counsel. On Feb. 24, 1914,
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 a term not exceeding fifteen years nor less
than ten years. The case was in charge of District Attorney
Henry C. Attwill.
Anna Catania, indicted in Suffolk County, October, 1913,
for the murder of Agrippino Capra, at Boston, on Oct. 3,
1913. She was arraigned Oct. 15, 1913, and pleaded not
guilty. Maurice Caro was assigned by the court as counsel
1915.] PUBLIC DOCUMENT — No. 12. ix
for the defendant. In June, 1914, the defendant was tried
by a jury before Chase, J. The result was a verdict of not
guilty. The case was in charge of District Attorney Joseph
C. Pelletier.
DoMENico D'Allessandro, indicted in Suffolk County,
September, 1913, for the murder of Antonio Burgio, at Bos-
ton, on July 28, 1913. He was arraigned Sept. 9, 1913,
and pleaded not guilty. Thomas J. Grady, Esq., was as-
signed by the court as counsel for the defendant. In Janu-
ary, 1914, the defendant was tried by a jury before Aiken,
C.J. During the progress of the trial the defendant retracted
his former plea, and pleaded guilty to manslaughter. This
plea was accepted by the Commonwealth, and the defendant
vvas sentenced to State Prison for a term not exceeding
seventeen years nor less than fifteen years. The case was
in charge of District Attorney Joseph C. Pelletier.
SuPRiAXO DA SiLVA, indicted in Plymouth County, Octo-
ber, 1913, for the murder of Joquin Esteves, at Plymouth,
on Aug. 1, 1913. He was arraigned Feb. 6, 1914, 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 six years nor less than five
years. John P. Vahey, Esq., was assigned by the court
as counsel for the defendant. The case was in charge of
District Attorney Albert F. Barker.
^YILLIAM A. Dorr, indicted in Essex County, April, 1912,
for the murder of George E. Marsh, at Lynn, on April 11,
1912. He was arraigned July 12, 1912, and pleaded not
guilty. C. Neal Barney, Esq., appeared as counsel for the
defendant. In February, 1913, the defendant was tried by
a jury before Quinn, J. The result was a verdict of guilty
of murder in the first degree. The defendant's exceptions
were overruled by the Supreme Judicial Court. The defend-
ant was thereupon sentenced to death by electrocution
during the week beginning Sunday, March 22, 1914, which
sentence was executed March 24, 1914. The case was in
charge of District Attorney Henry C. Attwill.
X ATTORNEY-GENERAL'S REPORT. [Jan.
Sam Kales^t'ian, indicted in Middlesex County, September,
1913, for the murder of Andrew Saul, at Watertown, on
July 12, 1913. John H. Casey, Esq., ^Yas assigned by the
court as counsel for the defendant. The defendant was
arraigned Jan. 13, 1914, and pleaded guilty to murder in the
second degree. This plea was accepted by the Common-
wealth, and the defendant was sentenced to State Prison for
life. The case was in charge of District Attorney William J.
Corcoran.
. William Kaminski, indicted in Middlesex County, No-
vember, 1913, for the murder of John Scannell, at Cam-
bridge, on Sept. 29, 1913. John H. Hurley, Esq., and John
F. McDonald, Esq., were assigned by the court as counsel
for the defendant. He was arraigned Nov. 17, 1913, and
pleaded guilty to murder in the second degree. This plea
was accepted by the Commo wealth, and the defendant was
sentenced to State Prison for life. The case was in charge
of District Attorney William J. Corcoran.
Samuel Powers, indicted in Hampden County, Decem-
ber, 1913, for the murder of Minnie Powers, at Springfield,
on May 4, 1913. He was arraigned Dec. 22, 1913, and
pleaded not guilty. Edward A. McClintock, Esq., was as-
signed by the court as counsel for the defendant. Later 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
Christopher T. Callahan.
James R. Sutherland, indicted in Plymouth County,
June, 1913, for the murder of Winifred Sutherland, at
Whitman, on April 28, 1913. He was arraigned June 4,
1913, and pleaded not guilty. William F. Kane, Esq., and
James T. Kirby, Esq., were assigned by the court as counsel
for the defendant. On Feb. 13, 1914, the defendant re-
tracted his former plea, and pleaded guilty to murder in the
second degree. This plea was accepted by the Common-
1915.1 PUBLIC DOCUMENT — No. 12.
XI
wealth, and the defendant was sentenced to State Prison for
life. The case was in charge of District Attorney Albert F.
Barker.
Indictments for murder found since the date of the last
annual report have been disposed of as follows: —
NiSHAN M. Aprahanian and ]\Ianoog Garabedian,
indicted in jNIiddlesex County, March, 1914, for the murder
of Ismayel Izmerly Oglilo, at Watertown, on Feb. 16, 1914.
They were severally arraigned March 13, 1914, and pleaded
guilt}' to manslaughter. This plea was accepted by the
Commonwealth, and the defendants were sentenced to the
^Massachusetts Reformatory for the term of five years and
one month. Edward L. McManus, Esq., and Christopher
J. Muldoon, Jr., Esq., were assigned by the court as counsel
for the defendants. The case was in charge of District
Attorney William J. Corcoran.
Alonzo Bell, indicted in Bristol County, November,
1914, for the murder of Jesse Watts. He was arraigned
Dec. 2, 1914, 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 Joseph T. Kenney.
Joseph W. Blais, indicted in Middlesex County, June,
1914, for the murder of Celanire Blais, at Lowell, on June
27, 1914. He was arraigned Sept. 29, 1914, and pleaded
not guilty. William A. Hogan, Esq., was assigned by the
court as counsel for the defendant. On Sept. 29, 1914, the
defendant was adjudged insane, and was committed to the
Bridgewater State Hospital. The case was in charge of
District Attorney William J. Corcoran.
Tho:\l\s Bombard, indicted in Worcester County, August,
1914, for the murder of Erhardt Reithel, at Auburn, on
July 9, 1914. He was arraigned Aug. 31, 1914, and pleaded
not guilty. John H. INIeagher, Esq., and Charles F. Camp-
xii ATTORNEY-GENERAL'S REPORT. [Jan.
bell, Esq., were assigned by the court as counsel for the de-
fendant. In October, 1914, the defendant was tried by a
jury before Sanderson, J. The result was a verdict of guilty
of murder in the second degree. The defendant was there-
upon sentenced to State Prison for life. The case was in
charge of District Attorney James A. Stiles.
John A. Collins, indicted in Suffolk County, May, 1914,
.for the murder of Agnes E. Colhns, at Boston, on April 18,
1914. He was arraigned Aug. 26, 1914, and pleaded guilty
to manslaughter. This plea was accepted by the Common-
wealth, and the defendant was sentenced to State Prison for
a term not exceeding eleven years nor less than eight years.
William R. Scharton, Esq., was assigned by the court as
counsel for the defendant. The case was in charge of
District Attorney Joseph C. Pelletier.
Daniel J. Cooper, indicted in Worcester County, Jan-
uary, 1914, for the murder of Alfred G. Bradish, at Upton,
on Oct. 4, 1913. He was arraigned Feb. 5, 1914, and pleaded
not guilty. John E. Swift, Esq., William A. ^Murray, Esq.,
and Austin E. Livingstone, Esq., were assigned by the court
as counsel for the defendant. In May, 1914, the defendant
was tried by a jury before Dubuque, J. The result was a
verdict of guilty of murder in the first degree. The de-
fendant's exceptions were overruled by the Supreme Judicial
Court, and he was sentenced to death by electrocution.
On Dec. 15, 1914, said sentence was commuted to life im-
prisonment. The case was in charge of District Attorney
James A. Stiles.
Gaetano DeVaio and Virginia Barbato, indicted in
Essex County, July, 1914, for the murder of Gaetano Bar-
bato, at Beverly, on July 4, 1914. They were severally
arraigned Oct. 6, 1914, and pleaded not guilty. Michael L.
Sullivan, Esq., William H. McSweeney, Esq., and John J.
Higgins, Esq., were assigned by the court as counsel for the
defendants. In November, 1914, the defendants were tried
by a jury before Sanderson, J. The result was a verdict of
1915.] PUBLIC DOCUMENT — No. 12. xiii
not guilty. The case was in charge of District x\ttorney
Henry C.Attwill.
]Marcellino Faria, indicted in Bristol County, June,
1914, for the murder of Alice G. Faria. He was arraigned
June 9, 1914, and pleaded not guilty. On Dec. 3, 1914, 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
Joseph T. Kenney.
Peter Goncalves, indicted in Plymouth County, October,
1914, for the murder of Vincent Goncalves, at Halifax, on
Aug. 16, 1914. He was arraigned Oct. 16, 1914, and pleaded
not guilty. John P. Vahey, Esq., and William T. Way, Esq.,
were assigned by the court as counsel for the defendant. On
Oct. 30, 1914, 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 years nor less than
eight years. The case was in charge of District Attorney
Albert F. Barker.
George W. LeFave, indicted in Essex County, April,
1914, for the murder of Walter P. Hills, at Peabody, on
April 3, 1914. He was arraigned May 14, 1914, and pleaded
not guilty. S. Howard Donnell, Esq., was assigned by the
court as counsel for the defendant. On Nov. 16, 1914, 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
Henry C. Attwill.
Francesco P. Llizza, Guiseppe Llizza and Baldassarre
LrizzA, indicted in ^Jiddlesex County, September, 1914, for
the murder of Pietro Titone, at Framingham, on July 22,
1914. They were severally arraigned Sept. 29, 1914. Fran-
xiv ATTORXEY-GEXERAL'S REPORT. [Jan.
cesco P. Luizza and Guiseppe Liiizza pleaded guilty to man-
slaughter, and Baldassarre Luizza pleaded not guilty. These
pleas were accepted by the Commonwealth. Francesco P.
Luizza was sentenced to -State Prison for a term not exceed-
ing fifteen years nor less than ten years; Guiseppe Luizza
was sentenced to the House of Correction for the term of six
months; and the indictment against Baldassarre Luizza
was nol pressed. Edward C. Creed, Esq., and Thomas J.
Grady, Esq., were assigned by the court as counsel for the
defendants. The case was in charge of District Attorney
William J. Corcoran.
Charles Matrony, indicted in Bristol County, February,
1914, for the murder of Annie Walsh. He was arraigned
Feb. 13, 1914, 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 Joseph T. Kenney,
Lawrence Robinson, indicted in Suffolk County, June,
1914, for the murder of Thomas J. X^orton, at Boston, on
June 19, 1914. He was arraigned Jane 26, 1914, and pleaded
not guilty. John H. Blanchard, Esq., and H. C. Blanchard,
Esq., were assigned by the court as counsel for the defend-
ant. On July 20, 1914, trial by a jury before Keating, J.,
was commenced. During the progress of the trial the de-
fendant committed suicide, and the case was taken from the
jury. The case was in charge of District Attorney Joseph C.
Pelletier.
Charles F. Starrett, indicted in Middlesex County,
June, 1914, for the murder of Elizabeth Starrett, at Everett,
on March 29, 1914. He was arraigned June 22, 1914, and
pleaded not guilty. John J. Higgins, Esq., was assigned by
the court as counsel for the defendant. On June 26, 1914,
the defendant was adjudged insane, and was committed to
the Worcester State Hospital. The case was in charge of
District Attorney William J. Corcoran.
1915.] PUBLIC DOCUMENT — No. 12. xv
William B. Sweeney, indicted in Middlesex County,
June, 1914, for the murder of Minnie Sweeney, at Dracut,
on INIarch 19, 1914. He was arraigned June 12, 1914, and
pleaded not guilty. William A. Hogan, Esq., was assigned
by the court as counsel for the defendant. On June 24,
1914, the defendant was adjudged insane, and was com-
mitted to the Worcester State Hospital. The case was in
charge of District Attorney William J. Corcoran.
Bedros Takdarian, Garabed Barbarian and John
Aydanian, indicted in Essex County, April, 1914, for the
murder of John K. Shamlian, at Lawrence, on Feb. 9, 1914.
They were severally arraigned Oct. 14, 1914, and pleaded
not guilty. William F. Moyes, Esq., Michael S. O'Brien,
Esq., and Harry R. Lawrence, Esq., were assigned by the
court as counsel for the defendants. On Nov. 16, 1914, the
defendants severally retracted their former pleas and pleaded
guilty to murder in the second degree. These pleas were
accepted by the Commonwealth, and the defendants were
sentenced to State Prison for life. The case was in charge
of District Attorney Henry C. Attwill.
James J. Thorpe, indicted in Hampden County, INIay,
1914, for the murder of ]\Jary Thorpe, at Holyoke, on April
9, 1914. The defendant was adjudged insane, and was com-
mitted to the Bridgewater State Hospital for observation.
The case was in charge of District Attorney James O'Shea.
Pasquale Torchio, indicted in Plymouth County, Feb-
ruary, 1914, for the murder of Vincenzo Russo, at Brockton,
on Jan. 31, 1914. He was arraigned Feb. 6, 1914, and
pleaded not guilty. John F. McDonald, Esq., and Walter
L Lane, Esq., were assigned by the court as counsel for the
defendant. On June 12, 1914, 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 eight
years nor less than five years. The rase was in charge of
District Attornev Albert F. Barker.
xvi ATTORXEY-GEXERAL'S REPORT. [Jan.
BiASO Valestriko, indicted in Suffolk County, September,
1914, for the murder of Margurito Valestrino, at Boston, on
Aug. 6, 1914. He was arraigned Dec. 12, 1914, 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. John C. Crowley, Esq.,
was assigned by the court as counsel for the defendant.
The case Avas in charge of District Attorney Joseph C.
Pelletier.
The following indictments for murder are now pending: —
Cleophas Blaxchard, indicted in Bristol County,
X'^ovember, 1914, for the murder of Malvina Blanchard.
The defendant has not yet been arraigned. The case is in
charge of District iVttorney Joseph T. Kenney.
Albert H. Brodeur, indicted in Hampden County,
December, 1913, for the murder of Matilda Case, at Spring-
field, on Sept. 20, 1913. He was arraigned March 18, 1914,
and pleaded not guilty. Richard J. iNIorrissey, Esq., was
assigned by the court as counsel for the defendant. Xo
further action has been taken in this case. The case is in
charge of District Attorney Clarence P. X^iles.
Giovanni Cinicolo and Maria Sonzino, indicted in
Suffolk County, October, 1914, for the murder of Antonio
Sonzino, at Boston, on Sept. 17, 1914. They were severally
arraigned Oct. 19, 1914, and pleaded not guilty. Thomas J.
Grady, Esq., and F. ]M. Zottoli, Esq., were assigned by the
court as counsel for the defendants. X^o further action has
been taken in this case. The case is in charge of District
Attorney Joseph C. Pelletier.
Alphonso Collura, indicted in ^Middlesex County
X'ovember, 1914, for the murder of Salvatore Pulsseli, at
Groton, on Oct. 4, 1914. The defendant has not yet been
arraigned. The case is in charge of District Attorney
William J. Corcoran.
1915.] PUBLIC DOCUMENT — No. 12. xvii
Ghvout Moodian, indicted in Middlesex County,
November, 1914, for the murder of Zilfo Alie, at Tyngs-
borough, on Oct. 22, 1914. He was arraigned Nov. 18,
1914, and pleaded not guilty. AV. D. Regan, 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 William J. Corcoran.
John Poulacas, indicted in Hampden County, December,
1914, for the murder of Mary Pappaspiropoulis, at Holyoke,
on Dec. 11, 1914. He was arraigned Dec. 29, 1914, and
pleaded not guilty. James O'Shea, Esq., and Laurence J.
Montgomery, Esq., were 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 Clarence
P. Niles.
Anton Retkovitz, indicted in Bristol County, June, 1914,
for the murder of Domka Peremebida. He was arraigned
June 12, 1914, and pleaded not guilty. Frank M. Silvia,
Esq., and Harold E. Clarkin, Esq., were assigned by the
court as counsel for the defendant. In November, 1914,
the defendant was tried by a jury before Dubuque, J. The
result was a verdict of guilty of murder in the first degree.
The time for filing exceptions by the defendant has been ex-
tended to March 1, 1915. The case is in charge of District
Attorney Joseph T. Kenney.
William Roy, indicted in Hampden County, September,
1914, for the murder of an infant male child, at Springfield,
on Jan. 15, 1914. He was arraigned Sept. 24, 1914, and
pleaded not guilty. John T. ^Nloriarty, 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 Clarence P. Niles.
FiNTON Thompson, indicted in Bristol County, June,
1913, for the murder of Maria Colbaert. No further action
has been taken in this case. The case is in charge of
District Attorney Joseph T. Kenney.
xviii ATTORNEY-GENERAL'S REPORT. [Jan.
Ralph V. Villiers, indicted in Bristol County, June,
1913, for the murder of Charles S. Mawhinney. The de-
fendant has been committed to the Bridgewater State Hospi-
tal pending determination of his sanity. The case is in
charge of District Attorney Joseph T. Ivenney.
Grade Crossings.
Construction has been in progress since the last report at
Clinton, Lynn and Westfield, and eight visits of inspection
have been made by the engineer representing this depart-
ment. Twenty-five hearings before commissioners and
auditors have been attended by him.
Statements of expenditures, numbering 35, amounting to
$1,240,446.85, have been examined. Objection to items,
amounting to $197,095.32, has been made, $68,762.91 of
which has been withdrawn or disallowed, and decisions as to
$81,174.64 are pending. Of objections made in previous
years items amounting to $140,299.59 have been disallowed
or withdrawn.
The following statement shows in detail the expenditures
which have been examined from Jan. 1, 1909, to date, the
amounts objected to and their disposal. During that period
273 statements, amounting to $11,835,998.96, have been
examined. Objections to items, amounting to $703,086.59,
have been made, $328,989.67 of which has been disallowed
or withdrawn, and decisions as to $144,532.94 are pending.
1915.1
PUBLIC DOCUMENT — No. 12.
XIX
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XX ATTORNEY-GENERAL'S REPORT. [Jan.
Service on Commissions.
My immediate predecessor in office, Hon. James M. Swift,
took occasion to protest in the last annual report of this
department against the practice of appointing the Attorney-
General to commissions charged with the investigation of
matters not connected with the work of this department. I
desire to renew that protest. The duties of this ofHce are
confined to legal matters. The work is sufficient to occupy
the entire time of the Attorney-General, and it interferes to a
great degree with the work of the department to have such
additional burdens placed upon him.
During my term of office I have been required to serve as
a member of three commissions. I renew the suggestion of
my predecessor that "all these commissions have the right
to call upon the Attorney-General and his department for
assistance in any matters involving legal considerations in
connection with their deliberations, and I further respect-
fully suggest that the Attorney-General should not be re-
quired to serve as a member of such commissions to the
detriment of the legal work of his department."
Public Warehouses.
A number of complaints have come to this department
against certain unlicensed public warehouses, claiming that
the complainants have no redress against the proprietors, as
they have omitted to give bond as required by chapter 69 of
the Revised Laws. This chapter, although it authorizes
doing business with a license, does not expressly prohibit
doing business without a license, nor does it provide the
means of preventing unauthorized business nor penalties for
the transaction thereof. Accordingly, I recommend the
passage of the accompanying bill in order that chapter 69
may be given full force and effect.
Haverhill Gas Case.
The Haverhill gas case, which had been long pending, and
in which numerous hearings had been had and a great vol-
ume of testimony taken during the administration of my
predecessor, has been closed. In view of the familiarity of
1915.] PUBLIC DOCUMENT — No. 12. xxi
my predecessor with the case I retamed his services therein.
After several further hearings the gas company withdrew its
petition wherein the company sought to enjoin the Board of
Gas and Electric Light Commissioners from enforcing its
order, and the order of the Board, reducing the price of gas
in Haverhill to 80 cents per thousand feet, became there-
upon effective.
Land Court Cases.
This department has handled 68 Land Court cases, in
which the public rights in beaches, great ponds and rivers
were involved.
It was the custom to enter the appearance of the Attorney-
General in such cases, thus frequently holding up deserving
cases until the Attorney-General could be got to assent to the
form of decree. Under my administration a system has
been devised whereby decrees are entered automatically
preserving the public rights, upon the mere filing of the
Attorney-General's answer, without further trouble to this
department or to the parties.
I now recommend that the public rights be protected by
statute. The bill which I propose is declaratory in form, so
as to guard against the courts construing it as an implied
legislative interpretation to the effect that in all past cases
these public rights have been lost.
The statute creating the Land Court provides in effect
that whenever the rights of any one are cut off, without his
neglect, by registration of title in another, the injured party
may sue and recover damages from an assurance fund made
up of small payments by those who register title to their
land. The Land Court was created in 1898, and yet so care-
ful have been its judges and examiners that only one suit has
yet been tried against the assurance fund. It fell to my lot
to defend that suit, and the care of the Land Court was
vindicated by a verdict for the defendant.
Federal Liens.
Congress recently enacted a law to the effect that in any
State which would provide for the registration of Federal
tax liens, such liens should not be effective unless filed in the
registry of deeds. With the income tax now in effect, any
xxii ATTORNEY-GENERAL'S REPORT. [Jan.
purchaser of a parcel of land may find it encumbered by a
Federal lien. To have to look this matter up in the Federal
court is an unnecessary burden on our citizens. The passage
of the accompanying act, modeled after our mechanic's lien
statute, will furnish a simple relief from this burden.
National Mercantile Company, Limited.
This company, having its home office in Vancouver, B. C,
was at the opening of the present administration doing a
quasi lottery business, having two offices in this Common-
wealth and operating in violation of the banking law. This
company was doing a fraudulent business, taking the money
of the poor on the promise of enabling them to buy and own
homes, and was advertising all over the United States that
it was chartered under the "old blue laws" of the State of
iNIassachusetts, "whose rigid supervision and strict juris-
diction over all companies within its boundaries is well
known all over the entire world."
I caused criminal proceedings to be instituted against the
agents of this company, one of whom left the State with
charges pending against himi; the other was convicted and
sentence suspended that he might turn State's evidence.
By decree of the Supreme Judicial Court on Oct. 9, 1914, the
company was enjoined from the further prosecution of its
business in Massachusetts. I have co-operated with the
authorities in other States and given the matter such pub-
licity as I could, as a result of which the Canadian govern-
ment has denied the company the use of the mails, and its
business is now closed.
Notwithstanding our success in prosecuting this company
it is my opinion that the Massachusetts law is at present
inadequate to cope with such a company if it chose to put
up a real fight. Accordingly, I recommend that the Legis-
lature pass the accompanying bill.
Tax Cases.
At the beginning of the present administration there were
pending against the Commonwealth 297 suits by foreign
corporations to recover excise taxes alleged to have been
1915.] PUBLIC DOCUMENT — No. 12. xxiii
illegally assessed, involving $168,962. The preceding ad-
ministration had just won two test cases in the United States
Supreme Court, but these cases did not cover the entire
ground. Accordingly, nine more test cases were presented
at the March sitting of the Supreme Judicial Court. The
decision was handed down Oct. 7, 1914. This decision
establishes, so far as a decision of the Supreme Judicial Court
of the Commonwealth can establish, the right of the Com-
monwealth to tax any foreign corporation that engages in
any local business whatever within its borders. Counsel for
the corporations that were parties to this litigation have,
however, taken out writs of error in the United States
Supreme Court, and accordingly I have not pressed other
cases in the hands of the same counsel. All other remaining
cases have been settled on the basis of the decision of the
Supreme Judicial Court.
A suit by the Bellows Falls Power Company, which was
brought under the previous administration, has been argued
before the Supreme Judicial Court and is still pending.
Anderson Bridge Case.
Among the pending cases at the beginning of this ad-
ministration was the suit of the Brighton Abattoir and one
of its tenants to recover alleged damages for cutting them
off from the sea by the building of the Anderson bridge on
the Charles River without a draw. None of their real estate
was taken, and they are claiming in damages to the land,
which is still intact, a sum several times its assessed value.
I have expended much time and money in resisting
their claim. The case has been on trial before a special
commission of three, appointed by the court, numerous
hearings have been had, and the trial is now nearly com-
pleted.
Pollution of Neponset River.
Progress has been made with the suit that has been for
several years pending against Winslow Bros. & Smith Com-
pany on account of the alleged pollution of the w^aters of
Hawes Brook and Neponset River by the waste from their
plant. After several hearings an agreement has been reached
xxiv ATTORNEY-GENERAL'S REPORT. [Jan.
whereby the company has undertaken to construct the
filter recommended by the engineer of the State Board of
Health, which it is believed will obviate the entire difficulty
so far as this plant is concerned, construction to begin not
later than April 15, 1915.
Publication of the Opinions of the Attorney-General.
I recommend that an appropriation of S2,500 be made for
the purpose of continuing the publication of the opinions of
the Attorney-General, there being now a sufficient number
to fill a volume of ordinary size.
Revision of Statutes.
I also recommend that measures be taken at this session
of the Legislature to provide for the revision, codification
and arrangement of the statutes. I am aware that the time
that has elapsed since the last revision is not so great as has
usually been allowed to elapse between revisions of the
statutes; but if the work of revision is undertaken now it
will be several years before it will be finished. There is
need of revision now and the need will become greater with
each succeeding year. The last general revision, known as
the Revised Laws of Massachusetts, went into effect on the
first day of January, 1902. The resolve providing for that
revision was approved April 28, 1896. Thus it will be seen
that nearly six years elapsed between the date of the adop-
tion of the resolve providing for the revision and the date on
which the Revised Laws went into effect. During the period
between Jan. 1, 1902, and January 1 of the present year the
volume of legislation has been far greater than it has been
during any equal period of time in the history of the Com-
monwealth. During this period there have been many
radical changes in the statutes, both by the amending process
and also by original enactment. It is believed that every
one of the 225 chapters of the Revised Laws has been
affected to some extent by subsequent legislation, and by
far the greater number have been changed in numerous and
important particulars. Statutes amendatory of the Revised
Laws have themselves been again and again amended, so
1915.] PUBLIC DOCUMENT — No. 12. xxv
that it is only by the exercise of great care and the loss of
much time that the exact condition of the statutes may be
ascertained.
Department of the Attorney-General.
The number of official opinions I have given during the
year is 252.
The total number of matters requiring the attention of the
department was 6,356. The number of hearings attended
was 75. The number of cases tried in the Probate Court
was 23. The number of cases tried in the Superior Court
with jury was 3. The number of cases tried in the Superior
Court without jury was 5. One case was tried before the
United States District Court. During the year 18 cases have
been argued before the Supreme Judicial Court of the Com-
monwealth, 1 before the Circuit Court of Appeals of the
United States, and 1 before the Supreme' Court of the United
States.
In closing my official connection with this department I
desire to express my profound appreciation of the loyalty,
fidelity and efficiency of my assistant attorneys-general,
Thomas P. Riley, Esq., Roger Sherman Hoar, Esq., Leon R.
Eyges, Esq., Arthur E. Seagrave, Esq., John W. Corcoran, Esq.
and James J. Bacigalupo, Esq., all of whom have served the
Commonwealth with great ability and devotion; and I wish
further to express my appreciation of the fidelity and effi-
ciency with which all of the employees of the department
have discharged their duties during my incumbency of the
office.
Annexed to this report are such of the opinions rendered
during the current year as it is thought should be published,
and drafts of bills the enactment of which is herein rec-
ommended.
Respectfully submitted,
THOMAS J. BOYNTON,
Attorney-General.
xxvi ATTORNEY-GENERAL'S REPORT. [Jan.
PEOPOSED LEGISLATION.
An Act relative to Public Warehousemen.
Be it enacted, etc., as follows:
Section 1. No person shall keep and maintain a public warehouse
for the storage of goods, wares and merchandise, unless he is licensed
and has given bond under the provisions of section one of chapter
sixty-nine of the Revised Laws.
Section 2. The penalty for Aioiation of the preceding section shall
be not less than ten nor more than two hundred dollars for each day
during which such violation continues, or any other sum, not greater
than the maximum penalty, which the court may deem just and equi-
table. Such penalty may be recovered by an information in equity in
the name of the attorney-general, brought in the supreme judicial
court in the county of Suffolk. Upon such information, the court may
issue an injunction restraining the further maintenance of the ware-
house named therein, until such time as the proprietor shall give a
bond and secure a hcense.
An Act Declaratory of Legal Incidents in Registered Land.
Be it enacted, eic, as follows:
Section 1. The term '' burdens and incidents which attach by
law to unregistered land", as used in section sixty-nine of chapter one
hundred and twenty-eight of the Revised Laws, includes- , and the term
^'encumbrances except those noted in the certificate", as used in sec-
tion thirtj^-eight of said chapter, does not include: public rights below
mean high water mark in land bordering on tide water, public rights
in headlands, public rights in any river or stream or in the bed thereof,
pubhc rights in any great pond or in the use thereof as a great pond
or of access thereto, building restrictions established by pubUc authori-
ties, and all other pubhc rights and incidents inland which need not
appear of record in the registry of deeds, whether such rights and in-
cidents are vested in the pubhc at large or in some portion thereof, or
in the Commonwealth or some constituted authority.
Section 2. This act shall take effect upon its passage.
1915.1 PUBLIC DOCUMENT — No. 12. xxvii
An Act to authorize the Filing of Notices of Federal Tax
Liens with Registrars of Deeds and Assistant Recorders
OF THE Land Court.
Be it enacted, etc., as follows :
Section 1. The notice of a federal tax. lien on real estate under
the pro\'isions of section three thousand one hundred and eighty-six
of the Re\dsed Statutes of the United States, as amended by an act
approved the fourth day of March in the year nineteen hundred and
thirteen, may be filed wdth the register of deeds for the county or dis-
trict wherein the land subject to such lien is situated.
Section 2. Such notice shall be recorded and duly indexed, or,
if intended to affect registered land, shall, in lieu of recording, be filed
and registered in the office of the assistant recorder for the registry
district in which the land is situated.
Section 3. The fee for the fihng and recording or registering of a
notice under this chapter shall be fifty cents.
Section 4. This act shall take effect upon its passage.
An Act to regulate the Business of selling So-called Un-
secured Installment Contracts.
Be it enacted, etc., as follows:
Section 1. Except corporations fulfiUing the requirements of this
chapter, or the agents of such corporations, no person shall transact
witliin the commonwealth, and no domestic corporation unless it ful-
fills the requirements of this chapter, shall transact anj^'here, the
business of selling so-called unsecured installment contracts, herein-
after referred to as "'such business."
Section 2. Wherever they occur in this act, the foilo^\^ng words
shall be construed as follows : —
"Selling" shall mean issuing, negotiating, selling, receiving an order
in reply to which a contract is sent, or dehvering a contract in reply .to
an order.
"Contract" shall mean a bond, note, certificate, contract, obli-
gation, pass-book, or any other chose in action evidenced bj^ writing.
"Installment contract" shall mean a contract for which the contract
payment or purchase price is to be paid, or payable, in installments,
or on which only a partial payment of the contract paj^ment or purchase
price, or of the face, par or capital value is made at the time of selUng.
"Unsecured installment contract" shall mean an installment con-
tract, under which the promise given to the person who paj^s or is to
pay the purchase price or installments, is not, at the time of the per-
formance of the first act comprised mthin the foregoing definition of
"selling," secured by property, real or personal, of a fair cash value of
more than the face, par or capital value of the contract.
xxviii ATTORNEY-GENERAL'S REPORT. [Jan.
''No person shall transact" shall mean that no person shall transact,
or hold himself out as transacting or as entitled, licensed or authorized
to transact.
'^ Person" shall mean person, firm, association, exchange or cor-
poration.
"Holds out" shall mean holds out or permits the holding out of.
"The corporation" shall mean any specific corporation seeking to
transact such business.
"The commissioner" shall mean the bank commissioner, appointed
under the provisions of section one of chapter two hundred and four
of the acts of the year nineteen hundred and six.
Section 3. No corporation shall transact such business unless it
shall have at least one hundred thousand dollars of capital stock fully
paid in. Such capital shall be for the equal benefit and protection of
all its investors and shall be deposited in trust with the treasurer and
receiver-general of the commonwealth, or with the duly authorized
officer of some other state of the United States. Such deposit shall
consist of cash or of state or municipal securities or of securities ap-
proved by the commissioner, and worth at least one hundred thousand
dollars. If the deposit is made wdth the officer of some other state of
the United States, the corporation shall not transact such business,
unless it shall have filed with the commissioner a statement from such
officer under his official seal, showing that he, as such officer, holds
said deposit in trust for the equal benefit and protection of all the
investors in said corporation, describing the items of securities so
held, and showing that such officer is satisfied that said securities are
w^orth one hundred thousand dollars, but such official statement shall
not preclude the commissioner from examining and investigating the
securities so held and from ascertaining himself the value of said
securities. The value as determined by the commissioner shall be
final.
Section 4. A corporation making such deposit with the treasurer
and receiver-general shall be entitled to the income thereof, and may
froin time to time, with the consent of the commissioner, change, in
whole or in part, the deposited securities for cash, or for other securi-
ties of equal value, authorized by this chapter or approved by the
commissioner. The treasurer and receiver-general may return to the
corporation any such deposit, if the commissioner shall state in wTiting
that the corporation has ceased to do business in this state, and is
under no obhgation to any contract-holder or other person in this
state or elsew^here for whose benefit such deposit was made. A cor-
poration that has made such deposit, or the commissioner, or any
creditor, may bring in the supreme judicial Court for Suffolk county a
petition in equity to enforce, administer or terminate the trust created
by such deposit. If such petition is brought by any person other than
the commissioner, the commissioner shafi be named as a party re-
spondent.
1915.] PUBLIC DOCUMENT — No. 12. xxix
Section 5. No corporation shall transact such business, unless it
shall have received from the commissioner a license, issued as follows:
AVhen the deposit has been made or the official statement has been
filed, as required by section three, if the commissioner after an exami-
nation of the assets and liabifities of the corporation, is satisfied that
it is in a sound financial condition, and if the corporation is otherwise
duly qualified under the laws of this state to transact its business
herein, he shall issue to the corporation a license to transact such
business within tliis state. Every ^uch license shall expire on the
thirty-first day of December succeeding the date of its issuance, unless
renewed by the commissioner. The corporation shall pay to the com-
missioner a fee of five dollars for the origmal issuance of each license
and two dollars for each renewal. All fees paid to the commissioner
under the provisions of this chapter shall be accounted for by him in
the same manner as other fees collected by him.
Section 6. Whenever the commissioner may deem it to be prudent
for the protection of investors in this state, he may \isit personally
or by a competent examiner or examiners whom he shall appoint, any
corporation transacting such business, and thoroughly inspect and
examine its affairs, and ascertam its financial condition and whether it
has compUed with the provisions of law. The proper charges incurred
in the examination of the corporation, includmg the expenses of the
commissioner and the expenses and compensation of his assistants
employed therein, shall be paid by the corporation. For the purposes
aforesaid, the commissioner or the person or persons making the ex-
amination shall have free access to all the books and papers of the
corporation which relate to its business, and to the books and papers
kept by any of its agents; and may administer oaths to, and examine
as witnesses, the directors, officers and agents of said corporation, and
any other person, relative to its affairs, transactions and condition.
Section 7. Each corporation transacting such business shall annu-
ally, on or before the fifteenth day of January, file in the office of the
commissioner a report which shall exhibit its financial condition on
the thiriy-first day of December of the previous year, and its business
of that year, and shall at any other time, upon the written request of
the commissioner, file a supplemental report of its financial condition
and business done. For cause, the commissioner may extend the
time for filing the annual report, but not to a date later than the fifteenth
day of February. Such reports shall be in such forms as may be es-
tabhshed from time to time by the commissioner, and shall be sworn
to by the president and secretary of the corporation, or, in their absence,
by two of its principal officers, empowered to act in their stead. For
filing each annual report the corporation shall pay to the commissioner
a fee of five dollars. A corporation which neglects to file its annual
report with the commissioner mthin the lime required, shall forfeit
one hundred dofiars for each day during which such neglect continues.
XXX ATTORNEY-GENERAL'S REPORT. [Jan.
Section 8. If the commissioner is of opinion upon examination
or otherwise that a person who is transacting such business is in an
unsound financial condition, or if he finds that such person has failed
to comply with the law, or that the officers or agents of such person
have refused to submit to examination or to perform any legal obUga-
tion relative thereto, he shall suspend the hcense, if any, granted to
such person, its officers or agents, and shall cause notice of the lack of
authority of such person to transact business to be published in a
newspaper of general circulation in the commonwealth; and no new
business shall thereafter be done by such person in the commonwealth,
or anj^iere in the case of a domestic corporation, while such default
or disabihty continues, nor until the authority of such person to do
business is restored by the commissioner, or by the court as hereinafter
provided. The commissioner shall forthwith notify such person of
such suspension or lack of authority and shall specify in the notice the
cause thereof and the particulars of any alleged violation of law.
The supreme judicial court for Suffolk County, uppn petition in equitj^
by such person brought \\dthin tliirty days after receipt of said notice,
shall hear and determine the question as to whether such person lacks
authority to transact such business or whether cause for suspension
exists, and shall make any appropriate order or decree therein. The
statutes and rules relative to petitions in equity shall govern such
proceedings.
Section 9. The supreme judicial court for Suffolk County shall
have jurisdiction, in equity, on petition of the commissioner or of any
interested person, to enjoin the unauthorized transaction of such
business, to enforce any of the pro\dsions of this chapter, or to ai3point
a receiver or receivers to take possession of the property and effects
of any unlicensed, suspended or financially unsound person, who is
or has been transacting such business, and to settle his affairs, subject
to the order of the court. If such petition is brought by any person
other than the commissioner, the commissioner shall be named as a
party respondent.
Section 10. Whoever sells or attempts to sell an unsecured in-
stallment contract, unless issued by a corporation duly licensed under
this chapter, shall be guilty of a misdemeanor and liable to a fine of
not less than one hundred nor more than one thousand dollars, or to
imprisonment for not more than six months, or to both such fine and
imprisonment.
Section 11. Whoever transacts the business of reselling unsecured
installment contracts, unless issued bj^ a corporation duly licensed
under this chapter, shaU be guilty of a misdemeanor and fiable to a
fine of not less than one hundred nor more than one thousand dollars,
or to imprisonment for not more than six months, or to both such fine
and imprisonment.
Section 12. Whoever does any business act m aid of the transaction
of such business, and whoever holds out liimseK as an agent, agency,
1915.] PUBLIC DOCUMENT — Xo. 12. xxxi
officer, or employee in the transaction of such business, or holds out
his address as an office or place of business in aid of the transaction of
such business, except on behalf of a corporation duly licensed under
tliis chapter, shall be guilty of a misdemeanor, and liable to a fine of
not less than one hundred nor more than one thousand dollars, or to
imprisonment for not more than six months, or to both such fine and
imprisonment.
Section 13. No unsecured installment contract shall be sold in the
commonwealth, or sold anj^vhere by a domestic corporation, unless
it shall provide that, after one-fourth of the total amount of install-
ments therein required has been paid, and in any event after install-
ments for two full years have been paid thereon, in case of default in
the payment of any subsequent installment, the contract shall not be
forfeited, but a paid-up contract shall be given to the holder of the
contract, of not less than the full amount paid thereon less any amount
paid by the person selling the contract on account thereof, said paid-
up contract to mature at the same date as the original contract; and
no such contract shall pro^dde for the payment of profits in the form
of dividends or otherwise, except from earnings, nor for the payment
of airy part of the pajTnents made by the holder of any such contract
in force, to the holder of any other such contract.
Section 14. No unsecured installment contract shall be sold in
the commonwealth, or sold anywhere by a domestic corporation, until
a copy of the form thereof shall have been filed at least thirty days
with the commissioner; nor if the commissioner within said thirty
days notifies the person issuing or filing said copy that in his opinion
said form does not comply with the requirements of the laws of the
commonwealth.
Section 15. The sale of any unsecured installment contract which
does not conform to the requirements of the two preceding sections,
or which is issued by a person not duly hcensed under this chapter,
shall be voidable by the purchaser and the purchaser shall be entitled
to recover from the person selhng the same in an action of contract all
instalhnents paid thereon, vdth. legal interest from the date of each
payment.
Section 16. Any corporation making a report which is false in
any material part, shall be guiltj^ of a misdemeanor and be hable to a
fine of not less than five hundred nor more than five thousand dollars.
Section 17. Whoever wilfully or negligently subscribes or makes
oath to a report which is false in any material part, shall be hable to
a fine of not less than five hundred nor more than five thousand dol-
lars; and whoever wilfully makes oath to a report which is false in
any material part, shall in addition be guilty of perjury.
Section 18. Any person violating any pro\dsion of this chapter
for which no penalty is specificaUy provided shall be punished by a fine
of not more than five hundred dollars.
xxxii ATTORNEY-GENERAL'S REPORT. [Jan. 1915.
Section 19. Nothing contained in tliis chapter shall be construed
as prohibiting sales by agents of corporations duly licensed or as pro-
hibiting the resale of contracts once lawfully sold, except contracts
resold in \dolation of the provisions of section eleven.
Section 20. The proAdsions of this chapter shall not apply to
contracts issued by a person who is subject to the provisions of the
general banking laws or the general insurance laws of this state; nor
to contracts issued by a person for the purpose of raising money for
his principal business, if his principal business is other than the issuance
or seUing of unsecured installment contracts.
Section 21. Nothing contained in this chapter shall be construed
as legalizing a lottery.
Section 22. All acts and parts of acts inconsistent with the pro-
visions of this act are hereby repealed.
Section 23. This act shall take effect upon its passage.
OPINIONS.
Surgery — Unauthorized Operations, when permitted.
A surgical operation which is immediately necessary for the preservation
of life or health may be performed without the consent of the patient
if it is impracticable to secure such consent or the consent of any one
authorized to speak for him.
Jan. 26, 1914.
H. Louis Stick, M.D., Superintendent, Worcester State Asylum.
Dear Sir: — In response to your inquiry in regard to a
surgical operation upon an inmate of your hospital, I have to
say that there is, as you are doubtless well aware, a well settled
rule ot law that in all cases in which a patient is in full possession
of his faculties and able to consult about his condition, his
consent is a necessary prerequisite to a surgical operation by
his physician. In cases where an emergency arises calling for
immediate action for the preservation of life or health of the
patient, and it is impracticable to obtain his consent or the
consent of any one authorized to speak tor him, it is the duty
of the physician to perform such operation as good surgery de-
mands without such consent. The only case that will justify
surgical operation without consent is "necessity for immediate
action for the preservation of life or health." It does not
seem to me that the case you state falls within this class, and,
in my opinion, you should not operate without the consent
of a legally appointed guardian.
Yours respectfully,
Thomas J. Boynton, Attorney-General.
District Police — Transfer to Board of Labor and Industries —
May be retransferred.
St. 1913, c. 610, § 1, providing for appointment by the Governor in case
of vacancies in the two inspection departments of the District Police,
did not repeal St. 1913, c. 424, § 1, permitting inspectors of factories
and public buildings of the District Police who were transferred to
the State Board of Labor and Industries from being transferred to the
building department of the District Pohce to fill vacancies, upon
their request.
2 ATTORXFA'-GENERAL'S REPORT. [Jan.
Jan. 28, 1914.
Gen. J. H. Whitney, Chief of the District Police.
Dear Sir: — You ask my opinion as to whether the pro-
visions of section 1 of chapter 610 of the Acts of 1913 re-
pealed that part of section 1 of chapter 424 of the Acts of
1913 which relates to the transfer of certain inspectors from
the service of the State Board of Labor and Industries to
the building department of the District Police.
That part of section 1 of chapter 424 of the Acts of 1913
to which you refer reads as follows: —
The inspectors of factories and pubUc buildings of the district
pohce who were transferred to the state board of labor and industries,
estabhshed by chapter seven hundred and twenty-six of the acts of
the year nineteen hundred and twelve, shall, upon their request in
writing to the governor, be transferred to the building department
of the district police to fill any vacancies in that department which
may occur after the first day of June in the year nineteen hundred and
thirteen.
This act was approved April 2, 1913, and took effect upon
its passage. That part of said section 1 of chapter 610 of
the Acts of 1913 relating to appointments to the two inspec-
tion departments of the District Police reads as follows: —
All future vacancies in either of the two departmencs estabhshed
by this act shall be filled by the governor, subjec^ to existing laws
governing the appointment of the chief, deputy chiefs and members
of the detective and inspection departments of the district police, by
appointment to the department in which the vacancy occurs.
The last-mentioned act was approved May 8, 1913, and also
took effect upon its passage. The fact that the Legislature
had in mind the provisions of chapter 424 when chapter 610
was enacted was evidenced by the fact that appointments
to be made under the provisions of chapter 610 are to be
made "subject to existing laws governing the appointment
of the chief, deputy chiefs and members of the detective and
inspection departments of the district police."
These words clearly indicate that the Legislature did not
intend to change chapter 424 in so far as it affected the rights
of those inspectors who might desire, upon their written re-
quest to the Governor, to be transferred to the building in-
spection department of the District Police.
1915.] PUBLIC DOCUMENT — No. 12. 3
In case a vacancy occurs in the building department of
the District PoUce, as suggested in your letter, the Governor
may make an appointment in accordance with the provisions
of chapter 610 of the Acts of 1913, but subject, however, to
the right of anj- one who has been an inspector of factories
and public buildings of the District Police, and who has been
transferred to the State Board of Labor and Industries, upon
his request in writing to the Governor, to be appointed to
fill such vacanc}'.
It is my opinion that section 1 of chapter 610 of the Acts
of 1913 did not repeal that part of section 1 of chapter 424
of the Acts of 1913 hereinbefore quoted.
Yours respectfully,
Thomas J. Boynton, Attorney-General.
Employment of Minors — Employment of Women — Stenographers
and Bookkeepers.
Minors who are employed as bookkeepers, stenographers, clerks or clerical
assistants are within the provisions of St. 1913, c. 831, an act regulat-
ing the labor of minors.
The law relative to the employment of women as stenographers, book-
keepers and in similar clerical positions was not changed by St.
1913, c. 758.
Jan. 28, 1914.
Robert N. Turner, Esq., Commissicner of Labor.
Dear Sir: — Referring to your inquiry addressed to this
office under date of Oct. 8, 1913, I understand your first
question to be: Are minors who are employed as bookkeepers,
stenographers, clerks or clerical assistants within the provi-
sions of chapter 831 of the Acts of 1913?
The words of limitation and prohibition in the various
sections of chapter 831 are, *'no minor . . . shall be employed or
permitted to work," and the construction of the statute depends
upon the scope of the words "employed or permitted to work."
The word "employed" has been defined as "the act of
doing a thing and being under contract or orders to do it."
United States v. Morris, 14 Peters, 464, 475. The word may
be further defined as, "involved in action of body or mind;
kept in service."
The word "work" may fairly be said to be a generic term
that includes every kind of human employment.
The manifest purpose of this statute is to carefully limit
the hours of employment of minors and to protect them from
4 . ATTORNEY-GENERAL'S REPORT. [Jan.
the dangers, physical and moral, of certain occupations named
therein. It is my opinion that minors who are within the
ages specified in the various sections of this chapter, and are
employed as bookkeepers, stenographers, clerks or clerical
assistants, are within the provisions of this statute.
Your second question, as I understand it, is: Did the
enactment of chapter 758 of the Acts of 1913 make any change
in the law in regard to the hours of employment of women
who are employed as stenographers, bookkeepers or in other
similar clerical positions?
As suggested in your letter of inquiry, the controlling and
descriptive words in the later statute, "employed in laboring,"
are the same that were used in the earlier one, so that in this
important particular there is no change. It is my opinion
that the law as to the employment of women who are above
the age of twenty-one years as stenographers, bookkeepers
and in other similar clerical positions was not changed by
the enactment of chapter 758 of the Acts of 1913.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Governor — Commutation oj Life Sentence.
The Governor has constitutional authority, with the advice of the Council,
to commute sentences of life imprisonment to imprisonment for a
term of years.
Jan. 28, 1914.
His Excellency David I. Walsh, Governor of the ComrnonweaUh.
Sir: — You request my opinion upon the following ques-
tion: "Have I, under the laws oi this Commonwealth, the
power or right to carry out a recommendation oi the Parole
Board, the Advisory Board of Pardons, which Board after
investigation recommends as follows: that the Governor now
commute a sentence from imprisonment for life to imprison-
ment for the term of twenty years."
The pardoning power is conferred upon the executive power
by the Constitution of the Commonwealth. Article VIII,
section I, chapter II of part the second of the Constitution
provides that —
The power of pardoning offences, except such as persons may be
convicted of before the senate by an impeachment of the house, shall
be in the governor, by and with the advice of council.
1915.] PUBLIC DOCUMENT — No. 12. 5
The words "the power of pardoning offences" are compre-
hensive. They include not onlj- that absolute release from
the penalty which is referred to commonly as a pardon, but
those lesser exercises of clemency which are described as con-
ditional pardon, commutation of sentence and respite of sen-
tence. The only authority for the executive department of
the government to mitigate or release from sentence for crime
is this language of the Constitution. The Governor is clothed
with authority to act in that respect only "by and with the
advice of council." The unmistakable meaning of these
words is that he can act only in conformity to the advice of
the Council. He may decline to take action although the
Council advise him to do so. Responsibility for granting a
pardoji rests upon the Governor, and he cannot be compelled
to take such action by the Council. The granting of a full
or a partial pardon is the result of concurrent action by both
the Governor and Council. Neither alone can take effective
action. Both must agree before the Constitution is satisfied.
The same principle applies whether the act be a complete or
a modified pardon. A commutation of sentence, which is
the substitution of a lighter for a more severe punishment,
is an exercise of the pardoning power, and must be in ac-
cordance with the Constitution. It is an act of the Governor
which becomes effective only when concurred in by the Coun-
cil. See Opinion of the Justices, 14 Mass. 472; Opinion of
the Justices, 210 Mass. 610. **The commutation of a sentence
is a pardon upon condition that the convict voluntarily sub-
mits to a lighter punishment." Opinion of the Justices, 190
Mass. 616, 621.
It is my opinion, therefore, that the Governor may, with
the advice ot the Council, commute the sentence of a prisoner
from life imprisonment to a term sentence, the commutation to
become effective if petitioned for by the prisoner or accepted
by him.
Yours respectiully,
Thomas J. Boynton, Attorney-General.
ATTORNEY-GENERAL'S REPORT. [Jan.
Engineers — Firemen — Special License — Eiwployment —
Vacations.
Under St. 1911, c. 562, § 8, a special license issued to an engineer or fire-
man before the passage of the act becomes null and void whenever
the holder ceases to be employed on the plant specified in said license.
Under St. 1911, c. 562, § 8, the words "ceases to be employed" mean a
complete severance from one's employment, and not absences on
account of a vacation, illness or leave of absence.
Jan. 28, 1914.
Gen. J. H. Whitney, Chief of the District Police.
Dear Sir: — You request my opinion upon certain ques-
tions based upon section 8 of chapter 562 of the Acts of 1911,
which provides as follows: —
This act shall take effect on the first day of January in the year
nineteen hundred and twelve, and a license in force on the first day
of January in the year nineteen hundred and twelve shall continue
in force until it is suspended or revoked for the incompetence or un-
trustworthiness of the licensee, except that a special license shall not
continue in force after the holder thereof ceases to he employed on
the plant specified in the license. A hcense in force on the first day
of January in the year nineteen hundred and twelve may be exchanged
for a license of the same class under this act at any time thereafter,
on application to the boiler inspection department of the district
police, upon forms to be furnished by said department. The appli-
cant shall make oath to the statements contained in the said applica-
tion, and the members of the boiler inspection department of the
district police are hereby authorized to administer the oath.
Your questions are —
First. — A man was granted a special license in 1910, before the
enactment of section 2 of chapter 562, Acts of 1911, which amended
section 81 of chapter 102 of the Revised Laws by striking out the entire
section and inserting a new section in place thereof, part of which
reads as shown in itahcs above. The question now arises Avhether
such licensee, having been licensed prior to the enactment of section 2,
chapter 562, Acts of 1911, comes within the provisions of this clause;
that is to say, whether such license continues in force if he should
cease to be employed on the plant specified thereon, the license ha\dng
been granted prior to such amendment.
Second. — Under the provisions of the statutes, prior to Jan. 1,
1912, it was necessary that an engineer's or fireman's license should
be renewed every three years; but, under the provisions of the statute
above quoted, a license in force on the first day of January, 1912,
continued in force, and, therefore, does not have to be renewed. By
1915.1 PUBLIC DOCUMENT — No. 12. 7
the same provisions a licensee could exchange such license for a new
license if he so desired. In the event of your deciding the first inquiry
in the affirmative, would the fact of such man having exchanged such
license bring him fully within the provisions of the statute above
quoted?
Third. — If such licensee does come within the provisions of the
statute above quoted, so far as relates to the license continuing in
force only so long as he shall continue to be employed on the plant
specified in the license, would the fact of his having been granted a
leave of absence, extending for a period of six months or more for the
purpose of visiting in Europe, be considered as his having ceased to
be employed on the plant specified in the license, although his name
was retained on the roll of employees and he was again employed on
the plant specified immediately upon his return to this country ?
Referring now to your first question, when the Legislature
enacted section 8 above quoted, and provided that "a license
in force on the first day of January in the year nineteen
hundred and twelve shall continue in force until it is suspended
or revoked for the incompetence or untrustworthiness of the
licensee," it very clearly and evidently intended to, and did,
make an exception in regard to special licenses by following
the language last above quoted with these words: "except that
a special license shall not continue in force after the holder thereof
ceases to he employed on the plant specified in the license."
It is my opinion that a special license issued before the
enactment of chapter 562 of the Acts of 1911 becomes null
and void w^henever the holder of it ceases to be employed
on the plant specified therein.
The answer to your second question is included in the
answer to your first, and I assume that as the answer to your
first question is negative, no further answer is required to the
second.
Taking up your third question, I have to say that the words
"ceases to be employed," as used in the statute above quoted,
with reference to the holder of a special license, mean a com-
plete severance from his employment. An employee who is
absent from the plant where he is employed, on a vacation,
on account of illness or on leave of absence, even for a period,
of six months, his name being retained on the roll of em-
ploj^ees. has not, in my opinion, ceased to be employed in
the sense intended by the statute, and his license, therefore^
remains in force.
Yours respectfully,
Thomas J. Boynton, Attorney-General,
ATTORNEY-GENERAL'S REPORT. [Jan.
Agricultural Societies.
Under R. L., c. 124, § 1, providing that certain agricultural societies
may receive bounties from the Commonwealth if not within twelve
miles from the grounds of another such society, the distances should
be computed on the way of travel from one point to another.
Jan. 29, 1914.
State Board of Agriculture.
Gentlemen: — Under date of January 28, you have written
me as follows: —
Referring to section 1 of chapter 124 of the Revised Laws, as
amended by chapter 133 cf the Acts of the year 1909, the State Board
of Agriculture hereby requests your opinion as to whether, in line 6
and again in line 25 of said section, the distance of twelve miles should
be interpreted to mean in a straight line or by the shortest highway
between the two points in question.
The statute in question provides that —
Every incorporated agricultural society which was entitled to bounty
from this commonwealth before the twenty-fifth day of May in the
year eighteen hundred and sixty-six, and every other such society
whose exhibition grounds and buildings are not within twelve miles
of those of a society which was then entitled to bounty
may under certain conditions receive a bounty from the
Commonwealth.
The obvious purpose of establishing the twelve-mile limit
was to prevent the growth of too many of such societies in
the same locality, wdth the consequent division of effort. No
good public purpose would be served by construing this limit
as a bee-line limit. What possible objection could there be
to the existence of two societies ten miles apart in a bee-line
through impassable mountains, although one hundred miles
apart by road! The statute evidently contemplates twelve
miles of farmer's travel, the case being analogous to that of a
statute or court rule providing that depositions may be taken
of witnesses living more than a certain number of miles from
court, which statutes and rules obviously contemplate the dis-
tance that the witness would have to travel. See Jennings
V. Menaugh, 118 Fed. 612, and cases cited.
Our Supreme Judicial Court has held that, in the case of a
statute which prohibits the granting of a liquor license for
1915.] PUBLIC DOCUMENT — Xo. 12. 9
**any building or place on the same street within four hun-
dred feet of any building occupied in whole or in part as a
public school," "the four hundred feet between them are to
be determined by measuring the nearest point of each house
to the other." Commonwealth \. Jones, 142 Mass. 573, 576.
This decision may, however, be differentiated. The four
hundred feet restriction is either purely arbitrary, or at most is
based on a general consideration of the concomitants ot prox-
imity, including sight, smell, noise, the general effect on a neigh-
borhood, as well as mere accessibility. But no consideration
except that of accessibility can well be the reason for a long
limit, such as the twelve-mile distance in the statute in ques-
tion.
It is my opinion, therefore, that the twelve-mile distance
in chapter 133 of the Acts of 1909 is to be computed on the
way of travel from one point to the other.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Justice of the Peace — Notary Public.
An act providing that "all members of the Massachusetts bar are hereby
made justices of the peace and notaries public" would be unconsti-
tutional.
Jan. 31, 1914.
To ike Committee on Legal Affairs.
Gentlemen: — You have requested my opinion as to
whether House Bill No. 515, if enacted, would be constitu-
tional. This bill is in the following terms: —
Section 1. All members of the Massachusetts bar are hereby
made justices of the peace and notaries public, ^\dth all the privileges,
powers and duties belonging to said offices.
Section 2. A certificate from the clerk of the supreme court,
who shall keep a record of such members, shall be proof that the
person mentioned therein is such a member and a justice of the peace
and notary public.
Section 3. This act shall take effect upon its passage.
"By the Constitution of the Commonwealth the office of
justice of the peace is a judicial office." Opinion of the
Justices, 107 Mass. 604.
10 ATTORNEY-GENERAL'S REPORT. [Jan.
Article IX of section I of chapter II of part the second of
the Constitution provides, in part, that —
All judicial officers . . . shall be nominated and appointed l:)y the
governor, by and with the advice and consent of the council.
Article III of chapter III of part the second of the Constitu-
tion provides as follows: —
In order that the people may not suffer from the long continuance
in place of smy justice of the peace who shall fail of discharging the
important duties of his office with abihty or fideUty, all commissions
of justices of the peace shaU expire and become void, in the term of
seven years from their respective dates; and, upon the expiration
of any commission, the same may, if necessary, be renewed, or another
person appointed, as shall most conduce to the well-being of the com-
monwealth.
As to the appointment of notaries public, the fourth amend-
ment to the Constitution provides that —
Notaries public shall be appointed by the governor in the same
manner as judicial officers are appointed, and shall hold their offices
during seven j^ears, unless sooner removed by the governor, with the
consent of the council, upon the address of both houses of the legisla-
ture.
In view of the provisions of the Constitution above quoted,
I have to advise you that in my opinion this bill, if enacted,
would be unconstitutional.
Very truly yours,
Thomas J. Boynton, Attorney-GeneraL
Public Records — Illegitimate Children.
Under R. L., c. 29, § 1, par. 2, it is unlawful for a city or town clerk to
use the term "illegitimate" in the record of a birth of a child unless
the illegitimacy has been legally determined or admitted by the sworn
statement of both the father and mother of the child.
Feb. 2, 1914.
Henry E. Woods, Esq., Coynmissioner of Public Records.
Dear Sir: — You request my opinion in regard to the
record of the birth of a child born to an unmarried woman.
The statute dealing with the subject of registration of births,
paragraph 2 of section 1 of chapter 29 of the Revised Laws,
is as follow^s: —
1915.] PUBLIC DOCUMENT — No. 12. 11
In the record of births, the date of the record, the date of birth,
the place of birth, the name of the child, the sex and color of the child,
the names and places of birth of the parents, including the maiden
name of the mother, the occupation of the father, and the residence
of the parents. In the record of the birth of an illegitimate child the
name of, and other facts relating to, the father shall not be recorded
except at the request in writing of both father and mother. The term
" illegitimate '^ shall not be used in the record of a birth unless the
illegitimacy has been legally determined, or has been admitted by the
sworn statement of both the father and mother.
I note that the town clerk in his letter to you writes : " Now
as a matter of fact this child is illegitimate and must be so
recorded." I respectfully suggest that you call his attention
to the fact that he is forbidden by the statute to use the term
"illegitimate" in the record unless the illegitimacy has been
legally determined or has been admitted by the sworn state-
ment of both the father and mother. I advise that the town
clerk expunge the erroneous record already made, making the
expunging a matter of record, and that he then make a record
oi the birth of the child in accordance with the provisions of
the statute.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Civil Service — Sealer oj Weights and Measures.
R. L. c. 62, § 18, is not repealed by St. 1909, c. 382, in so far as that section
requires annual appointment of sealers and deputy sealers of weights
and measures in cities and towns of over ten thousand inhabitants;
and although such sealers and their deputies are protected by civil
service laws from being lowered in rank or compensation or removal
from office, the term of their office is not extended.
Feb. 5, 1914.
Thure Hanson, Esq., Commissioner of Weights and Measures.
Dear Sir: — You request my opinion upon the following
questions, to wit: —
1. Does section 2 of chapter 382 of the Acts of the year 1909
have the effect of repealing section 18 of chapter 62 of the Revised
Laws in so far as that section requires annual appointment of sealers
and deputy sealers of weights and measures in cities and towns of over
ten thousand inhabitants, who are included in the classified civil
service by the provisions of said chapter 382 of the Acts of 1909?
12 ATTORNEY-GENERAL'S REPORT. [Jan.
2. Are sealers and deputy sealers in cities and towns of over ten
thousand inhabitants protected by existing laws in reference to civil
service, so that they shall be retained in office during good behavior,
regardless of the change of municipal administration?
Chapter 382 of the Acts of 1909 is as follows: —
Section 1. The civil service commissioners may prepare rules,
which shall take effect when approved by the governor and council
in the manner provided by law, for including within the classified
civil service all principal or assistant sealers of weights and measures
holding office by appointment under any city or any town of over ten
thousand inhabitants, whether such officers are heads of principal
departments or not, and also for including within the said service the
inspectors of weights and measures of the commonwealth.
Section 2. All acts and parts of acts inconsistent herewith are
hereby repealed.
Section 18 of chapter 62 of the Revised Laws, to which
you refer, provides as follows: —
The mayor and aldermen of cities and the selectmen of towns shall
annually, in March or April, appoint one or more sealers of weights
and measures, or one sealer and one or more deputy sealers to act under
the direction of the sealer, and they may also appoint gangers of liquid
measures; and may at any time remove such sealers, deputy sealers
and gangers, and appoint others in their places.
Section 18 not being expressly repealed by chapter 382 of
the Acts of 1909 in the particulars to which you refer, the
question arises as to whether it has been repealed by other
legislation, and as to whether it was repealed by that chapter
by implication.
Looking to other legislation, we find that the Legislature of
1904, by chapter 314 of the acts of that year, enacted that —
Every person holding office or emplojTnent in the public service of
the Commonwealth or in any county, city or town thereof, classified
under the civil service rules of the Commonwealth, shall hold such
office or employment and shall not be removed therefrom, lowered in
rank or compensation, or suspended, or, w^ithout his consent, transferred
from such office or employment to any other except for just cause and
for reasons specifically given in writing.
After the passage of this act the cases of Smith v. Mayor
of Haverhill, 187 Mass. 323, and of Lahar v. Eldridge, 190
Mass. 504, were passed upon by the Supreme Court, and it
1915.] PUBLIC DOCUMENT — No. 12. 13
was held that this statute did not extend the term of an
officer appointed for a specified number of years, but related
to the removal or the lowering in rank or compensation, or
suspension or transfer of such an officer within the term for
which he had been appointed. In the first-mentioned case
the court said: —
Any other construction would enlarge an appointment for a terai
of years into a life tenure, provided it was a classified office under the
civil service rules.
This ruling left police officers, in many cities in the Com-
monwealth, to be appointed annually or for some other stated
term. To remedy this condition of affairs as to police officers
chapter 210 of the Acts of 1906 was enacted, providing in
substance that police officers shall hold office during good
behavior; but the operation of that act is limited to police
officers. No similar legislation has been enacted in regard
to sealers of weights and measures and their assistants or
deputies or in regard to inspectors.
By section 1 of chapter 624 of the Acts of 1911 it is pro-
vided that —
Every person now holding or hereafter appointed to an office classi-
fied under the civil service rules of the commonwealth, . . . whether
appointed for a definite or stated term, or otherwise, who is removed
therefrom, lowered in rank or compensation, or suspended, or, without
his consent, transferred from such office or employment to any other,
may . . . bring a petition in the pohce, district or municipal court, etc.
This statute clearly recognizes the fact that appointments in
the classified civil service may be made for a definite or stated
term.
Coming now to the question as to w^hether section 18 of
chapter 62 of the Revised Laws was repealed by chapter 382
of the Acts of 1909 by implication, we find that chapter 382
makes no provision whatever as to the time when or the
term for which appointments shall be made. It is clear that
the provisions of section 18 of chapter 62 of the Revised Laws,
to the effect that "the maj'or and aldermen of cities and the
selectmen of towns shall annually, in March or April, appoint
one or more sealers of weights and measures," etc., are not
inconsistent with the provisions of chapter 382 of the Acts of
1909, and therefore remain in force. I am of the opinion that
14 ATTORNEY-GENERAL'S REPORT. [Jan.
section 2 of chapter 382 of the Acts of 1909 does not have the
effect of repealing section 18 of chapter 62 of the Revised Laws
in so far as that section requires annual appointment of
sealers and deputy sealers of weights and measures in cities
and towns of over ten thousand inhabitants, who are included
in the classified civil service by the provisions of said chapter
382 of the Acts of 1909.
In reply to your second question I have to say that in my
opinion sealers of weights and measures and their deputies
in cities of over ten thousand inhabitants are protected by
existing civil service laws as to being lowered in rank or com-
pensation or removed from office during the term for which
they have been appointed, but, as I have already indicated,
the term of their office is not, in my opinion, extended by
reason of the provisions of chapter 382 of the Acts of the year
1909.
Yours respectfully,
Thomas J. Boynton, Attorney-General.
Corporations — Contracts — Typewritten Signature — Tests of
Samples.
A typewTitten signature of a corporation by a duly authorized agent to
a proposal for a contract is valid.
In case of doubt in the construction of a contract, reference may be had
to the specifications as an aid in ascertaining the intention of the
parties.
"Where a contract for the sale of coal of a certain grade provides that
samples "will be taken until the total quantity amounts to about
1,000 pounds and shall represent not more than 500 tons of coal,"
and the samples are thus taken on deliveries of any part of 500 tons,
if the coal thus tested is below the standard, penalties may be exacted
as the contract provides.
WTiere penalties are exacted under a contract for the sale of coal, of 1 per
cent, in price for every 1 per cent, below the Thermal Unit analysis
specified, the per cent, (including fractions) of price decrease as exactly
equals the per cent, of deficiency, must be calculated.
Feb. 6, 1914.
E. V. ScRiBNER, M.D., Superintendent, Worcester State Hospital.
Dear Sir: — You have requested my advice upon certain
questions that have arisen in regard to a contract made and
entered into on the twenty-eighth day of May, 1913, by the
Commonwealth of Massachusetts, acting by the trustees of
1915.] PUBLIC DOCUMENT — Xo. 12. 15
your institution, party of the first part, and the People's Coal
Company of Worcester, party of the second part, in regard
to the purchase of a quantity of coal by the Commonwealth
from the People's Coal Company, and for the sale and delivery
of said coal to the Commonwealth by said company.
You ask first: "Is this proposal, having only typewritten
signatures, legal?"
Generally speaking, the validity of a signature depends not
upon the instrument but upon the intention with which it
was made. If the intention of the signer is to make a con-
tract or a proposal for a contract a typewritten signature may
be valid and binding. In those cases in which the signature
is made by an agent, and this is necessarily the case whenever
a corporate signature is required, the question always arises
as to the authority of the agent to make the signature. I
assume that in this case the person signing the proposal was
duly authorized to do so by the People's Coal Company, with
the intent to make a valid signature to the proposal, and
therefore that the signature is valid.
Your second question is: "Does the fact that the clause
'Data to establish a basis for payment,' as named on said
proposal, was not incorporated in the contract, eliminate from
consideration the figures therein named, or is said proposal a
part and parcel of said contract?"
While we must look to the contract for a determination
of the rights of the parties to it, still, in case of doubt as to
its construction, reference may be had to the specifications as
an aid in interpreting the contract and in ascertaining the
intention of the parties. Applying this principle to the case
in hand we find in the typewritten contract, under the head of
"Price," on page 3, the following: —
(a) Should the British Thermal Units be less by more than two
per cent. (2%) than those specified in the analysis, the price shall be
decreased one per cent. (1%) tor every one per cent. (1%) they lall
below the said B. T. U. after allowing the said two per cent. (2%).
Here the analysis is distinctly referred to, yet there is no
analysis shown in the contract, and the only analysis known
to have been considered between the parties is the one set
out in the specifications, to which we have to resort to ascer-
tain what the analj^sis referred to is. Referring to the speci-
fications, we find on page 3, under the head "Proximate
Analysis," the following: —
16 ATTORNEY-GENERAL'S REPORT [Jan.
The following is the approximate analysis of the coal it is proposed
to furnish : —
Moisture, .90
Volatile matter, 20.10
Fixed carbon, 73 . 14
Ash, 0.86
B. T. U., 14,961
Sulphur, 1.25
Temperature at which ash fuses, 2700
This analysis, clearly referred to in the contract, and found
in the specifications, undoubtedly affords the proximate stand-
ard of the coal to be furnished to your institution by the
People's Coal Company, and indicates that 14,900 B. T. U.
was adopted as the standard from which percentages were to
be computed. I note your statement that the People's Coal
Company contends that 14,600 B. T. U. is the figure from
which the percentage should be figured. That this construc-
tion is untenable is clearly shown by the specifications, at
page 1, under the heading "Causes for Rejection," and by
the typewritten contract, the language used in the contract
being identical with that used in the specifications, and is as
follows: "Coals containing less than 14,600 B. T. U. shall be
subject to rejection." This part of the contract evidently
means that coal having 14,600 B. T. U. or more may not be
rejected but must be accepted, while coal that runs below
that standard may at the discretion of the trustees be rejected;
in other words, the language last above quoted establishes for
the purpose of this contract the line above w^hich coal must
be accepted, even though at a reduced price, and below which
coal may be actually rejected, and does not and was not in-
tended to fix the basis upon which the percentage for reduction
in price is to be computed.
Your third question is: "Under the heading of 'Sampling'
are these words: 'Such a sample will be taken until the total
quantity amounts to about 1,000 pounds, and shall represent
not more than 500 tons of coal.' If the sample am^ounts to
the required number of pounds, may w^e not penalize, if nec-
essary to exact penalties, on lesser quantities than 500 tons?"
The language of the contract bearing directly upon the
point to w^hich your question is addressed is, " Such a sample
will be taken until the total quantity amounts to about 1,000
pounds, and shall represent not more than 500 tons of coal."
1195.] PUBLIC DOCUMENT — No. 12. 17
The only limitation upon the quantity to be tested is that it
shall not represent more than 500 tons. I am of the opinion
that if the sample amounts to the required number of pounds
you may test any quantity of coal delivered up to 500 tons,
and if the coal thus tested is found to be below the standard
fixed by the contract, may exact such penalties as the con-
tract provides.
I am also requested by H. Louis Stick, M.D., superintend-
ent of the Worcester State Asjdum, to advise as to which of
the following bases the decreases of price should be computed
upon: —
1. One per cent, of price decrease for every 1 per cent, or major
fraction thereof of deficiency of B. T. U.
2. One per cent, for every full 1 per cent, of deficiency.
3. Exactly the same per cent., including fractions of price decrease,
as there is deficienc}^
It is my opinion that such reduction should be computed
in accordance with the third suggestion; that is, the rate per
cent, of decrease in price should be precisel}^ the same, in-
cluding fractions of 1 per cent., as the rate per cent, of defi-
ciency in B. T. U., after allowing the 2 per cent, reduction
provided for in that part of the contract above quoted.
Very trul}^ yours,
Thomas J. Boynton, Attorney-General
Civil Service — Age Limit.
Under St. 1908, c. 375, § 1, a person above the age of fifty years is not
eligible for appointment as inspector of factories and public buildings.
Feb. 9, 1914.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir: — You ask my opinion upon the following ques-
tion: "Is a man, not a veteran, who is above the age of fifty
3'ears and not otherwise disqualified, eligible for appointment
as an inspector of factories and public buildings as a member
of the inspection department of the District Police if he was
placed on the eligible list by the Civil Service Commission
before he was above the age of fiftv years?"
18 ATTORXEY-GEXERAL'S REPORT. [Jan.
Section 1 of chapter 375 of the Acts of 1908 provides that —
A person who is not above the age of fift^^ years, if otherwise quah-
fied, shall be eligible for appointment as an inspector of factories and
public buildings, as a member of the inspection department of the
district police.
This statute is still in force and does not relate to the time
a person passes a civil service examination nor to the time of
going on the eligible list, but to the age of the person at the
time of appointment.
I am of the opinion that this statute makes persons above
the age of fift}^ years ineligible for appointment to the position
of inspector of factories and public buildings, and that the
rule is not affected by the date of the examination for ap-
pointment.
Very trul}' yours,
Thomas J. Boynton, Attorney-General.
Bureau of Statistics — Cities and Towns — Debt Limit — Emer-
gency Appropriations.
Under St. 1912, c. 75, § 1, it is the duty of the director of the Bureau of
Statistics to determine whether certain appropriations of cities or
towns are emergency appropriations within the provisions of St.
1913, c. 719, § 5, cl. lo.
Feb. 11, 1914.
Charles F. Gettemy, Esq., Director of the Bureau of Statistics.
Dear Sir: — The town of Chelmsford having voted ''that
the town borrow the sum of $1,500 on a promissory note for
that amount to be signed in its name and behalf by the town
treasurer, payable in three installments of $500 each in one,
two and three years from date thereof, with interest at a rate
not exceeding 5 per cent, per annum, payable semiannualh',
such note to be countersigned by the selectmen, and the pro-
ceeds used to pay for the purchase of fire hose and equipment
of same for the Chelmsford fire department, to be used by
the town for fire purposes, and that the ownership will be
and remain in the name of the town of Chelmsford, and
that said money is to be expended for the town by a com-
mittee of three, consisting of the present chief of the Chelms-
ford Center fire department, one member of the Chelmsford
Center water board, to be named by said board, and one
1915.1 PUBLIC DOCUMENT — No. 12. 19
other to be named b}' said chief and said member of the
water board," and the treasurer of that town haying for-
warded to you for certification a promissory note of the town
drawn in conformity to this vote, you ask my opinion as to
whether a loan of this character rnay properly be construed
as coming within the authority of clause 15 of section 5 of
chapter 719 of the Acts of 1913.
So far as it relates to your question, the provision of the
section referred to is that —
Cities and tounis may incur debt, within the limit of indebtedness
prescribed in this act, . . .
For extreme emergency appropriations involving the health or
safety of the people or their property.
I do not find that the word "emergency" has been given
any definition in law that takes it out of its ordinary meaning.
The word is defined by Webster as ''any event or occasional
combination of circumstances which calls for immediate action
to remedy pressing necessit}^" The word is further defined
as "a sudden or unexpected happening; an unforeseen occur-
rence or condition." (Century Dictionary.) These definitions
are as useful as any I have found in the books. The words
used in statutes are usually to be understood in their ordinary
signification.
Your authority in the matter of certifying notes of mu-
nicipalities appears to be set forth in section 1 of chapter 45,
Acts of 1912, as follows: —
That said director [referring to the director of the Bureau of Statis-
tics shall not certify any note as provided for in this act if it shall
appear that the provisions of law relating to municipal indebtedness
in the making of said note have not been properly complied with.
Whether a case of extreme emergency exists in any case
like that now under consideration is a question of fact for the
director of the Bureau of Statistics to determine. It is a
matter for investigation. The statutes have, in my opinion,
placed upon your office the authority to decide, and the re-
sponsibility of deciding, the question.
Very truly yours,
Thomas J. Boynton, Attorney-General.
20 ATTORNEY-GENERAL'S REPORT. [Jan.
Constiiutional Law — Liberty of the Press — Drunkenyiess.
A law which forbids the pubHcation of the name of a person arrested for
drunkenness would be unconstitutional.
Feb. 11, 1914.
Committee on Legal Affairs.
Gentlemen: — You have asked my opinion whether House
Bill No. 665 "would interfere with the right of the press to
free publication."
Section 1, which contains the gist of the proposed legisla-
tion, is as follows: —
No person shall print or publish, or cause or permit to be printed
or published, the name of any person arrested, arraigned, or tried for
or convicted of drunkenness, unless such person shall be arrested, ar-
raigned or tried for or con\dcted of some other ofTense in connection
with the offense of drunkenness.
The provision of our Constitution relative to freedom of the
press is as follows: —
The liberty of the press is essential to the security of freedom in a
state; it ought not, therefore, to be restrained in this commonwealth.
(Bill of Rights, Art. XVI.)
Our Supreme Judicial Court has said: —
The obvious intent of this provision was to prevent the enactment
of license laws, or other direct restraints upon publication, leaving
individuals at liberty to print, without the previous permission of any
officer of goverimaent, subject to responsibihty for the matter printed.
Commonwealth v. Kneeland, 20 Pick. 206, 219.
In other words, there can be no censorship of news, even
by general law^s. The intention of that article of the Bill of
Rights was to preserve from interference by legislation or in-
junction in the future, the common-la^v rights of the press as
they then existed. Cooley, Constitutional Limitations, 6th ed.,
pages 512, 513.
There is a fundamental principle of common law that the
publication of legal proceedings is privileged.
^'Though the publication of such proceedings may be to the dis-
advantage of the particular individual concerned, j^et it is of vast
importance to the pubhc that the proceedings of courts of justice
1915.] PUBLIC DOCUMENT — No. 12. 21
should be universally known. The general advantage to the country
in having these proceedings made public, more than counterbalances
the inconveniences to the private persons whose conduct may be the
subject of such proceedings." . . .
The chief advantage to the country which we can discern, and
that which we understand to be intended by the foregoing passage,
is the security which publicity gives for the proper administration of
justice. ... It is desirable that the trial of causes should take place
under the public eye, . . . because it is of the highest moment that
those who administer justice should always act under the sense of
public responsibility, and that everj^ citizen should be able to satisfy
himself with his own eyes as to the mode in which a public duty is
performed. Cowley v. Pulsifer, 137 Mass. 392, 394.
This common-law^ right to publish legal proceedings is pro-
tected by the constitutional provision above quoted.
But under the police power, the Legislature may pass
"statutes required to protect the public morals or general
welfare of the people" without infringing on this right. 8
Cyc. 892.
However, it is difficult to see how the bill in question would
fall within that class of statutes. It is therefore my opinion
that the proposed legislation, if enacted, would be uncon-
stitutional.
Very truly j'ours,
Thomas J. Boynton, Attorney-General.
Labor — Twenty-Jour Hours' Rest in Seven Days.
It is unlawful to permit the taking of inventories by employees during the
twenty-four hour rest period required to be given to employees in
seven consecutive days, under the provisions of St. 1913, c. 619.
Feb. 11, 1914.
Robert N. Turner, Esq., Commissioner of Labor.
Dear Sir: — If I understand your letter of Feb. 6, 1914,
you desire an opinion from this office upon the following
question: —
Are employers of labor in manufacturing estabhshments required by
law to give to persons in their employ who work regularly six days in
a week twenty-four consecutive hours of rest, or may employees who
have worked regularly the six working days of the week be required
to assist in taking an inventory on Sundaj^?
22 ATTORNEY-GENERAL'S REPORT. [Jan.
The law in regard to this question is contained in chapter
619 of the Acts of 1913, which provides as follows: —
Section 1. Every employer of labor, whether a person, partner-
ship or corporation, engaged in carrying on any manufacturing or
mercantile estabhshment in this conunonwealth as hereinafter defined,
shall allow every person, except those specified in section two, employed
in such manufacturing or mercantile establishment at least twenty-
four consecutive hours of rest in every seven consecutive days. No
employer shall operate any such manufacturing or mercantile estab-
lishment on Sunday, unless he shall have complied with the provisions
of section three; but this act shall not authorize any work on Sunday
not now authorized by law.
Section 2. This act shall not apply to (a) janitors; (6) watch-
men; (c) employees whose duties include no work on Sunday other
than (1) setting sponges in bakeries; (2) caring for five animals; (3)
maintaining fires; (4) caring for macliinery; (5) employees engaged
in the preparation, printing, publication, sale or delivery of newspapers;
(6) any labor called for bj^ an emergency that could not reasonably
have been anticipated.
Your question is confined to manufacturing establishments.
The term ''manufacturing establishments" is defined by St.
1909, c. 514, § 17, to 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."
B}' section 5 of chapter 619 of the Acts of 1913 it is pro-
vided that —
In this act "manufacturing establishments" and "mercantile estab-
Ushments" shall have the meaning defined in section seventeen of
chapter five hundred and fourteen of the acts of the year nineteen
hundred and nine, except that neither of said terms shall be held to
include establishments used for the manufacture or distribution of
gas, electricity, milk or water, hotels, restaurants, drug stores, livery
stables, or garages.
I assume that in using the term "manufacturing estab-
lishments" you refer to such establishments as are within
this definition and are not within the exceptions above men-
tioned.
The language of the statute is too clear to admit of a pos-
sible misunderstanding: "every employer of labor, . . . en-
gaged in carrying on an}^ manufacturing or mercantile estab-
1915.] PUBLIC DOCUMENT — No. 12. 23
lishment in this commonwealth as hereinafter defined, shall
allow every person, except those specified in section two,
employed in such manufacturing or mercantile establishment
at least twenty-four consecutive hours of rest in every seven
consecutive days." This is the language of the statute. I
do not know how your question can be more clearly answered.
The language is not ambiguous.
No one regards the work of taking an inventory as rest,
nor can the taking of an inventory in the ordinary course
of business be regarded as *' labor called for by an emergency
that could not reasonably have been anticipated," within the
provisions of section 2 of chapter 619, above quoted.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Newspapers.
A law to prohibit contracts by publishers appointing local sole agents for
the sale of periodicals would be unconstitutional.
Feb. 13, 1914.
Committee on Legal Affairs.
Gentlemen: — Your inquiry of February 12 received rela-
tive to the constitutionality of House Bill No. 229, entitled
" An Act relative to the sale of newspapers and periodicals."
The purpose of this act appears to be to prohibit contracts
by publishers appointing local sole agents for the sale of peri-
odicals.
The Constitution of Massachusetts enumerates among the
natural, inalienable rights of men the right "of acquiring,
possessing, and protecting property." Bill of Rights, Art. I.
The Constitution of the United States protects ''life, liberty
and property." U. S. Const. Amendments, Arts. V and XIV.
These provisions of State and Federal Constitutions pro-
tect freedom of contract. As our Supreme Judicial Court has
expressed it, " the right to acquire, possess and protect prop-
erty includes the right to make reasonable contracts." Com-
vionwealth v. Perry, 155 Mass. 117, 121.
These rights, however, are subject to limitations, arising under the
proper exercise of the police power. . . . The nature of the police
power and its extent, as applied to conceivable cases, cannot easily be
stated with exactness. It includes the right to legislate in the interest
24 ATTORNEY-GENERAL'S REPORT. [Jan.
of the public health, the public safety and the public morals. ... If
we are to include in the definition, as many judges have done, the right
to legislate for the public welfare, this term should be defined with
some strictness, so as not to include everything that might be enacted
on grounds of mere expediency. Commonwealth v. Strauss, 191
Mass. 545, 550.
It is difficult to see how the proposed bill falls within the
police power. The practice which it prohibits is not con-
trary to public policy as laid down in the past by the primary
tribunal of public policy, to wit, the Legislature. The laws
prohibiting contracts w^hich bind a buyer to buy exclusively
of the seller contain provisos expressly excepting contracts of
the sort aimed at in the proposed bill. See the following
quotations : —
But the provisions of this section shall not prohibit the appointment
of agents or sole agents for the sale of, nor the making of contracts
for the exclusive sale of, goods, wares or merchandise. (R. L.,
c. 56, § 1.)
Provided, that nothing in this act shall be construed to prohibit the
appointment of agents or sole agents to sell or lease machinery, tools,
implements or appliances. (St. 1907, c. 469, § 1.)
The Supreme Judicial Court, in holding one of these statutes
constitutional, laid stress on the fact that the statute does
not prohibit the appointment of sole agents, and that it
allows contracts for the exclusive sale of goods. Common-
wealth V. Strauss, supra, p. 551.
There is nothing in the nature of periodicals to distinguish
them from other goods with respect to the practice aimed at
in the proposed bill. A general law^ prohibiting the appoint-
ment of local sole agents would tend to hamper trade without
producing any appreciable general benefit to the citizens of
the Commonwealth.
It is my opinion that the proposed bill, if enacted, would be
unconstitutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
1915.1 PUBLIC DOCUMENT — No. 12. 25
Labor — Eight-hour Day — Contract Work.
On public work for the State, performed outside the Commonwealth,
citizens of this State must be given the preference.
The eight-hour law has no extra-territorial effect.
Feb. 13, 1914.
Hon. P. H. CoRR, Chairman, Board of Panama-Pacific Managers for
Massachusetts.
Dear Sir: — Your Board requests my opinion upon the
following questions, namely: —
1. Is there anything in the Massachusetts laws requiring us to em-
ploy citizens or residents of Massachusetts on contract work of this
kind outside of the State?
2. Is there anything in the Massachusetts laws which requires that
men employed on this kind of work shall not labor more than a certain
number of hours a day?
Taking up your first question, I find that section 21 of
chapter 514 of the Acts of 1909 is as follows: —
In the employment of mechanics and laborers in the construction
of public works by the commonwealth, or by a county, city or town,
or by persons contracting therewith, preference shall be given to citizens
of the commonwealth, and, if they cannot be obtained in sufficient
numbers, then to citizens of the United States; and every contract for
such works shall contain a provision to this effect. Any contractor
who knowingly and walfully violates the provisions of this section shall
be punished by a fine of not more than one hundred dollars for each
offence.
This statute clearly requires that in the construction of
public works by the Commonwealth preference by given (1)
to citizens of this Commonwealth, and (2) to citizens of the
United States. While it is probable that in the enactment
of this statute the Legislature had in contemplation only
public works within the Commonwealth, still, it seems to me
that a building of the kind to be erected, by your Board in
San Francisco may also be considered a public work con-
structed by the Commonwealth, and I am of the opinion that
a contract made by your Board for the construction of such
building should contain the clause provided for in the section
of the statute above quoted. It should not be understood,
how^ever, that such a provision in the contract will obligate
26 ATTORNEY-GENERAL'S REPORT. [Jan.
the contractor to transport men from Massachusetts to San
Francisco, but that it will require the contractor, whenever
a citizen of this Commonwealth desires to work at the same
terms upon which other men are employed by the contractor
in the kind of work applied for, to give such citizen the pref-
erence; that is, generally speaking, that other things being
equal, a citizen of this Commonwealth must be given work
in preference to anybody else, and failing to find a sufficient
number of citizens of Massachusetts to do the work in hand,
the contractor must give a like preference to citizens of the
United States.
Taking up now your second question, I find that sections
1 and 2 of chapter 494 of the Acts of 1911, being the eight-
hour law of this Commonwealth, provide as follows: —
Section 1. The service of all laborers, workmen and mechanics,
now or hereafter employed bj- the commonwealth or by any county
therein or by any city or town which has accepted the provisions of
section twenty of chapter one hundred and six of the Revised Laws,
or of section forty-two of chapter five hundred and fourteen of the acts
of the 3^ear nineteen hundred and nine, or by anj^ contractor or sub-
contractor for or upon any public works of the commonwealth or of
any county therein or of any such city or town, is hereby restricted
to eight hours in any one calendar day, and it shall be unlawful for any
officer of the conmionwealth or of any county therein, or of any such
city or town, or for any such contractor or sub-contractor or other
person whose duty it shall be to employ, direct or control the service
of such laborers, workmen or mechanics to require or permit any such
laborer, workman or mechanic to work more than eight hours in any
one calendar dsLV, except in cases of extraordinary emergency. Danger
to property, life, public safety or public health only shall be considered
cases of extraordinarj^ emergency within the meaning of this section.
In cases where a Saturday half holiday is given the hours of labor upon
the other working days of the week may be increased sufficiently to
make a total of fortj^-eight hours for the week's work. Threat of loss
of employment or to obstruct o'r prevent the obtaining of employment
or to refrain from employing in the future shall each be considered to
be "requiring" within the meaning of this section. Engineers shall
be regarded as mechanics within the meaning of this act.
Section 2. Every contract, excluding contracts for the purchase
of material or supplies, to which the commonwealth or any county
therein or any city or town which has accepted the provisions of section
twenty of chapter one hundred and six of the Revised Laws, is a party
which may involve the emploj^ment of laborers, workmen or mechanics
shall contain a stipulation that no laborer, workman or mechanic
1915.] PUBLIC DOCUMENT — Xo. 12. 27
working ivifhm this commonwealth, in the employ of the contractor,
sub-contractor or other person doing or contracting to do the whole
or a part of the work contemplated by the contractor shall be requested
or required to work more than eight hours in any one calendar day,
and every such contract which does not contain this stipulation shall
be null and void.
The laws of a State have no extra-territorial effect. The
labor laws of California wdll govern as to the hours of labor
that may be required of men in that State. The Legislature
evidently considered this phase of the question in enacting
sections 1 and 2 of chapter 494 of the Acts of 1911 above
quoted. Section 2 expressly provides that "every contract,
excluding contracts for the purchase of material or supplies,
to which the commonwealth ... is a party which may in-
volve the employment of laborers, workmen or mechanics shall
contain a stipulation that no laborer, workman or mechanic
working within this commonwealth shall be required," etc.,
clearly limiting the provisions of this section to work done or
to be done in this Commonwealth. If your Board contracts
to have any work done in this Commonwealth, of course all
the statutes above quoted will certainly apply to all such
contracts.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Board of Registration in Pharmacy — Registered Pharmacists
— Hospitals.
Under St. 1913, c. 705, the Board of Registration in Pharmacy should pass
on each apphcation for a permit to do drug business, and may not
adopt a set of rules to govern generally.
Hospitals and dispensaries need not have registered pharmacists when in
charge of competent physicians.
Feb. 14, 1914.
Mr. Albert J. Brunelle, Secretary, Board of Registration in Pharmacy.
Dear Sir: — You request my opinion upon two ques-
tions: —
1. Whether, under chapter 705 of the Acts of 1913, the Board of
Registration in Pharmacy has the right to adopt rules specifying what
kind of persons, firms and corporations they may deem qualified to
conduct a drug store; and if they do not deem a person, firm or cor-
28 ATTORNEY-GENERAL'S REPORT. [Jan.
poration qualified to conduct a drug store can the Board refuse the
permit designated in said act?
2. Does chapter 76 of the Revised Laws make it necessarj^ for hos-
pitals and dispensaries to have registered pharmacists in charge of
their drug dispensing departments?
Taking up your second question first, I have to say that
in my opinion chapter 76 of the Revised Laws does not make
it necessary for hospitals and dispensaries to have registered
pharmacists in charge of their drug-dispensing departments.
The purpose of the law was to place the dispensing of drugs
and medicines in the hands of persons skilled in that kind of
business, so that it might at all times be intelligently and
safely done. In dispensaries and hospitals this part of the
business is always in the hands of a competent physician
and the need of a registered pharmacist does not exist.
Referring now to your first question, section 3 of chapter
705 of the Acts of 1913 reads as follows: —
The board of registration in pharmacy shall, upon application, issue
a permit to keep open a store for the transaction of the retail drug
business to such persons, firms and corporations as the board may
deem quahfied to conduct such a store. The application for such a
permit shall be made in such manner and in such form as the board
shall determine. A permit issued as herein provided shall be exposed
in a conspicuous place in the store for which the permit is issued and
shall expire on the first day of January follo\\dng the date of its issue.
The fee for the permit shall be one dollar.
Section 4 of the same chapter provides that —
No such permit shall be issued for a corporation to keep open a store
for the transaction of the retail drug business, unless it shall appear
to the satisfaction of the said board that the management of the drug
business in such store is in the hands of a registered pharmacist.
The two sections above quoted place upon the Board of
Registration in Pharmacy the duty of passing upon each ap-
plication for a permit. The statute indicates that the Board
may establish rules as to the form and manner in which ap-
plication for a permit shall be made. As a practical matter
it would be very difficult to establish rules which should deter-
mine w^hether an applicant should have a permit or not. It
is my opinion that the statute requires the Board to act upon
1915.] PUBLIC DOCUMENT — No. 12. 29
each application, and does not authorize the Board to make
a set of rules to stand in the place of its judgment.
You further ask: "Can the Board refuse the permit des-
ignated in said act?" To that I have to say that in my
opinion it is the duty of the Board to refuse a permit to all
persons, firms or corporations who in the judgment of the
Board are not qualified to conduct such a store.
Very truly yours,
Thomas J. Boynton, Attorney-GeneraL
Insurance Commissioner — Insurance Companies — Investments,
The words "funded indebtedness," as used in St. 1907, c. 576, § 37, cl. 3,
are not synonymous with " contingent liability," and investments by
insurance companies in railroad mortgage bonds are lawful where the
capital stock of such railroad corporation equals at least one-third of
its funded indebtedness.
Feb. 16, 1914.
Hon. Frank H. Harbison, Insurance Commissioner.
Dear Sir: — You request my opinion as to the right of
domestic insurance companies to invest in the mortgage bonds
of the Michigan Central Railroad Company under conditions
which you state as follows: "The last published balance sheet
of said railroad showed capital stock of $18,738,000 and
funded debt, including debentures and equipment certificates,
of $43,316,174. This latter figure, however, does not include
$14,000,000 Detroit River Tunnel Company first mortgage
bonds, which are guaranteed principal and interest by the
Michigan Central Railroad, nor does this amount appear in
the balance sheet of the Michigan Central Railroad." You
further state that in practical eft'ect these bonds of the Detroit
River Tunnel Company are an obligation of the Michigan
Central Railroad; since that is the only company that operates
the tunnel, and all payments of interest and principal must
come eventually from it. I am further informed by your
office that the property of the Detroit River Tunnel Company
has been leased to the Michigan Central Railroad Company
for nine hundred and ninety-nine years. You do not state,
however, and I do not know, whether the Detroit River
Tunnel Company still keeps up its corporate existence or has
surrendered its charter. I assume that this company is still
in existence, that it pursues its rights under the lease and
30 ATTORNEY-GENERAL'S REPORT. [Jan.
collects and receives its rentals from the Michigan Central
Railroad Company, and that it is a real corporate entity.
Clause 3 of section 37 of chapter 576 of the Acts of 1907,
quoted in your letter, provides that domestic insurance com-
panies may under certain circumstances invest —
In the bonds or notes of any railroad or street railway corporation
incorporated or located wholly or in part in Massachusetts, or in the
mortgage bonds of any railroad corporation located wholly or in part
in any state of the United States whose capital stock equals at least
one third of its funded indebtedness, which has paid regularly for the
five years next preceding the date of such investment all interest
charges on said funded indebtedness, and which has paid for such
period regularly dividends of at least four per cent per annum upon
all its issues of capital stock, or in the mortgage bonds of any railroad,
railway or terminal corporation which have been, both as to principal
and interest, assumed or guaranteed by any such railroad or railway
corporation.
This leads, first, to the inquiry, What is funded indebted-
ness? The word ''funded" has been defined as, —
Existing in the form of bonds bearing regular interest; constituting
or forming part of the permanent debt of a government or corporation
at a fixed rate of interest. (Century Dictionary.)
The term ''funded debt," "even in common parlance, is
never made use of to describe an ordinary debt growing out
of a transaction with one individual and represented by a
single instrument. It is essential to the idea of a funded debt,
even under the broadest use of the term, that the debt should
be divided into three parts or shares, represented by different
instruments, so that such parts or shares may be readily
transferable." Ketchum v. City of Buffalo, 14 N. Y. 356.
Taking these definitions of the word "funded" in connec-
tion with the w^ord "indebtedness," it becomes evident that
funded indebtedness is a very diiferent thing from contingent
liability. In the question you submit there appears to be
nothing more than a contingent liability of the Michigan
Central Railroad Company so far as the bonds of the Detroit
River Tunnel Company are concerned; that is, the railroad
company will have to pay if the tunnel company fails to
meet its obligation. So far as we are informed, the Detroit
River Tunnel Company is still in existence, and the rentals
1915.] PUBLIC DOCUMENT — Xo. 12. 31
reserved to it in the lease of its property are regularly paid,
and ma}^ be supposed to be sufficient to provide for the pay-
ment of its liabilities. It is my opinion, upon the information
at hand, that the bonds of the Detroit River Tunnel Company
are not a part of the funded indebtedness of the Michigan
Central Railroad Company, and that within the limitations
fixed by our statutes insurance companies may invest in the
mortgage bonds of the Michigan Central Railroad Company.
Very truly yours,
Thomas J. Boynton, Attorney-General.
State Board of Health — Local Boards of Health — Inspectors
of Slaughtering.
A local board of health cannot lawfully nominate one of its own members
as inspector of slaughtering, and the State Board of Health is within
its rights in refusing to approve a nomination so made.
Feb. 17, 1914.
Mark W. Richardson, M.D., Secretary, State Board of Health.
Dear Sir: — You ask my opinion upon certain facts which
in your communication to this department under date of
Oct. 28, 1911, you stated as follows: —
In accordance with chapters 297 and 534 of the Acts of 1911, the
board of health of a certain to\vn has nominated as inspector of
slaughtering one of its omti meml^ers. In other words, two members
of the local board of health have voted for the third to fill this office
as inspector of slaughtering. In this position, the nominee has been
a party to his own appointment to a position in which he will have to
pass upon the character of his own work and upon the amount of the
compensation which he is to derive from it.
The question at issue is, can such an appointment be considered
legal b}^ tliis Board?
The statute conferring authority upon your Board in regard
to the approval of nominations of inspectors of slaughtering
is to be found in section 2 of chapter 534 of the Acts of 1911,
which provides as follows: —
For the purposes of this act inspectors shall be appointed, shall be
compensated, and may be removed in accordance with the provisions
of law^ relating to inspectors of animals. The first appointments under
this act shall be made \\dthin thirty days after its passage.
32 ATTORNEY-GENERAL'S REPORT. [Jan.
By this statute the duties of the State Board of Health in
respect to inspectors of slaughtering are the same that were
imposed by law upon the chief of the Cattle Bureau of the
State Board of Agriculture in respect to inspectors of animals.
The duties of the chief of the Cattle Bureau in this respect
are set forth in chapter 143 of the Acts of 1911, section 1 of
which reads as follows: —
The mayor and aldermen in cities, except Boston, and the selectmen
in towTis shall annually, in March, nominate one or more inspectors
of animals, and before the first day of April shall send to the chief of
the cattle bureau of the state board of agriculture the name, address
and occupation of each nominee. Such nominee shall not be appointed
until approved by the chief of the cattle bureau of the state board of
agriculture. The aforesaid officials of cities and towns may remove
any inspector, and shall thereupon immediately nominate another in
his place and send notice thereof as prescribed above.
The statute last quoted clearly provided that no nominee
could be appointed an inspector of animals until approved by
the chief of the Cattle Bureau, and under the provisions of
the statute above quoted I am of the opinion that a nominee
for the position of inspector of slaughtering cannot be ap-
pointed until he is approved by your Board. I am aware
that since the enactment of the statute last above quoted
the office of chief of the Cattle Bureau has been abolished and
another office created to which the duties of the chief of the
Cattle Bureau and the Board of Cattle Commissioners have
been transferred, but this last-mentioned change in the statute
cannot make any difference as to your authority. As the
law now stands I am of the opinion that the question of ap-
proving or refusing to approve the appointment of an in-
spector of slaughtering is one that rests entirely within the
sound discretion and judgment of your Board.
You state, however, that the claim is made that under the
statute "the only duty which the State Board of Health has
to perform in relation to the approval or disapproval of the
appointment of local inspectors of slaughtering is to pass upon
their qualifications to perform the duties of that office; that
when the State Board of Health is satisfied that any nominee
is by training and experience qualified to fulfil the duties of
the office it has exhausted its power in the matter, and has
no right to question the legality of the act of the local board
of health in nominating one of its own members." I do not
1915] PUBLIC DOCUMENT — No. 12. 33
think the duties of the State Board of Health in respect to
this class of appointments are confined within such narrow
limits; but if it is so, the element of self-interest in the ap-
pointee goes directly to the question of his qualification to
properly discharge the duties of the position. In the case of
Gaw V. Ashley, 195 Mass. 173, where the question was as to
whether under a city ordinance the board of health of the
city of New Bedford could lawfully and properly elect one
of themselves to the office of quarantine physician, the
Supreme Court said: —
We are of opinion that they could not. The ordinance contemplates
the existence of a relation between the physician and the board which
requires that he shall not be a member of it. He is to make frequent
reports to the board, and from time to time is to make recommenda-
tions. His charges to the sick are to be only such as the board ap-
proves. His personal interest in these charges is inconsistent vAih.
the proper performance of liis duty, as a member of the board of health,
to fix their amount, in the interest of the public and for the protection
of his patients.
There is very ancient and high authority for the assertion
that a man cannot serve two masters.
It is my opinion that the action of the State Board of
Health in refusing to approve nominations for the office of
inspector of slaughtering, on the ground that the nominees
were members of the local board of health, w^as legally correct.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Bureau of Statistics — Certification of Town Notes.
Under St. 1913, c. 719, the director of the Bureau of Statistics may certify
notes of a fire district where the district has comphed with the spirit
and purpose of the statute, even though statutory language was not
followed in the vote providing for such notes.
Feb. 19, 1914.
Charles F. Gettemy, Esq., Director of the Bureau of Statistics.
Dear Sir: — You request an opinion from this department
upon the following question: Ought the director of the
Bureau of Statistics to certify under the provisions of chapter
719 of the Acts of 1913 a promissory note of Greenfield Fire
District No. 1, issued in accordance with an article in the
34 ATTORNEY-GENERAL'S REPORT. [Jan.
warrant for a meeting of the voters of said district, and in
accordance with a vote of the meeting held under and by
virtue of said warrant, but which does not expressly provide
that the debt incurred " shall be made payable from the rev-
enue of the financial year in which the same is to be in-
curred "?
You state that the article in the warrant and the vote taken
thereon are as follows: —
Article 4- — To see if the district will vote to l^orrow an}^ sum or
sums of money appropriated under the foregoing articles.
Voted, That the district borrow the sum of five thousand dollars
($5,000), giving a note of the district in payment therefor, signed by
the treasurer and countersigned by the prudential committee, and
paj^able November 1, 1914, with interest not to exceed 4^ per cent
per annum.
The statute, section 3 of chapter 719 of the Acts of 1913,
provides for temporary loans in anticipation of the revenue
of the financial year in which the debt is incurred and ex-
pressly made payable therefrom by such vote.
I gather from your letter that the note submitted for cer-
tification is drawn in accordance with the vote above set
forth.; that the debt represented by the note is incurred for
the only purpose for which the fire district is authorized to
incur debt; and that the only possible way in which it can
be paid at maturity' is from the revenue of the current year.
You further state that **the note seems to all intents and pur-
poses to be a note issued in anticipation of taxes."
The vote did not follow the precise language of the statute,
and the real question is whether this departure from the exact
language of the statute places upon the director of the Bureau
ol Statistics the duty of refusing to certify the note issued in
pursuance of it.
In this instance, although the district did not follow^ the
exact words of the statute, it did follow its spirit and pur-
pose. A very ancient writer has said: —
It is not the words of the .law but the internal sense of it that makes
the law, and our law, like all others, consists of two parts, namely,
of body and soul. The letter of the law is the body of the same, and
the sense and reason of the law are the soul of the law. . . . And it
often happens that when you know the letter j'ou know not the sense,
for sometimes the sense is more confined and contracted than the
letter, and sometimes it is more large and extensive. (2 Plowden, 445.)
1915.] PUBLIC DOCUMENT — No. 12. 35
The intention of the Legislature was to compel the munici-
pal corporations of the State to adopt the policy of paying as
they go, and to restrain them from incurring any debt except
for certain specified purposes.
Greenfield Fire District No. 1 has in this instance complied
with the spirit and purpose of the statute. To refuse to
certify the note in question would put the district to the
trouble and expense of holding another meeting to. pass a vote
slightly different in words from the vote it has already passed
but of exactly the same purpose and intention.
In such cases as this the rule applies that the spirit and
reason of the law will prevail over its letter. It is my opinion
that you may properly and lawfully certify the note in ques-
tion.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Civil Service — Fire Department — Promotion.
Under St. 1913, c. 487, a call fireman is eligible to appointment as a member
of the permanent force of firemen, under certain conditions, without
being subject to civil service rules, but such call fireman carlnot legally
be promoted to the office of captain of such permanent force.
Feb. 19, 1914.
Warren P, Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir: — You ask my opinion upon the following ques-
tion: May a call fireman be appointed captain in a perma-
nent force of firemen, under the provisions of chapter 487 of
the Acts of 1913?
Section 1 of that act provides as follows: —
Cities and towns which have a call or part call fire department which
now is or may hereafter be subject to the civil service rules may, on
the recommendation of the board of engineers of the fire department
or of the officer or board having charge of the fire department, appoint
as members of the permanent force without civil service examination
any persons who have served as call men or part call men for five or
m^ore successive years : provided, that such persons are certified by the
city or town pM'sician to be competent physically for the duty. If
there is no city or iovm physician, then the said certification shall be
made by a phj'-sician designated for the purpose by the board of engi-
neers or other authority, as aforesaid.
36 ATTORNEY-GENERAL'S REPORT. [Jan.
Prior to the enactment of this statute promotion or transfer
from the call to the permanent fire force of a city or town
could be made only after an open competitive examination
(Civil Service Rule No. 38, cl. 2), and the promotion, if
granted, was to the lowest grade of the permanent force. By
section 1 of chapter 487 of the Acts of 1913, above quoted,
five or more successive years of service as a call fireman,
together with the certificate of the city or town physician or
of such other physician as may be designated for the purpose
by the board of engineers or other authority, is substituted
for the competitive examination provided in that part of
Civil Service Rule No. 38 above referred to.
While the question is not entirely free from difficulty, it is
my opinion that the Legislature did not intend to make a
call fireman eligible to appointment as captain in the perma-
nent force, but, subject to the conditions specified in the
statute, to appointment as a member of the permanent fire-
men force; and I am also of the opinion that under the pro-
visions of the statute referred to a call fireman cannot legally
be promoted directly to the office of captain in the permanent
fire-fighting force of a city or town.
It is perhaps needless to say that after a call fireman be-
comes a member of the permanent force he is eligible for
promotion like any other member of that force, in accordance
with the provisions of the Civil Service Rules.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Commissioners on Fisheries and Game — City and Town Clerks
— Custody of Registration Books.
Books of hunters' certificates of registration should be retained by the
respective city and town clerks, and the Commissioners on Fisheries
and Game have no authority to demand their return.
Feb. 24, 1914.
Dr. George W. Field, Chairman, Commissioners on Fisheries and Game.
Dear Sir: — You have requested my opinion upon the
following question: Have the Commissioners on Fisheries
and Game authority, under chapter 614 of the Acts of 1911,
as amended by chapter 379 of the Acts of 1912, to demand
the return to them of books of hunters' certificates of regis-
1915.] PUBLIC DOCUMENT — No. 12. 37
tration furnished by the commissioners to town and city
clerks?
Section 9 of chapter 614 of the Acts of 1911 provides as
follows : —
Every city and to\\Ti clerk shall report all such registration in books
kept for that purpose, wliich books shall be open to public inspection
during the usual office hours of such clerk, and subject to audit and
inspection by the commissioners on fisheries and game, by the state
auditor, or by their agents, at all times; and said clerk shaU, on the
first Monday of every month, pay to the board of commissioners on
fisheries and game all money received by him for the said registrations,
except the recording fees which he is entitled to retain, as provided
in section six, together with a receipted bill for fees due and received
in accordance mth section six of this act, issued during the month
preceding. All remittances shall be made by certified check, United
States post office money order, express money order or lawful money
of the United States. The board of commissioners on fisheries and
game shall, in accordance with the provisions of section fifty-six of
chapter six of the Revised Laws, pay to the treasurer and receiver
general all money received by them for the said registrations issued
during the previous month, and shall furnish him with a list of the
number and kind of registrations recorded by each city and town clerk
during the previous month.
This section makes provision that the books in question
shall be subject "to public inspection during the usual hours
of such clerk," and subject to audit and inspection by the
Commissioners on Fisheries and Game, by the State Auditor
or by their agents, at all times, but does not provide for the
return of the books in question to your commission. The
statute apparently intends that the books shall be retained by
the respective town and city clerks, in whose offices they are
to be open to audit by the proper authorities and to public
inspection.
I am of the opinion that the Commissioners on Fisheries
and Game have not authority to demand the return of books
of hunters' certificates furnished by them to town and city
clerks.
Very truly yours,
Thomas J. Boynton, Attoniey -General.
38 ATTORXEY-GEXERAL'S REPORT. [Jan.
Civil Service — Planning Board of the City of Boston.
St. 1913, c. 494, creating planning boards in cities and providing for ap-
pointments to such boards by the mayors, subject to approval by the
council, does not repeal St. 1909, c. 486, § 9, requiring action by the
Civil Service Commission on Boston appointments.
Feb. 24, 1914.
Warren P. Dudley, Esq., Secretary, Civil Service Commission.
Dear Sir: — You ask my opinion upon the follovi^ing
question: "As the law now stands are appointments by the
mayor of Boston to the planning board of that city to be con-
firmed by the city council or approved by the Civil Service
Commission?" The question is whether chapter 494 of the
Acts of 1913 repealed the provisions of sections 9 and 10 of
chapter 486 of the Acts of 1909 in so far as they relate to
appointments to a city planning board of the city of Boston.
Section 9 of chapter 486 of the Acts of 1909, being the
charter of the city of Boston, is as follows: —
All heads of departments and members of municipal boards, in-
cluding the board of street commissioners, as their present terms of
office expire (but excluding the school committee and those officials
by law appointed by the governor), shall be appointed by the
mayor without confirm.ation by the city council. They shall be
recognized experts in such work as may devolve upon the incumbents
of said offices, or persons specially fitted by education, training or
experience to perform the same, and (except the election com-
missioners, who shall remain subject to the provisions of existing
laws) shall be appointed without regard to party affifiation or to
residence at the time of appointment except as hereinafter provided.
Section 10 of the same chapter, after making provision for
certain forms of certificates of appointment, provides that the
certificate (meaning the certificate of appointment above referred
to) —
shall be filed with the city clerk, who shall thereupon forward a certi-
fied copy to the civil service commission. The commission shall
immediately make a careful inquiry into the qualifications of the
nominee under such rules as the}'' maj', with the consent of the governor
and council, establish, and, if they conclude that he is a competent
person with the requisite qualifications, 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 ap-
1915.] PUBLIC DOCUMENT — No. 12. 39
pointee, and that in their opinion he is a recognized expert, or that he
is quahfied by education, training or experience for said office, as the
case may be, and that they approve the appointment.
This section further provides that upon filing of the certificate
of approval the appointment shall become operative. Section
10 has been amended by chapter 550 of the Acts of 1912, but
not in an}' way affecting the provisions above quoted.
Chapter 494 of the Acts of 191.3 provides that every town
having a population of more than ten thousand at the last
preceding national or State census, and every cit\' in the Com-
monwealth, shall create a board to be known as the planning
board. It further provides that —
In cities, the said board shall be appointed bj^ the mayor, subject
to confirmation by the council, and in cities under a commission form
of government, so called, the members of the board shall be appointed
by the governing bod}^ of the city.
It has been stated as a general rule of law governing such
cases as are suggested by your question, that —
When the provisions of a general law, appUcable to the entire State,
are repugnant to the provisions of a previously enacted special law,
applicable in a particular locality only, the passage of such general
law does not operate to modify or repeal the special law, either in
whole or in part, unless such modification or repeal is provided for
by express words, or arises b}^ necessary imphcation. (Cyc, Vol. 36,
p. 1090.)
The point involved was considered by the Supreme Judicial
Court of this Commonwealth in the case of Broicii v. Loivell,
8 Met. 172, and the court, speaking by Chief Justice Shaw,
said: —
That a subsequent legislative act repeals all prior acts repugnant
to it, is a principle which results from the unlimited nature of legisla-
tive power. The last expression of the legislative will must be carried
into effect, as the law of the land; and if, on its true construction, it
is direct^ repugnant to any prior act, it necessarily annuls it, because
both cannot exist together. But, to have this effect, it must appear
that the legislative \yiU. was so exercised; or, in other words, that it
was the intention of the Legislature, that the subsequent act should
so operate, notmthstanchng any repugnancy to former acts. It may
happen that acts of special legislation may be made in regard to a
place, gro^A-ing out of its peculiar wants, condition, and circumstances;
40 ATTORNEY-GENERAL'S REPORT. [Jan.
as formerly various acts were passed in relation to the town of Boston.
Afterwards, a general act may be passed, having some of the same
purposes in view, extending them generally to all the towns of the
Commonwealth, with provisions adapted to the condition of all towns.
It would be a question depending upon a careful comparison of the
two acts, and the objects intended to be accomplished, whether the
general act must be deemed an imphed repeal of the special prior act.
In general, we should think it would require pretty strong terms in the
general act, shomng that it was intended to supersede the special acts,
in order to hold it to be such a repeal.
This language was referred to and quoted with approval in
Cojjeland v. Springfield, 166 Mass. 498.
In the case last cited the question was whether a provision
of the charter of the city of Springfield, conferring authority
upon the city to cause sidewalks to be made and repaired
and to assess the whole expense upon the abutters, was re-
pealed b}^ the provisions of chapter 444 of the Acts of 1895,
to the effect that the board having power to establish side-
walks in any city may construct or complete walks in any
street where public convenience reciuires it and may assess
upon abutters not more than one-half of the expense.
The court in that case held that the special provision of
the city charter had not been repealed by the later enact-
ment, and cited many authorities.
If the later enactment is evidently intended to supersede
all prior acts of the matter in hand, and to comprise in itself
the sole and complete system of legislation on that subject,
it must, as the last expression of the legislative will, prevail.
Turning now to an examination and comparison of the two
statutes in question, we find that the object and purpose of
chapter 494 of the Acts of 1913 is to provide that cities and
towns shall have a planning board, and that the matter of
confirmation of appointments to such boards is a mere detail
or adjunct to the general plan;- while the object, purpose and
intent of sections 9 and 10 of chapter 486 of the Acts of 1909,
so far as their purpose can be gathered from their language,
was to establish such a system as would insure to the city of
Boston expert service from the heads of all city departments
and from the members of all municipal boards, and to this
end a special system for an examination as to the qualifications
of appointees and approval of appointments to those leading
positions in the government of the city by the Civil Service
Commission was provided for. The purpose, intent and object
1915.] PUBLIC DOCUMENT — No. 12. 41
that prompted the two enactments in question were so widely
different that I cannot believe it to have been the intention of
the Legislature of 1913, in the enactment under consideration,
to make any change in the method of appointment and con-
firmation to any municipal board of the city of Boston.
It is my opinion that appointments to the planning board
of the city of Boston are within the provisions of sections 9
and 10 of chapter 486 of the Acts of 1909, and that your
Board has the same duty and authority as to such appoint-
ments that it has in respect to appointments to other mu-
nicipal boards of that city.
Very truly yours,
Thomas J. Boynton, Atforney-GeneraL
Liquor Law — Licenses rendered void, when — Conviction — -
Appeal.
The provisions of R. L. c. 75, § 107, rendering a liquor license void upon
conviction of the licensee, do not apply while an appeal on conviction
in a lower court is pending,
Feb. 25, 1914.
Mark W. Richardson, M.D., Secretary, State Board of Health.
Dear Sir: — You ask my opinion as to whether a license
granted under the provisions of section 100 of chapter 75 of
the Revised Laws is rendered void by the conviction of the
person holding the license in a police or district court of a
violation of section 106 of said chapter, an appeal from said
conviction having been taken which is still pending.
Section 107 of chapter 75 of the Revised Laws provides
as follows : —
A conviction under the provisions of the preceding section of any
person licensed under the provisions of section one hundred shall
render his license void, and no new license shall be granted to him for
the balance of the term.
The word "conviction," as used in this section, is evidently
used as implying a final judgment and sentence of the court
upon a verdict or confession of guilt. Under the provisions
of the statute last above quoted, the effect of a conviction of
the kind therein named is to deprive the person convicted
of a valuable right without an opportunity for further trial
or investigation. It is very readily apparent that the trial in
42 ATTORXEY-GEXERAL'S REPORT. [Jan.
the appellate court may result in establishing the innocence
of the accused, in which case the license ought not to become
void but to remain in force. It is my opinion that in the
circumstances disclosed by your inquiry the license in ques-
tion does not become void while an appeal is pending.
Very truly yours,
Thomas J. Boynton, AUomey-General.
Labor — Police Officers — Chauffeurs.
Chauffeurs employed as drivers of a police patrol, and receiving pay as
such, are subject to the laws regulating the hours of labor of chauffeurs
and not of police officers, even though they are special police officers
by appointment and serve as such without pay.
Feb. 25, 1914.
Robert N. Turner, Esq., Commissioner of Labor.
Dear Sir: — I have your letter with inquiry from the chief
of police in Xewton in which he says: —
1 am emploj'ing two chauffeurs as drivers of the auto patrol, one
of whom works from 8 a.m. to 6 p.m., the other from 6 p.m. to 8 a.m.
the follo\^^ng morning. These men are citizen operators, but are ap-
pointed special pohce without pay and draw their salaries as chauf-
feurs.
Will j^ou kindh'' inform me if the fact that they are police officers
makes their emplo\Tnent of over eight hours a day legal, or am I violat-
ing the labor law?
The chief of police does not state whether the city of Xewton
has accepted the provisions of the eight-hour law, so called.
I assume, however, that it has done so. As I understand the
letter of the chief the two men mentioned are not employed
as policemen but as chauffeurs, they draw no salary as police
officers but are paid for the work they actually perform, and
are classified on the pay roll as chauffeurs and not as police
officers.
It is my opinion that the hours of labor of these men
should be governed by the kind of service for which they are
actually employed and paid, and the fact that they are special
police officers without pay does not, in my opinion, affect the
number of hours of labor that shall constitute for them a
day's work.
Very truly yours,
Thomas J. Boynton, Attorncy-GeneraL
1915.1 PUBLIC DOCUMENT — Xo. 12. 43
Board of Education — Transportation of Pupils — '* Preceding
Year" defined.
Where towns or cities under St. 1913, c. 396, are required to provide trans-
portation for high school pupils attending school in other towns or
cities, the statute is not to be construed as authorizing towns to pro-
vide board for such pupils.
Under St. 1913, c. 396, the words "the preceding year" refer to the fiscal
school year as used in St. 1913, c. 356.
Feb. 25, 1914.
State Board of Education.
Gentlemen: — You ask for an opinion upon questions that
have arisen with regard to certain provisions of chapter 396
of the Acts of 1913, as follows: —
1. In some instances, parents whose children are attending high
schools in other to^^Tls or cities than that of their residence are asking
school committees to make payment for the board of these children.
Can such a claim be recognized as coming T\dthin the term ''transpor-
tation" as used in the act?
2. A statement is desired as to the meaning of the term ''the
preceding year^' as found in lines 18 and 24 of this act. Does the
year mean the fiscal year of the to\Mi?
In July, 1914, towTis w^ll send to the Board of Education statements
of amounts paid for transportation, under this act, for the school year
ending June 30, 1914; in such a case, is reimbursement to be based
upon the payments from local taxation for schools for the town year
closing before July 1, 1914, or for the town year closing before
July 1, 1913?
Replying to your first question, I have to say that in view
of the statutory rule that "words and phrases shall be con-
strued according to the common and approved usage of the
language," it is my opinion that a claim made by reason of
payment for board of children cannot be recognized as coming
within the term "transportation" as used in the statute above
referred to.
You have also requested a construction of the phrase " the
preceding year" in the same statute.
By another act of 1913, namely, chapter 356, the annual
return by school committees to the State Commissioner of
Education of the amount raised and expended by each town
for school purposes, although made annually at the close of the
school year, refers to the taxes of the last preceding fiscal year.
The statute before me provides, in the case of the amount
paid for out-of-to^vn high school education, for a return
44 ATTORNEY-GENERAL'S REPORT. [Jan.
within thirty days of the expenditure. But as payment be-
tween towns is by custom always made at the close of the
school year, the statutory requirement amounts to a require-
ment for annual returns at the close of each school year.
The statute before me does not provide for annual reim-
bursements, or for any form of returns, in the case of the
amount paid for transportation. Nevertheless, I understand
that, in conformity with the custom as to high school reim-
bursement, and in conformity with the statutory requirement
as to all other returns, the State Commissioner of Education
requires an annual return by school years at the close of each
school year, and makes an annual reimbursement on the basis
of such return.
Thus we have annually at the close of the school year two
returns, one showing the amount paid for transportation
during the last school year, the other showing the amount
expended for the support of public schools during the last
fiscal year. The most reasonable rule would appear to be to
reimburse the towns on the basis of the two returns which
are due together.
Considered in connection with the custom, it is my opinion
that the words "the preceding year," in chapter 396 of the
Acts of 1913, should be construed as referring to the same
year as the words "the fiscal year last preceding the date
of the certificate," in chapter 356.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Cities arid Toums — Ice.
A law enacted by the Legislature authorizing cities and towns to cut,
store and sell ice from reservoirs and ponds owned or controlled by
.such cities and towns would be unconstitutional, and such cities and
towns may not acquire or hold property for such purposes.
Feb. 26, 1914.
To the Honorable Senate and House of Representatives.
Gentlemen: — You have required my opinion upon the
following questions: —
First. — • Is it within the constitutional power of the General Court
to enact a law conferring upon a city or town within the Common-
wealth the power, acting by its water commissioners, to cut, store and
1915.] PUBLIC DOCUMENT — No. 12. 45
sell ice from reservoirs and ponds o^^aied or controlled b}^ such city or
toT^^l in connection with its water supply?
Second. — Is it \\ithin the constitutional power of the General Court
to enact a law conferring upon a city or town within the Common-
wealth the power to cut ice in the reservoirs and ponds owned or con-
trolled by such cit}" or town, and to store the ice and to sell it at whole-
sale or retail, and to fix and collect rates to be paid therefor, and to
acquire by lease or purchase and to hold property, lands and ease-
ments for said purposes?
Third. — Is it within the constitutional power of the General Court
to enact a law conferring upon a city which o^^^lS and operates a system
for supplying its inhabitants with water, acting by its water commis-
sioners, the power to cut ice in the reservoirs, ponds and other sources
of water supply owaied and controlled bj'- such cit}^, and to store the
ice so cut and to sell the same at prices fixed by the water commis-
sioners?
The real question is: May a city be authorized by the
Legislature to cut, store and sell ice from reservoirs, ponds
and other sources of water supply owned or controlled by
such city or town; in other w^ords, may a city or town deal
in ice cut and harvested from reservoirs or ponds which it
owns or controls?
In recent years it has become more and more urgent to
have the municipalities, under legislative sanction, construct,
maintain and operate public utilities, and to regulate the
operation and to control the rates of charges for commodities
furnished or services rendered to the public. In England and
in some of the European countries the scope of municipal
operations has been greatly extended, and these operations
are known under the name of "municipal trading." In the
United States, however, the limitations and restrictions placed
upon legislative authority by the written Constitutions of the
respective States has formed an obstacle w^hich has prevented
the development of municipal trading to any degree that even
attempts to approach the extent to which it has gone in
England. (Dillon on Municipal Corporations.)
The test of constitutionality is whether the service proposed
is a public service.
If such a business as is suggested by these questions is to
be carried on it must be by money raised by taxation, and it
is settled in this Commonwealth "that the Legislature can
authorize a city or town to tax its inhabitants only for public
purposes." Opinion of the Justices, 155 Mass. 598.
46 ATTORNEY-GENERAL'S REPORT. [Jan.
Great difficulty has been found in clearly defining a public
purpose, and in the opinion last cited the learned justices
said: —
It is not easy to determine in every case whether a benefit conferred
upon many individuals in a community can be called a public service
within the meaning of the rule that taxes can be laid only for public
purposes.
Again, the justices of the Supreme Court have said: —
It is impossible to define wdth entire accuracy all the characteristics
which distinguish a public service and a public use from services and
uses that are private. {Opinion of the Justices, 150 Mass. at p. 595.)
The Legislature of 1892 requested the opinion of the jus-
tices of the Supreme Court as to whether the Legislature
could constitutionally authorize a city or tow^n to buy coal
and wood in excess of its ordinary requirements for the pur-
pose of selling such excess to its own citizens. Several ques-
tions of the same import were propounded to the justices.
In response to these inquiries the justices said, in part, that
the question —
must be determined by considering whether the carrying on of such
a business for the benefit of the inhabitants can be regarded as a public
service. This inquiry underlies all the questions on which our opinion
is required. If such a business is to be carried on, it must be with
money raised by taxation. It is settled that the Legislature can
authorize a city or town to tax its inhabitants only for public purposes.
This is not only the law of this Commonwealth, but of the States
generally and of the United States. {Opinion of the Justices, 155
Mass. 601.)
The Legislature of 1903 required the opinion of the justices
upon various questions in regard to the purchase of coal
and w^ood as fuel by a city or town, in excess of its ordi-
nary requirements, for the purpose of selling such excess so
purchased to its inhabitants or others (1) at cost, (2) at less
than cost, or (3) at a profit. In a discussion of the principles
involved the learned justices said: —
There is nothing materially different between the proposed estab-
lishment of a governmental agenc}^ for the sale of fuel and the estab-
lishment of a hke agency for the sale of other articles of daily use. The
business of selhng fuel can be conducted easily by individuals in com-
1915.] PUBLIC DOCUMENT — Xo. 12. 47
petition. It does not require the exercise of any governmental func-
tion, as does the distribution of water, gas and electricity, which in-
volves the use of the public streets and the exercise of the right of
eminent domain. It is not important that it should be conducted as
a single large enterprise with supplies emanating from a single source,
as is required for the economical management of the kinds of business
last mentioned. It does not even call for the investment of a large
capital, but it can be conducted profitably by a single individual of
ordinary means. {Opinion of the Justices, 182 Mass. 605.)
In the opinion last above cited the justices further said: —
Until wdthin a few years it generally has been conceded, not only
that it would not be a public use of money for the government to
expend it in the estabhshment of stores and shops for the purpose of
carrying on a business of manufacturing or selling goods in competi-
tion with individuals, but also that it would be a perversion of the
function of government for the State to enter as a competitor into
the field of industrial enterprise, with a view either to the profit that
could be made through the income to be derived from the business,
or to the indirect gain that might result to purchasers if prices were
reduced by governmental competition. There may be some now who
believe it would be well if business was conducted by the people col-
lectively, living as a community, and represented by the government
in the management of ordinary industrial affairs. But nobody con-
tends that such a system is possible under our Constitution. It is
plain, however, that taxation of the people to establish a city or town
in the proprietorship of an ordinary mercantile or manufacturing busi-
ness would be a long step towards it. If men of property, owning
coal and wood yards, should be compelled to pay taxes for the estab-
lishment of a rival coal yard by a city or town, to furnish fuel at cost,
they would thus be forced to make contributions of money for their
own impoverishment; for if the coal yard of the city or town was
conducted economically, they would be driven out of business. A
similar result would follow if the business of furnishing provisions and
clothing, and other necessaries of life, were taken up by the govern-
ment; and men who now earn a livelihood as proprietors would be
forced to work as employees in stores and shops conducted by the
public authorities. {Opinion of the Justices, 182 Mass. at p. 607.)
In 1907 a bill to authorize the city of Holyoke to ''cut and
harvest ice from any great pond or river in its limits, and from
any ponds or reservoirs used by the municipality as a water
supply, and to store and sell the same at wholesale to the
inhabitants of the city" was submitted by the Governor to
the then Attorney-General, Hon. Dana Malone, whose opinion
48 ATTORNEY-GENERAL'S REPORT. [Jan.
was that the bill referred to could not constitutionally be
enacted.
I am unable to differentiate between the business of dealing
in coal and fuel and other necessaries of life and the business
of cutting, harvesting and selling ice. The fact that in the
instances specified in the questions submitted to me the ice
is to be cut from reservoirs, ponds or other sources of water
supply owned or controlled by the city or town cutting,
storing and selling it, does not, in my opinion, materially
change the legal aspect of these questions.
In view of the opinions of the justices and of my learned
predecessor, above quoted, and of the provisions of the Con-
stitution, I am constrained to the conclusion that all the
questions submitted to me in this inquiry must be answered
in the negative, and that such legislation as is suggested by
these inquiries, if enacted, would be unconstitutional.
Very respectfully,
Thomas J. Botnton, Attorney-General.
State Hospitals — Boards of Trustees — Salaries of Officers —
When subject to Approval of Governor and Council.
Where offices are created in connection with State institutions under St.
1909, c. 504, either directly or by action of the trustees, salaries to be
paid persons holding such offices must be approved by the Governor
and Council.
March 3, 1914.
His Excellency David I. Walsh, Governor of the Commonwealth.
Sir: — You have requested my opinion as to who, among
the appointees of a board of trustees of one of the State hos-
pitals, are persons whose salaries are subject to approval by
the Governor and Council under the provisions of section 18
of chapter 504 of the Acts of 1909. Section 17 of the same
chapter has some bearing upon the answer to your inquiry,
and provides in part as follows: —
The trustees of each institution shall have charge of the general
interests thereof, and shall see that its affairs are conducted according
to law and to the by-laws and regulations established by them.
Section 18 provides as follows: —
They shall appoint a superintendent who shall be a phj^sician and
who shall constantly reside at the institution, assistant physicians,
1915.] PUBLIC DOCUMENT — No. 12. 49
one of whom in each institution for the insane in which women are
received as patients and in which more than two assistant physicians
are employed shall be a woman, and a treasurer who shall give bond for
faithful performance of his duties; shall appoint or make provision in
by-laws for appointing such officers as in their opinion may be neces-
sary for conducting efficiently and economically the business of the
institution; and shall determine, subject to the approval of the gov-
ernor and council, the salaries of all the officers. All their appoint-
ments shall be made in such a manner, with such restrictions and for
such terms, as the by-laws may prescribe. . . . The trustees shall also
establish by-laws and regulations, with suitable penalties, for the gov-
ernment of the institutions, and shall provide for a monthly inspection
and trial of the fire apparatus belonging to the institutions, and for
the proper organization and monthly drill of the officers and employees
in its use.
This question was propounded to one of my predecessors in
office, the Hon. Dana Malone, and I quote his opinion in
full: —
It is evident that the word "officers" is used in the statute in a spe-
cial sense, and that for a position in the hospital to be an "office,"
witliin the meaning of the statute providing that the trustees shall
appoint "such officers as in their opinion may be necessary for con-
ducting efficiently and economically the business of the institution,"
it is not necessary that the position should have all the attributes of an
office considered as a public office.
In my opinion, the intent of the statute is that the Governor and
Council shall have submitted to them for their approval the proposed
compensation of all persons who hold positions in the institution
which are created as positions by the trustees, and who are paid salaries,
as distinguished from those persons who do not hold distinct posi-
tions and are employed for wages.
While I agree with the views and conclusion of my learned
predecessor, I will add that this statute, to my mind, dis-
tinguishes clearly between officers and employees of the in-
stitutions. The statute creates and provides for several offices
in each institution. It establishes the office of superintendent,
of assistant physicians and of treasurer, and it confers upon
the board of trustees authority to create offices in addition to
those specified in the statute, under such title, in such num-
ber and of such character as in their opinion may be necessary
for conducting efficiently and economically the business of
the institution, and also authorizes them to make appoint-
ments to the offices they have created; and under its pro-
50 ATTORNEY-GENERAL'S REPORT. [Jan.
visions the salaries pertaining to offices created by the statute
itself or by act of the board of trustees are all subject to the
approval of the Governor and Council. The by-laws made by
the trustees in pursuance of the provisions of the statute,
or the records of the proceedings of the trustees, should show
every office created by them. If, for instance, the board of
trustees, acting under the authority granted by the statute,
has created the office of chief engineer, the salary attached
to that office is subject to the approval of the Governor and
Council. If, however, the board of trustees has not created
that office, then the Governor and Council have no concern
with the salary paid to the man employed as chief engineer.
In the one case he becomes an officer under the statute, whose
salary must be subject to the approval of the Governor and
Council, and in the other he is simply an employee, with
w^hose salary the Governor and Council have no concern.
I have not the by-laws or other records of proceedings of the
board of trustees before me, and am therefore unable to render
a more definite opinion upon the matter you have in hand.
The question whether the chief engineers or the book-
keepers are officers or employees is, in my opinion, to be de-
termined by reference to the action of the board of trustees
in establishing offices under the statute.
Very truly yours,
Thomas J. Boynton, Attornei/-General.
Board of Education — Residence of Minors for School Purposes.
The word "residence," under St. 1911, c. 471, § 7, relating to applicants
for admission to an industrial, agricultural or household arts school,
means the actual residence of such applicants.
March 10, 1914.
State Board of Education.
Gentlemen: — You have requested my opinion relative to
the meaning of the words "residence" and "resides" as used
in section 7 of chapter 471 of the Acts of 1911. You make
reference in your communication to certain cases of "par-
ticular difficulty," as where pupils who are in attendance upon
the evening industrial school in Boston move to an adjoining
city or town.
Each case of this class depends so much upon its own circumstances
that it is difficult to find authorities for anything more than a few
1915.] PUBLIC DOCUMENT — No. 12. 51
general positions which are plain and well understood." {Sears v.
Bosio7i, 1 Met. 250.)
It is said that one is a resident of a place from which his
departure is indefinite as to time, definite as to purpose; and
for this purpose he has made the place his temporary home.
53 Fed. Rep. 311.
The word ''residence" has been defined as meaning "per-
sonal presence in a fixed and permanent abode." Where a
resident of a particular place goes to another place or country,
the great question whether he has ceased to be a resident of
one place and become a resident of another will depend
mainly upon the question, to be determined from all the cir-
cumstances, whether the new residence is temporary or per-
manent, whether it is occasional, for the purpose of a visit,
or of accomplishing a temporary object, or whether it is for
the purpose of continued residence and abode until some new
resolution be taken to remove. Sears v. Boston, supra.
The word "residence" is used in different senses. Gen-
erally, in the laws relating to taxation, voting and settlement,
it means the same as domicil; and usually it means the same
in the law^ of divorce, although with a well-recognized excep-
tion.
Generally speaking, the question as to what constitutes
residence is mainly a question of fact, and the element of
intention enters into it. The residence must be both actual
and intended. In re Dr. Munroe, 5 Mad. Ch. R. 379.
Actual residence and the intention to remain there permanently or
for an indefinite time without any fixed or certain purpose to return
to the former place of abode are required to constitute a change of
domicil. {Winans v. Winans, 205 Mass. 388, 391.)
And the intention may even be to reside for a definite
term of years, as in the case of a minister (McCrary, Elec-
tions, 559), or of a mechanic, day laborer or student. Lyman
V. Fiske, 17 Pick. 231.
Each successive domicil continues, until changed by acquiring
another. {Opinion of the Justices, 5 Met. 587.)
That is to say, one never has at any given time more than
one place of domicil; and until one's purpose to change his
52 ATTORNEY-GENERAL'S REPORT. [Jan.
place of domicil or residence has become fixed, he cannot be
said to have abandoned a former residence. Oliveri v. Atkin-
son, 168 Mass. 28; Worcester v. Wilbraham, 13 Gray, 586.
Your concern, however, is chiefly as to the residence of
minors. The residence of a minor follows that of the father,
if he is living, and of the mother if the father is dead. Ille-
gitimate children take the residence of the mother. 14 Cyc.
843-4. So that it becomes necessary in many cases that you
consider the residence of the father, or of the mother if the
father is dead.
In the case of a person above the age of twenty-one years
parental support is immaterial unless accompanied by other
facts tending to show legal residence with the parents.
The word "residence" as used in the statutes referred to
in your communication seems to have a somewhat different
signification than in any of the cases I have referred to.
I note your statement to the effect that you have ruled
that "every child shall have a right to attend the public
schools of the city or town where he actually resides," and
that actual residence in a municipality constitutes the appli-
cant a resident, for the purposes of chapter 471 of the Acts
of 1911. I am of the opinion that this rule is correct.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Harbor and Land Commissioners — Jurisdiction over Ice
Cutting on Great Ponds.
The Board of Harbor and Land Commissioners has no jurisdiction over
the cutting of ice on great ponds, but under R. L., c. 96, §§18 and 25,
has authority tq permit ice-harvesting structures to encroach on such
ponds or to abate as nuisances structures erected without a license.
Makch 11, 1914.
Board of Harbor and Land Commissioners.
Gentlemen: — You have inquired whether your Board
has any jurisdiction with reference to the cutting of ice on
great ponds belonging to the Commonwealth.
By the law of Massachusetts, great ponds, not appropriated before
the Colony Ordinance of 1647 to private persons, are pubUc property,
the right of reasonablj^ using and enjoying which, for taking ice for
use or sale, as well as for fishing and fowling, boating, skating, and
other lawful purposes, is common to all, and in the water or ice of which,
or in the land imder them, the owners of the shores have no peculiar
1915.] PUBLIC DOCUMENT — No. 12. 53
rights, except bj^ grant from the Legislature, or bj^ prescription, which
imphes a grant. {Hittinger v. Eames, 121 Mass. 539, 546.)
It is too well settled to be disputed that the property in the great
ponds is in the Commonwealth; that the public have the right to use
them for fishing, fowling, boating, skating, cutting ice for use or sale,
and other lawful purposes ; and that the owners of the shores have no
exclusive rights in them except by a grant of the Legislature. ...
The right to cut ice is common to all the public. {People's Ice
Co. V. Davenport, 149 Mass. 322, 324.)
The right to cut ice therefrom for use or sale is common to all, and
the owners of the shores have no peculiar right in the water or ice, or
in the land under them, except by grant of the Legislature, or by pre-
scription from which a grant is to be implied. {Gage v. Stemkrauss,
131 Mass. 222.)
Persons have "no peculiar title or right in the pond by
virtue of being lessees of an ice house and land upon the
shore." RowcJl v. Doyle, 131 Mass. 474, 476.
I have been unable to find that there has been any delega-
tion by the Legislature to your Board of the powder to limit
the public right to take ice from great ponds. By section 18
of chapter 96 of the Revised Laws your Board may author-
ize the encroachment on great ponds for the purpose of build-
ing structures to be used in ice taking, but such license
would, of course, confer no exclusive right to take ice.
Under section 25 of said chapter your Board can abate
as a nuisance any such structures erected without license.
See Attorney-General Y. Ellis, 198 Mass. 91.
Very truly yours,
Thomas J. Boynton, Attorney-Gerieral.
Board of Registration in Pharmacy — Corporations — Drug
Stores.
Under St. 1913, c. 705, § 4, a drug store, if managed by a registered pharma-
cist, may be owned by a corporation some of whose stockholders are
not registered pharmacists.
March 13, 1914.
State Board of Registration in Pharmacy.
Gentlemen: — In your communication of recent date you
state that "the Board of Registration in Pharmacy has been
petitioned by the Massachusetts State Pharmaceutical Asso-
ciation to refuse permits to such new stores as have among
their stockholders unregistered persons actively engaged in
the business of pharmacy. See § 2, c. 720, Acts of 1913;
54 ATTORNEY-GENERAL'S REPORT. [Jan.
also c. 705, Acts of 1913." And you add that "information
is respectfully asked if the Board can comply with said peti-
tion, provided the store is under the direct supervision of a
registered stockholder."
I take it that your inquiry relates to corporations that de-
sire to open and keep open drug stores, and which have
among their stockholders persons who are not registered
pharmacists but who are nevertheless actively engaged in the
business of pharmacy'.
It is difficult to understand, in view of the provisions of
the law and the penalties involved, how any unregistered
person can now be activel}^ engaged in the business of phar-
macy.
It may be well to consider just what that business is.
"Pharmacy" is defined as meaning —
1. The art or practice of preparing, preserving, and compounding
medicines, and of dispensing them according to the formulae or pre-
scriptions of medical practitioners.
2. The occupation of an apothecary" or pharmaceutical chemist.
3. A place where medicines are prepared and dispensed; a drug
store; an apothecary's shop. (Century Dictionary.)
It will be noted that the definition relates solely to drugs
or medicines and the compounding and dispensing of the
same, and contains no reference to any one of the great num-
ber of articles of ordinary merchandise now to be found on
sale in stores where the business of pharmacy or the drug
business is carried on.
Section 1 of chapter 705 of the Acts of 1913 defines the
term "drug business," as used in that act, as follows: —
The term "drug business" as used in this act shall mean the sale of
opium, morphine, heroin, codeine or other narcotics, or any salt or
compound thereof, or am- preparation containing the same, or cocaine,
alpha or beta eucaine, or any sjmthetic substitute therefor, or any
salt or compound thereof, or any preparation containing the same, and
the said term shall also mean the compounding and dispensing of
physicians' prescriptions.
Said chapter further provides in sections 2, 3 and 4 as
follows: —
Section 2. No store shall be kept open for the transaction of the
retail drug business unless it is registered with and a permit therefor
1915.] PUBLIC DOCUIVIENT — No. 12. 55
has been issued by the board of registration in pharmacy as herein
provided.
Section 3. The board of registration in pharmacj^ shall, upon
application, issue a permit to keep open a store for the transaction of
the retail drug business to such persons, firms and corporations as the
board may deem qualified to conduct such a store. The application for
such a permit shall be made in such manner and in such form as the
board shall determine. A permit issued as herein provided shall be
exposed in a conspicuous place in the store for which the permit is
issued and shall expire on the first day of January following the date of
its issue. The fee for the permit shall be one dollar.
Section 4. No such permit shall be issued for a corporation to keep
open a store for the transaction of the retail drug business, unless it
shall appear to the satisfaction of the said board that the management
of the drug business in such store is in the hands of a registered phar-
macist.
The section last above quoted makes special provision in
regard to permits to corporations, and provides that no such
permit shall be issued to a corporation unless it shall appear
to the satisfaction of your Board that the management of the
drug business in the store of the corporation is in the hands
of a registered pharmacist.
In the sale of the stock of a corporation, some and possibly
a large part of it will naturally pass into the ownership of
persons who are not registered pharmacists. The purpose of
the statute is to protect the public from the dangers that
would be occasioned by the compounding and dispensing of
medicines and drugs by ignorant and unskilled persons. Under
the provisions of section 4 of the statute above quoted it is
clear that if and when it shall appear to the satisfaction of
your Board that the management of the drug business in the
store for which a permit is sought is in the hands of a reg-
istered pharmacist, the measure of safety required by the
law has been attained and the provisions of the statute are
satisfied. It is not to be expected that all the stockholders of
a corporation, even though it be organized for the special
purpose of carrying on the drug business, will be registered
pharmacists; and the fact that some stockholder in such a
corporation is unlawfully engaged in the drug business would
not seem to be a sufficient reason for refusing a permit.
The Board of Registration in Pharmacy is, in my opinion,
required under the statute of 1913 to act in good faith on
each and every application made to it for a permit, and to
56 ATTORNEY-GENERAL'S REPORT. [Jan.
grant permits only to such persons, firms and corporations
as it may deem qualified to conduct a store for the trans-
action of the retail drug business as defined in the statute.
Very truh^ yours,
Thomas J. Boynton, Attorney-General.
Civil Service — Assistant Assessors of the City of Boston.
St. 1913, c. 484, requiring appointments of first assistant assessors in the
city of Boston to be subject to civil service does not affect the pro-
visions of St. 1894, c. 276, relating to assistant assessors other than
first assistants.
March 17, 1914.
Civil Service Commission.
Gentlemen: — You have requested my opinion upon the
following questions: —
First. — Are section 13 of chapter 19 of the Re\4sed Laws and
chapter 276 of the Acts of 1894 inconsistent with the provisions of
chapter 484 of the Acts of 1913, and therefore repealed?
Second. — If the above question is answered in the negative is there
SLiiy violation of said section 13 of chapter 19 of the Revised Laws if,
in its endeavor to carry out the provisions of each of the above-men-
tioned acts relating to the appointment of assistant assessors, the Civil
Ser\ice Commissioners make inquiries of the applicants as to their
politics and certify" to fill vacancies accordingly?
Chapter 276 of the x\cts of 1894 provides as follows: —
In the city of Boston the assistant assessors shall be appointed in
equal numbers from the two leading political parties, for each grade of
assistant, and shall be assigned to the various assessment districts so
that the assistant assessors assigned to any district shall equally repre-
sent such parties.
Section 13 of chapter 19 of the Revised Laws provides in
part : —
No question in any examination shall relate to, and no appointment
to a position or selection for emplo^^nent shall be affected by, political
or religious opinions or affiliations.
Chapter 484 of the Acts of 1913 provides: —
Section 1. All appointments of first assistant assessors in the city
of Boston shall be for an indeterminate period, and shall be subject
to the civil service rules established under the provisions of chapter
1915.] PUBLIC DOCUMENT — Xo. 12. 57
nineteen of the Revised Laws and acts in amendment thereof and in
addition thereto.
Section 2. First assistant assessors in the cit}^ of Boston holding
office at the time of the passage of this act shall continue to hold office
as if appointed under this act.
Section 3. All acts or parts of acts inconsistent herewith are hereby
repealed.
The intention of the Legislature in the enactment of chap-
ter 484 of the Acts of 1913 was, first, to secure the retention
in office of those then holding positions of first assistant
assessors of the city of Boston, and second, to provide that
appointments to those positions should in the future be
made in accordance with the civil service law and the rules
made in pursuance of that law by 3'our commission. Chap-
ter 276 of the Acts of 1894 and chapter 484 of the Acts of
1913 both have relation to the city of Boston and to the
office of first assistant assessors. The purpose and intention
of the later enactment are certainly not consistent w^th the
purpose of chapter 276 of the Acts of 1894, and therefore
repeal the provisions of the earlier statute so far as that
statute relates to the appointment of first assistant assessors.
It is my opinion that this repeal goes no farther than the office
of first assistant assessors, and that assistant assessors other
than the first may be appointed by the mayor of Boston in
accordance with the provisions of chapter 276 of the Acts
of 1894. I am also of the opinion that the provisions of
section 13 of chapter 19 of the Revised Law^s are not affected
or in any way modified by the provisions of chapter 484 of
the Acts of 1913.
Very truly yours,
Thomas J. Boyntox, Attorney-General.
Labor and Industries — Siietion Shuttle.
The use of the suction shuttle in factories, by whatever device it is operated,
is forbidden under St. 1911, c. 281, § 1.
March 17, 1914.
State Board of Labor and Industries.
Gentlemen: — Your communication of March 10, as I
understand it, requests my opinion upon the following ques-
tion: May the proprietor of a cotton factory use the suction
58 ATTORNEY-GENERAL'S REPORT. [Jan.
shuttle, so called, provided he furnishes the employee using
the shuttle with a hook for threading it, making threading
by suction unnecessary?
Section 1 of chapter 281 of the Acts of 1911 provides as
follows : —
It shall be unlawful for anj^ proprietor of a factorj^ or any officer or
agent or other person to require or permit the use of suction shuttles,
or any form of shuttle in the use of which any part of the shuttle or
any thread is put in the mouth or touched by the lips of the operator.
It shall be the duty of the state board of health to enforce the provi-
sions of this act.
The danger attending the use of shuttles of this type
would be avoided by the use of a hook for threading them,
but the Legislature regarded this type of shuttle as so objec-
tionable that it enacted that it should be unlawful for any
proprietor of a factory or any officer or agent or other person
to require or permit its use. A change in the method of
using the shuttle in no way alters the statute. I am of the
opinion that the use of the suction shuttle, by whatever
device it is operated, is unlawful, and will be so until the
statute is changed.
Very truly yours,
Thomas J. Boynton, Aitorney-General.
Board of Agriculture — Prizes.
Under St. 1913, c. 96, the State Board of Agriculture has authority to issue
prizes, in its discretion, for the best system of farm bookkeepiDg and
the best plan of a dairy barn.
M.^BCH 17, 1914.
State Board of Agriculture.
Gentlemen: — You have requested my opinion upon the
following question: Is the Dairy Bureau of the State Board
of Agriculture empowered by chapter 96 of the Resolves of
1913 to award cash prizes for the best system of farm book-
keeping, open to the world, and for the best plan of a dairy
barn, open to the world?
The evident purpose of this resolve is that stated in its
title, — " to provide for the encouragement of dairying and
the production of milk and dairy products of superior qual-
ity." The resolve provides that this may be done by offering
1915.] PUBLIC DOCUMENT — No. 12. 59
prizes: (1) for the best kept stables, (2) the lowest bacteria
counts, (3) the best quality of milk, (4) or otherwise, as the
Board may determine; (5) b}- demonstrations illustrating the
best methods of dairying; (6) by agents who shall instruct the
citizens of the Commonwealth in matters of stable construc-
tion and management and dairy methods in general; (7) by
the distribution of literature giving information in regard to
the best methods of dairying, and especially in regard to the
production of clean milk; and (8) and lastly, "in such other
manner as the Board may deem best for the encouragement
of dairying and the production of clean milk."
This resolution confers upon the Board of Agriculture
authority to proceed in its own discretion, either by the means
suggested in the resolution or by such other means and
methods as in its judgment will in the greatest degree make
for the encouragement of dairying and the production of
milk and dairy products of superior quality. The only limi-
tation upon the exercise of the discretion of the Board is
the necessary one that applies to all cases of the kind, — that
it be exercised in good faith.
The scope of the resolution under which you act in this
matter is limited to the encouragement of dairjdng, etc. It may
be a matter of serious consideration whether a system of farm
bookkeeping falls within the purpose of the resolution. How-
ever, as, in my opinion, your Board is the final judge of that
question, I offer no further suggestion of my own upon this
point.
It is my opinion that if the Board of Agriculture, in the
exercise of its discretion and judgment, believes the purposes
sought by the enactment of chapter 96 of the Resolves of
1913 will be best served by awarding cash prizes for the best
system of farm bookkeeping and for the best plan of a dairy
barn, the competition to be open to the world, it has author-
ity to offer and award such prizes.
Very trul}^ yours,
Thomas J. Boynton, Attorney-General.
60 ATTORNEY-GENERAL'S REPORT. [Jan.
Annulment of Marriage — Payment of Alimony.
Courts cannot make provision for alimony upon annulment of marriage.
March 23, 1914.
Commitlee on Social Welfare.
Gentlemen: — You have requested my opinion upon the
following question: "In case of a petition for nullity of mar-
riage does the court now have power to make provision for
the support of the wife?"
The statute, R. L., c. 151, § 11, provides, among other
things, that in suits for annulling a marriage a libel may be
filed in the same manner as a libel for divorce, and that "all
the provisions of chapter one hundred and fiftj-two relative
to libels for divorce shall, so far as appropriate, apply to
libels under the provisions of this section."
The real question, then, is, "To what extent are the pro-
visions of chapter 152, relative to decrees for the payment of
alimony, appropriate to proceedings for the annulment of a
marriage?"
It may aid us to reach a sound conclusion in regard to this
matter if we consider briefly the character and results of
actions for divorce and actions for nullity. The action for
divorce is based upon the fact of a valid marriage. The action
for nullity is based upon the fact that there has been no
valid marriage. In its consequences a sentence or decree of
nullit}^ differs materially from a decree of divorce. The
latter assumes the validity of the marriage. If the marriage
was not valid, no decree of divorce could be made, and the
operation of the divorce is entirely prospective; while a
decree of nullity is retroactive in that it renders the marriage
void from the beginning, and nullifies all its legal results.
The parties are to be regarded as if no marriage had ever
taken place. They are single persons, if they were single
before. Their rights of property as between themselves are
to be viewed as having never been affected by the marriage.
The right to alimony upon the granting of a decree of
divorce from the bond of matrimony- is purely statutory.
At the common law, alimony was awarded only in those
cases in which the marriage relation continued, that is, in
cases of divorce from bed and board; and no alimony could
be awarded upon a divorce from the bond of matrimony.
Davol V. Davol, 13 Mass. 264; Jones v. Jo7ies, IS Me. 308.
1915.] PUBLIC DOCUMENT — No. 12. 61
Apart from any consideration of our statute, it may be
said that as a general proposition a woman, upon a sentence
of nullity, is not entitled to permanent alimony, although
some authorities hold that. she is entitled to alimony pendente
lite. 2 Bishop on Marriage, Separation and Divorce, § 1597.
This question does not appear to have been passed upon
by our Suprem.e Judicial Court, the nearest approach to it
being found in the case of Adams v. Holt, 214 Mass. 77. It
is worthy of note that counsel for the wife in this case, being
confronted by the question you have propounded and having
occasion to give it most careful consideration, evidently con-
cluded that a claim for alimony could not be sustained, and
therefore asked for compensation for services, which was
refused.
In rendering its decision in the case just referred to the
court said: —
It has been held that relief in the nature of alimony cannot be
afforded except as an incident in connection with a divorce.
And cited Adams v. Adams, 100 Mass. 365; Parker v.
Parker, 211 Mass. 139.
To the same effect are the cases of Page v. Page, 189 Mass.
85, and Shaimon v. Shannon, 2 Gray, 285.
While these cases may be said not to be absolutely con-
clusive in regard to the question before me, inasmuch as
none of them presented precisely the same issue, still, the
trend of the Massachusetts decisions referred to, when taken
into consideration with the essential differences between an
action for divorce and an action for annulment of marriage,
the difference in results between decrees for divorce and
decrees of nullity, and the fact that alimony is incident to
suits for divorce and is not incident to suits of nullity, are
certainly sufficient to create very grave doubt as to whether
alimony can be granted in an action of nullity.
I am of the opinion that the provisions of our statute in
regard to alimony are not appropriate to an action of nullity,
and that for this reason the court in actions of nullity cannot
make provision for the support of the wife. The question is
not, however, free from difficulty, and the bill submitted with
your question would undoubtedly clear this question of all
doubt and uncertainty.
Very trul}^ yours,
Thomas J. Boynton, Attorney -General.
62 ATTORNEY-GENERAL'S REPORT. [Jan.
Constitutional Law — Liberty of the Press — Publication of
Names of Drugs taken with Suicidal Intent.
A law prohibiting the pubhcation of the name of any drug, chemical, etc.,
taken with suicidal intent would be unconstitutional as interfering
with the Hberty of the press.
March 24, 1914.
Committee on the Judiciary, House of Representatives.
Gentlemen: — You have requested my opinion as to
whether House Bill No. 1145, if enacted, would be con-
stitutional.
The proposed bill reads as follows: —
Whoever publishes, or causes to be published, in any newspaper or
magazine, or in any other public manner, the name of any drug, chem-
ical, or medicinal preparation when the same has been taken by any
person with suicidal intent, or when any such drug, chemical or medi-
cinal preparation has been intentionally or unintentionally administered
or applied to any human being or beast, shall be punished b}^ a fine of
not less than ten dollars and not more than one hundred dollars, or
shall be imprisoned in a jail or house of correction for a term not ex-
ceeding one year, or shall be punished by both such fine and imprison-
ment.
The question presented is whether this bill, if enacted,
will be an unlawful interference with the liberty of the press.
By the first amendment of the Constitution of the United
States the liberty of the press is secured against restraint, it
being provided that Congress shall make no law abridging
the freedom of speech or of the press. The Constitution of
this Commonw^ealth, by Article XVI. of the Declaration of
Rights, secures the liberty of the press in the following
language: —
The liberty of the press is essential to the securit}" of freedom in a
state: it ought not, therefore, to be restrained in this commonwealth.
Notwithstanding the fact that the liberty of the press is
thus secured against restraint, it is true that it is a right that
may not be abused. He who uses it is responsible for its
abuse.
The liberty of the press, not its licentiousness, is the construction
which a just regard to the other parts of the Constitution and to the
wisdom of those who framed it, requires. {Commonwealth v. Blanding,
3 Pick. 304.)
1915.] PUBLIC DOCUMENT — No. 12. 63
That the licentiousness of the press, not its liberty, may be
restrained by the exercise of the police power seems to be
well settled, as in the familiar instances forbidding the pub-
lication and sale of a newspaper devoted to the publication
of scandal and immorality, of the prohibition of blasphemous
publications, the exclusion of obscene matter from the mails,
and various other enactments. It has ever been the aim of
our government to maintain and preserve to the press the
full enjoyment of the right secured to it by the Constitution,
and to restrain and prevent the abuse of that right. Our
problem is to determine how far this right extends; to locate
the line of demarcation at which liberty leaves off and where
license begins.
It may be said by way of premise that the phrase "liberty
of the press" includes a great deal more than the right to
discuss freely political and governmental questions. It is a
right the enjoyment of which is not confined solely to those
who publish books, pamphlets and periodicals. It embodies
the right of every individual citizen to be informed. Liberty
of speech and of the press is the liberty to know, to utter, to
publish and to argue freely upon all questions of public in-
terest, whether political, religious, social, moral, literary,
scientific, industrial or financial. Necessarily the field of use-
fulness and of responsibility of the press increases with every
advance of human knowledge. The position occupied by the
press in the modern social and business world has been well
described, and its legal limitations to a great degree indicated,
by Judge Cooley in his work on Constitutional Limitations,
wherein, speaking of the press, he says: —
Through it, and by means of the electric telegraph, the public pro-
ceedings of every civilized countr}^, the debates of the leading legis-
lative bodies, the events of war, the triumphs of peace, the storms in
the phj^sical world, and the agitations in the moral and mental, are
brought home to the knowledge of every reading person, and, to a
verj^ large extent, before the day is over on which the events have taken
place. And not public events merely are discussed and described, but
the actions and words of public men are made public property; and
any person sufficiently eminent or notorious to become an object of
pubhc interest will find his movements chronicled in this index of the
times. Every party has its newspaper organs; every shade of opinion
on political, religious, literary, moral, industrial, or financial questions
has its representative; every locality has its press to advocate its claims
and advance its interests, and even the days regarded as sacred have
64 ATTORNEY-GENERAL'S REPORT. [Jan.
their special papers to furnish reading suitable for the time. The news-
paper is also the medium by means of which all classes of the people
communicate T^ath each other concerning their wants and desires, and
through which thej^ offer their wares and seek bargains. As it has
gradually increased in value, and in the extent and variety of its con-
tents, so the exactions of the communitj^ upon its conductors have
also increased, until it is demanded of the newspaper publisher that he
shall daily spread before his readers a complete summary of the events
transpiring in the world, public or private, so far as those readers can
reasonably be supposed to take an interest in them; and he who does
not comply ^ath this demand must give wsiy to him who will.
The newspaper is also one of the chief means for the education of
the people. The highest and the lowest in the scale of intelligence
resort to its columns for information; it is read bj^ those who read
nothing else, and the best minds of the age make it the medium of
communication \\ath each other on the highest and most abstruse
subjects.
The proposed bill, if enacted, will certainly trench upon
some of the functions of a free press as described in the
passage last above quoted. This measure, if enacted, w^ill
prohibit to some extent the spread of information beneficial
to many people by showing them w^hat to avoid in the use of
drugs, chemicals and medicinal preparations. It will tend,
also, to prevent the dissemination not only of know^ledge
about poisons, but of their antidotes as well. Its effect
would be to prevent in some measure the publication of those
precautionary suggestions that appear in the press in cases
where poison is administered or taken by mistake, — sugges-
tions that are really useful to many members of society. If
it be said that some misguided or w^eak-minded persons make
bad use of the information contained in publications which it
is the purpose of this bill to prevent, the answer is that every
kind of useful knowledge is at times misused and abused, to
the great injury of individuals and of the community.
This measure must be considered in the light of the rule
that —
The constitutional libertj^ of speech and of the press, as we under-
stand it, implies a right to freely utter and publish whatever the citizen
may please, and to be protected against any responsibihty for so doing,
except so far as such pubhcations, from their blasphemy, obscenity,
or scandalous character, may be a public offence, or as by their false-
hood and malice they may injuriously affect the standing, reputation,
or pecuniary interests of individuals. (Gooley on Constitutional
Limitations, 5th ed., p. 521.)
1915.] PUBLIC DOCUMENT — Xo. 12. 65
Entertaining no doubt whatever that the press may be
held in check whenever its publications violate the rule above
stated, I am of the opinion that the measure you have sub-
mitted to me is obnoxious to the provisions of the Con-
stitution securing the liberty of the press, and that if enacted
it would be unconstitutional.
Very truly yours,
Thomas J. Boynton, Attorney-GeneraL
Milk and Cream — Sealed Bottles — Use for Other Purposes.
Under R. L., c. 62, § 43, as amended by St. 1909, c. 531, it is not unlawful
to make use of glass bottles and jars which have been sealed as measures
of milk and cream for other purposes, but they may not be used again
as such measures without being resealed.
March 30, 1914.
Commissioner of Weights and Measures.
Dear Sir: — You have requested my opinion upon the
following question: Is it lawful for an}^ person or firm to use
a bottle which is marked according to the provisions of sec-
tion 43 of chapter 62 of the Revised Law^s for any other
purpose than that of the sale of milk or cream?
Section 43 of chapter 62 of the Revised Laws, as amended
by chapter 531 of the Acts of 1909, provides in part as
follows : —
Glass bottles or jars which are used for the distribution of milk
or cream to consumers, . . . shall be sealed as measures under the
pro\dsions of section twenty-one or by the manufacturer. All dealers
in milk or cream who use glass bottles or jars for the distribution
of milk or cream to consumers, which have not been sealed by the
manufacturer, shall bring in such bottles or jars to the office of the
sealer of weights and measures in their respective cities and towms, to be
sealed as aforesaid; but no fee shall be charged or received for sealing
them. If a bottle or jar has once been sealed bj^ the sealer of weights
and measures or by the manufacturer, it shall not in any case be neces-
sary to have it sealed again at any time while it is used for the dis-
tribution of milk or cream to consumers. Glass bottles or jars sealed
under the provisions of this section shall not be legal measures except
for the distribution of milk or cream to consumers.
The foregoing provisions of the statute, so far as they
relajte to the subject-matter of your inquiry, relate to the use
of bottles marked in accordance with the statute as con-
66 ATTORNEY-GENERAL'S REPORT. [Jan.
tainers of milk. In chapter 462 of the Acts of 1910 there is
a prohibition of the reuse of paper or fiber bottles and jars
in the sale and delivery of milk or cream. Your inquiry,
however, relates to the use of glass bottles and jars.
I find nothing in the statutes to which you refer to pro-
hibit the use of a milk bottle or jar marked as required by
law, for any proper purpose, except that so long as it is used
in the milk or cream business it must be used as the statutes
require. The statutory provisions that "glass bottles or jars
sealed under the provisions of this section shall not be legal
measures except for the distribution of milk or cream to
consumers," seems to contemplate the possible use of such
bottles and jars outside the milk or cream business.
The facts stated in your letter do not, in my opinion,
disclose a violation of law.
Very truly yours,
Thomas J. Boyntox, Aitorncy-Gencral.
Constitutional Law — Highways — Licensing of Motor Vehicles
in Towns by Selectmen.
A law providing that it is unlawful to operate motor vehicles in a town
without a license from the selectmen is constitutional.
March 31, 1914.
Committee on Towns, House of Representatives.
Gentlemen: — You have requested my opinion upon the
constitutionality of House Bill No. 1562, entitled, '*An Act
to regulate the operation of automobiles and motor vehicles
in the town of Nantucket."
The only provisions of the bill about which any consti-
tutional question can arise are contained in section 1, which
reads as follows: —
It shall be unlawful to operate automobiles or motor vehicles of any
kind on any highway or tow^nway in the town of Nantucket \\dthout a
license from the selectmen of said town, which license may contain
any provision not inconsistent wdth any general law now or hereafter
in force relating to automobiles or motor vehicles. Any such license
ma}^ be revoked by the selectmen for cause. The fee to be paid for
such heense shall be not less than ten dollars.
No specific objection to the constitutionality of this- bill
has been presented to m.e, but the first question that suggests
1915.] PUBLIC DOCUMENT — No. 12. 67
itself in this regard is as to the authority of the Legislature
over public ways.
The Constitution of the Commonwealth vests in the Leg-
islature "full power and authority . . . from time to time to
make, ordain, and establish, all manner of wholesome and
reasonable orders, laws, statutes, and ordinances, directions
and instructions, either with penalties or without; so as the
same be not repugnant or contrary to this constitution, as
they shall judge to be for the good and welfare of this com-
monwealth, and for the government and ordering thereof,
and of the subjects of the same."
In the exercise of the authority vested in it by the Consti-
tution the Legislature has provided for the laying out and
construction of public ways, either by means of authority
conferred upon a commission of the Commonwealth, as the
State Highway Commission, or, in some instances, county
commissioners, or by authority conferred upon cities and
towns. It would seem to be too late to question the general
authority of the Legislature to regulate the use of the high-
ways in Massachusetts. Generally speaking, the highways
within and through the State are in fact constructed by au-
thority of the State itself, and the State has full power to
provide all proper regulations of police to govern the action
of persons using them. Cooley on Constitutional Limitations,
7th ed., p. 860.
In this Commonwealth the Legislature has always exercised
its authority in such manner as seemed necessary or proper
to regulate the use of the highways. Among the familiar
instances of such legislative regulation are: the law of the
road that when persons meet on a bridge or way, traveling
with carriages, wagons, carts, sleds, sleighs, bicycles or other
vehicles, each shall seasonably drive his carriage to the right;
that the driver of a carriage or other vehicle passing a car-
riage or other vehicle shall drive to the left; that no person
shall travel on a bridge or way with a sleigh or sled drawn by
a horse unless there are at least three bells attached to some
part of the harness (R. L., c. 54, §§ 1, 2 and 3); that the
driver of every vehicle on a bridge or way, public or private,
where there is not an unobstructed view of the road for at
least one hundred yards shall keep his vehicle on the right of
the middle of the traveled part of such bridge or way. (St.
1908, c. 512, § 1.) So, too, it was long ago held that the
68 ATTORNEY-GENERAL'S REPORT. [Jan.
speed of travel may be regulated with a view to safe
use and general protection and to prevent a public nuisance.
Commonwealth v. Worcester, 3 Pick. 461; Commonwealth v.
Stodder, 2 Cush. 562. And the Legislature has provided that
one may not allow his beasts to run at large on a public way.
Commonwealth v. Curtis, 9 Allen, 266. The riding of bicycles
on sidewalks is prohibited. R. L., c. 52, §§ 9, 10, 11 and 12.
The construction of bicycle paths in the highway and the reser-
vation of spaces for the use of horseback riders in certain
parts of public ways has been authorized. R. L., c. 48, § 45.
The Legislature has power to authorize, and has authorized,
certain obstructions in highways which would otherwise be a
public nuisance, such as the laying of railroad tracks. Com-
monwealth v. Old Colony &: Fall River R.R. Co., 14 Gray, 93;
Springfield v. Connecticut River R.R. Co., 4 Cush. 71. And
the Legislature may grant a power to take land already
appropriated and in use as a public way for another public
use. Springfield v. Cormecticut River R.R. Co., 4 Cush. 71;
Boston V. Brookline, 156 Mass. 172; Newton v. Newton, 188
Mass. 226.
Many other instances of the exercise of legislative authority
in the control and regulation of the use of highways might
be cited.
Legislation has also been enacted directly regulating the
use of automobiles and motor vehicles on public ways, and
also authorizing various boards, towns and cities to make
by-laws and ordinances in regard to the same matter; and
the constitutionality of this legislation has been sustained by
the Supreme Judicial Court. An instance of legislation of
this kind is to be found in chapter 203 of the Acts of 1907,
which provides that —
Any person who operates an automobile or motor vehicle, and any
owner of an automobile who permits such machine to be operated in or
over any highway or private way laid out under authority of law or
otherwise, from which automobiles or motor vehicles are excluded,
pro\dded notice of such exclusion is conspicuously posted at the en-
trance to such way, shall be liable to any or all of the provisions and
penalties pro\dded in section nine of chapter four hundred and seventy-
three of the acts of the year nineteen hundred and three, as amended
by section three of chapter four hundred and twelve of the acts of the
year nineteen hundred and six, for violation of the laws regulating the
use of automobiles and the conduct of operators thereof.
1915.] PUBLIC DOCUMENT — No. 12. 69
This act has been re-enacted in and superseded by section
15 of chapter 534 of the Acts of 1909, and is now in force.
Its operation on the island of Nantucket may, however, be
prevented by the proviso contained in section 17 of said
chapter, to the effect that —
No ordinance, by-law or regulation now in force upon the island of
Nantucket relating to the use or operation of motor vehicles shall be
affected bj^ the provisions of this act.
I have not before me the ordinances or by-laws of the town
of Nantucket, and am therefore unable to say whether this
section is in force in Nantucket or not.
In the case of Commonwealth v. Kingsbury, 199 Mass. 542,
the constitutionality of chapter 203 of the Acts of 1907 and
of the sections therein referred to come into question. Acting
under the provisions of this statute the selectmen of Ashfield
duly posted notices excluding automobiles from certain high-
ways within their jurisdiction, and the defendant, disregarding
the notices, drove his automobile upon and over one of the
ways thus posted and from which automobiles were excluded.
In its discussion of the constitutional right of the Legislature
to enact such a law the court said: —
Automobiles are vehicles of great speed and power, whose appear-
ance is frightful to most horses that are unaccustomed to them. The
use of them introduces a new element of danger to ordinary travellers
on the highways, as well as to those riding in the automobiles. In
order to protect the public great care should be exercised in the use of
them. Statutory regulation of their speed while running on the high-
ways is reasonable and proper for the promotion of the safety of the
public. It is the duty of the Legislature, in the exercise of the police
power, to consider the risks that arise from the use of new inventions
applying the forces of nature in pre^dously unknown ways. The gen-
eral principle is too famiUar to need discussion. It has been apphed
to automobiles in different States with the approval of the courts.
Commonwealth v. Boijd, 188 Mass. 79. Christy v. Elliott, 216 111. 31.
People V. Schneider, 139 Mich. 673. People v. MacWilliams, 86 N. Y.
Supp. 357.
It seems too plain for discussion that, with a view to the safety of
the public, the Legislature may pass laws regulating the speed of such
machines when running upon highwaj^s. The same principle is applica-
ble to a determination by the Legislature that there are some streets
and ways on which such machines should not be allowed at all. In
some parts of the State, where there is but little travel, public neces-
sity and convenience have required the construction of waj^s which
70 ATTORNEY-GENERAL'S REPORT. [Jan.
are steep and narrow, over which it might be difficult to run an auto-
mobile, and where it would be very dangerous for the occupants if
automobiles were used upon them. In such places it might be much
more dangerous for travellers with horses and with vehicles of other
kinds if automobiles were allowed there. No one has a right to use
the streets and public places as he chooses, without regard to the
safety of other persons who are rightty there. In choosing his vehicle,
every one must consider whether it is of a kind which will put in peril
those using the streets differently in a reasonable wa3^ In parks and
cemeteries and private grounds, where narrow roads with precipitous
banks are sometimes constructed for carriages dra-s\Ti by horses, it has
been a common practice to exclude automobiles altogether, chiefly
because of the danger of their frightening horses.
The general principle referred to was applied long ago to a different
kind of vehicle, in Commonwealth v. Sf odder, 2 Cush. 562, a case which
relates to an ordinance of the city of Boston, prescribing the streets on
which certain omnibuses might be run and excluding them from other
streets. ...
The right of the Legislature, acting under the police power, to pre-
scribe that automobiles shall not pass over certain streets or public
wa^^s in a city or town, seems to us well established both upon prin-
ciple and authority.
So far, then, as the power and authority of the Legislature
is concerned, I am of the opinion that the proposed bill is
within the provisions of the Constitution.
It may, how^ever, be urged that the power of the Legis-
lature to regulate the use of highways cannot be delegated
to a board of selectmen. This question also has been dis-
cussed by the Supreme Judicial Court. It received very full
consideration in the case of Brodbine v. Revere, 182 Mass. 598.
In that case the question at issue w^as as to the constitu-
tionality of section 3 of chapter 288 of the Acts of 1894,
conferring authority upon the Metropolitan Park Commis-
sioners to make rules and regulations for the government and
use of the roadways or boulevards under their care, "breaches
whereof shall be breaches of the peace and punishable as
such in any court having jurisdiction of the same." It w^as
contended that this was an unconstitutional attempt to dele-
gate legislative power. In speaking of this c^uestion the
court said: —
It is well established in this Commonwealth and elsewhere that the
Legislature cannot delegate the general power to make law^s conferred
upon it by a Constitution hke that of Massachusetts. (Citing numerous
authorities.)
1915.] PUBLIC DOCUMENT — No. 12. 71
The court further said: —
This doctrine is held bj^ the courts ahnost universally.
There is a well-known exception to it, resting upon conditions
existing from ancient times in most of the older States of the Union,
which the Constitutions of the States general^ recognize, namely, the
existence of town or other local governmental organizations which
have alwa^^s been accustomed to exercise self-government in regard to
local police regulations and other matters affecting peculiarly the in-
terests of their own inhabitants. On this account the determination
of matters of this kind has been held to be a proper exercise of local
self-government which the Legislature may commit to a city or town.
Commonwealth v. Bennett, 108 Mass. 27. Stone v. Charlestown, 114
Mass. 214. Opinion of the Justices, 160 Mass. 586. People v. Albertson,
55 N. Y. 50. Gloversville v. Hoicell, 70 N. Y. 287, State v. Morris County
7 Vroom, 72. . . . It is very clear, where the people of a city or town
have become so numerous that the management of their municipal
affairs can be conducted conveniently only by a representative body
like a city council, that municipal legislation, such as making ordinances
and regulations as to local matters affecting the health, safety, and con-
venience of the people, may be intrusted to the people's chosen repre-
sentatives in a city government. Hence city councils are usually
authorized to pass ordinances, as voters of towns adopt by-laws. In
this Commonwealth legislation has gone further than this. Apparently
on grounds of expediency amounting almost to necessity, the making
of rules and regulations for the preservation of the public health has
been intrusted to boards of health in towns as well as in cities, and to a
State board of health, and a violation of the rules established by city
or town boards has long been and is now punishable in the courts. . . .
The validity of these statutes, which has long been recognized, stands
upon one or both of two grounds. They may be considered as being
within the principle permitting local self-government as to such matters,
the board of health being treated as properly representing the inhab-
itants in making regulations, which often are needed at short notice
and which could not well be made, in all kinds of cases, by the voters
in town meetings assembled. Perhaps some of these statutes may
also be justified constitutionally on the ground that the work of the
board of health is onl}^ a determination of details in the nature of
administration, which may be by a board appointed for that purpose,
and that the substantive legislation is that part of the statute which
prescribes a penalty for the disobedience of the rules which they make
as agents performing executive and administrative duties.
Again the court says: —
There is also a strong ground for the contention that the quoted
language of the statute simply leaves to the board the administration
of details which the Legislature cannot well determine for itself, and
72 ATTORNEY-GENERAL'S REPORT. [Jan.
which it may therefore leave to the determination of a subordinate
tribunal, and that the substance of the legislation is found in that
part of the statute which prescribes punisliment for disregard of the
regulations so determined.
This decision is cited with approval in Commonwealth v.
Kingsbury, 199 Mass. 542. See also, Crouminshield v. Crown-
inshield, 187 Mass. 221; Nelson v. State Board of Health, 186
Mass. 330.
The authorities above cited seem quite sufficient to show
the authority and power of the Legislature to control and
regulate the use of the highways of the Commonwealth, and
that the Legislature may in the exercise of its discretion con-
fer upon towns or other local governmental organizations
matters affecting peculiarly the interests of their own inhab-
itants and matters of local police regulation.
I note further that the proposed bill, subject to a limita-
tion as to general laws now or hereafter in force, and as to
the minimum fee to be charged for a license under it, leaves
the amount of license fee and the provisions of the license to
be fixed by the selectmen of Nantucket. Legislation of this
precise character, so far as the fixing of license fee is con-
cerned, was considered by the Supreme Judicial Court, and
its constitutionality sustained in the case of Boston v. Schaffer,
9 Pick. 415. In that case it was urged that a statute granting
authority to the mayor and aldermen of the city of Boston
to license theaters, "on such terms and conditions as to them
may seem just and reasonable," was unconstitutional; but the
court held the statute to be valid, and sustained the action
taken by the mayor and aldermen of Boston under its pro-
visions.
In the consideration of this proposed measure of legisla-
tion I must and do assume that the Legislature, in its passage
(if it is passed), judged its enactment to be for the good and
welfare of the Commonwealth, and that the action of the
selectmen of Nantucket, in determining the provisions of the
license and the amount of the license fee, will be reasonable.
I am of the opinion that the proposed bill, if enacted, will
be constitutional.
Very truly yours,
Thomas J. Boyntox, Attorney-General.
1915.1 PUBLIC DOCUMEXT — No. 12. 73
Trust Coiwpanies — Vse of icord "Bank" as j^art of Business
Name.
There is no statutory prohibition of the use of the word "bank" as a part
of the business name of a trust company.
March 31, 1914.
Hon. Augustus L. Thorndike, Bank Commissioner.
Dear Sir: — You request my opinion upon the following
question: —
A trust companj^ incorporated under the laws of this Commonwealth,
and acting under chapter 116 of the Revised Laws, wishes to change
its name so that it will be known as a bank and trust company.
Will you please advise me if, in j^our opinion, a trust company by
using the word ''bank" as part of its name would be conflicting with
the laws under which it is operating. Also would it be in conflict with
chapter 115 of the Revised Laws if a trust company which is operating
under another statute should designate itself as a bank.
Section 3 of chapter 116 of the Revised Laws, as amended
~by section 1 of chapter 491 of the Acts of 1909, provides in
part: —
No person or association and no bank or corporation, except trust
companies incorporated as such in this commonwealth, shall use in
the name or title under which his or its business is transacted the
words "Trust Company" even though said words may be separated
in such name or title by one or more other words, or advertise or put
forth a sign as a trust company or in Miy wa}^ solicit or receive deposits
as such.
Section 16 of chapter 590 of the Acts of 1908, as amended
by section 4 of chapter 491 of the Acts of 1909, provides: —
No corporation, either domestic or foreign, and no person, partner-
ship or association except savings banks and trust companies incor-
porated 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 commissioner 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, part-
nership or association make use of or circulate anj^ wTitten or printed
or partly \\Titten 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,
74 ATTORNEY-GENERAL'S REPORT. [Jan.
partnership or association, or anj^ agent of a foreign corporation not
having an established 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 be-
lieve, or as in the opinion of the commissioner might lead the public
to believe, that its business is that of a savings bank. Nor shall any
person, partnership, corporation or association except co-operative
banks incorporated under the laws of this commonwealth and corpora-
tions described in the first sentence of this section hereafter transact
business under any name or title which contains the words "bank"
or ''banking," as descriptive of said business.
The statutes seem to prohibit the use of the name "trust
company" by any but a corporation that is in fact a trust com-
pany, but also seems to contemplate the possible use of other
words as a part of the name of the corporation in combina-
tion with the words "trust company." There is a real dis-
tinction between a bank and a trust company, although
many of the functions of the two kinds of corporations are
the same. I do not, however, find any prohibition of the use
of the word "bank" in connection with the words "trust
company," and am of the opinion that the word "bank"
may be used as part of the corporate name with the words
"trust company," so far as any strictly legal question is con-
cerned. Whether as a matter of policy the use of the name
ought to be permitted is a matter not for the consideration
of this department.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Taxation of Industries — Exemptions.
A law exempting manufacturing property from taxation for a term of
years, when authorized by local authorities, would be unconstitutional.
April 3, 1914.
To the Honorable House of Representatives.
Gentlemen: — You have requested my opinion upon the
constitutionality of House Bill No. 1386, which amends chap-
ter 12 of the Revised Laws by inserting after section 6 thereof
the following sections: —
Section 7. The voters of any city or town may vote to exempt,
or may authorize the city or town council or board of aldermen of
such city or town to exempt from taxation for a period not exceeding
1915.] PUBLIC DOCUMENT — Xo. 12. 75
ten j^ears, such manufacturing property as msiy thereafter be located
in said city or town in consequence of such exemption, and the land
on which such property is located.
Section 8. Property so exempted under the preceding section
shall not, during such period of exemption, be liable to taxation while
such property is used for the purposes for which it was so located.
By the Constitution of the Commonwealth, Part Second,
Chapter L, Section I., Article IV., the General Court is em-
powered —
To impose and levy proportional and reasonable assessments,
rates, and taxes, upon all the inhabitants of, and persons resident,
and estates lying, mthin the said commonwealth; and also to impose
and levy reasonable duties and excises upon any produce, goods, wares,
merchandise, and commodities, wiiatsoever, brought into, produced,
manufactured, or being within the same; . . .
And while the pubhc charges of government, or any part thereof,
shall be assessed on polls and estates, in the manner that has hitherto
been practised, in order that such assessments may be made ^vith
equahty, there shall be a valuation of estates witliin the commonwealth,
taken anew once in every ten years at least, and as much oftener as
the general court shall order.
These are the only provisions of the Constitution directly
affecting the subject of taxation. The Constitution contains
certain provisions in regard to taxation for specific purposes,
recognizing the importance of the public worship of God and
of instruction in piety, religion and morality, and also in
regard to the encouragement of literature and science, the
diffusion of education among the people, and the promotion
of general benevolence and public and private charity.
It is said that —
As taxation of the people may be imposed for these objects, prop-
erty used for literary, educational, benevolent, charitable or scientific
purposes may weU be exempted from taxation. Such exemptions do
not prevent the taxation of the people from being proportional and
equal. {Opinion of the Justices, 195 Mass. 607.)
The general purpose of the constitutional provision above quoted is
to put the burdens of government equally upon all the people, in pro-
portion to their ability to bear them. {Opinion of the Justices, supra.)
To exempt a new" industry from taxation, as provided in
this proposed bill, would in some, and probably in many,
instances result, in eft'ect, in taxing an old established Indus-
76 ATTORNEY-GENERAL'S REPORT. [Jan.
try to aid in establishing a competitor in business. The
exemption of any property from taxation results in the dis-
proportionate taxation of the other property in the same
taxing district, and as the Constitution permits only propor-
tional taxation, all property within the Commonwealth, which
is owned and held in such a way that it ought to be available
to its owner to increase his ability and enlarge his duty in
defraying the expenses of the government, must be subjected
by law to the annual tax levy.
The statute exempting property from taxation is unconstitutional
unless it applies only to property already taxed in some other way,
or to property devoted to a public or semi-public use, or to property
of insignificant value and of such a character that it may be supposed
to be owned by every one alike. (Nichols on Taxation in Massa-
chusetts, § 39.)
The result of my examination of the Constitution and the
authorities under it is that I am of the opinion that this bill
will, if enacted, be unconstitutional.
Very truly yours,
Thomas J. Boynton, Attoniey -General.
Treasurer and Receiver-General — Bonds — Names of Purchasers.
The Treasurer and Receiver-General is not required to disclose the names
of purchasers of State bonds.
April 3, 1914.
Hon. Frederick W. Mansfield, Treasurer and Receiver-General.
Dear Sir: — You ask my opinion upon the following ques-
tion: Is the State Treasurer required by any existing law,
or is it proper for him, to disclose the names and addresses of
purchasers of tax-exempt State bonds?
I have to say that while it might under some circumstances
become the right of the State Auditor to demand such in-
formation, when it would also become the duty of the Treas-
urer and Receiver-General to give it to the Auditor, and while
the Governor and Council would, in my opinion, have author-
ity to demand and receive such information, I am clearly of
the opinion that there is no law requiring that names of pur-
chasers of tax-exempt bonds from the State Treasurer and
Receiver-General be made public.
1915.] PUBLIC DOCUMENT — No. 12. 77
Your question goes further and requests my opinion as to
the propriety of making such disclosure. While this is some-
what beyond the scope of my duties, I may say that inasmuch
as the bonds are tax-exempt there seems to be no reason why
the general public should be informed as to who the purchasers
of these securities may be. The publication of a list of names
and adresses of the purchasers could not be useful to any one
except to intermeddlers, curiosity seekers and those who are
generally busy with other men's matters. I think no bonding
house would disclose the names of its customers, and that to
publish a list of names would be to disturb the confidence
that ought to exist between buyer and seller in a matter of
this kind. If these bonds were taxable, and the question
should arise as to giving information to local boards of asses-
sors, an entirely different question would be presented.
Very truly yours,
Thomas J. Boynton, Attorney-General.
ClerJiS of Court — Naturalization Fees.
Clerks of court are not entitled to naturalization fees except such portion
as is necessary for additional clerical assistance, travel and other
expenses while acting under the naturalization act.
April 3, 1914.
Frank L. Dean, Esq., Controller of County Accounts.
Dear Sir: — You have requested ni}^ opinion upon the
following question: Have clerks of courts the right to retain
for their own use and benefit one-half of the naturalization
fees, under the naturalization laws of the United States and
the laws of this Commonwealth?
Section 37 of chapter 165 of the Revised Laws provides
that —
The annual salaries of clerks (meaning clerks of courts) shall be
in full compensation for all services rendered by them in the civil or
criminal courts, to the county commissioners, in making any returns
required by law or in the performance of any other official duty ex-
cept for such clerical assistance as may be allowed under the pro-
visions of the following section.
It is clearly the meaning of this section that the salaries of
clerks of courts are to be in full of all compensation for their
official services. This section is supplemented by chapter 253
78 ATTORNEY-GENERAL'S REPORT. [Jan.
of the Acts of 1908, which makes elaborate provision for the
keeping of an exact account of all fees received by clerks of
courts or by any assistant or other person in their offices or
employment, for any acts done or services rendered in con-
nection with their said offices, and provides that they shall,
on or before the tenth day of each month, pay over to the
treasurer of the county, or to such other officer as may be
entitled to receive them, all fees received during the preceding
calendar month, and shall render an account thereof under
oath, but subject to the proviso that —
The said clerks may retain that part of any moneys received by
them under or by authority of the naturahzation laws of the United
States which they shall certify under oath to the treasurers of their
respective counties have actually been expended by them for clerical
assistance, travel and other expenses, while acting under said laws.
The United States naturalization act of June 29, 1906,
provides —
That exclusive jurisdiction to naturalize aliens as citizens of the
United States is hereby conferred upon the following specified courts:
United States circuit and district courts now existing . . . ; also
all courts of record in any State or territor}'' now existing, or which
may hereafter be created, ha\dng a seal, a clerk, and jurisdiction in
actions at law or equity, or law and equity, in which the amount in
controversy is unlimited.
It is further provided in section 13 of that act —
That the clerk of each and everj^ court exercising jurisdiction in
naturahzation cases shall charge, collect, and account for the following
fees in each proceeding:
The clerk of any court collecting such fees is hereby authorized to
retain one-half of the fees collected by him in such naturahzation pro-
ceeding; the remaining one-haK of the naturalization fees in each
case collected by such clerks, respectively, shall be accounted for in
their quarterly accounts, which they are hereby required to render
the Bureau of Immigration and Naturalization, and paid over to
such Bureau within thirty days from the close of each quarter in each
and ever}^ fiscal j^ear. . . .
In addition to the fees herein required, the petitioner shall, . . .
deposit ^dth and pay to the clerk of the court . . . Provided, That
the clerks of courts exercising jurisdiction in naturalization proceedings
shall be permitted to retain one-half of the fees in any fiscal year up
to the sum of three thousand dollars.
1915.] PUBLIC DOCUMENT — Xo. 12. 79
The question, then, is, may clerks of courts of this Com-
monwealth having jurisdiction in naturalization cases, not-
withstanding the provisions of the State statute that their
salaries shall be in full compensation for their services, and
that they must account for and pay over all fees as above set
forth, retain for their own emolument one-half the naturaliza-
tion fees received by them, less the amount actually paid by
them for clerical assistance, travel and other expenses while
acting under the naturalization laws?
The apparent conflict of laws has been productive of some
contrariety of opinion. Under date of May 24, 1907, Hon.
Dana Malone, then Attorney-General, rendered an opinion
on this question to the effect that —
Clerks of courts cannot retain for their own use one-haK of said
naturalization fees received by them under the naturalization laws of
the United States, as their duties and powers are prescribed by the laws
of this Commonwealth, and they perform the duties required by the
United States naturahzation act by virtue of their offices as clerks of
courts of this Commonwealth, and not through appointment by the
United States, and our law especially requires that all naturalization
fees be paid over to the treasurer of the county.
The same question arose in the case of Hampden County
V. Robert 0. Morris, 207 Mass. 167, and the Supreme Judicial
Court decided that clerks of courts may retain one-half of the
naturalization fees received by them, first paying from these
fees for all additional clerical force required in performing the
duties imposed by the naturalization act.
Under date of Jan. 5, 1914, the Supreme Court of the United
States handed down a decision, covering the precise point
under consideration, in the case of Mulcrery et al. v. City and
County of San Francisco. The plaintiff in error was elected
county clerk and became ex officio clerk of the Superior Court,
a court having jurisdiction of naturalization cases. The city
charter under which he was elected provided that "the
salaries provided in this charter shall be in full compensation
for all services rendered." In its opinion the court said: —
On the merits the case presents no difficulty. It involves only the
construction of the act of Congress already referred to above. We
accept the State court's construction of the charter of the city and
count}" of San Francisco. Indeed, its clearness leaves no room for
construction. The salary it pro^ddes is declared to be "in full compen-
sation for all services rendered." And it is pro\nded that "every
80 ATTORNEY-GENERAL'S REPORT. [Jan.
officer shall pay all moneys coming into liis hands as such officer, no
matter from what source derived or received, into the treasury of the
city and county." The pro\isions are complete and comprehensive,
and express Mulcrev;^^'s contract wdth the city, the performance of
which his office imposed upon him; and, of course, the fees received
by him in naturahzation proceedings, because he was clerk of the
Superior Court, were in compensation for official acts, not personal
acts.
... If it be granted that he was made an agent of the national
government, his relations to the city were not thereby changed. He
was still its officer, receiving fees because he was — not earning them
otherwise or receiving them otherwise, but under compact with the
city to pay them into the city treasury within twenty-four hours
after their receipt.
... He was given office accommodations, clerks to assist him, and
yet contends that notwithstancUng such equipment and assistance,
notwithstanding his compact, he may retain part of the revenues of
his office as fees for his own personal use. We cannot yield to the con-
tention; nor do we think the act of Congress compels it. The act
does not purport to deal wdth the relations of a State officer with the
State. To so construe it might raise serious questions of power, and
such questions are always to be avoided. We do not have to go to
such lengths. The act is entirely satisfied wdthout putting the officers
of a State in antagonism to the laws of the State — the laws which
give them their official status. It is easily construed and its purpose
entirely accomplished by requiring an accounting of one-half of the
fees to the United States, leaving the other half to whatever disposi-
tion may be pro\dded by the State law. Counsel cite some State de-
cisions which have construed the act of Congress as giving a special
agency to the clerks of the State courts, and as receiving their powers
and rights from the national enactment. The reports of the Depart-
ment of Commerce and Labor are quoted from, which, it is contended,
exhibit by their statistics and recommendations the necessity of na-
tional control. State decisions expressing a contrarj^ view are frankly
cited. This contrariety of opinion we need not further exliibit by a
review of the cases. We have expressed our construction of the act,
and it is entirely consonant ^vith the purpose of the act and national
control over naturalization.
The Supreme Judicial Court of this Commonwealth has
alw^ays recognized the Supreme Court of the United States as
the final arbiter as to the meaning of Federal statutes and as
to questions arising under the Federal Constitution. Com-
monwealth V. People's Express Co., 201 Mass. 564.
This principle is now universally accepted throughout the
country, and in one form or another has received the sanction
1915.] PUBLIC DOCUMENT — No. 12. 81
of our Supreme Judicial Court in numerous instances. Braynard
V. Marshall, 8 Pick. 194; Simss Case, 7 Cush. 285; Eliot v.
McCormick, 144 Mass. 10; Cheslcij v. Naritasket Beach Steam-
boat Co., 179 Mass. 469; Opinion of the Justices, 207 Mass.
601; Opinion of the Justices, 208 Mass. 619; Commonwealth v.
Phelps, 210 Mass.^78.
A decision of the Supreme Court of the United States as to
the meaning of a Federal statute is a declaration of the law
of the land, binding upon judges of State courts and upon
individual citizens, and stands as such until overruled or
modified by the court that made it, or until the law is changed
by the legislative arm of the Federal government.
I am therefore of the opinion that clerks of courts are not
entitled to retain any portion of the naturalization fees that
may be paid to them, except as specified in the statute, to pay
for additional clerical assistance, travel and other expenses
while acting under the naturalization act.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Grade Crossings — Powers of Legislature.
The Legislature has authority to fix the time for the filing of a report by
a grade crossing commission.
April 3, 1914.
Hon. Calvin Coolidge, President of the Senate.
Dear Sir: — The Senate has transmitted to me an order
which reads as follows: —
Whereas, There is pending in the Senate a resolve to expedite the
filing of a report relative to the abohtion of the grade crossing in the
center of the town of Winchester, printed as House Document No. 214;
and
Whereas, There is a question as to whether this resolve is not an
interference by the legislative power with the judicial power, within
the terms of Article XXX of the Declaration of Rights; it is therefore
Ordered, That the opinion of the Attorney-General be requested
by the Senate as to whether this resolve, if enacted, will be constitu-
tional.
The powers and duties of the court with relation to the
pending grade crossing matter —
belong to that class not strictly judicial, but partaking both of the
judicial and the executive character, like those of laying out liighways
82 ATTORNEY-GENERAL'S REPORT. [Jan.
and assessing damages therefor, superintending the administration
and distribution of the estates of insolvent debtors, and many others
which might be named, the exercise and control of which may be vested
by the Legislature at its discretion, unless restrained by specific con-
stitutional provisions, either in judges appointed by the Governor and
holding during good behavior, or in commissioners or other officers
appointed or elected in such manner and holdin§^ for such terms as
the Legislature may prescribe. {New London Northern R.R. v.
Boston & Albany R.R., 102 Mass. 386, 387.)
As the whole subject of the crossing of highways by railroads
can from time to time be regulated by the Legislature, the Legisla-
ture can, even after a final decree has been rendered, make other
provisions, and require the crossings to be constructed in a manner
different from that established by the decree. The Legislature can
amend the statutes under which this proceeding has been commenced,
and if the amended act is made applicable to the pending proceeding
and is valid, the court in rendering a final decree must proceed in
accordance wdth the statutes as amended, {hi re Northampton, 158
Mass. 299, 302.)
If it is to be treated as special legislation prescribing new rules and
additional provisions for making a public improvement in substitu-
tion for those under which the court and commissioners have been
acting, it was within the power of the Legislature to enact it. {Provi-
dence Steamboat Co. v. Fall River, 183 Mass. 535, 540.)
Thus the Legislature has full jurisdiction of grade crossing
matters, except that it may not direct w^hat order or finding
shall be made by the court or a commission. But the Legis-
lature may make an order or finding which the court or a
commission could have made in a matter pending, and may
direct the court to proceed as though the court or commission
had made the order or finding. This is a fine distinction, as
was pointed out in the dissenting opinions in the above quoted
cases. Nevertheless, it is apparently law.
A statute setting the time for the report of the commission
may be construed as an amendment to, or as a substitute for
part of, section 36 of Part I. of chapter 463 of the Acts of
1906, and as such may be supported under the principles laid
down in the above quoted cases.
It is therefore my opinion that the resolve in question
would be constitutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
1915.] PUBLIC DOCUMENT — Xo. 12. 83
Schoolhouses — Use for Municipal and Other Purposes —
Liability for Damages.
No liability attaches to a city or town for damages caused by defects or
negligence in or around public school property while said property
is used strictly for municipal purposes.
April 6, 1914.
Committee on Education.
Gentlemen: — You have requested my opinion on the
legality, advisability and value of adding to section 1 of
House Bill No. 803 the following clause: "such use shall not
be construed to impose any additional liability on the city or
town," so that this section W'ould read: —
For the purpose of promoting the usefulness of the pubhc school
property the school committee of an}^ city or town ma}" conduct such
educational and recreation acti\aties in or upon school property under
its control, and shall allow the use thereof by indi\4duals and asso-
ciations, subject to such regulations as the school committee shall es-
tablish, for such educational, recreation, social, civic, philanthropic
and similar purposes as the committee may deem to be for the interest
of the community, provided that such use shall not interfere or be
inconsistent with the use of the premises for school purposes. Such
use shall not be construed to impose any additional liabiUtj' on the
city or town.
A city or tow^n is not answerable in damages for the acts or
neglect of its public officers in the discharge of their official
functions, nor for injuries to individuals caused by defects or
negligence in or around a schoolhouse or yard, because the
maintenance of schools is a public function. 28 Cyc. 1308.
In a case W'here the plaintiff fell and w^as seriously injured
by reason of an unsafe staircase in a schoolhouse, the de-
fendant w-as held not liable, for the reason last stated. Hill
v. Boston, 122 Mass. 344.
Similar decisions are to be found in Sullivan v. Boston, 126
Mass. 540, and Bigeloic v. Randolph, 14 Gray, 541.
But where a city or tow^n lets for hire a building erected for
municipal purposes, it is liable for an injury caused by a
defect or w'ant of repair in the building, or for the negligence
of its agents or servants in the maintenance of the building.
28 Cyc. 1308.
So in the case of Little v. Holyoke, 177 Mass. 114, the city
was held liable in an action for personal injuries caused by the
plaintiff falling down a flight of stairs in a hall of the de-
84 ATTORNEY-GENERAL'S REPORT. [Jan.
fendant city. The city occasionally let the hall for public
gatherings, and on the evening in question the hall was let for
the purposes of an entertainment to be given by the lessee.
Of similar import is the case of IV or den v. New Bedford, 131
Mass. 23.
The proposed legislation apparently contemplates the
letting of public school property for hire, subject to such regu-
lations as the school committee shall establish, for such edu-
cational, recreation, social, civic, philanthropic and similar pur-
poses as the committee may deem to be for the interest of the
community; and the question arises, can a city or town acting
under the provisions of this act be exempted from liability for
an injury caused by a defect or want of repair in the building
or other property let, or by act or neglect of its servants and
agents? To state the question another w^ay, can the Legisla-
ture exempt cities and towns from liability for injuries incurred
during the use of school buildings for some purposes?
The Constitution of Massachusetts guarantees a certain
remedy for all injuries or wrongs. Declaration of Rights,
Art. XL Statutes in conflict with this article necessarily are
void. Hu7jt V. Lucas, 99 Mass. 404.
No question of vested rights is involved. We have not
here the c^uestion as to whether vested rights of action may be
interfered with, but rather, whether rights of action may be
prevented from accruing. Article XL of the Constitution,
above cited, is merely an assertion of the old common-law
rule that for every wrong there must be a remedy. As I have
already stated, one of the exceptions to this rule is that a
municipality is not liable for injuries caused by a municipal
use of municipal property. For the Legislature to exempt
municipalities further would be in conflict with Article XL of
the Declaration of Rights. To exempt municipalities and not
exempt private concerns doing the same business of renting
halls would be an unconstitutional discrimination.
Is the contemplated use strictly a municipal use? If so,
exemption from liability by statute is unnecessary. If not
a municipal use, exemption is impossible.
It is respectfully suggested that the bill be so phrased as to
make it clearly appear that the use of school property per-
mitted by it shall be municipal. The addition of the proposed
clause may tend to support this construction.
Very truly yours,
Thomas J. Boynton, Aitomey-Genercd.
1915.1 PUBLIC DOCUMENT — No. 12. 85
Labor — Construction of Puhlic Works.
Under St. 1909, c. 514, § 21, the phrase "construction of pubhc works"
refers to actual building operations and not to the work of preparing
material.
April 8, 1914.
Robert N. Turner, Esq., Commissioner of Labor.
Dear Sir: — You have requested my opinion on the fol-
lowing question: —
A general contractor, engaged in the construction of a public build-
ing for one of the cities of the Commonwealth, has made a contract
for the special preparation of a portion of the material to be used in
the construction of the said building with a subcontractor from out-
side the Commonwealth, w4io was the lowest bidder. The work on
the said material in adapting it for use in the building is being done
outside the Commonwealth, and by persons not citizens of Massachu-
setts. The general contractor knew at the time the contract was made
that the work was to be done in this way and by such persons. More-
over, the contract with the subcontractor contains no provision that
in the emplojnuent of mechanics or laborers preference shall be given
to citizens of Massachusetts or citizens of the United States.
Will you kindly advise whether or not in your opinion the above
facts constitute a violation of the Acts of 1909, chapter 514, section 21?
Section 21 of chapter 514 of the Acts of 1909 reads as
follows: — ■
In the emploj^ment of mechanics and laborers in the construction
of pubhc works by the commonwealth, or by a county, city or town,
or by persons contracting therewith, preference shall be given to cit-
izens of the commonwealth, and, if they cannot be obtained in suffi-
cient numbers, then to citizens of the United States; and every con-
tract for such works shall contain a provision to this effect. Any
contractor who kno^vingly and wilfully violates the provisions of this
section shall be punished by a fine of not more than one hundred dol-
lars for each offence.
The question hinges on the meaning of the words "con-
struction of public works." This phrase was interpreted by
Attorney-General Dana Malone, in 1906, to include only the
actual building operations. III. Op. Atty.-Gen. 9. The literal
meaning of the word "construction" is "putting together."
An early precedent is found in 1 Kings VI., VII., in which
it is stated that King Solomon's Temple "was built of stone
made ready at the quarry; and there was neither hammer nor
86 ATTORNEY-GENERAL'S REPORT. [Jan.
axe nor any tool of iron heard in the house, while it was in
building.''
Your very letter of inquiry refers to the contractor as
engaged in the construction of the building, and to the sub-
contractor as engaged in the preparation of material to be
used in the construction.
I am of opinion that the words "construction of public
works" were used by the Legislature with the intention that
they be narrowly construed, and that the facts as stated in
your letter do not constitute a violation of the statute.
Very truly ypurs,
Thomas J. Boynton, Attorney-General.
Commissioners on Fisheries and Game — Expenses.
Traveling expenses incurred on strictly official business, but no other
expenses, may be allowed the Commissioners on Fisheries and Game.
April 9, 1914.
Hon. Frank H. Pope, Auditor of the Commonwealih.
Dear Sir: — In your letter requesting an opinion from this
department as to whether certain bills for expenses presented
for allowance by members of the Commission on Fisheries and
Game should be allowed, you state that "in the case of one of
the members making regular trips from his home by way of
Highland station to Boston he seeks to charge the State for
fares between his home and his Boston office, where he tran-
sacts private business, on the days on which he performs any
business for the State;" that "another contention of the Com-
mission is that as their duties are not all performed in the office
in the State House, they are entitled to traveling expenses
from their homes to Boston on days when the State's business
requires them to visit any place in Boston outside of the office
in the State House;" and further, that certain members of
the Commission on Fisheries and Game "visit the State
House almost daily, and contend that should there be business
of the commission requiring them to visit any other place in
Boston than the office in the State House, they should be
allowed expenses for traveling from their homes, and also for
their midday meal on those days."
In many instances special provision has been made for the
payment of traveling and other expenses necessarily incurred
1915.] PUBLIC DOCUMENT — No. 12. 87
in the service of the Commonwealth. Thus it was provided
that each member of the former Board of Cattle Commis-
sioners should receive "... his actual travelling expenses which
have been necessarily incurred;" that members of the State
Board of Charity shall receive "... their travelling and other
necessary expenses." So, too, that each member of the Civil
Service Commission shall be paid "... his travelling and other
expenses incurred in the performance of his official duties."
The law covering the payment of expenses of members of
the Commission on Fisheries and Game is found in section 54
of chapter 6 of the Revised Laws, and the rule governing the
payment of such expenses is found in the words, "shall be
allowed their actual reasonable expenses incurred in the per-
formance of such duties."
No case has arisen under this provision of the statute for
determination by the Supreme Judicial Court of this Common-
wealth. The case of Richardson v. Staie, a case involving a
similar question, was decided by the Supreme Court of Ohio
in 1902. The purpose of the action was to determine whether
money paid to Richardson out of the county treasury as com-
pensation for his services as county commissioner was illegally
paid, and if so, to recover judgment for the same. The Ohio
statute is as follows: —
Each county commissioner shall be allowed three dollars for each
day that he is employed in his official duties, and five cents per mile
for his necessary travel, for each regular or called session, not exceed-
ing one session each month, or twelve in any one j^ear, and five cents
per mile when traveling within their respective counties on official
business, to be paid out of the count}^ treasury on the warrant of the
county auditor; . . . and when necessarily engaged in attending to
the business of the county pertaining to Ms office under the direction
of the board, and when necessary to travel on official business out of
his county, shall be allowed, etc.
In its decision of the case the court said: —
It must be conceded that the $3 per day allowed the commissioner
is the limit of his compensation for liis day's work, in whatever way it
may be performed in the discharge of his official duties. He cannot
lawfull}^ claim that the county is also bound to pay his board or other
personal expenses. And the "mileage" allowed him is intended to
compensate him for expenses of his travel on official business. ... To
make such expenses an additional burden on the pubfic funds would
require a plain and unequivocal provision of the statute. An intention
to do so will not be inferred. . . . The expenses authorized to be paid
88 ATTORNEY-GENERAL'S REPORT. [Jan.
a commissioner under the provision of the statute in question are, we
think, official expenses only, as distinguished from those which per-
tain to his personal comforts and necessities. . . . The purpose of
the provision was to reimburse him when, in the language of the statute,
the money had been "actually paid in the discharge of his official
duty.". . . It is a fair inference that, if it had been intended to re-
imburse the commissioner for expencUtures of this character, the Leg-
islature would have expressed that intention in plain terms. It is
well settled that the compensation of pubhc officers cannot be enlarged,
by implication, bej^ond the terms of the statute.
The last sentence quoted from the opinion of the Ohio
court undoubtedly states correctly the rule of law to be ap-
plied in cases like those stated in your letter of inquiry. A
member of this commission, traveling from his place of resi-
dence to his own office or other place where he regularly car-
ries on his own business, and to which he is going for that
purpose, cannot be said to be traveling on the business of the
Commonwealth so as to enable hinj to charge traveling or
other expenses; and this is so even though he may transact
at his own place of business during the day some item of
official business. The expense is not incurred in the perform-
ance of his official duty; and the same rule of necessity ap-
plies to your question in regard to charges made for meals at
the place of residence or place of business of members of the
commission. Nor, in my opinion, are members of the com-
mission w^ho receive an annual salary or its equivalent, when
on duty in Boston, and w^ho happen in the course of their
official duties to have to go to some part of the city other
than the office provided by the Commonwealth for their use,
entitled by that fact to charge to the Commonwealth the ex-
pense of their midday meals. It is to be presumed that they
would have the midday meal if they remained in the office
provided by the Commonwealth. It is reasonably apparent
that the expense of the midday meal is not increased by
reason of the fact that their duties call them outside of the
office provided by the Commonwealth. I think, however,
they may properly charge traveling expenses, as trolley fares
paid out by them in going about the city on strictly official
business.
It is my opinion that the items specified in your letter of
inquiry should not be allowed.
Very truly yours,
Thomas J. Boynton, Attorney-General.
1915.1 PUBLIC DOCUMENT — Xo. 12. 89
Constituiional Law — Regulation of Sale of Tickets to Places of
Amusement.
It is not within the constitutional powers of the Legislature to provide
regulations for the sale of tickets to places of amusement.
April 10, 1914.
Committee on Mercantile Affairs.
Gentlemen: — You have requested my opinion as to
whether the substitute suggested by Mr. Caro for House
Bill No. 236, relative to the sale of tickets of admission to
places of amusement, would be constitutional. Mr. Caro's
bill reads as follows: —
It shall be a condition of any license hereafter granted by any city
or town, or by any other public authority, for any pubUc entertain-
ment, that tickets of admission to the same shall not be sold to an}^
dealer in such tickets, or to any other person, mth the intent or knowl-
edge that such tickets shall be resold to individual purchasers; or
with the intent or knowledge that such tickets shall be disposed of in
any manner at a price exceeding the price for which they were sold,
or exceeding the price advertised for such tickets by the person, firm,
or corporation issuing the same. If the said condition is \iolated by
any licensee, the license shall thereupon be revoked by the authority
granting the same; and it is hereby made the duty of the licensing
authority to see that the said condition is complied with.
It was ruled by my predecessor, Hon. James M. Swift, in
an opinion to the House committee on the judiciary, Feb. 15,
1912, that —
The business of conducting a theatre or other place of amusement
is a private business, and while such business may be regulated by the
Legislature in respect to public morals or safety, under the pohce
power, the right or regulation cannot be extended to the sale of tickets
of admission to places of amusement. (III. Op. Atty.-Gen. 491,
492.)
He quotes from the leading case on the subject, as follows: —
The sale of a theatre ticket at an advance upon the original pur-
chase price, or the business of reselling such tickets at a profit, is no
more immoral, or injurious to public welfare or convenience, than is
the sale of an ordinary article of merchandise at a profit. {Ex -parte
Quarg, 149 Cal. 79, 81.)
90 ATTORNEY-GENERAL'S REPORT. [Jan.
The Legislature has certain powers of regulation and has
not certain other powers of regulation, and the distinction be-
tween these two sorts of powers remains the same, regardless
of the manner in which the Legislature seeks to enforce these
powers. Direct statutory prohibition or indirect prohibition
by means of conditions in licenses are merely methods of en-
forcement, and do not go to the root of the question of legis-
lative powers.
It is therefore my opinion that the proposed regulation of
the sale of tickets to places of amusement is unconstitutional,
regardless of the method by which its enforcement is sought.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Insurance Company — Investments — Pecuniary Interest of
Officers.
A person who has an interest in real estate, but solely as trustee for another,
may lawfully serve on the investment committee of an insurance
company which places a loan on said real estate.
April 10, 1914.
Hon. Frank H. Harbison, Insurance Commissioner.
Dear Sir: — You request my opinion upon the following
statement: —
If a person as a trustee holds a parcel of real estate which, with
certain other parcels, is exchanged for stock in a corporation which
was organized for the purpose of acquiring such land, and the directors
of an insurance company, one member of which is the aforesaid trustee,
who is also a member of the insurance company's finance committee,
negotiates a mortgage loan with said real estate corporation, can that
director and member of the finance committee of the insurance com-
pany be held to have acted in violation of the statute (St. 1907, c. 576,
§ 26, par. 4)?
That paragraph provides that —
All investments and deposits of the funds of the company shall be
made in its corporate name, and no director or other officer thereof,
and no member of a committee having any authority in the invest-
ment or disposition of its funds, shall accept, or be the beneficiary of,
either directly or remotely, any fee, brokerage, commission, gift or
other consideration for or on account of any loan, deposit, purchase,
1915.] PUBLIC DOCUMENT — No. 12. 91
sale, pajTiient or exchange made bj^ or in behalf of such company, or
be pecuniarily interested in any such purchase, sale or loan, either as
borrower, principal, co-principal, agent or beneficiary except that, if
a policy holder, he shall be entitled to all the benefits accruing under
the terms of his contract.
An examination of the law, apart from the statute, may be in
some degree helpful in determining the effect of the statute. It
is settled beyond question that the directors of corporations are
bound in their official capacity, to act in an entire good faith.
They are to be regarded as trustees for the shareholders, and
are held to strict fidelity to their trust. They are bound to
exercise their powers for the benefit of the corporation only,
and cannot deal for themselves and for the corporation in one
and the same transaction. A director cannot with propriety
vote in the board of directors upon a matter affecting his own
private interest any more than a judge can sit in his own
case. It has been held by some courts that a director cannot
contract with his company, and that such contracts are void;
and courts that have not gone to this extreme have held that
contracts between directors and corporations, though not void,
are always to be subjected to the closest scrutiny, and are
voidable unless made in that entire good faith which the law
demands of this species of fiduciary. Nye v. Storer, 168 Mass.
53; Warren v. Para Rubber Shoe Co., 166 Mass. 97.
In the case you have stated the director was not a party to
the contract, and cannot be said to have accepted or to have
been the beneficiary of, either directly or remotely, any fee,
brokerage, commission, gift or other consideration for or on
account of the loan. It is true that by reason of his position
as a director of the insurance company, and as a member of
its finance committee, he w^as a factor in determining whether
this loan should be made and the terms upon which it should
be made, but you state that he held the real estate in ques-
tion as trustee, and if that is so, in exchanging his real estate
for stock in a corporation he simply changed the form of the
trust property. It hardly need be said that a trustee cannot
by a sale or exchange of trust property acquire property of
his own. If he exchanged the real estate w^hich he held in
trust for stock in a real estate corporation, the stock which
came to his hands in the course of this transaction was im-
pressed with the same trust under which he held the real
estate. He was not an officer of the real estate corporation,
92 ATTORNEY-GENERAL'S REPORT. [Jan.
and any gain or benefit accruing to the stock of that corpora-
tion in his hands was not at all to his personal profit or bene-
fit, but for the benefit of his cestid que trust; so that I do not
see how it could be held that the trustee was pecuniarily in-
terested in the loan either as borrower, principal, co-principal,
agent or beneficiary.
The statute to which you refer is penal and is to be strictly
construed, and even though he held the stock in his own right,
it is very difficult to see how he could be held liable under
this statute.
I am of the opinion that your inquiry must be answered in
the negative.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Surety Companies — Bonds — Renewals.
A surety company bond may be renewed and its term extended by a
separate instrument properly executed.
April 11, 1914.
Hon. Frederick W. Mansfield, Treasurer and Receiver-General.
Dear Sir: — You have requested my opinion as to whether
or not certificates of renewal furnished and executed by a
bonding company that is surety on a bond executed and filed
in accordance with the requirements of chapter 656 of the
Acts of 1910, is adequate and sufficient to renew a bond.
Chapter 656 of the Acts of 1910 relates to persons, partner-
ships, associations or corporations engaged in the collection
business and conducting a collection agency, bureau or office
in this Commonwealth, and requires that every such person,
partnership, association or corporation shall file a bond with
the Treasurer and Receiver-General.
Your query is whether the certificate of renewal is sufficient
to renew and keep in force a bond the term of which has ex-
pired or is about to expire.
In its popular sense the word "renew" means '*to refresh,
revive or rehabilitate an expiring or declining subject, but not
appropriate to describe the making of a new contract or the
creation of a new existence; to re-establish a particular con-
tract or another period of time; to restore to its former con-
ditions; to make again; to make over, to re-establish; or to
1915.] PUBLIC DOCUMENT — No. 12. 93
rebuild." 34 Cyc. 1331. The word "renewal" in its broadest
sense means "that which is made anew or re-established; a
change of something old for something new; the establish-
ment of the particular contract for another period of time;
imparting continued or new force and effect; the substitution
of a new right or obligation for another of the same nature."
In the case of Strouse v. American Credit Indcmniiy Co., 91
Md. 244, 257, the court in deciding a question involving this
point used this language: —
A- renewal of the certificate of the United States Credit System
Company means the same certificate with all the stipulations con-
tained for another year, or another certificate to cover another year
identical in every word and figure with the certificate it succeeded.
I would suggest that in the use of a certificate of renewal
the principal as well as the surety on the bond be made a
party. The form of the certificate of renewal in question did
not accompany your inquiry, and I am therefore unable to
pass upon its sufficiency, but I have no doubt that a bond
may be renewed and its term extended to cover such period
of time as may be agreed upon by a separate instrument prop-
erly executed.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Cities and Towns — Public Documents.
Cities and towns have no authority to dispose of such books, reports and
laws as have been received from the Commonwealth under St. 1908,
c. 142, §§ 1 and 2.
April 13, 1914.
Henry E. Woods, Esq., Ccmmissioner of Public Records.
Dear Sir: — You ask my opinion upon the following ques-
tion : Have cities or towns authority to dispose of the copies of
the series of public documents which they do not care to retain?
Sections 1 and 2 of chapter 142 of the Acts of 1908 are as
follows: —
Section 1. Each city and town shall provide a suitable place, or
places, to be approved by the commissioner of public records, for the
preservation and convenient use of all books, reports and laws re-
ceived from the commonwealth; and for every month's neglect so
to do shall forfeit ten dollars.
94 ATTORNEY-GENERAL'S REPORT. [Jan.
Section 2. Said books, reports and laws shall be in the custody
or control of the city or town clerk, unless the city council or select-
men shall, by vote, designate some other officer, the town counsel or
other person to have said custody or control of either all or part of the
same.
This chapter makes it the duty of all our cities and towns
to take care of all the books, reports and laws that may be
bestow^ed upon them by the Commonwealth, and requires of
them the task of providing a suitable place for the preserva-
tion and convenient use of all such books, reports and laws.
The authority conferred and the duty created by this statute
are to preserve and keep. The only relief against this burden-
some situation, that I have been able to find, is contained in
chapter 422 of the Acts of 1908, wherein it is enacted that —
In case a city or town at any annual city or town election shall vote
not to receive the series of public documents, and the commissioner of
public records shall report to the secretary of the commonwealth
that in his opinion such city or town is unable to make suitable pro-
vision for the care and use of such documents, he may discontinue
sending such documents to such city or town.
I regret to say that I am forced to the opinion that towns
and cities have no authority to dispose of the books, reports
and laws specified in chapter 142 of the Acts of 1908, above
quoted, in any other w^ay than to provide a suitable place for
their preservation and convenient use, except as provided by
chapter 422 of the Acts of 1908.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Civil Service — Sealer of Weights and Measures in Lowell.
The sealer of weights and measures in Lowell is not subject to civil service
rules,
April 13, 1914.
Civil Service Commission.
Gentlemen: — You have requested my opinion upon the
following questions : —
First. — Was the enactment of chapter 645 of the Acts of 1911 in
effect a repeal of the provisions of chapter 382 of the Acts of 1909,
and, therefore, does it exempt this position in the city of Lowell from
the operation of the civil service law and rules?
1915.] PUBLIC DOCUMENT — No. 12. 95
Second. — Does the fact that bj^ said section 39 of chapter 6-)^ of
the Acts of 1911 providing for the election by the municipal council
of a sealer of weights and measures exempt the office from civil service
classification in view of the provisions of section 9 of chapter 19 of the
Revised Laws above referred to?
Section 9 of chapter 19 of the Revised Laws exempts from
civil service classification judicial officers and all officers elected
by the people or whose appointment is subject to confirmation
by a city council.
Under the authority conferred by chapter 382 of the Acts
of 1909 the Cfvil Service Commission prepared and promul-
gated a rule of classification w^hich became effective Sept. 1,
1909, and which reads as follows: —
Rule 7.
Class 6. — All principal or assistant sealers of weights and meas-
ures holding office by appointment under any city, or any town of over
ten thousand inhabitants, whether such officers are heads of principal
departments or not, and also the inspectors of weights and measures
of the Commonwealth.
By section 37 of chapter 645 of the Acts of 1911, which
is an act to amend the charter of the city of Lowell, it is pro-
vided : —
There shall be the following administrative officers, who shall per-
form the duties prescribed by law for them, respectively, ... as the
municipal council may prescribe, ... a sealer of weights and meas-
ures.
Section 39 of the last-mentioned chapter provides that —
The municipal council shall have the power to elect the adminis-
trative officers named in section thirty-seven. . . .
Section 66 of said chapter provides: — ■
All special acts and parts of special acts inconsistent herewith are
hereby repealed, and no general act or part of a general act incon-
sistent herewith shall hereafter apply to the city of Lowell. . . .
The provisions of Rule 7, above quoted, relate to sealers of
weights and measures holding office by appointment, w^hile the
charter of the citv of Low^ell makes the office of sealer of
96 ATTORNEY-GENERAL'S REPORT. [Jan.
weights and measures in that city elective. If we give to the
rule made by the Civil Service Commission the force and
effect of law, yet the provision of the charter is a later enact-
ment, making a special and exceptional provision in regard to
the office of sealer of weights and measures in the city of
Lowell, and apparently is intended to deal with the whole
subject of election to the office of sealer of weights and meas-
ures in that city. The provisions of the chapter are also en-
tirely inconsistent with the civil service rule. It is my opinion,
therefore, that the charter of the city of Lowell, by reason of
the special provisions it contains, exempts the position of
sealer of weights and measures in that city from civil service
classification.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Constitutional Law — Trading Stamps — Excise Tax — License
Fees.
A law requiring the payment of a license fee of $6,000 per annum by any
firm furnishing trading stamps with any sale of goods would be un-
constitutional.
April 17, 1914.
Co7nmittee on Mercantile Affairs.
Gentlemen: — You have requested my opinion as to the
constitutionality of House Bill No. 1643, entitled "An Act
relative to the use of stamps, coupons and similar devices for
or with the sale of goods, wares and merchandise."
This bill provides that every person, firm or corporation
furnishing stamps, coupons, tickets, certificates, cards or other
similar devices to any other person, firm or corporation to use
in, with or for the sale of any goods, wares or merchandise
shall be required to obtain annually "a separate license from
the auditor of each county wherein such furnishing or selling
or using shall take place, for each and every store or place of
business in that county owned or conducted by such person,
firm or corporation, from which such furnishing or selling or
in which such using shall take place." By section 2 of this
bill it is provided that the sum of $6,000 per license shall be
paid, and in addition to this, that every person, firm or
corporation who shall use any stamps, coupons, tickets,
certificates, cards or other similar devices in, with or for the
1915.] PUBLIC DOCUMENT — No. 12. 97
sale of any goods, wares or merchandise, which shall entitle
the purchaser receiving the same to procure from any person,
firm or corporation any goods, wares or merchandise free of
charge or for less than the retail market price thereof, must
also obtain a like license and must also pay a license fee of
S6,000 a year.
It would appear that the provisions of this bill are so broad
that a person receiving any stamps, coupons, tickets or other
similar devices, who should use them for the purpose of pro-
curing any goods, wares or merchandise, is also required by
this bill to procure a similar license from the county auditor
and to pay the license fee of $6,000.
The taxing power vested by the Constitution in the Legis-
lature is contained in section lY. of article I. of chapter I. of
the Constitution, and is expressed in the following language: —
Full power and authority are hereby given and granted to the said
general court ... to impose and le\y proportional and reasonable
assessments, rates, and taxes, upon all the inhabitants of, and persons
resident, and estates Ij^ing, 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.
It is readily apparent that the methods of taxation provided
by the Constitution are, first, by proportional and reasonable
assessments, rates and taxes upon the inhabitants of and
persons resident and estates lying within the Commonwealth;
and second, as the State may not since the adoption of the
Federal Constitution levy duties on imports, by reasonable
excises upon any produce, goods, wares, merchandise and
commodities.
That the constitutionality of the proposed measure cannot
be sustained under the constitutional provision in regard to
the levy of proportional rates and taxes upon the inhabitants
and persons resident and estates lying within the Common-
wealth is so evident as to render comment or discussion un-
necessary.
The question then arises, Can this proposed bill be sustained
as an exercise of the power to levy reasonable excises?
The Constitution places two limitations upon the authority
of the Legislature to levy excise taxes: (1) that they must be
reasonable, and (2) that they may be levied only upon
98 ATTORNEY-GENERAL'S REPORT. [Jan.
produce, goods, wares, merchandise and commodities. Port-
land Bank v. Apthorp, 12 Mass. 252.
Clearly, the use of stamps, coupons or certificates referred
to in the bill before me, if subject to an excise tax under the
provision of the Constitution last above quoted, is so because
it falls under the head of "commodities," and the question to
be determined is whether the method of transacting business
with or by the use of stamps, coupons, certificates or other
similar devices is a commodity.
The Legislature of 1904 passed an act imposing an excise
tax on the business of selling, giving or delivering trading
stamps, checks, coupons or other similar devices, and the case
of O'Keeffe v. SomerriUe, 190 Mass. 110, was an action brought
to test the validity of that statute. The plaintiff in that case
used trading stamps in his business and paid under protest to
the city of Somerville the excise tax provided by the statute,
and then brought suit to recover back the amount so paid.
The Supreme Judicial Court in its decision in that case
said: —
The first and principal question before us is whether the right to
conduct the business, in the manner described in the first section
(of that statute) is a commodity within the meaning of the constitution.
And said further: —
It is not necessary in the present case to determine the meaning of
the word "commodities," in reference to every possible apphcation
of it, but we are of opinion that it is not broad enough to include every
occupation which one may follow, in the exercise of a natural right,
without aid from the government, and without affecting the rights
or interests of others in such a way as properly to call for governmental
regulation. Whatever may be done by the Congress of the United
States under its general power to levy excise taxes (see Thomas v.
United States, 192 U. S. 363) we are of opinion that, under the limita-
tion to commodities, the General Court of Massachusetts cannot levy
an excise tax upon the business of a husbandman or an ordinary
mechanic. If this is not the necessary effect of the decision in Gleason
V. McKay, uhi supra, it certainly is intimated by the language of the
court in the opinion.
In the statute before us the selfing or giving of trading stamps, in
connection with the sale of articles, can hardly be considered a business
in itself; but the business which the statute seeks to reach is the selling
of articles under an arrangement to deliver stamps as a part of the
sale, or as an accompaniment of it. The statute includes sales of
1915.] PUBLIC DOCUMENT — No. 12. 99
articles of every kind, and it describes the delivery of stamps in terms
that include deliveries which, under the decisions of this court, are
entirely unobjectionable in law. Commonwealth v. Sisson, 178 Mass.
578. Commonwealth v. Emerson, 165 Mass. 146. Such deliveries have
generally been considered permissible in connection with the sale of
articles, in the exercise of a common right, and many cases have been
decided which invalidate statutes or ordinances intended to prevent
such deliveries. People v. Gillson, 109 N. Y. 389. People v. Zimmer-
man, 102 App. Div. (N. Y.) 103. Ex parte McKenna, 126 Cal. 429.
State V. Dalton, 22 R. I. 77. Long v. State, 74 Md. 565. Young v.
Commonwealth, 101 Va. 853.
And further: —
One of the reasons why these methods are allowable is found in the
familiar principle that constitutional liberty means "the right of one
to use his faculties in all lawful ways, to live and work where he will,
to earn his livehhood in any lawful calling, and to pursue any lawful
trade or avocation." The restrictions upon conduct which may be
imposed in the exercise of the poHce power include ever3i:hing that
may be necessary in the interest of the public health, the public safety
or the public morals, and they include nothing more. These doctrines
have often been discussed and elaborated, and it is unnecessary to
consider them at length in this case. In applying them to the business
mentioned in this statute, no reason appears for the imposition of an
excise tax upon the business of selling articles with an accompaniment
of stamps which entitle the vendee to other property.
It has been further said by our Supreme Court that the
mere exercise of a natural right in the performance of labor of
the simplest kind, or in making an ordinary simple contract,
is not a commodity within the meaning of the Constitution.
pillion of the Justices, 196 Mass. 625, 629.
The business or the method of doing business at which this
bill is aimed is not, then, according to the decisions of the
Supreme Judicial Court, a commodity, and therefore is not
and cannot be subject to an excise tax.
It may be urged, however, that the purpose of this bill is
not to levy an excise tax but to regulate by means of a license
the management and conduct of the method of transacting
business by or with the use of trading stamps or other similar
devices. It is to be borne in mind that this method of doing
business has been repeatedly held by our Supreme Judicial
Court to be lawful. Commonwealth v. Emerson, 165 Mass. 146;
Commonwealth v. Sisson, 178 Mass. 578. And that if the
100 ATTORNEY-GENERAL'S REPORT. [Jan.
stamps, coupons or other similar devices mentioned in this
bill are used in such a way as to constitute a lottery or game
of chance, such use may be punished under criminal statutes
already in existence. And it should be further borne in mind
that it is the constitutional right of persons in this Common-
wealth to acquire and possess property and to transact
legitimate business. Declaration of Rights, Art. I.
Coming now to the consideration of the question of the
authority of the Legislature to impose license fees, the rule is
that —
If the Legislature has power to prohibit a certain act altogether [as,
for instance, the sale of intoxicating liquor] it may estabhsh a pecuniary
imposition upon its performance intended as a substantial prohibition
or as a drastic limitation of the number of persons who will perform
the act; if, however, the Legislature has no power to prohibit the act
it cannot estabhsh a pecuniary imposition really intended as a prohi-
bition. . . .
When the Legislature has neither the power to prohibit nor to tax
a certain act, but the act is of such a nature that a reasonable inspec-
tion is necessary for the pubhc welfare, the Legislature may impose a
license fee and prohibit the performance of the act until the fee is
paid, but in such a case the fee may cover only the cost of inspection.
(Nichols on Taxation in Massachusetts, pp. 4 and 5; Cyc, Vol. 38,
p. 927.)
The method of doing business by or with the use of stamps,
coupons or other similar devices is one which the Legislature
has no authority under the Constitution to prohibit, and since
it is not a commodity no excise tax can be levied upon it.
The license fee fixed in the proposed bill is greatly in excess of
any probable cost of inspection of the business, and is evi-
dently intended to prohibit the transaction of a business that
the Supreme Court has held to be lawful.
My conclusion is that the proposed bill, if enacted, will be
unconstitutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
1915.] PUBLIC DOCUMENT — No. 12. 101
Wrentham State School — Rights of Trustees in Mail addressed
to Inmates.
Trustees of the Wrentham State School may exercise discretion in pre-
venting dehvery of objectionable mail to inmates.
Valuable enclosures in mail addressed to inmates of Wrentham State
School must be delivered or returned.
April 18, 1914.
Trustees of the Wrentham State School.
Gentlemen: — You ask my opinion upon the following
questions: —
What are the rights of the trustees to open mail addressed to inmates
of the Wrentham State School? If the contents of letters addressed
to the inmates of the W^rentham State School are, in the opinion of the
superintendent, objectionable, what are the powers of the school in
the matter? May the letter be destroyed or must it be returned to
the sender, or must it be delivered? What are the rights of the trustees
as to letters sent out by the inmates of the institution? Have they
the right to open such letters, and if the contents are objectionable
destroy them?
Section 7 of chapter 504 of the Acts of 1909 provides that —
The board shaU have general supervision of all public and private
institutions and receptacles for insane, feeble-minded or epileptic
persons or for persons addicted to the intemperate use of narcotics or
stimulants, and the Hospital Cottages for Children, and when so
directed by the governor may assume and exercise the powers of the
board of trustees of said state institutions in any matter relative to
the management thereof. The board shall have the same powers
relative to state charges in institutions or other places under its super-
vision and to their property as are vested in towns and overseers of
the poor relative to paupers supported or relieved by towns.
By section 85 of this chapter it is further provided: —
All patients in any institution under the supervision of the state
board of insanity shall be allowed, subject to the regulations of the
board, to write freely to the board, and letters so written shall be
forwarded, unopened, by the superintendent or person in charge of
the institution to said board for such disposition as it shall consider
right; and the board may send any letters or other communications
to any patients in anj^ of said institutions whenever it may consider it
proper so to do. All other letters to or from the patient may be sent
as addressed or to his legal or natural guardian or most interested
friend.
102 ATTORNEY-GENERAL'S REPORT. [Jan.
Your inquiry raises a question under the Federal postal
laws. The assistant attorney-general for the Post-office De-
partment, in an opinion rendered under date of Feb. 6, 1894,
ruled that the authorities of an insane asylum are required to
exert a proper discretion in the matter of delivering mail to
the inmates and in preventing the transmission of letters in-
tended for delivery by such inmates to other persons, especially
so when the interests or the recovery of patients might be in-
jured or the safe administration of the affairs of the institution
interfered with.
Section 85 of the statute above quoted confers authority
upon the State Board of Insanity to supervise the correspond-
ence of all patients in institutions over which they exercise
control, of which your institution is one. The language of
this section is so clear as to make explanation or comment
unnecessary.
Referring to your question as to postage and money en-
closed in letters to patients, it is my opinion that in any case
where it is inadvisable to deliver the money or stamps or
other valuable enclosure found in a letter to the person
addressed, it should be returned to the sender.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Commissioner of Corporations — Inspection of Tax Returns.
Only such persons as may have occasion to inspect tax returns for the
purpose of assessing or collecting taxes have a right to inspect tax
returns of Massachusetts corporations.
April 22, 1914.
Albert J. Brunelle, Esq., Secretary, Board of Registration in Pharmacy.
Dear Sir: — Under date of April 17 you state that the
Board of Registration in Pharmacy respectfully requests an
order from this department to the Commissioner of Corpora-
tions to permit a representative of your Board to inspect the
franchise tax return of the Jaynes Drug Company, to enable
your Board to act intelligently upon the applications of the
Jaynes Drug Company for permits to operate drug stores and
certificates for sixth-class liquor licenses.
The statute, section 40 of Part III. of chapter 490 of the
Acts of 1909, as amended, provides as follows with reference
to the annual return to be filed by domestic corporations: —
1915.] PUBLIC DOCUMENT — Xo. 12. 103
Such return shall be filed with the tax commissioner. In the case
of domestic business corporations the whole of said return, and in the
case of other corporations so much of said return as relates to the profit
or loss which has resulted from the business of the corporation shall be
open only to the inspection of the tax commissioner, his deputy, clerks
and assistants, and such other officers of the commonwealth as may have
occasion to inspect it for the purpose of assessing or collecting taxes.
It occurs to me that your Board in making this request may
have thought that the Jaynes Drug Company is a foreign
corporation. It is in fact a Massachusetts corporation, and
its return to the Tax Commissioner is subject to the provisions
of the statute above quoted. Under this statute the onh^
persons authorized to examine the return are the Tax Com-
missioner and his clerks and assistants and such other officers
of the Commonwealth as may have occasion to inspect it for
the purpose of assessing or collecting taxes.
In my opinion it is not within the jurisdiction or authority
of the Attorney-General to make such an order as your Board
has requested.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Board of Agriculture — Poultry Premium Bounty.
An incorporated poultry association is entitled, under St. 1909, c. 428,
to receive aid from the Poultry Premium Bounty Fund for one annual
exhibition only.
Unincorporated associations are not entitled to receive aid from the
Poultry Premium Bounty Fund.
April 22, 1914.
John C. Graham, Esq., Head of Poultry Department, Massachusetts
Agricultural College.
Dear Sir: — You ask my opinion upon the following
questions: —
First, under the provisions of the statute can a State poultry associa-
tion, incorporated, hold more than one exhibition of poultry during
a year and receive a part of the poultry premium bounty based on the
total number of entry fees received by the association in competition
with the local incorporated associations; and second, would a local
unincorporated branch of a State association be entitled to draw upon
the Poultry Premium Bounty Fund if such local branch held a poultry
show^ or exhibit annually during the months of November, December
or January?
104 ATTORNEY-GENERAL'S REPORT. [Jan.
The statute governing this matter is found in chapter 428
of the Acts of 1909, and is as follows: —
Section 1. The sum of one thousand dollars shall be paid annually
in the month of August from the treasury of the commonwealth to
the board of agriculture, which shall be known as a Poultry Premium
Bounty, and shall be used by said board to encourage and improve
the breeding of poultry. Said bounty shall be distributed by said
board among the poultry associations hereinafter designated, during
the month of September of each year, on the basis of the total entry
fees received by such associations, respectively, during the year pre-
ceding that time, as hereinafter provided, and the sum so distributed
shall be used by such associations for the purpose of enabling them to
hold annual exhibitions of poultry and for the pa>Tnent of premiums
onty. The board may make such rules as it may deem suitable for
carrying out the provisions of this act; and any part of said bounty
not distributed hj the board in any year shall be repaid by it to the
treasurer and receiver general.
Section 2. No association shall be entitled to any part of said
bounty unless it shall have been incorporated under the laws of the
commonwealth for the purposes, principally, of holding exhibitions of
poultry within the commonwealth.
Section 3. No association shall be entitled to an}^ part of said
bounty unless it shall certify to the board of agriculture, not later than
the first day of July, under the oath of the president and secretary
of such association, that it has held an exhibition of poultry during
the months of November, December or January preceding said cer-
tificate, the amount of the entry fees paid to the association for such
exhibition, and that the association is in need of aid to enable it to
continue its exhibitions of poultry, together with such other facts as
the board may request.
It is my opinion that an incorporated poultry association is
entitled to receive aid from the Poultry' Premium Bounty
Fund for one show or exhibit annually, and that if a greater
number of shows are given by an incorporated association no
claim can be sustained for a payment from the premium fund
for the additional exhibitions; and this would apply to your
proposed corporation as well as to any other.
Second, it is my opinion that under this statute an un-
incorporated association is not entitled to receive aid from the
Poultry Premium Bounty Fund.
Very truly yours,
Thomas J. Boyntox, Attorney -General.
1915.] PUBLIC DOCUMENT — No. 12. 105
Divorce Certificate — Marriage License.
The certificate of divorce or copy of such record required to be filed with
town or city clerks, under St. 1912, c. 535, need not be in the English
language.
April 22, 1914.
Hon. Frank J. Donahue, Secretory of the Commonwealth.
Dear Sir: — You ask if it is necessary that the divorce
certificate or certified cop}' of record presented to a town or
city clerk by a divorced person seeking a marriage license
under the provisions of chapter 535 of the Acts of 1912 be in
the English language.
I am of the opinion that it is the law that such certificate
or cop\' of record need not be in English, but must neces-
sarih' be in the language of the court issuing the decree. The
town or city clerk must be convinced, by a translation or
otherwise, that the certificate or copy of record shows that a
divorce has been granted in accordance with the statement of
the person applying for the marriage license. The certificate
or copy of record must also be attached to the marriage
license if one is issued, and becomes a part of the license, and
with this the requirements of the statute are satisfied.
Very truly yours,
Thomas J. Boynton, Attorriey-General.
Pardons — Expiration of Prison Term.
Where the term of a prisoner expires on Sunday by reason of a pardon
issued by the Governor and Council, the prisoner should be discharged
on the preceding Saturday.
April 24, 1914.
Gen. Benjamin F. Bridges, Warden, State Prison.
Dear Sir: — I am in receipt of the following request for
an opinion: —
Section 130, chapter 225 of the Revised Laws reads as follows:
"A prisoner whose term expires on Sunday shall be discharged on
the preceding Saturday." I have received a pardon issued by the
Governor and Council on April 8, a part of which reads as follows:
"Now Know Ye, That, upon full consideration of the premises, We
do hereby pardon the said offence and release him, the said . . .
on April 26, 1914, from any further imprisonment under the sen-
106 ATTORNEY-GENERAL'S REPORT. [Jan.
tence aforesaid, and do order that he be discharged accordingly:"
I am somewhat in doubt just when to release him, — whether the
section 130 above quoted applies to the pardon or not, and I respect-
fully ask your opinion in the matter.
The question involved is whether the date set in the par-
don is strictly and technically the expiration of the prisoner's
**term." Section 132 of the chapter referred to in your letter
relates to pardons, and states of the Governor's pardon
warrant, "Such warrant shall be obeyed and executed, in-
stead of the sentence originally awarded."
In my opinion the effect of such warrant is to substitute a
new and shorter term for the original term of imprisonment.
The term of the prisoner in question, as shortened by the
warrant recited in your letter, expires on Sunday, April 26,
1914. The prisoner should therefore be discharged on the
preceding Saturday.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Savings Banks — Investments — Municipal Bonds.
Savings banks may invest in city bonds in certain States where "money
and credits" of said city, added to the last assessed valuation, bring
the valuation of the taxable property therein within the provisions of
St. 1912, c. 580, § 1, /.
April 28, 1914.
Hon. Augustus L. Thorndike, Bank Commissioner.
Dear Sir: — You have asked my opinion on the following
subject: —
In the official debt statement of the city of Minneapolis, Minn.,
the city comptroller has not included in the amount of the last valua-
tion of property for assessment of taxes the amount of "money and
credits" that are assessed under chapter 285, Laws of Minnesota,
1911. This amounts to more than $41,000,000. The city of Minne-
apohs has issued additional bonds which throws the net indebtedness
more than 7 per cent, of the assessed valuation, if the amount of
"money and credits" is not included in the total valuation. This
department requests that you give it your opinion if the city of Minne-
apolis could include in its total valuation the amount of the assessed
value of "money and credits," and by so doing would it comply with
subdivision e of clause second, section 68, chapter 590, Acts of 1908?
1915.] PUBLIC DOCUMENT — Xo. 12. 107
I assume, both from your mention of " 7 per cent." and
from the fact that Minneapolis has more than 100,000 popu-
lation, that you are inquiring about / rather than about e,
as stated in your letter.
Subdivisions e, f and g, as amended by section 1 of chapter
580 of the Acts of 1912, read as follows: —
e. In the legally authorized bonds of the states of New York, Penn-
sjdvania, Ohio, Indiana, Ilhnois, jMichigan, Wisconsin, Minnesota,
Missouri and Iowa, and of the District of Columbia, and in the legally
authorized bonds for municipal purposes, and in the refunding bonds
issued to take up at maturity bonds which have been issued for other
than municipal purposes, but on which the interest has been fully
paid, of any city of the aforesaid states which has at the date of such
investment more than thirty thousand inhabitants, as estabhshed by
the last national or state census, or city census certified to by the
city clerk or treasurer of said city and taken in the same manner as
a national or state census, preceding such investment, and whose net
indebtedness does not exceed five per cent of the valuation of the
taxable property therein, to be ascertained bj^ the last preceding
valuation of property therein for the assessment of taxes.
/. In the legally authorized bonds of the states of California, Dela-
ware, Nebraska, New Jersey, Oregon and Washington, and in the
legally authorized bonds for municipal purposes or in refunding bonds
which have been issued for other than municipal purposes, but on
which the interest has been fully paid, of any city of the states of
California, Connecticut, Delaware, Illinois, Indiana, Iowa, Kentuck}^
Massachusetts, Maine, Mar^dand, Michigan, Minnesota, Missouri,
Nebraska, New Hampshire, New Jersey, New York, Ohio, Oregon,
Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin,
which has at the date of such investment more than one hundred
thousand inhabitants, established in the same manner as is provided
in subdivision e of this clause, and whose net indebtedness does not
exceed seven per cent, of the valuation of the taxable property therein,
established and ascertained as provided in subdivision e of this clause.
g. In the subdivisions d, e and / of this clause the words "net in-
debtedness" mean the indebtedness of a county, city, town or district,
omitting debts created for supplying the inhabitants with water and
debts created in anticipation of taxes to be paid within one year, and
deducting the amount of sinking funds available for the pajTnent of
the indebtedness included.
Section 1 of the Minnesota statute cited by you contains
the meat of the whole statute, and reads as follows: —
"Money" and "credits," as the same are defined in section 798,
Revised Laws of 1905, are hereby exempted from taxation other than
108 ATTORNEY-GENERAL'S REPORT. [Jan.
that imposed by this act, and shall hereafter be subject to an annual
tax of three mills on each dollar of the fair cash value thereof.
I learn from other sources than your letter of inquiry that
the bonded indebtedness of Minneapolis, including the issue
in question and excluding the water debt and sinking funds,
is $15,933,250.82; that the valuation of taxable property,
exclusive of money and credits, is $219,609,553; and that
$41,072,125 of money and credits is taxable under the provi-
sions of the act cited by you.
The question beiore me is whether the fact that the tax
laid on money and credits is limited by law to $3 a thousand
precludes the inclusion of money and credits in determining
the valuation of the taxable property of the city. This limit
is practically the only distinction between this class of prop-
erty and the other property, classed as realty and personalty.
Money and credits are listed for taxation just as other per-
sonalty is listed. The lists are required to be verified, and
are tested as to completeness and accuracy in the usual \ysiy.
The assessment is reviewed and equalized the same as others.
Were it not for the tax limit there would be nothing to dif-
ferentiate this class of property from other personalty. Does
the limit make any real difference with respect to the Massa-
chusetts law relative to legal investments for savings banks?
The determination of the question requires an inquiry into
the object of the establishment by the Legislature of the
maximum ratio between city indebtedness and valuation. If
this ratio was intended as an accurate test of the degree of
solvency of the city, then, obviously, property which is only
available to a limited extent to satisfy the city's obligations
should not be given as much weight as property which is tax-
able, and therefore available, up to its entire value.
But it is my opinion that the purpose of the ratio is rather
to establish a mere arbitrary measure. In this opinion I am
fortified by the fact that the measure of size is just such a
measure. The bonds of a Minnesota cit}- of 29,999 inhab-
itants are not legal investment, no matter how solvent it is.
The bonds of a Minnesota city having one more inhabitant
are. If a Minnesota city has 99,999 inhabitants, and its tax
exceeds, by a single mill, 5 per cent, of its valuation, its bonds
are not legal investment. Add a single inhabitant, and its
bonds thereby become legal investment, and thousands of
1915.] PUBLIC DOCUMENT — No. 12. 109
dollars more in bonds may be issued, for the allowable ratio
has thereby jumped to 7 per cent. All this points to the ratio
being a mere arbitrary measure. Therefore the words *' tax-
able property" should be construed broadly. If the Legisla-
ture wished to restrict the meaning to "taxable property
unlimitedly available for paj-ment of the same," or some
similar phrase, the Legislature should have done so expressly.
Broadly speaking, money and credits are taxable property.
That point has been determined by the Attorney-General of
Minnesota. In certain counties of that State the county
auditors are paid as salaries sums "regulated by the assessed
valuation of real and personal property for purposes of taxation
in their respective counties." In answer to an inquiry from the
State public examiner as to whether money and credits should
be included in estimating the assessed valuation for the pur-
pose of determining salaries, the State law department said: —
Your inquiry is answered in the affirmative. Moneys and credits
are given an assessed valuation, and although the local tax rate is not
applied to such valuation, they are nevertheless personal property
having an assessed value, and for the above specified purpose must be
included in personal property valuations. (Minnesota Attorney-
General's Report, 1910-12, p. 256.)
It is therefore my opinion that the city of Minneapolis may
include in its total valuation the amount of the assessed value
of money and credits, within the meaning of subdivision / of
clause second of section 68 of chapter 590 of the Acts of 1908,
and amendments thereto.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Prisons — Violation of Parole — Determination of Duration of
Sentence.
Although a prisoner released on parole has been returned for breach of
same, if his conduct while in prison has been perfect he is entitled to
the usual deduction of six days for every month of imprisonment.
April 28, 1914.
Board of Prison Commissioners.
Gentlemen: — You have requested my opinion upon the
following statement and inquiry: —
A prisoner was committed to the State Prison Feb. 27, 1893,
having been sentenced thereto for a term of twenty-five years for
no ATTORXEY-GEXERAL'S REPORT. [Jan.
being an habitual criminal. Dec. 20, 1900, he was released upon
parole, and returned to the prison Oct. 10, 1901, for having violated
the conditions of the same. He was again released upon parole
April 9, 1909, and again returned Sept. 22, 1909, for another violation
of parole.
During the entire time that he has served in the prison his conduct
there has been perfect, he never having been punished for violation of
prison rules.
Will you kindly favor the commissioners with your opinion as to
when this man's sentence expires, less the time off due him for good
conduct in the prison?
The statutes governing this case are to be found in sec-
tions 2 and 3 of chapter 435 of the Acts of 1887 and sections
20 and 22 of chapter 222 of the Public Statutes, w^hich appear
without substantial change in sections 113, 116 and 129 of
chapter 225 of the Revised Laws, section 129 having been
amended in 1903.
The first question to be determined is whether the violation
of the conditions of his permit by the prisoner is to be re-
garded as the breaking or violation of a rule of the prison.
If it is to be so regarded, then the question of how much
shall be taken off the deductions from his term of imprison-
ment for good behavior rests entirely with your Board. But
I am of the opinion that it is not to be so regarded. The
permit is granted by the Governor and Council upon such
terms and conditions as they prescribe, and it does not appear
to have been a condition of the permit that the prisoner
while at liberty must observe the rules of the prison, nor does
it appear that the terms and conditions upon which the per-
mit w^as granted were intended to have the force of prison
rules or to stand in place of such rules. The prisoner, so far
as I am informed, had no notice that a violation of the con-
ditions of his permit would be taken as the violation of a
rule of the prison. The language of the statute, "they may
issue to him a permit to be at liberty" is inconsistent with
the idea that he is to be subject to penalties for a breach of
the conditions of his permit as for a breach of the rules of
the prison; besides, the statute fixes the penalty for a viola-
tion of the terms of his permit, namely, that the permit itself
is forfeited, and that for such violation he shall be returned to
the prison, and that the time he has been at liberty shall
not be taken into consideration in computing the term of his
imprisonment.
1915.] PUBLIC DOCUMENT — No. 12. Ill
Now, leaving out of the account the fact that this prisoner
has twice violated the terms and conditions of his permit to
be at liberty, as not constituting a violation of any prison
rule, we come to the question of deductions to be made from
the term of his imprisonment for good conduct in prison.
The question may arise as to whether such a deduction can
be claimed by the prisoner as a matter of legal right, or
whether it rests in the discretion of your Board. The ques-
tion was before the Supreme Judicial Court in the case of
Murphy v. Commonwealth, 172 Mass. 264, and, in rendering
its decision, the court said: —
It seems to us that . . . the convict was and is entitled to deductions
for good conduct, and to a permit to be at liberty for the time thus
deducted, as a matter of right rather than of favor. The object was
to furnish an incentive to good conduct while the con\dct was in con-
finement, by offering him a reward therefor.
You state tha^t the conduct of this prisoner during his en-
tire term in prison has been perfect. It is my op^inion that
it is his legal right to have deducted from his term of im-
prisonment six days for every month thereof, and that your
Board should grant the prisoner, upon such terms as you may
deem proper, a permit to be at liberty during the time so
deducted from his sentence.
Very truly yours,
Thomas J. Boynton, Aitorney-General.
Corporations — Increase of Capital Stock — Filing Fees.
Corporations must pay a filing fee of one- twentieth of one per cent, on
all increases of capital stock, and every increase and decrease must
be separately considered.
April 29, 1914.
Hon. Frank J. Donahue, Secretary of the Commonwealth.
Dear Sir: — A business corporation organized under the
provisions of chapter 437 of the Acts of 1903, with an author-
ized capital stock of $17,000,000, consisting of $7,000,000 of
common stock and the balance in preferred stock, having
paid the fees as required by law, by a proper vote reduced
its common stock to $700,000, and immediately authorized
112 ATTORNEY-GENERAL'S REPORT. [Jan.
an increase of its common stock by the amount of $4,300,000.
You request my opinion as to whether a tax of one-twentieth
of one per cent, on the $4,300,000 increase should be levied
as a filing fee under the provisions of section 89 of said
chapter.
Sections 42 and 43 of chapter 437 of the Acts of 1903
relate, respectively, to the increase or reduction of the capital
stock of corporations, and provide as follows: —
Section 42. If an increase in the total amount of the capital
stock of any corporation shall have been authorized by vote of its
stockholders in accordance with the provisions of section forty, the
articles of amendment shall also set forth: (a) the total amount of
capital stock already authorized; (6) the amount of stock already
issued for cash payable by instalments and the amount paid thereon;
and the amount of full paid stock already issued for cash, property,
services or expenses; (c) the amount of additional stock authorized;
(d) the amount of such stock to be issued for cash, property, services
or expenses, respectively; (e) a description of said property and a
statement of the nature of said services or expenses, in the manner
required by the provisions of section eleven.
Section 43. If a reduction of the capital stock of any corporation
shall have been authorized by its stockholders in accordance with the
provisions of section forty, the articles of amendment shall also set
forth (a) the total amount of capital stock already authorized and
issued; (6) the amount of the reduction and the manner in which it
shall be effected; (c) a copy of the vote authorizing the reduction.
No reduction of capital stock shall be lawful which renders the cor-
poration banki'upt or insolvent, but the capital stock may be reduced
b}^ the surrender by everj^ stockholder of his shares and the issue to
him in lieu thereof of a proportional decreased number of shares, if
the assets of such corporation are not reduced thereby, without creating
any liabilit}^ of the stockholders of such corporation in case of the
subsequent bankruptcy of such corporation.
The fees for filing and recording the certificate required by
law for an increase of capital stock are fixed by section 89 of
said chapter, as amended b}^ section 2 of chapter 396 of the
Acts of 1907, which reads as follows: —
The fee for filing and recording the certificate required by section
forty-two providing for an increase of capital stock shall be one
twentieth of one per cent, of the amount by which the capital is in-
creased.
1915.1 PUBLIC DOCUMENT — Xo. 12. 113
Section 90 of said chapter 437 provides as follows: —
The fees for filing all other certificates, statements or reports re-
quired by law shall be five dollars for each certificate, statement or
report, but no fee shall be paid for filing the annual tax return required
by section forty-eight.
The reduction and the increase of the capital stock of this
corporation, though made by votes as nearly simultaneous in
point of time as it was possible to make them, still constitute
two separate and distinct transactions. Xo question appears
to have been raised as to the payment of the filing fee for the
certificate showing a reduction of the capital stock, but this
was no more a distinct transaction than the act of increasing
the stock.
It has been the unvarying practice since the enactment of
the present law to charge the statutory- fee in every instance
of an increase in capital stock whenever made, and the
statute makes no provision for exemptions or exceptions
under any circumstances.
It lias been suggested that $4,000,000 of the $4,300,000
increase is to be exchanged for a like amount of second pre-
ferred stock, and that therefore the filing fee should be com-
puted only on the $300,000. It is not apparent how the dis-
position to be made by the corporation of the capital stock
acquired by this increase can affect the statutory requirement
in regard to the paN'ment of the fee for filing and recording
the certificate of increase.
It is my opinion that in this case a filing fee of one-twenti-
eth of one per cent, of $4,300,000 must be paid by the cor-
poration.
Very truly yours,
Thomas J. Boyntox, AUomey-GeneraL
Damages — Liability of Commonwealth to Riparian Proprietors.
A riparian proprietor who is damaged by the construction of a bridge
which cuts off his access to the sea has no right of action against the
Commonwealth,
April 29, 1914.
Committee on Metropolitan Afairs.
Gentlemen: — Upon the petition and statement of facts
of John Stuart of Quincy, transmitted to me with House
114 ATTORXFA -GENERAL'S REPORT. [Jan.
Bill Xb. 1172, you have requested my opinion in regard to
the following questions: —
1. Has the petitioner suffered any damage for which the Common-
wealth is liable?
2. If the Commonwealth is lial3le, for what should the petitioner
be compensated?
The claim of the petitioner against the Commonwealth is
well set forth in his petition, which is as follows: —
The undersigned, citizen of Quincy, respectfully represents that he
maintains a boat-building plant, with facilities as well for storing
boats, located on Sachem Brook, so called, in said Quincy, which is
crossed by a drawless bridge constructed by the Metropolitan Park
Commission, in accordance with chapter 124 of the Acts of 1904, to
connect the Quincy Shore Drive; that for many years prior to the
construction of said bridge your petitioner had the unobstructed use
of the channel of said Sachem Brook, in connection ^\'ith his business
as aforesaid; that he objected to the construction of said bridge,
belie^Ting that it Mould result in an injury to his said business and
property; and that he was given assurance that said bridge would be
so constructed as not to interfere with the free passage of boats there-
under, but that since the construction of said bridge the tides have
washed into said channel sand and material used in the construction
of the parkway adjacent to said bridge, so that each year since said
bridge was constructed your petitioner has suffered great damage by
reason of said inability to use said channel uninterruptedly as there-
tofore; and that no provision has been made by the Commonwealth
for the payment of such damages.
Wherefore, your petitioner prays for the enactment of legislation
to recompense him for injury to his business and property, caused as
aforesaid.
From the petition and statement of facts it appears that
Sachem Brook is a small stream flowing into Quincy Bay,
so called, and that the tide ebbs and flows in the channel of
this brook for a considerable distance, and that at low tide
the channel is almost entirely drained of water. The peti-
tioner's place of business is located on the shore of Sachem
Brook, on tidewater, and at some time the Metropolitan Park
Commission, by virtue of authority conferred upon it by
chapter 124 of the Acts of 1904, built a drawless bridge over
Sachem Brook below the plant of the petitioner. That chapter
is entitled, " An Act to authorize the Metropolitan Park
1915.] PUBLIC DOCUMEXT — Xo. 12. 115
Commission to construct a drawless bridge over Sachem
Brook, so called, in the Quincy Shore Reservation," and
provides as follows: —
Section 1. The metropolitan park commission is hereby au-
thorized to construct a drawless bridge over that part of Sachem
brook, so called, in Quincy, lying within the lands acquired by said
commission by takings or otherwise for Quincy shore reservation.
Sectiox 2. No action shall be taken relative to the construction
of said bridge until the plan therefor has been approved by the board
of harbor and land commissioners.
Section 3. This act shall take effect upon its passage. [Approved
February 27, 1904.
The petitioner's place of business l)eing located on tide-
water, and the bridge of which he complains having been
constructed by authority of the Legislature, the question
arises, has the petitioner, even though he has been injured as
he claims to have been, any legal claim against the Com-
monwealth for damages?
Questions exactly parallel to the one under consideration
have been repeatedly passed upon by the Supreme Judicial
Court, and have been uniformly decided against the respec-
tive claimants. It is said that —
The Legislature may authorize the use of public streams for any
public purpose without compensating riparian proprietors thereby
injured. It may cut off the access of riparian owners to the sea by
authorizing the construction of a bridge, \\ith or without a draw, or
across a stream below their lands. Such authorization is the regu-
lation of public rights and an owner has no private right in the stream
even if he has enjoyed twenty years' use or if he is the only wharf
owner upon it. (Nichols on Land Damages, § 5, at pp. 12-13.)
In a case in which the facts were that the petitioners
owned a tidewater mill from which they alleged they had
hitherto derived great emolument and advantage, and that
their property was damaged by the location and construction
of the Boston & IMaine Railroad across the mouth of the creek
at the head of which the petitioners' mill was situated; that
the railroad company had greatly obstructed and impeded the
flow of tidewater into the petitioners' milldam; that by the
location and construction of the railroad' through the peti-
tioners' milldam the respondents had greatly obstructed and
116 ATTORNEY-GENERAL'S REPORT. [Jan.
prevented the tidewater, which overflowed the meadow and
land above the pond, from flowing back into the pond; that
in consequence of these obstructions the petitioners' mills
could not be worked as effectually as before; and that the
railroad company, by the location and construction of its
road, had greatly injured the premises of the petitioners for
the purposes of a wharf, — the court, speaking by Chief
Justice Shaw, said : —
The question was as to the right of riparian proprietors upon salt
water, over an open tract of flats from which the tide wholly ebbs,
and lying between upland territory and na\^gable water, kept open
and unobstructed for the free flow and reflow of the tidewater, for
their mills or for navigation. This was a question of law, depending
on the general laws of property, the colony ordinance in regard to
flats, the usages of the country, and judicial decisions, and was proper
to be decided as a question of law. And we are of opinion, as matter
of law, that the petitioners had no right, as riparian proprietors, to
have their flats kept open and unobstructed for the purposes stated,
and that the jury should have been so instructed; also, that the pe-
titioners, as tide mill owners, had no right, either as against the public
or as against conterminous and adjacent proprietors, to have their
flats kept open, but only to the flow of water in the channel l^elow
low-water mark, and where the tide does not ebb. The adjoining
proprietor, to the extent of one hundred rods, maj'- build solid structures,
and thus obstruct the flow and reflow of the tide, ^\'ithout objection,
provided he does not wholly cut off his neighbor's access to his house
or land; and if the mill owner or conterminous proprietor suffers in
consequence, it is damnum absque injuria. The pubhc have a right
to regulate the use of public navigable waters for purposes of passage;
and the erection of a bridge with or without a draw, by the authority
of the Legislature, is the regulation of a public right, and not the
deprivation of anj^ private right, which can be ground for damages.
So far, therefore, as the railroad erected l^y authority of the Legis-
lature affected the right of the petitioners to pass or repass to and
from their lands and wharves ^dth vessels, it was a mere regulation
of a public right, and not a taking of private property for a public
use, and gave the petitioners no claim for damages. (Davidson v.
Boston & Maine R.R., 3 Cush. 93.)
In a similar case the court again said : —
The petitioners owned the wharf and land against which the westerly
end of said bridge was built, and they claimed damages for the injury
to their estate by the said bridge, by impeding the access to their
wharf by vessels, and by occupying the space which would have served
1915.] PUBLIC DOCUMENT — No. 12. 117
the purpose of a vessel's berth, lying at their wharf. The judge de-
cided that they could maintain no such claim, and rejected the evi-
dence offered in support of it, to which the petitioners excepted. This
court are of opinion that this decision was right. As we understand
the facts, this bridge passes over the channel only, which is part ot
the public domain; being a navigable channel from which the tide
does not ebb, the Legislature had the right to authorize the bridge,
and did authorize both the bridge and the continuance of it. If the
petitioners sustained any loss by it, it was a damage arising from a
partial impediment in the use of a public right, a damage sustained
by them in common with all the rest of the community, and for which
they could have no claim for damage. They had no right to occupy
that part of the channel as a vessel's berth, because it was upon a
public navigable stream, and if occupied in fact more extensively by
them than by others, it would be by sufferance, and not as of right.
(Boston & Worcester R.R. Corpn. v. Old Colony R.R. Corjm., 12 Gush.
605.)
In another case of like character the plaintiff alleged that
he owned and used a wharf and other property on Monu-
ment River, a navigable stream and arm of the sea, in the
town of Sandwich, and that the defendant on or about June
0, 1873, ''wrongfully, unjustly and unlawfully built, or caused
to be built and constructed a l)ridge, without a draw, across
said river, below said land and wharf, and between it and the
sea, and so low and near the river as to prevent the plaintiff
from navigating said river and using said land and wharf as
aforesaid; that the defendant refused and neglected, and
still refuses and neglects to provide a draw in and for said
bridge, although often requested so to do l)y the plaintiff';
that, by reason of the building and constructing of said
bridge, he has been prevented from using his said land and
wharf for the purposes of trading and landing and shipping
grain, flour, wood and various other kinds of goods, wares
and merchandise, and storing the same, and mooring vessels,
and for w^harfage and wharf purposes generally, and for the
purposes for which it was previously used, and has been and
is greatly damaged and injured, and particularly has been
and is greatly damaged and injured, in his said land and
wharf and business." In this case the court, speaking by
Chief Justice Gray, said : —
The act of the defendant, for which the plaintiff in various counts
seeks compensation, is the building of a bridge across a navigable
stream and arm of the sea. The direct iniurv alleged is to the navi-
118 ATTORXEY-GEXERAL'S REPORT. [Jan.
gation of the stream, to which the plaintiff is entitled only in common
with the w^hole pubhc; and the remedy for that injury is by indict-
ment, and not b}^ private action. The fact that the plaintiff alone
now navigates the stream, or has a wharf thereon at which he carries
on business, only shows that the present consequential damage to
him may be greater in degree than to others, but does not show that
the injury is different in kind, or that other riparian proprietors and
the rest of the public may not, whenever they use the stream, suffer
in the same way. The case has no analogy to those in which an ob-
struction in a naA^gable stream sets back the water upon the plaintiff's
land, or, being against the front of his land, entireh^ cuts off his access
to the stream, and thereby causes a direct and peculiar injury to his
estate, or in which the carrying on of an offensive trade creates a
nuisance to the plaintiff. Blood v. Xashua ci* Lowell Railroad, 2 Gray,
137; Lawrence v. Fairhaven, o Gray, 110; Brightman v. Fairhaven,
7 Gray, 271; Willard v. Cambridge, 3 Allen, 574; Wessori v. Washbuni
Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 Mass. 218; Lyon v.
Fishmongers' Co., 1 App. Cas. 662. {Blackwell v. Old Colony R.R.
Co., 122 Mass. 1.)
These cases have ])een followed in later decisions of the
Supreme Court: Stimso)i v. Inhabitants of Brookline. 197
Mass. 568, 573; Home for Aged Women v. Commomvcalth,
202 Mass. 422, 428; Dwyer v. Xew York, Xrw Haven d' Hart-
ford R.R. Co., 209 Mass. 419, 421.
The petitioner states that he objected to the construction
of the bridge across Sachem Brook. Even though he did ob-
ject, that fact is in this case of no legal consequence. His
objection was addressed to the sound discretion and judg-
ment of the Legislature, whose decision was final.
It is claimed that the petitioner wrote a letter in which he
referred to an agreement made between himself and Mr.
Emery and the Metropolitan Park Commission, but it is to
be noted that no one had authority to make an agreement
with the petitioner on behalf of the Commonwealth; and the
petitioner loses no rights by reason of any negotiations with
Mr. Emery or any member of the Park Commission for the
reason that there was no process of law by which the peti-
tioner could have prevented or even hindered the building of
the bridge.
My attention has been directed to certain cases cited by
counsel for the petitioner, and I have examined all the cases
he has referred to, but I do not find one among them that is
parallel to the case under consideration. In each of the cases.
1915.1 PUBLIC DOCUMENT — Xo. 12. 119
cited in hehalf of the petitioner the damage suffered was
special and peculiar, while the damage alleged by the peti-
tioner in this case is precisely the same in kind and character
as that complained of in the cases hereinl)efore cited, and this
petitioner is subject to the rule of law established by those
cases. The damage alleged by the petitioner is caused by
the interference with the navigation of Sachem Brook, a
thing to which he is entitled only in common with the whole
public. The fact, if it be a fact, that he alone now navigates
the stream or has a boat-building establishment thereon at
which he carries on business, only shows that the present
consequential damage to him is greater in degree than to
others, but does not show that the injury is different in kind
or that other riparian proprietors and the rest of the public
may not whenever they use the stream suffer in the same way.
In such a case a private action cannot be maintained.
I am therefore of the opinion that the petitioner has not
suffered any damage for which the Commonwealth is liable.
Your first question being answered in the negative, your
second question requires no further consideration.
Very truly yours,
Thomas J. Boyntox, Aitomcij-GeneraL
Legislature — Eligibility of Members to Office.
Members of the Legislature may be appointed, during their term of office,
to an office not created by them during said term.
April 30, 1914.
His Excellency David I. Walsh, Governor of the Commonwealth.
Sir: — You have requested my opinion upon the following
question: —
Can the Governor lawfully appoint a meml^er of the present Legis-
lature to a State board or commission, as, for example, the Commission
on Economy and Efficiency?
Section 21 of chapter 3 of the Revised Laws provides as
follows: —
No member of the general court shall, during the term for ^\-hich he
is elected, be ehgible to any office under the authority of the common-
wealth created during such term, except an office to be filled by vote
of the people.
120 ATTORNEY-GENERAL'S REPORT. [Jan.
Commenting upon this section of the statute, Attorney-
General Knowlton said : —
The obvious purpose of the statute is to remove from a member of
the Legislature any temptation to be influenced in his vote by reason
of the possibihty that he may be a candidate for the place created by
the Legislature of which he is a member. (L Op. Atty.-Gen., 347.)
On May 14, 1912, Attorney-General Swift gave an opinion
to the Governor on the following question: "Whether a mem-
ber of the present Legislature would be eligible to appoint-
ment on the Industrial Accident Board, so called, created by
an act of the Legislature of 1911, which act was amended by
the Legislature of 1912." The question was raised that there
was no clause in the amending bill which would exempt
from its operation the proA'isions of section 21 of chapter 3
of the Revised Laws. I quote from Attorney-General Swift's
opinion: —
The Industrial Accident Board was created by chapter 751 of the
Acts of 1911. A member of this jTar's Legislature is, therefore, not
ineligible by reason of section 21 of chapter 3 of the Revised Laws,
except for appointment to an office created during the present term
of the Legislature. . . . (The amendment to chapter 751 of the Acts
of 1911, estabhshing the Board, does not in terms repeal or strike out
the provisions of the act of 1911.)
... It, therefore, does not abolish the Board of three members
created by said act of 1911, but merely creates a Board of five instead
of three members by an addition of two members; nor does the change in
salary and in term of office made by the amendment operate to abohsh
the three commissionerships created under said act of 1911. These
are mere changes in detail which cannot affect the existence of the
office itself. Familiar illustrations of this rule are various acts passed
increasing the number of justices of our courts and increasing their
salaries. It has never been contended that such amendments abohshed
existing offices, nor could it be successfulh' so contended, in my judg-
ment. There are, therefore, three commissionerships which were
created by the act of 1911, to which a member of this year's Legislature
would be eligible to appointment so far as the operation of said section
21 of chapter 3 of the Revised Laws is concerned.
As the rule of law seems to me to have been correctly
stated by my predecessors, I make no further comment.
Very truly yours,
Thomas J. Boyntox, Aitorney-General.
1915.] PUBLIC DOCUMENT — No. 12. 121
Constitutional Law — Corporations — Rights of Minority Stock-
holders.
A law requiring foreign corporations doing business in IMassaehusetts to
give minorit}' stockholders representation on their boards of directors
would be unconstitutional.
May U, 1914.
Committee on Bills in the Third Reading.
Gentlemen: — You have requested my opinion as to the
constitutionality of House Bill No. 1166, which is entitled
*' An Act to provide that minority stockholders of corporations
doing business in Massachusetts may be represented on
boards of directors." Sections 1 and 2 of this act are as
follows: —
Section 1. Every corporation created by, or organized under,
the laws of this commonwealth, and every corporation established,
organized or chartered under the laws of another state or country,
and engaging or continuing in any kind of business in this common-
wealth, shall be subject to the provisions of this act.
Section 2. At the annual meeting for the election of officers of
any corporation mentioned in section one, stockholders who are resi-
dents of Massachusetts and who hold stock to an amount equal in
the aggregate to twenty-five per cent of the entire outstanding capi-
tal stock of the corporation, hereinafter called minority stockliolders,
shall have the right to nominate one director of such corporation and
to have him elected as a director, provided they comply with the re-
quirements of the succeeding sections of this act.
Sections 3 and 4 provide the methods to be pursued by the
minority stockholders of a corporation, to secure representa-
tion on its board of directors. The fifth and last section of
this act provides heavy penalties for its violation, and that
an\' corporation that has violated any of its provisions may
be enjoined from the prosecution of its business until it has
complied with the provisions of this act.
Corporations are creations of the law. Their organization,
control, conduct and dissolution may all be directed by
statute. Since the decision of the Dartmouth College case
the statutes of the Commonwealth have carefully preserved to
the Legislature the right to change the provisions of law in
regard to corporate rights. The Business Corporation Act, so
called, enacted in 1903, provides that it shall apply —
122 ATTORNEY-GENERAL'S REPORT. [Jan.
(rt) To all corporations having a capital stock and established for
the purpose of carrying on business for profit heretofore or hereafter
organized under general laws of the commonwealth.
(b) To all such corporations heretofore created under special laws
of the commonwealth, except so far as its provisions are inconsistent
with the provisions of any such special laws enacted l^efore the eleventh
day of March in the year eighteen hundred and thirty-one as are not
subject to amendment, alteration or repeal by the general court.
Section 2 of this chapter provides that corporations organ-
ized under general laws shall be subject to the provisions of
all laws hereafter enacted which may affect or alter their
corporate rights or duties or which may dissolve them.
The bill before me proposes a very radical innovation in
the methods heretofore and now in force in regard to the
election of directors of corporations, but the regulation pro-
posed is one that is, in my opinion, within the authority of
the Legislature to make as to all domestic corporations
except such as were organized under the provisions of special
laws enacted before the eleventh day of March in the year
1831, and whose charters are not subject to amendment,
alteration or repeal by the General Court.
Taking up the question of applying the proposed legisla-
tion to foreign corporations doing business in this Common-
wealth, it may be noted that a corporation can exist only by
force of the statute or other law of the state or country in
which it is created; that the laws of a state or country have
no extraterritorial force, and operate in another state or
country only on the principle of comity; and that a corpora-
tion is conclusiveh^ presumed to be a resident of the state or
country under whose law it w^as created. Bank of Augusta v.
Earle, 13 Pet. 519; 19 Cyc. 1218; Thompson on Corporations,
§^ 7875 and 7876.
A corporation organized under the laws of one state or
country is not a citizen within that provision of section 2 of
Article IV. of the Constitution of the United States which
provides that " the citizens of each state shall be entitled to
all privileges and immunities of citizens in the several states,"
nor is it within that clause of the Fourteenth Amendment to
the Federal Constitution which provides that "no state shall
make or enforce any law w^hich shall abridge the privileges or
immunities of citizens of the United States." A corporation,
therefore, can exercise none of its functions, franchises or
1915.] PUBLIC DOCUMENT — Xo. 12. 12.3
privileges in any State other than that in which it is organized
except by the comity and consent of that other state. Bank
of Augusta v. Earlr, 13 Pet. 519; Paul v. Virginia, 8 Wall.
168; Clark on Corporations, 2d ed., 604.
It follows that with the exception of those foreign corpora-
tions whose business transactions in this Commonwealth are
within the interstate commerce clause of the Federal Constitu-
tion the Legislature may prescribe the terms and conditions
upon which they may do business here. It is within the power
of a state in its discretion to exclude from its territory all
foreign corporations except those whose transactions within
its borders fall within the commerce clause, so called, of the
Federal Constitution. Clark on Corporations, 2d ed. 605; Myers
V. Manhattan Bank, 20 Ohio 301; Runyan v. Coster's Lessee,
14 Pet. 122; Starkweather v. American Bible Society, 72 111. .50.
It may be thought that a different rule should prevail as
to foreign corporations that have already complied with the
law of this Commonwealth, and, having received permission
to do business here, have invested their capital and estab-
lished themselves in business here. There is a large number
of corporations of this class. In cases that have arisen where
corporations have been similarly situated it has been argued
that having complied with the laws in force at the time they
entered the state, and having established themselves in busi-
ness, the state in which they have thus lawfully established
themselves cannot without just cause revoke the permission
granted them to carry on their ])usiness within its borders.
But the rule of law seems to be that a state has the absolute
right to entirely exclude a foreign corporation from its territory
or, having given it a license to do business within the state, to
revoke it in its discretion for good cause or without any cause
at all, and its motive in so doing is not open to inquiry.
Subject to the exception already noted as to interstate com-
merce, the corporation has no constitutional right to trans-
act its business in any other state than that of its creation,
and hence its exclusion therefrom violates no constitutional
right. Waters-Pierce Oil Co. v. Texas, 177 U. S. 28; State v.
Standard Oil Co., 61 Neb. 28; Doyle v. Continental Ins. Co.,
94 U. S. 535.
A state cannot interfere with the internal affairs of a foreign
corporation. It cannot direct how the officers of a foreign
corporation shall be chosen; and I have discussed thus at
length the right of a state to exclude foreign corporations
124 ATIWINEY-GENERAL'S REPORT. [Jan.
because the conditions imposed by this proposed measure of
legislation, while in form directing the manner in which
directors of corporations organized in other states or coun-
tries doing business here shall be elected, are in truth and in
fact terms of exclusion from the Commonwealth. The terms
imposed by this bill are impossible of performance by foreign
corporations for the reason that such corporations must elect
their directors in the manner provided by the laws of the state
in which they are organized, and cannot do otherwise, for
the law of that state is the very law of their being.
It has been suggested that the enactment of such a statute
as is here proposed is likely to provoke retaliatory legisla-
tion by other states. While this is probably true, it does
not present a constitutional objection to the bill. The pro-
visions of this bill are broad enough to include corporations
organized and located outside the Commonwealth and whose
transactions within it are those of interstate commerce. In
its present form this bill, so far as it relates to corporations
organized prior to March 11, 1831, under special laws, and
whose charters are not subject to alteration or repeal by the
Legislature, is obnoxious to the provision of the Federal Con-
stitution that "no state shall pass any law impairing the
obligation of contracts." Dartmouth College v. Woodward, 4
Wheat. 636. And so far as its terms apply to corporations
organized outside the Commonwealth, and whose transactions
within it are solely those of interstate commerce, it is obnoxious
to the commerce clause of the Federal Constitution.
It is my opinion that this bill, if enacted, will be un-
constitutional. ^
\'ery truly yours,
Thomas J. Boyxtox, Attorney-GeneraL
Constitutional Laic — Eminent Domain — Interstate Streams.
A law authorizing a city in this Commonwealth to take water from an
interstate stream, and providing compensation for damages to non-
residents, is constitutional.
May is, 1914.
Committee on Water Supply.
Gentlemex: — You have requested my opinion as to the
constitutionality of House Bill No. 2279, as amended, being
an act to authorize the city of Fitchburg to increase its water
1915.1 PUBLIC DOCUMENT — Xo. 12. 125
supply. This bill is drawn in all essential particulars in con-
forniit\^ with other similar measures that have been enacted
from time to time in this Commonwealth, and makes provi-
sion for the compensation of all persons wdiose property may
be taken under its provisions or injured by acts done under
its authority.
Upon its face the bill is entirely free from any constitu-
tional objection, but the remonstrants against this bill raise
the point that it provides for a taking by right of eminent
domain of the waters of an unnavigable, interstate stream,
'the Souhegan River, a stream that has its source in Massa-
chusetts and flows into New^ Hampshire; and that as the flow
of water in that river will be greatly diminished if the proposed
taking is made, and the property of riparian ow^ners, citizens
of New Hampshire, along the course of the stream in that
state will be damaged thereby, therefore the bill, if enacted,
will be unconstitutional.
The bill is not obnoxious to any provision of the Consti-
tution of this Commonwealth. It provides for compensa-
tion in damages to any person or corporation, whether within
or without the Commonw^ealth, entitled to damages under its
provisions if they fail to agree with said city as to the amount
of damages sustained, and makes further specific provision
for damages to parties outside the Commonwealth in the
following language: —
Owners of property situated without the commonwealth which is
damaged by anything done by the city under the authorit}^ of this
act may file their petitions for damages in the office of the clerk of
the superior court for the county of Middlesex or for the county of
Worcester.
So that a remedy is provided for every one whose property is
injured by the operations that may be carried on under au-
thority of this act.
In the consideration of this question my attention has been
directed to two cases, — first, that of Pine et als. v. New
York City, 112 Fed. Rep. 98 (185 U. S. 93); and second,
that of Kansas v. Colorado, 206 U. S. 46.
In the case of Pine et als. v. New York City the facts were
that the Legislature of the State of New^ York passed an act
authorizing New York City to take the waters of Byram
River, a non-navigable stream which has its source in the
State of New^ York, and at some distance from its source
126 ATTORXEY-GEXERAL'S REPORT. [Jan.
flows into and across the State of Connecticut and empties
into Long Island Sound. X^'ew York City, proceeding under
the act, built a dam across Byram River in the State of Xew
York and diverted so much of the water as to greatly dimin-
ish the flow of the stream in Connecticut, whereby the prop-
erty of the plaintiffs was damaged; and as the city failed to
agree with the plaintiffs as to the amount of damages they
had suffered, the plaintiffs brought suit in equity in the
Circuit Court of the United States, praying for an injunction
to restrain the city from diverting the waters of that stream.
The Circuit Court granted the injunction as prayed for, and
the case was taken to the Circuit Court of Appeals.
The question of the constitutionality of the Xew York
statute, while not discussed at length in the opinion rendered
in the Circuit Court of Appeals, was evidently considered,
for the majority opinion sustaining the decision of the Cir-
cuit Court contains the statement that "the diversion of
water at one point is a taking of the property of riparian
owners below the point of diversion, and falls within the
constitutional protection." As above indicated, the opinion
of the Circuit Court of Appeals in this case was rendered by
a divided court, one of the three judges who heard the case
dissenting. Judge AYheeler, who wrote the dissenting opinion,
said : —
The defendant has done nothing in question here outside of the
State of New York; the deprivation of water complained of was
wholly within that state; and, if the plaintiffs have any rights in the
water taken, they exist within that state, and were subject to and
taken under the eminent domain of that state. The plaintiffs have
come into this court because they are citizens of another State, and
not because their land through which the}' derive their rights to the
water taken is situated in another state. . . .
Thus these parties have a common interest in the water in question,
which the defendant has taken under the law of the State, and not as
a trespasser. It seems to be famihar law that, when an injunction is
applied for to restrain such a taking, the damages will be ascertained,
and the injunction withheld on making papnent.
This case was then taken to the Supreme Court of the
United States. That court did not take up the question of
the constitutionality of the X'^ew York statute, but ruled that
the plaintiffs had been guilty of laches in bringing their suit,
and because of this reversed the decision of the lower court
1915.1 PUBLIC DOCUMEXT — No. 12. 127
and made a decree leaving to New York City the right to
continue the diversion of the water of the river, the plaintiffs
to have compensation in damages. In this case it is to he
remarked that the question of the constitutionality of the act
authorizing New York City to take the waters of Byram
River was undoubtedly before the Supreme Court. If un-
constitutional, no degree of negligence by the plaintiffs in
bringing their suit could have cured the defect. If the act
was unconstitutional it was void from the beginning, yet the
court, having the question before it, decided the case, not in
entire accordance with the grounds of either the majority or
the dissenting opinion rendered in the Circuit Court of Ap-
peals, but upon a principle of equity that left the parties in
the same position they would have occupied had the dis-
senting opinion of Judge Wheeler prevailed.
In the second case above mentioned the State of Kansas
filed in the Supreme Court of the United States a bill in
equity against the State of Colorado, alleging therein that
the State of Colorado, acting directly by herself as well as
indirectly through private persons and corporations thereto
licensed by the State of Colorado, was depriving and threat-
ening to deprive the State of Kansas of all the water hereto-
fore accustOQied to flow in the Arkansas River; that this was
threatened not only by the impounding and the use of the
water at the river's source, but as it flows after reaching the
river. It was alleged that injury was being, and would be,
thereby inflicted on the State of Kansas as an individual
owner of land in the Arkansas River valley, and on all the
inhabiT:ants of the State, and especially on the inhabitants of
that part of the State lying in the Arkansas River valley.
After disposing of certain preliminary matters the Supreme
Court, speaking by Mr. Justice Brewer, said: —
Turning now to the controversy as here presented, it is whether
Kansas has a right to the continuous flow of the waters of the Arkansas
River, as that flow existed before any human interference therewith,
or Colorado the right to appropriate the waters of that stream so as
to prevent that continuous flow, or that the amount of the flow is
subject to the superior authority and supervisory control of the United
States. While several of the defendant corporations have answered,
it is unnecessary to specially consider their defences, for if the case
against Colorado fails it fails also as against them. Colorado denies
that it is in any substantial manner diminishing the flow of the Arkansas
River into Kansas. If that be true, then it is in no way infringing
128 ATTORNEY-GENERAL'S REPORT. [Jan.
upon the rights of Kansas. If it is diminishing that flow has it an
absolute right to determine for itself the extent to which it will diminish
it, even to the entire appropriation of the water? And if it has not
that absolute right is the amount of appropriation that it is now
making such an infringement upon the rights of Kansas as to call for
judicial interference? Is the question one soleh^ between the States
or is the matter subject to national legislative regulation, and, if the
latter, to what extent has that regulation been carried? Clearh^ this
controvers}' is one of a justiciable nature. The right to the flow of a
stream was one recognized at common law, for a trespass upon which
a cause of action existed.
The court further said: —
The question of the extent and the limitations of the rights of the
two States becomes a matter of justiciable dispute between them,
and this court is called upon to settle that dispute in such a way as
will recognize the equal rights of both and at the same time establish
justice between them.
Again, the court said: —
■ Now the question arises between two States, one recognizing
generalh^ the common-law rule of riparian rights and the other pre-
scribing the doctrine of the pubhc ownership of flo\ving water. Neither
State can legislate for or impose its own polic\' upon the other. A
stream flows through the two and a controversy is presented as to the
flow of that stream. It does not follow, however, that because Congress
cannot determine the rule which shall control between the two States
or because neither State can enforce its own pohcy upon the other,
that the controversy ceases to be one of a justiciable nature, or that
there is no power which can take cognizance of the controversy and
determine the relative rights of the two States. Indeed, the disagree-
ment, coupled ^A-ith its effect upon a stream passing through the two
States, makes a matter for investigation and determination by this
court.
Referring to the principles of common law applicable to
this case the court said : —
For after all, the common law is but the accumulated expressions
of the various judicial tribunals in their efforts to ascertain what is
right and just between individuals in respect to private disputes. As
Congress cannot make compacts between the States, as it cannot,
in respect to certain matters, by legislation compel their separate
action, disputes between them must be settled either by force or else
by appeal to tribunals empowered to determine the right and wrong
1915.] PUBLIC DOCUMENT — Xo. 12. 129
thereot. Force under our system of government is eliminated. The
clear language of the Constitution vests in this court the power to
settle those disputes. We have exercised that power in a variet}' of
instances, determining in the several instances the justice of the dispute.
Nor is our jurisdiction ousted, even if, because Kansas and Colorado
are States sovereign and independent in local matters, the relations
between them depend in any respect upon principles of international
law\ International law is no alien in this tribunal. In The Paquete
Habana, 175 U. S. 677, Mr. Justice Gray declared: —
International law is part of our law, and must be ascertained and ad-
ministered by the courts of justice of appropriate jurisdiction, as often
as questions of right depending upon it are duly presented for their de-
termination.
And in delivering the opinion on the demurrer in this case Chief
Justice Fuller said : —
Sitting, as it were, as an international, as well as a domestic tribunal,
we apply Federal law, State law, and international law, as the exigencies
of the pai'ticular case may demand.
In the further discussion of the case and of the evidence
submitted the court said: —
It cannot be denied in view of all the testimony . . . that the
diminution of the flow of water in the river by the irrigation of Colorado
has Vv^orked some detriment to the southwestern part of Kansas, and
yet when we compare the amount of this detriment with the great
benefit which has ob^^ousty resulted to the counties in Colorado, it
w^ould seem that equahty of right and equity between the two States
forbids any interference with the present withdrawal of water in
Colorado for purposes of irrigation.
In finally disposing of this case the court said: —
The decree will also dismiss the IdIII of the State of Kansas as against
all the defendants, without prejudice to the right of the plaintiff to
institute new proceedings whenever it shaU appear that through a
material increase in the depletion of the waters of the Arkansas b}^
Colorado, its corporations or citizens, the substantial interests of
Kansas are being injured to the extent of destrojdng the equitable
apportionment of benefits between the two States resulting from the
flow of the river.
The case of BrickcU v. Haicrhill Aqueduct Co., 142 Mass.
394, was an action of tort for diverting and obstructing a
watercourse, thereby preventing water from flowing through
130 ATTORNEY-GENERAL'S REPORT. [Jan.
the plaintiff's land. The diversion of the water occurred in
Massachusetts. The plaintiff was a citizen of Massachusetts,
but the property, the injury of which he complained, was
located in New Hampshire. The court in that case, speaking
by Chief Justice Morton, said : —
We do not deem it important that the land of the plaintiff which
was injured was outside of the limits of this State. The language of
the act is general, and puts all water rights upon the same footing,
and applies to a proprietor outside the State. Such proprietor certainly
has no greater rights than the citizen whose lands or water rights
within the State are injured by the acts of the defendant under the
authority of the Legislature.
The rule of the common law as to the rights of riparian
owners has been frequently stated, and may be expressed in
the following language: —
The primary right of every riparian proprietor is to have the natural
and customary flow of the stream without obstruction or change.
This primary right is subject to the modification that —
The right to flowing water is now well settled to be a right incident
to property in the land; it is a right puhlici juris, of such a character
that whilst it is common and equal to all through whose land it runs,
and no one can obstruct or divert it, yet, as one of the beneficial gifts
of Providence, each proprietor has a right to a just and reasonable
use of it as it passes through his land; and so long as it is not wholly
obstructed or diverted, or no larger appropriation of the water running
through it is made than a just and reasonable use, it cannot be said
to be wrongful or injurious to a proprietor lower down.
This is the rule between persons who are riparian proprie-
tors on the same stream, and prevails until a public necessity
arises, when, like every other individual right of property, it
gives way to the public need. In some of the western States,
as shown by the case of Kansas v. Colorado, the common-
law rule, even as applied to interstate streams, yields and is
modified b}^ the great necessity of irrigating vast tracts of
arid and desert land; and even though the public necessity
arises in another State, the rule as to private ownership
yields to it. The irrigation of waste and desert lands in Col-
orado may be and undoubtedly is a matter of transcendent
importance, but who can measure or estimate the importance
1915.] PUBLIC DOCUMENT — Xo. 12. 131
of an adequate supply of pure water for the use of the
crowded, evergrowing industrial centers of the east? If the
common-law rule yields as to interstate streams in the one
case, it certainly ought to yield in the other. In each case
the rule as to individual owners should yield to public neces-
sity.
It has been suggested that the city of Fitchburg does not
need this supply. Of this question the Legislature must be
the judge. In passing upon the question submitted to me I
assume that the need exists.
It has been further suggested that in the case of Kansas
V. Colorado, above cited, the State of Kansas was not an indi-
vidual owner, and that the case did not therefore decide the
issues that would be involved in a suit by a citizen of Kansas
against the State of Colorado; but, as I have stated above,
Kansas in its bill of complaint set up the fact that it was an
owner of land in the Arkansas valley which was damaged by
the operations of Colorado. The court itself noted the fact
that "Kansas asserts a pecuniary interest as owner of certain
tracts along the banks of the Arkansas River, and as the
owner of the bed of the stream." Kansas v. Colorado, 206
U. S. at p. 98. But the court, in view of the fact that the
jurisdiction of the court might be invoked by the State, as
parens pairice, trustee, guardian or representative of all or a
considerable portion of its citizens, deemed it unnecessary to
stop to consider especially the rights of private ownership.
The objection to this bill seems to grow out of the idea that
each State is a sovereign power. To a limited extent this
is true; but however complete the rights and attributes of
sovereignty of the States may have been before they en-
tered the L^nion, there can be no question that when they
entered the L^nion large and important attributes of sov-
ereignty were surrendered by the States. The States may not
lay any imposts or duties on imports or exports; may not
make war upon each other or upon a foreign country; may
not make treaties with each other or with foreign countries;
and in cases of differences of a justiciable nature arising
between them the Supreme Court of the United States is
empowered to adjudicate between them. Rhode Island v.
Massachusetts, 12 Pet. 657; Missouri v. Illinois, 180 U. S.
208; Ka?isas v. Colorado, 206 U. S. 46.
In a word, the States of this L^nion form a nation.
132 ATTORNEY-GENERAL'S REPORT. [Jan.
If this bill passes, and the waters of the Souhegan River
are taken by the city of Fitchburg, citizens of New Hamp-
shire whose property is injured by the taking, by reason of
diverse citizenship, may at their election bring action under
the provisions of this bill in the courts of the Commonwealth,
or may bring suit in the District Court of the United States
against the city, or may induce the State of New Hampshire
to bring suit in the Supreme Court of the United States
against this Commonw^ealth. I repeat that this bill does not
present the case of taking or injuring the property of any
person and leaving him without a remedy. This measure is
in harmon}' with other legislation of this Commonwealth in
regard to securing a water supply for cities, notably, with the
legislation providing for the taking of the south branch of the
Nashua River, an interstate stream, as a supply for the met-
ropolitan water district. If this bill is unconstitutional, then
the metropolitan water act, being chapter 488 of the Acts of
1895, was and is unconstitutional, and the acts done under its
provisions were without authority.
In view of the trend of judicial decisions, and of the course
of legislation in this Commonwealth, which has stood for
years unchallenged, I am of the opinion that this bill, if
enacted, will be constitutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Freedom of Contract — Plumbers.
A law providing that permits to perform plumbing work shall be issued
only to master plumbers, and that all work done under such permits
shall be performed only by master plumbers or their designated
journeymen plumbers, would be unconstitutional.
May 21, 1914.
To the Honorable Senate.
Gentlemen: — You have requested my opinion upon the
following question of law: —
Is it within the constitutional power of the General Court to enact
a law providing that permits to perform plumbing work shall be
issued only to master plumbers, and that all work done under such
permits shall be performed only b}^ the master plumber himself or
by such journeymen plumbers as he may directly employ and super-
vise?
1915.] PUBLIC DOCUMENT — Xo. 12. 133
You have submitted with your inquiry a copy of House
Bill No. 1347, entitled "An Act relative to the supervision of
plumbing."
The question of constitutionality arises in regard to the
first and second sections of the bill, which read as follows: —
Section 1. The words ''master plumber," as used in chapter one
hundred and three of the Revised Laws, shall be deemed to mean a
person who holds a Massachusetts state master plumber's license or
certificate, and who has a regular established place of business con-
veniently situated and open for business during regular business hours,
and who himself or by journeymen in his employ performs plumbing
work for property owners, agents or tenants.
Section 2. Permits to perform plumbing work shall be issued
only to master plumbers as herein defined, and all work done under
such permit shall be performed by the master plumber himself or
by such journeymen plumbers as he may directly employ and super-
vise.
A ''journeyman" is defined to be a workman or mechanic
who has served his apprenticeship, — specifically, a qualified
mechanic employed in the exercise of his trade as distinguished
from a master mechanic or foreman.
This bill, if enacted, would prevent a journeyman plumber
from making a contract to put the plumbing into a building
or to take any other job of plumbing whatever, for the reason
that no perm.it to do the work could lawfully be issued to
him. And the bill goes further and would prevent a master
plumber who was so unfortunate as not to have a regular
established place of business, kept open for business during
regular business hours, from making contracts for plumbing;
and master plumbers who have regular places of business kept
open for business during regular business hours, and whose
places of business are not conveniently situated, are not to be
regarded as master plumbers under the provisions of this bill,
and would also fall within its prohibition. Thus this bill is
not for a whole class, but its evident aim and object is to
create a class within a class; that is, out of those who hold
licenses as master plumbers it proposes to create a class of
master plumbers.
Article I. of Part the First of the Constitution of this
Commonwealth declares: —
All men are born free and equal, and have certain natural, essential
and unaUenable rights; among which may be reckoned the right of
134 ATTORNEY-GENERAL'S REPORT. [Jan.
enjoying and defending their lives and liberties; that of acquiring,
possessing, and protecting property; in fine, that of seeking and
obtaining their safety and happiness.
Now there are certain fundamental rights of every citizen
which are recognized in the organic law of all our free American
States. A statute which violates any of these rights is uncon-
stitutional and void, even though the enactment of it is not
expressly forbidden. Commonwealth v. Pefry, 155 Mass. 117.
Under the police power, legislation to protect the health,
morals or safety of the community may be enacted, but that
power does not extend beyond these limits, and legislation
under the police power must bear a genuine relation to some
one of the three subjects named. It necessarily follows that
only such regulations will be sustained as are in fact necessary
to the preservation of the public health, morals or safety,
and the courts w^ill declare arbitrary provisions invalid.
Cotter v. Doty, 5 Ohio, 393.
If, then, it be admitted that for the preservation of the
public health men who seek to work at the business of plumb-
ing should be required to pass an examination and procure a
license, that comes far short of justifying an interference with
the way in which a man who has passed the examination and
obtained a license shall conduct his business. Nor does such
an admission afford a reason for prohibiting such a man from
carrying on his business as he sees fit in regard to location,
and in ever^^ other particular, so long as he is within the law.
This proposed bill, if enacted, will interfere with the freedom
of contract of journeymen plumbers, and, as above indicated,
of certain master plumbers and of such property owners as
may desire to make a contract for plumbing with a journey-
man plumber or with a master plumber who has no regular
place of business or whose place of business may, in the judg-
ment of some one whose personality is not disclosed by the
bill, be inconveniently located.
Freedom of contract is not expressly mentioned in the
Constitution, but the Supreme Judicial Court has declared
that the right to acquire, possess and protect property, as set
forth in Article I. of the Constitution, above cjuoted, includes
the right to make reasonable contracts which shall be under
the protection of the law. Commonwealth v. Perry, 155 Mass.
117. The Constitution declares that all men have an un-
alienable right of seeking and obtaining their safety and
1915.] PUBLIC DOCUMENT — No. 12. 135
happiness. Included in this right is the right to liberty in
the choice of occupation, and to conduct and advertise it in
any legitimate manner and subject only to such restraints
as are necessary to the health, morals and safety of the
community. Slaughter-House Cases, 16 Wall. 36; Dexter v.
Blackdcn, 93 Me. 473; People v. Cold well, 168 N. Y. 671;
Allgeyer v. Louisiana, 165 U. S. 578.
"Liberty," as that term is used in the Constitution, means
not only freedom of the citizen from servitude and restraint,
but is deemed to embrace the right of every man to be free
in the use of his powers and faculties and to adopt and pursue
such avocation or calling as he may choose, subject only to
the restraints necessary to secure the common welfare.
Frorer v. People, 141, 111. 171; Commonwealth v. Perry, supra;
People V. Gillson, 109 N. Y. 389; Ruhstrat v. People, 49
L. R. A. 181.
Our Supreme Judicial Court has said: —
Constitutional hberty means ''the right of one to use bis faculties
in all lawful ways, to live and work where he vnli, to earn his livelihood
in any lawful calhng, and to pursue any la\^'ful trade or avocation."
{O'Keeffe v. SomerviUe, 190 Mass. 110.) ^
For one to be a master plumber within the provisions of
this proposed measure he must have a regular established
place of business conveniently situated. To whom must it be
conveniently situated? Whose convenience is referred to in
the bill? Whose convenience must a man consult in setting
up his plumber's shop, and whose judgment is to prevail as to
whether the business is conveniently situated or not? This
provision, if enacted, will constitute a gross violation of the
constitutional guaranty of personal liberty.
Article IV. of Section I. of Chapter I. of Part the Second
of the Constitution confers authority on the General Court to
make, ordain and establish all manner of wholesome and
reasonable orders, laws, statutes and ordinances. The pro-
vision of this bill last referred to is so clearly unreasonable as,
in my opinion, to be inimical to this provision of the Con-
stitution.
It is my opinion that your question must be answered in
the negative, and that this bill, if passed, will be unconsti-
tutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
136 ATTORXEY-GEXERAL'S REPORT. [Jan.
Worhincns Compensation Act — Cities and Towns — Gypsy and
Brown-tail Moth Suppression.
The Commonwealth is not required to reimburse cities and towns which
have adopted the workmen's compensation act and have incurred
expenses on account of injuries sustained by employees while em-
ployed in suppression of gypsy and brown-tail moths.
May 25, 1914.
Hon. Frank H. Pope, Auditor of the Commonwealth.
Dear Sir: — You have requested my opinion on the
following question : —
Are cities and towns that have adopted the workmen's compensation
act entitled to be reimbursed for expenses incurred by them on account
of injuries sustained by their employees while employed in the sup-
pression of gyps J' and brown-tail moths?
Section 1 of chapter 521 of the Acts of 1907 provides that —
When any city or town shall have expended within its hmits city
or town funds to an amount in excess of five thousand dollars in any
one fiscal year, in suppressing g}'psy or brown-tail moths, the common-
wealth shall reimburse such city or town to the extent of fifty per
cent of such excess above said five thousand dollars.
A more liberal rule is established by statute as to small
towns.
By section 6 of chapter 807 of the Acts of 1913, which
provides for the adoption of the workmen's compensation act
by certain cities and towns, the following provision is made
in regard to employees of the Commonwealth: —
For the purposes of this act all laborers, workmen and mechanics
paid by the commonwealth, but serving under boards or commissions
exercising powers within defined districts, shall be deemed to be in
the service of the commonwealth.
In the case presented b\' your inquiry it appears that the
laborers or workmen engaged in the suppression of gypsy or
brow^n-tail moths in cities and towms are employed by such
cities and towns, and are neither employed nor paid by the
Commonwealth. The State is therefore under no obligation
to pay for injuries sustained by such laborers unless such
expense is authorized by chapter 521 of the Acts of 1907, and
that act, in my opinion, does not contain such a provision.
1915.] PUBLIC DOCUMEXT — Xo. 12. 137
The Commonwealth is required under the law to reimburse
cities and towns to the extent of 50 per cent, of the excess
above $5,000 expended by them for suppressing gypsy or
brown-tail moths, not for expenses incurred by reason of
injury to an employee. It is my opinion that your question
must be answered in the negative.
Very truly yours,
Thomas J. Boyxton, Attorney-General.
Minors — Hours of Labor — Liability of Employers and Parents.
Under St. 1913, c. 831, an employer of a minor, who has been duly notified
that such employee is being employed for a greater number of hours
per week than is authorized by statute, is criminally liable.
Under St. 1913, c. 831, a parent, guardian or custodian of a minor em-
ployed for a greater number of hours per week than is authorized by
statute is criminally liable without notice.
May 2.5, 1914.
State Board of Labor and Industries.
Gentlemen: — You request my opinion upon the following
question: —
May a minor, under sections 8 and 9 of chapter 831 of the Acts of
1913, work six days in one estabhshment and on the seventh day
work for another employer in connection with another mercantile
establishment? For example, may a minor fifteen years of age work
six days a week, with a total of forty-eight hours, for a department
store, and on the seventh da}^ work six hours in connection with a
mercantile estabhshment at a summer resort?
I assume from the wording of your question that the two
employers are entirely independent of each other, that neither
has any interest whatever in the business of the other, and
that there is no collusion between them. You do not state
(and I therefore assume) that the employer for whom the boy
works on Sunday has not had any notice that the boy has
been employed regularly during the six working days of the
week.
Under such circumstances there can hardly be any criminal
liability on the part of either employer.
You do not state whether the boy in question has any
parent, guardian or custodian. Under the circumstances I beg
to direct your attention to sections 20 and 23 of chapter 831
of the Acts of 1913, which provide as follows: —
138 ATTORNEY-GENERAL'S REPORT. [Jan.
Section 20. Any person who, whether b}^ himself or for others,
or through agents, servants or foremen employs, induces or permits
any minor to work contrary to any of the provisions of this act, shall
be deemed guilty of a misdemeanor, and shall, for a first offence, be
punished by a fine of not less than ten dollars nor more than fifty
dollars, or by imprisonment for not more than thirty days, or by both
such fine and imprisonment; and for a second or subsequent offence,
by a fine of not less than fifty dollars nor more than two hundred
dollars or by imprisonment for not more than sixty days, or by both
such fine and imprisonment.
The employment of any minor in violation of any provision of this
act after the person emplojnng such minor has been notified thereof
in writing by any authorized inspector, school attendance officer or
truant officer, shall constitute a separate offence for every day during
which the employment continues.
Section 23. Any parent, guardian or custodian having a minor
under his control, who compels or permits such minor to work in
violation of any provision of this act, or who knowingly certifies to
any materially false statement for the purpose of obtaining the illegal
emploA^ment of such minor, shall be deemed guilty of a misdemeanor,
and, upon conviction, shall for the first offence be punished by a fine
of not less than two dollars nor more than ten dollars, or by imprison-
ment for not more than five daj^s, or by both such fine and imprison-
mnent; and for a second or subsequent offence he shall be punished by
a fine of not less than five dollars nor more than twenty-five dollars,
or by imprisonment for not more than ten days, or by both such fine
and imprisonment.
By causing the proper notice to be given under section 20
to the employer for whom the boy works on Sunday it seems
clear that you would make that employer liable if he did not
cease to employ the boy on that day. The parent, guardian
or custodian of the boy would seem to be liable without an}'
notice from an inspector or other official.
Very truly yours,
Thomas J. Boynton, Aitorney-General.
1915.1 PUBLIC DOCUMENT — Xo. 12. 139
Constitutional Laic — Boston Transit Coviinission — Extension
of Term of Office by Legislature.
It is within the constitutional authority of the Legislature to extend the
term of office of officers created by an act of the Legislature.
May 26, 1914.
To the House of Representatives.
Gentlemen: — You have requested my opinion as to the
constitutionality of Senate Bill No. 102, entitled "An Act
to extend the term of office and to define the duties of the
members of the Boston Transit Commission." Its provisions
are as follows: —
Section 1. The term of office of the members of the Boston transit
commission is hereby extended for three years from the first day of
July in the year nineteen hundred and fourteen.
Section 2. The powers, duties and compensation of said com-
mission during said term of three yesirs shall be the same as are specified
in chapter five hundred and forty-eight of the acts of the year eighteen
hundred and ninetj^-four and in acts in amendment thereof or in
addition thereto, except as hereinafter provided. Any vacancy in
said commission shall be filled in the manner provided in said chapter
five hundred and fortj^-eight.
It is suggested that the provisions of this bill, if enacted,
may interfere with the executive functions of the Governor.
The Governor is the supreme executive magistrate of the
Commonwealth. Mass. Const., c. II., § L, art. I. But the
power to make appointments is not necessarily a function of
or an appurtenance to the executive office. In the Consti-
tutions of the States of the Union there appears to be no
distinct rule as to the distribution of authority to make ap-
pointments to office. Some States confer upon the Executive
a much larger measure of power in this respect than others.
The Constitution of this Commonwealth provides that all
judicial officers shall be nominated and appointed by the
Governor by and with the advice and consent of the Council.
Mass. Const., c. II., § I., art. IX. The fourth amendment to
the Constitution provides that notaries public shall be ap-
pointed by the Governor in the same manner as judicial
officers are appointed. The Governor is also given power
under certain circumstances to make appointments to fill
vacancies in certain executive offices.
140 ATTORNEY-GENERAL'S REPORT. [Jan.
The Constitution confers upon the Legislature large powers
in the matter of appointments to civil office. By Article IV.
of Section I. of Chapter I. of the Constitution full power and
authority are given and granted to the General Court —
... to name and settle annuall}^, or provide by fixed laws for the
naming and setthng, all civil officers within the said commonwealth,
the election and constitution of whom are not hereafter in this form
of government otherwise provided for.
Since the adoption of the Constitution the Legislature has
in repeated instances enacted laws changing the term or
tenure of a civil office. Several of these acts in litigation
have been carried to the Supreme Judicial Court, and the
constitutionality of legislation of this kind has always been
sustained.
In the case of Taft v. Adams, 3 Gray, 126, Chief Justice
Shaw said: —
Where an office is created by law, and one not contemplated, nor
its tenure declared by the Constitution, but created by law solely
for the public benefit, it may be regulated, limited, enlarged or termi-
nated by law, as pubhc exigency or policy may require.
See, also. Opinion of ihe Justices, 117 Mass. 603, 604;
Donaghy v. Macy, 167 Mass. 178; Opinion of the Justices,
165 Mass. 599.
In the case of Barnes v. Mayor of Chicopee, a case in which
the plaintiff Barnes sought to be reinstated in the office of
chief of police of the city of Chicopee, from which office he
claimed to have been wrongfully removed, Chief Justice Rugg
said: —
It is within the power of the Legislature to lengthen or shorten the
tenure of such an office or to place its incumbents under operation of
the civil service law. {Barnes v. Mayor of Chicopee, 213 Mass. 1.)
In a New York case it was said that —
Where an office is created by statute it is wholly within the control
of the Legislature. The term, the mode of appointment and the
compensation maj^ be altered at pleasure. {Connor v. City of New
York, 2 Sandford, 355.)
This case was affirmed by the Court of Appeals of the State
of New York. (1 Selden, 285.)
1915.] PUBLIC DOCUMENT — Xo. 12. 141
While these cases may not be precisely in point, they indi-
cate the trend of judicial opinion upon questions very similar
in character to the one presented by this bill.
The offices of the members of the Boston Transit Com-
mission are not among those named in the Constitution but
fall within the class of civil officers specified in Article IV.
of Section I. of Chapter I. of the Constitution, above quoted.
This commission was created, not by the Constitution itself
but by act of the Legislature.
The result of my examination of this question and of the
authorities is that this bill, if enacted, will not, in my opinion,
interfere with any constitutional right or function of the
Governor.
Very truly yours,
Thomas J. Boynton, Attorney-General
Cities and Towns — Municipal Debts — Bonds and Notes.
A town or city has no authority to issue notes or bonds for the purpose of
refunding sums of money previously raised and expended for mu-
nicipal purposes.
June 10, 1914.
Charles F. Gettemy, Esq., Director of the Bureau of Statistics.
Dear Sir: — You have submitted copies of the records of
certain votes passed by town meetings of the town of Swamp-
scott, among others, of a vote adopted at the last annual
town meeting of that town, and have asked to be advised
whether the statute may properly be construed by you as
permitting the town of Swampscott to incur indebtedness
under the vote passed at the annual town meeting held
Feb. 16, 1914. The warrant for that meeting contained the
following article: —
Article 41. — To see if the town will vote to refund to the treasury
the sum of $4,200 expended for lajdng water pipes in Crosman Avenue
and for replacing water pipes on Galloupe's Point, and making ap-
propriations therefor.
Under this article the town voted as follows: —
To adopt the report of the ways and means committee appro-
priating the sum of $4,200 for the purpose of refunding to the treasury
the amount expended in laying water pipes in Crosman Avenue and
replacing the water pipes at Galloupe's Point, and that this sum be
raised by the issuance of notes or bonds of the town.
142 ATTORNEY-GENERAL'S REPORT. [Jan.
Sections 5 and 6 of chapter 719 of the Acts of 1913 and
chapter 634 of the Acts of 1913 specify the purposes for
which cities and towns may incur debt other than temporary
loans; and section 7 of chapter 719 prohibits the incurrence
of debt b}' cities and towns for purposes other than those
specified by statute, and reads as follows: —
Cities and towns shall not incur debt for any purpose or for any
period of time other than as specified in this act or in chapter six hun-
dred and thirty-four of the acts of the year nineteen hundred and
thirteen, and the proceeds of any sale of bonds or notes, except
premiums, shall be used only for the purposes specified in the author-
ization of the loan: provided, however, that transfers of unexpended
amounts may be made to other accounts to be used for similar purposes.
The purpose for which it is proposed to incur this in-
debtedness is not one specified or permitted by the statute,
and falls clearly within the prohibition of section 7 last above
quoted.
The case presented by your inquiry seems to afford a very
close parallel to the case of Chapin et al. v. Town of Lincoln,
recently decided b\' the Supreme Judicial Court. It appeared
in that case that the tenth article of the warrant for the
town meeting held by adjournment in the town of Lincoln on
March 8, 1913, was as follows: —
To see if the town will issue water bonds pursuant to the Acts of
1907, chapter 476, and reimburse the treasury on account of money
paid from the treasury pending an issue of bonds on account of pay-
ments for water construction purposes.
Under this article it was voted —
That the town treasurer be authorized and directed to issue the
bonds of the town for the sum of $6,000, each bond to be for $500.
In its opinion in this case the court said: —
The single justice has made a finding that the purpose of issuing
bonds under this vote was to reimburse the town for sums that had been
appropriated in earher years for three extensions of the water works
of the town: one of the extensions having been made under an article
of the annual meeting of March, 1911, and the other two under articles
of the annual meeting of March, 1912. And he has expressly found
that all of these extensions ''had been made and paid for before the
vote of March 8, 1913, from money raised by taxation."
1915.] PUBLIC DOCOIEXT — Xo. 12. 143
In neither of these three instances did the town express Siny in-
tention to provide funds for the proposed municipal improvement by-
borrowing money under its water acts. Sts. 1872, c. 188; 1907, c. 476.
It did not even undertake to vote that the money in the towTi treasury
should be used temporarily for water purposes "pending an issue of
bonds," as it appears to have done on some other occasions. In fact,
in the second and most important case, when it appropriated S4,267,
specific pro\dsion was made for the pa^^nent of this sum without an
issue of bonds, namel.v, by using the special water works sinking
fund and the receipts from the water works.
There is no indebtedness incurred or contemplated b}' the town to
warrant the proposed loan. There is no unfmided debt on account
of the extensions referred to. It does not follow that because the
to^Ti might have borrowed money for these extensions at the time
they were voted, it can do so now after they are paid for. See St.
1913, c. 719, as amended by St. 1914, c. 143. . . .
We are in accord with the opinion of the single justice, that an
injunction should issue as praj^ed for, restraining the respondents
from issuing bonds under the vote passed March 8, 1913.
This statement of the law covers veiy fully your inquiry.
So far as appears from the statement of facts with which
you accompany your inquiry the town of Swampscott, like
the town of Lincoln in the case above referred to, has in-
curred no indebtedness nor is any contemplated to justify the
proposed loan. In the Swampscott case, as in the Lincoln
case, the purpose is to refund or reimburse the treasury for
money already expended, which, as above stated, is not one
of the purposes for which the statute permits indebtedness to
be incurred.
In matters of this kind the only safe rule is the rule of
strict construction. Municipal corporations are simply agencies
of government for certain well-defined purposes, and discharge
such functions only as are conferred upon them by law. To
permit the issue of commercial paper by towns and cities for
purposes not authorized by statute would expose investors to
loss and taxpayers to the expense of tedious and vexatious
litigation.
It is my opinion that your c|uestion must be answered in
the negative.
Very truly yours,
Thomas J. Boynton, Attorney-General.
U4 ATTORNEY-GENERAL'S REPORT. [Jan.
State Board of Education — Textile Schools.
The Commissioner of Education has statutory powers over all educational
work supported in v/hole or in part by the Commonwealth, includinji;
textile schools.
June 10 1911.
Commission on Economy and Efficiency.
Gentlemen: — You have requested my opinion as to the
nature and scope of the supervisory powers possessed by the
State Board of Education, with special reference to State
aided or supported textile schools, and as to the need of
further legislative definition of such supervisory powers.
The supervisory powers of the Board of Education over
textile schools seem to be vested in the Commissioner of
Education and his deputies. Chapter 421 of the Acts of
1913 provides as follows: —
The board shall appoint a commissioner of education whose term
of office shall be live years, and may fix his salary at such sum as the
governor and council shall approve. Said commissioner may at any
time be removed from office by a vote of six members of the board.
He shall exercise the powers and perform the duties now conferred or
imposed by law on the secretary of the board of education. He shall
be the executive officer of the board, shall have super\dsion of all
educational work supported in whole or in part by the commonwealth,
and shall report thereon to the board, and, when so authorized by the
board, ma}^ approve bills for expenditures from appropriations and
funds placed under the direction of the board. The board shall also
appoint two deputy commissioners, one of Avhom shall be especially
qualified to deal with industrial education. The powders, duties,
salaries and terms of office of said deputy commissioners shall be such
as may be established from time to time by the board, but the board
may, by a vote of six members thereof, remove from office at any
time either of said deputy commissioners. The board may be allowed
for rent, salaries of the commissioner, the deputies, agents, assistants
and clerical service, and for traveUing and other necessary expenses
of the commissioner, the deputies, agents, and of the board incurred
in the performance of their official duties, such sum as shall be appro-
priated by the general court annually, paj'-able out of the treasury of
the commonwealth.
This statute gives the Commissioner of Education ample
supervisory powers over all educational work supported in
whole or in part by the State, which certainly includes textile
schools, whether supported wholly by the State or receiving
aid from the Commonwealth, and by this statute it is made a
1915.] PUBLIC DOCUMENT — No. 12. 145
part of the duty of the Commissioner of Education to report
to the State Board as to all educational work under his
supervision.
The statute provides for two deputy commissioners of
education, and requires that one of them shall be especially
qualified to deal with industrial education. While this phrase
undoubtedly applies to those schools devoted to vocational
education, so called, in the various cities and towns, it also
includes textile schools.
There is certainly sufficient statutory authority now to
warrant the Commissioner of Education in supervising and
making report upon textile schools. The question of the need
of further legislation in regard to this matter is for the legis-
lative branch of the State government to determine, and not
for this department.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Great Ponds — Regulation of the Price
of Ice.
A law authorizing a commission to fix the price at which ice shall be sold
when such ice has been taken from great ponds of the Common-
wealth, or from bodies of water under the control of such commission,
would be constitutional.
June 12, 1914.
To the Honorable Senate.
Gentlemen: — You have requested my opinion upon the
following question: —
Is it within the constitutional power of the General Court to enact
a law authorizing a board or commission of the Commonwealth to
fix the price at which ice shall be sold to famihes by individuals or
corporations, when such ice has been taken from ponds or other bodies
of water under the supervision and control of said board or com-
mission?
In making answer to your inquiry two questions are pre-
sented for examination: First, as to rights of individual
ownership, if any, in the public waters, chiefly and perhaps
entirely for the purposes of your inquiry in great ponds of the
Commonwealth; and second, as to the extent of the authority
of the Legislature over these bodies of water.
146 ATTORNEY-GENERAL'S REPORT. [Jan.
The title to the great ponds was taken by the sovereign
power, and their use granted to the people by a very early
colonial ordinance, and except for certain special grants has
remained to this day as it was fixed by the colonial ordinance.
By section 16 of the Bodie of Liberties, supposed to have
been enacted in 1641, it was provided that —
Every Inhabitant that is an howse holder shall have free fishing
and fowhng in any great ponds and Bayes, Coves and Rivers, so
farre as the sea ebbes and flowes within the presincts of the towne
where they dwell, unlesse the free men of the same Towne or the
GeneraU Court have otherwise appropriated them, provided that
this shall not be extended to give leave to any man to come upon
others proprietie -s^ithout there leave.
This ordinance was at some time between 1641 and 1647
amended so as to provide: —
Every Inhabitant who is an householder shall have free fishing and
fowling in any great ponds, bayes Coves and Rivers, so farr as the Sea
ebbs and flowes, within the precincts of the towne where they dwell,
unles the freemen of the same Town or the General Court have
otherwise appropriated them. Provided that no Totvti shall appro-
priate to any particular person or persons; any great Pond containing
more than ten acres of land, and that no man shall come upon anottiers
propriety T\ithout their leave othenAnse then as hereafter expressed.
The which clearly to determine, It is Declared, That in all Creeks,
Coves and other places, about and upon Salt-water, where the Sea
ebbs and flowes, the proprietor of the land adjoining, shall have pro-
priety to the low-water-mark, where the Sea doth not ebb above a
hundred Rods, and not more wheresoever it ebbs further. Provided
that such proprietor shall not by this Hberty, have power to stop or
hinder the passage of boates or other vessels, in or through any Sea,
Creeks or Coves, to other mens houses or lands. And for great Ponds
lying in common, though "within the bounds of some To'wti, it shall be
free for any man to fish and fowle there, and may pass and repass
on foot through any mans propriet}^ for that end, so the}' trespass not
upon any mans Corn or Meddow.
From the time of this later enactment great ponds in this
Commonwealth have been and still are public property.
Efforts have been made from time to time b}^ individuals to
establish rights of private ownership in great ponds, and
cases involving claims of private ownership have in repeated
instances been carried to the Supreme Judicial Court.
1915.] PUBLIC DOCUMENT — Xo. 12. 147
In the case of Fay v. Salem & Danvers Aqueduct Co., Ill
Mass. 27, the petitioner sought to recover damages for the
taking of water from Spring Pond, a pond having an area of
about sixty acres, for its aqueduct, whereby the dwelling
house of the petitioner situated on the shore of said pond
would become uncomfortable and unfit for habitation. The
court held that "by the law of Massachusetts great ponds are
public property," and further said that the petitioners had
no title "except that derived from deeds of lands partly
surrounding the pond on the side opposite the outlet, and
bounded 'by the pond.' The title acquired b}^ such deeds
extended only to low-water mark, and did not effect the rights
of the public in the pond," and dismissed the petition. Fay
V. Salem <i' Danvers Aqueduct Co., Ill Mass. 27.
In another case action was brought by certain private
parties seeking to restrain another individual from cutting and
harvesting ice in Fresh Pond, which has an area of about one
hundred and eighty-three acres. It appeared that the riparian
owners of the entire shore of Fresh Pond had by agreement
between themselves apportioned to each a certain part of the
area of the pond; that these proprietors generally cut ice to
be shipped and also to supply the local demand; and that
the business was very large, employing at times more than a
thousand men. The Supreme Judicial Court declared that —
By the law of Massachusetts, great ponds, not appropriated before
the colony ordinance of 1647 to private persons, are pubhc property,
the right of reasonably using and enjoying which, for taking ice for
use or sale, as weU as for fishing and fowling, boating, skating, and
other lawful purposes, is common to all, and in the water or ice of
which, or in the land under them, the owners of the shores have no
peculiar right, except by grant from the Legislature, or by prescription,
which implies a grant. Anc. Chart. 148. Cummings v. Barrett^ 10
Cush. 186; West Roxbury v. Stoddard, 7 Allen, 158; Paine v. Woods,
108 Mass. 160; . . . Fay v. Salem & Danvers Aqueduct Co. Ill Mass.
27. {Hittinger v. Fames, 121 Mass. 539.)
In the case of Rockport v. Webster, 174 Mass. 385, the town
of Rockport, having taken the waters of Cape Pond for a
water supply, sought to prevent the defendant from taking
ice therefrom. The defendant replied that he had been for
years a riparian owner of land upon the shore of said pond,
with an established ice business thereon consisting in the
148 ATTORNEY-GENERAL'S REPORT. [Jan.
cutting and preparing of ice for sale. In the discussion of this
phase of the case the Supreme Court said: —
While it is true that the defendant is a riparian owner of lands upon
the shores of the pond, with an established business of cutting and
storing ice for sale, still, in the absence of any grant from the Legis-
lature, or by prescription, he has no peculiar right thus to cut ice,
and he must stand or fall in that respect with the general public.
Hittinger v. Fames, 121 Mass. 539. (Rockport v. Webster, 174 Mass.
385, 390.)
To the effect that there are no private rights of property in
great ponds is the case of SiJrague v. Minon, 195 Mass. 581.
The authorities are uniform and entirely conclusive against
the assertion of rights of private ownership in any of the great
ponds; and there is therefore no constitutional objection to
the proposed regulation upon the ground that it may interfere
with private ownership.
Taking up the question as to the authority of the Legis-
lature to enact the proposed legislation, it again appears that
a considerable number of cases involving this right of the
Legislature have been passed upon by the Supreme Judicial
Court.
In the case of Fay v. Salem & Danxers Aqueduct Co., above
cited, the court declared not only that great ponds are public
property, but that their use for "taking water or ice, as w^ell
as for fishing, fowling, bathing, boating or skating, may be
regulated or granted by the Legislature at its discretion."
In repeated instances the Commonwealth has leased the
fishing rights in great ponds to certain individuals to the ex-
clusion of all others. In passing upon a case in which the de-
fendant set up his right to fish in a great pond in disregard of
such a lease executed by the Commonw^ealth, the Supreme
Court, referring to the ordinance hereinbefore quoted, said: —
This ancient ordinance, in its amended form, is the foundation of
our law upon this subject. While it prohibits the towns from granting
away great ponds, it expressly affirms their power to regulate the
fisheries, both in such ponds and in tidewaters, and that of the Legis-
lature to dispose either of great ponds (as well of bays, coves and rivers
within the ebb and flow of the tide), or of the common rights of fishing
and fowling in them. It has ever since been held that the right of
fishing, both in the tidewaters and in the great ponds, belongs to the
public, unless otherwise appropriated by the Legislature, or l^y the
towns acting under its authority.
1915.] PUBLIC DOCUMENT — No. 12. 149
In the further discussion of this question the court said: —
The power of the Legislature of the Commonwealth over the public
rights of na\dgation and fishing in any waters wthin its boundaries is
unrestricted, provided it does not interfere with the power to regulate
commerce, conferred upon the general government by the Constitution
of the United States. Cooky y- Philadelphia Board of Wardens, 12
How. 299; Gilman v. Philadelphia, 3 Wallace, 713. The Legislature
of a State has the power to regulate the time and manner of fishing in
the sea within its limits; and, according to the opinions of most re-
spectable judges, may even grant exclusive rights of fishing at par-
ticular places in tidewater. Burnham v. Webster, 5 Mass. 266; Diin-
ham V. Lamphere, 3 Gray, 268; Smith v. Maryland, 18 How. 71. . . .
In those waters, whether within or beyond the ebb and flow of the
tide, which are not na\dgable from the sea for any useful purpose,
there can be no restriction upon its authority to regulate the public
right of fishing, or to make any grants of exclusive rights which do
not impair other private rights already vested. Nickerson v. Brackett,
10 Mass. 212; Cleaveland v. Norton, 6 Cush. 380; Russell v. Russell,
15 Gray, 159. {Commonwealth v. Vincent, 108 Mass. 441.)
In many instances the Legislature has granted the control of
the waters of great ponds to corporations, with authority to
sell the water for domestic use. The right of the Legislature
to regulate the price at which water from a great pond may
be sold by such a corporation appears to be fully recognized
in the case of Gardner Water Co. v. Inhahitants of Gardner,
185 Mass. 190. The facts in that case, briefly stated, were
that the Gardner Water Company, having established itself
in the business of taking water from Crj^stal Lake and selling
it to the residents of Gardner, and the town desiring to take
over the corporate property of the w^ater company, a board
of commissioners was appointed to ascertain and determine the
value of the corporate property. The commissioners reported
that the corporation — .
was entitled, whenever the town of Gardner should take advantage
of the option of purchase granted to it by section 9, to the fair value
at that time of the right to use and sell the waters of Crj^stal Lake
(and any other waters that may have been acquired by the company
under the provisions of sections 2 and 3) for the purpose of furnishing
the inhabitants of the town of Gardner with water for the purposes
enumerated in section 1; subject to the right of the State to regulate
the rates charged by the company (but not to establish rates so low
as to be obnoxious to the provisions of the State or Federal Consti-
tutions), to authorize competition (either pubhc or private) from
150 ATTORNEY-GENERAL'S REPORT. [Jan.
water sources other than those held by the compan}^, to revoke the
companj^'s right to use the pubhc wa^^s of Gardner for its pipes and
hydrants (thus leaAdng the company with the right only to sell its
waters wholesale to a distributing company or the town, or to dis-
tribute through pipes laid exclusively on private land), to revoke the
company's charter, to dispose of any part of the waters of the lake
not required for the supply of the inhabitants of Gardner, to control,
lease, or sell the use of the lake for fishing, boating, ice cutting, and
other purposes not interfering with its use for a water supply in Gardner,
to control the operations of the com.pany and its use of the water of
the lake to the extent reasonably necessarj^ to protect the purity of
the water, and other\\dse to exercise over the company the ponce
power of the State within the limits set by the State and Federal
Constitutions. . . .
In adopting this basis of valuation we assume that the Legislature
contemplated that the town, in purchasing the property, rights and
pri\dleges of the company, would act in its private or proprietary
capacity as a business corporation, and that the price should be fixed
as if the purchase authorized by section 9 was to be made by a private
corporation.
We include in the expression "water rights," as used in this ruling,
all the rights, privileges and franchises obtained by the company
under its charter to sell and distribute the waters of Crystal Lake in
the town of Gardner, except the right to lay and maintain pipes, etc.,
in the public streets, the right to take property by eminent domain,
and the other rights considered separately below in 7.
In valuing the company's water sources as defined above, the
control and rights of the State in or over the same as therein set forth
are to be borne in mind, as also the probability or improbability that
these powers will in fact be exercised.
To that part of the report above quoted the town objected,
upon the ground that "a grant by the State of rights in or
to the lake or the waters thereof which entitled the company
to a valuation on the basis set forth in the report would
deprive the public of that beneficial use to which it is en-
titled." It should be noted that one element in the basis of
valuation was the right of the State to regulate the rates
charged by the company, but not to establish rates so low as
to be obnoxious to the provisions of the State and Federal
Constitutions. The Supreme Judicial Court held that there
was no error in the part of the report of the commissioners
that was objected to.
There is no doubt that control of the great ponds in the
public interest is in the Legislature that represents the public.
1915.] PUBLIC DOCUMENT — No. 12. 151
It may regulate and change these public rights or take them
away altogether to serve some paramount interest. Sprague
V. Minon, 195 Mass. 581.
Such legislation may be enacted under the sovereign power
of the State to control and regulate our public rights. Sprague
V. Minon, supra.
The right of the individual citizen to the use of the great
ponds for the purpose of cutting and harvesting ice is a right
that exists by virtue of the grant contained in the ancient
ordinance above set forth. It is a public grant, and it is the
settled law of this Commonwealth that in making any public
grant the State may impose such terms as it sees fit, and
where no contractual relations are established between the
grantee and the Commonwealth it may impose such regu-
lations upon the grant after it is made as it sees fit. It may
relieve the grantee from the payment of any damages for the
taking of public property, or it may require compensation to
be made to private persons where no legal right has been
interfered with, as in the case where land is taken, for rail-
roads and other public works. Rockport v. JVebster, 174
Mass. 385; Parker v. Boston c& Maine R.R., 3 Cush. 107;
Trovjbridge v. Brookline, 144 Mass. 139.
This statement might be further elaborated by reference to
familiar instances of the imposition of terms and regulations
upon a public grant or franchise.
The enactment of such a regulation does not involve the
Commonwealth nor any municipality within it in the business
of harvesting and selling ice.
It is my opinion that the enactment of such a law as is
suggested by your inquiry would be simply the regulation of
a public right by the imposition of terms upon the grant of
the right to take ice from great ponds to be sold to con-
sumers, and that such a statute, if enacted, would not be
obnoxious to any provision of the Constitution.
Very truly yours,
Thomas J. Boynton, Attorney-GeneraL
152 ATTORNEY-GENERAL'S REPORT. [Jan.
Constitutional Laiv — Contracts — Boston Consolidated Gas
Company.
St. 1906, c. 422, does not constitute a contract between the Common-
wealth and the Boston Consolidated Gas Company, and the Legis-
lature has authority to alter the provisions regulating the price of
gas.
June 22, 1914.
To the House of Representatives.
Gentlemen: — You have requested my opinion upon the
following question: —
Whether or not the provisions of chapter 422 of the Acts of the year
1906 constitute a contract between the Commonwealth and the Boston
ConsoUdated Gas Company; and whether the provisions of the said
chapter relating to the price of gas may lawlfulty be changed by the
General Court without the assent of said company.
In connection with your request for an opinion you have
submitted a cop}' of House Bill No. 1674, amending chapter
422 of the Acts of 1906. That part of said chapter that
would be affected by the passage of House Bill No. 1674 is as
follows: —
Section 1. From and after the thirtieth day of June in the year
nineteen hundred and six, the standard price to be charged bj^ the
Boston Consolidated Gas Company for gas supplied to its customers
shall be ninety cents per one thousand cubic feet, which price shall
not thereafter be increased except as hereinafter provided. From and
after the said date the standard rate of dividends to be paid by said
companj^ to its stockliolders shall be seven per cent per annum on the
par value of its capital stock, wiiich rate shall not thereafter be in-
creased except as hereinafter provided.
Section 2. If during any year ending on the thirtieth daj^ of
June the maximum net price per thousand cubic feet charged bj^ the
company has been less than the standard price, the company may
during the following j^ear declare and pay di\adends exceeding the
standard rate in the ratio of one fifth of one per cent, for every one
cent of reduction of said maximum net price below the standard
price.
Chapter 422 of the Acts of 1906 operated as an amendment
of the original charter granted to the Boston Consolidated
Gas Company.
The answer to your entire inquiry, therefore, will be settled
by the determination of the single question. Did the enact-
1915.] PUBLIC DOCUMENT — No. 12. 153
ment of chapter 422 of the Acts of 1906 and its acceptance by
the Boston Consolidated Gas Company constitute a contract
between the Commonwealth and that company?
Beyond any question, if a contract was made the proposed
bill, if enacted, would be unconstitutional; and also beyond
any question, if a contract was not created between the two
parties the rates to be charged by the company may be further
regulated b}^ the Legislature, subject only to the provision
that they must not be fixed at so low a rate as to be really
confiscatory. A contract between the State and a public
service corporation is a very different thing from the enact-
ment of a statute by the State regulating the conduct and
management of, and fixing maximum rates to be charged to
the public by, the corporation.
Your question arises under the Federal Constitution. It
has been said that —
The term ''contract" is used in the (Federal) Constitution in its
ordinary sense, as signifying the agreement of two or more minds, for
considerations proceeding from one to the other, to do, or not to do,
certain acts. Mutual assent to its terms is of its very essence.
(Louisiana v. Pilshury, 105 U. S. 278.)
The charter of a corporation created by the State is a
contract, and is in all particulars inviolable, unless in the
charter itself, or in some general or special law subject to
which it was taken, there is a power reserved to the Legis-
lature to alter, amend or repeal. Commonwealth v. New
Bedford Bridge, 2 Gray, 339; Charles River Bridge v. Warren
Bridge, 7 Pick. 344.
The original charter of the Boston Consolidated Gas Com-
pany, St. 1903, c. 417, contains no provision for its alteration,
amendment or repeal by the Legislature, nor does chapter 422
of the Acts of 1906, referred to in your inquiry, contain such
a provision; but wdien those acts were passed it was the
general law of the Commonwealth that every act of in-
corporation should be subject to amendment. Section 3 of
chapter 109 of the Revised Laws provides that "every act of
incorporation passed since the eleventh day of March in the
year eighteen hundred and thirty-one shall be subject to
amendment."
This statute, first introduced into the general legislation of the
Commonwealth by St. 1830, c. 81, and re-enacted in the Rev. Sts., c. 44,
154 ATTORNEY-GENERAL'S REPORT. [Jan.
par. 23, and the Gen. Sts., c. 68, par. 41, has been as much a part of
all charters since granted as if inserted therein; and was manifestly
adopted mth the intention of reser^dng for the future a fuller parha-
mentary or legislative power than would otherwise be consistent with
the effect to be allowed to the special terms of particular charters,
under the judicial construction of the constitutional prohibition against
impairing the obhgation of contracts. The extent of the power re-
served by such an enactment has been the subject of some diversity
of judicial opinion, and a definition of its extreme Hmit is not necessary
to this case. It is sufficient now to say that it is estabhshed by adjudi-
cations which we cannot disregard, and the principles of which we
fully approve, that it at least reserves to the Legislature the authority
to make any alteration or amendment in a charter granted subject to
it, that will not defeat or substantially impair the object of the grant,
or any rights which have vested under it, and that the Legislature
may deem necessary to secure either that object or other pubhc or
private rights. {Commissioners on Inland Fisheries v. Holyoke Water
Power Co., 104 Mass. 446, 451.)
It is a famiUar rule that pubhc grants will be strictly construed
against the grantee, and rights conferred by a pubhc grant ^\^ll not
be extended beyond the clear meaning of the language in which they
are made. Grants of franchises are usually prepared by those in-
terested in them and submitted to the Legislatures with a view to
obtain the most hberal grant obtainable; and for this and other reasons
such grants should be in plain language, certain, definite in nature
and contain no ambiguity in their terms, and will be strictly construed
against the grantee. {Blair v. Chicago, 201 U. S. 400.)
Referring to the strictness with which charters granted
are to be construed, the courts have laid down the doctrine
that the State is to be held to have granted only such powers
or immunities as are specifically or unequivocally stated, or as
are unavoidably implied therein. Willoughby on the Consti-
tution, Vol. II, p. 898.
The Supreme Court of the United States has said of this
class of cases: —
The rule of construction is that it shall be construed most strongly
against the corporation. Every^ reasonable doubt is to be resolved
adversely. Nothing is to be conceded but what is given in umnis-
takable terms or by an imphcation equally clear. The afl&rmative
must be shown. Silence is negation, and doubt is fatal to the claim.
{Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659.)
Coosaiv Mining Co. v. South Carolina, 144 U. S. 550; Knovville
Water Co. v. Knoxville, 200 U. S. 22.
1915.] PUBLIC DOCUMENT — No. 12. 155
It has been further decided that a grant of power to fix
its charges, provided they be not in excess of a specified rate
in the charter of a corporation, does not prevent the State
from afterward fixing lower rates than those established by
tlie corporation. Georgia Railroad & Banking Co. v. Smith,
128 U. S. 174. And that generally the reservation by the
State of a power to amend or revoke the charter carries with
it a power to regulate the charges that may be made. Peik
V. Chicago, etc., Ry. Co., 94 U. S. 164.
Applying the rules above stated to the construction of
chapter 422 of the Acts of 1906, it becomes instantly apparent
that the Commonwealth did not enter into any agreement
that it would not further regulate the rates to be charged by
the Boston Consolidated Gas Company. Such a contract is
neither clearly expressed in nor fairly to be implied from the
language of that chapter. That the State did not make a
contract not to further regulate the charges and rates of the
Gas Company is conclusively shown by section 9 of chapter
422 of the Acts of 1906, which provides that the rates charged
by the company may be either raised or lowered upon certain
applications, therein provided for, to the Board of Gas and
Electric Light Commissioners.
Without further discussion of this matter I have to say
that it is my opinion that the provisions of chapter 422 of the
Acts of 1906 did not and do not constitute a contract be-
tween the Commonwealth and the Boston Consolidated Gas
Company; and that, subject to the rule above stated, the
provisions of that chapter relating to the price of gas may
lawfully be changed by the General Court without the
assent of that company.
Very truly yours,
Thomas J. Boynton, Attorney-General.
State Forester — Sales of Wood and Lumber.
Under St. 1908, c. 478, monej^s received by the State Forester for the
Commonwealth, on account of wood and lumber sold by him, must
be paid to the State Treasurer, and cannot be credited to the For-
ester's department.
June 24, 1914.
Mr. H. O. Cook, Assistant Forester.
Dear Sir: — You ask in your letter of June 22 if money
turned into the State treasurv by the State Forester, which
156 ATTORNEY-GENERAL'S REPORT. [Jan.
had been received b\' your department from sales of cordwood
and lumber, may be credited by the State Treasurer to the
State Forester's approprialion. You suggest that this in part
would compensate for the expense of removing this material,
which is now borne by the department and met by the annual
appropriation.
Chapter 478 of the x\cts of 1908 provides for the purchase
and acceptance of gifts of land for reforestation. Sections 4
and 5 of that chapter are as follows : —
Section 4. Land acquired under the provisions of this act shall
be under the control and management of the state forester who may,
subject to the approval of the governor and council, cut and sell
trees, wood and other produce therefrom.
Section o. All moneys received b}^ or payable to the common-
wealth or any one acting on its behalf under the provisions of this act
shall be paid into the treasur}^ of the commonwealth.
The language of the statute warrants but one construction,
namely, that all money received from sales of trees, wood and
other produce must be accounted for and turned over to the
State Treasurer. The only way by which these moneys could
be credited to your department, and thereby added to your
available funds, would be by an extra appropriation.
Very truly yours,
Thomas J. Boynton, Attorney-Gcnerd.
Constihitional Law — Railroads — Guaranty of Bonds.
It is within the constitutional authority of the Legislature to provide that
the Commonwealth shall guarantee bonds of a railroad company.
June 22, 1914.
Committee on Bills in the Third Reading.
Gentlemen: — You have requested my opinion as to the
constitutionality of House Bill No. 745, and your inquiry
contains the statement that the bill appears to be one which
provides that the Commonwealth shall guarantee the bonds of
a private enterprise. I assume, therefore, that the source of
the doubt arising in your minds as to the constitutionality of
the bill is indicated by this statement.
No principle of law is better settled in this Commonwealth
than that which forbids the use of money raised by taxation
for a private purpose.
1915.] PUBLIC DOCUMENT — Xo. 12. 157
But the preamble to this bill states that the purpose of the
bill is to secure the building of the railroad described in
chapter 556 of the Acts of the year 1907, as amended and
extended by chapter 707 of the Acts of the year 1912, and in
order to furnish new freight and passenger railroad lines for
the State of Massachusetts and the city of Boston, to be
operated in the interests of the people of said State and city,
and to connect with existing lines at Providence, Fall River
and other points. The bill itself, when read in connection
with the statutes referred to, bears out the recital of the
preamble.
Railroads are held to be built for the public use, whether
the right to take land or the right to grant pecuniary aid to
them is considered. The Legislature of this Commonwealth
has granted aid to railroad corporations from the treasury of
the Commonwealth. Prince v. Crocker, 166 Mass. 347.
Repeated instances of this are found in our legislation.
For example, aid was extended to the Western Railroad
Corporation (St. 1836, c. 131), to the Troy & Greenfield Rail-
road Corporation (St. 1854, c. 226), to the Williamsburg &
North Adams (St. 1867, c. 321), and to the Lee & New
Haven (St. 1868, c. 313). The Legislature has also in a
number of instances authorized cities and towns to furnish
aid to railroad companies by subscribing to stock or other-
wise. The constitutionality of such legislation has not been
brought into direct controversy before the Supreme Court,
but indirectly has been recognized. Kittredge v. North Brook-
field, 138 Mass. 286; Commonwealth v. Williamstown, 156
Mass. 70. And elsewhere it has been established by such a
weight of judicial authority that it must be regarded as
settled. Prince v. Crocker, 166 Mass. 347, 361. See, also,
Olcott v. Supervisors, 16 Wall. 678; Railroad Co. v. Otoe, 16
Wall. 667; Piiie Grove Toumship v. Talcott, 19 Wall. 666;
Dillon on Municipal Corporations, 4th ed., §§ 153, 158, 508.
Thus the building of the subway in the city of Boston for
the carriage of such passengers as paid the regular fare was
held to be for a public use; and it was further held to be
within the constitutional power of the Legislature to order or
sanction taxation for it. Prince v. Crocker, 166 Mass. 347,
361.
It is my opinion that the railroad described in this bill, if
built, must, like all other railroads, be regarded as constructed
158 ATTORNEY-GENERAL'S REPORT. IJan.
for public use; that the Legislature has the right to extend
to it the direct financial aid of the Commonwealth; and that
the proposed bill, if enacted, will be constitutional.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Contracts — Public Works — Labor.
The provisions of St. 1914, c. 474, regulating wages of employees on public
works, do not apply to contracts made prior to the taking effect of
the statute.
June 25, 1914.
State Board of Labor and Industries.
Gentlemen: — You have requested my opinion upon the
following question: —
Do the provisions of chapter 474 of the Acts of 1914 apply to con-
tracts made before the fifth day of June, 1914, that being the date upon
which that chapter went into effect?
This chapter reads as follows: —
Section 1. Section twenty-one of chapter five hundred and
fourteen of the acts of the year nineteen hundred and nine is herebj-
amended by inserting after the word "effect", in the eighth line, the
words : — The wages for a day's work paid to mechanics employed in
such construction of pubhc works shall be not less than the customarj^
and prevailing rate of wages for a day's work in the same trade or
occupation in the locaUty, city or town where such public works are
constructed, — so as to read as f oIIoavs : — Section 21 . In the em-
ployment of mechanics and laborers in the construction of public
works by the commonwealth, or by a county, city or. town, or by
persons contracting therewith, preference shall be given to citizens
of the conmionwealth, and, if they cannot be obtained in sufficient
numbers, then to citizens of the United States; and every contract
for such works shall contain a provision to this effect. The wages for
a day's work paid to mechanics employed in such construction of
pubhc works shall be not less than the customary^ and prevaihng rate
of wages for a day's work in the same trade or occupation in the lo-
cality, city or town where such public works are constructed. Any
contractor who knowingly and wiLfuMy violates the provisions of this
section shall be punished by a fine of not more than one hundred
dollars for each offence.
Section 2. The board of labor and industries shall enforce the
provisions of this acf, and in case of any dispute that may arise upon
1915.] PUBLIC DOCUMENT — Xo. 12. 159
public works as to the customaiy and prevailing rate of wages the
board of labor and industries shall investigate the wages in the trade
or occupation in the locahty, city or town where such pubhc works
are under construction and decide what rate of wages shall be paid
upon such works.
This statute relates to the employment of mechanics and
laborers in the construction of public works by the Common-
wealth, and to the rate of wages to be paid by contractors
doing such work.
The contracts of a State w^ith individuals are to be con-
strued in the same manner and have the same binding effect
upon the parties thereto as the contracts of private parties.
36 Cyc. 880, par. G.
A State has no more right than an individual to modify or
rescind a contract entered into by it unless such right has
been reserved. 36 Cyc. 880, par. H.
In Boston Molasses Co. v. Commonwealth, 193 Mass. 389,
Sheldon, J., says as follow^s: —
The State, in all its contracts and dealings with individuals, must
be adjudged and abide by the rules which govern in determining the
rights of private citizens contracting and deahng with each other.
There is not one law for the sovereign and another for the subject;
but, when the sovereign engages in business and the conduct of business
enterprises, and contracts with individuals, although an action may
not lie against the sovereign for a breach of the contract, whenever
the contract, in any form, comes before the courts, the rights and
obligations of the contracting parties must be adjusted upon the
same principles as if both contracting parties were private persons.
Both stand upon equality before the law, and the sovereign is merged
in the dealer, contractor and suitor.
In an opinion by the Attorney-General, given June 28,
1911, to the Metropolitan Water and Sewerage Board, where
a contract was made prior to the act of the Legislature limit-
ing the employment of men to eight hours a day, it was held
by the Attorney-General that the contractor had the right
to employ men according to the terms of the contract, and
that the terms of this contract will not be changed by the
passage of the act in question. The statute would be un-
constitutional if construed to abrogate or interfere with the
terms of this contract.
There is nothing in chapter 474 of the Acts of 1914 indi-
cating any intention that it should apply to contracts made
160 ATTORNEY-GENERAL'S REPORT. [Jan.
before that chapter would take effect, and such a provision,
if made, would undoubtedly constitute a violation of that
provision of the Federal Constitution which prohibits any
State from enacting a law impairing the obligation of con-
tracts.
It is my opinion that this chapter does not apply to the
class of contracts referred to in your inquiry.
Very truly yours,
Thomas J. Boynton, Attorney-General
Contracts — Bids — Right of Rejection.
Where a public commission, in advertising for bids on a proposed contract,
reserves the right to reject any and all bids, no liability attaches in
case any of the lowest bids are rejected.
June 26, 1914.
State House Building Commission.
Gentlemen: — In your communication of recent date, you
state in substance that in advertising for bids for contracts
for the State House extension you reserved the right to reject
any and all bids, and you request my opinion upon the follow-
ing question: "If the Board shall now reject an}^ of the lowest
bidders will such rejected bidders have any recourse at law?"
This question received judicial consideration in the case of
Colorado Paving Co. v. Murphy, 37 L. R. A. 630. In this
case Murphy brought a bill in equity seeking to enjoin the
Colorado Paving Company and the mayor and certain other
officials of the city of Denver from entering into a contract
for the paving of a certain street in Denver. The city au-
thorities had advertised for bids for a contract for this work,
and had reserved the right to reject any and all bids. Murphy
was the lowest bidder and his bid was rejected. The court
said: —
''Wherever an action is brought for a breach of duty imposed by
statute, the party bringing it must show that he had an interest in the
performance of the duty, and that the duty was imposed for his benefit.
But where the duty was created or imposed for the benefit of another,
and the advantage to be derived to the party prosecuting, by its
performance, is merely incidental and no part of the design of the
statute, no such right is created as forms the subject of an action."
It is upon this principle that it is now settled by the great weight
of authority that the lowest bidder cannot compel the issue of a writ
of mandamus to force the officers of a municipalitj' to enter into a
1915.] PUBLIC DOCUMENT — No. 12. 161
contract with him. (Citing High, Extr. Legal Rem. § 92, and other
authorities.) And the courts hold that he cannot maintain an action
at law for damages for their refusal to enter into the contract. Talbot
Paving Co. v. Detroit (Mich.), 3 Det. L. N. 268; East River Gaslight
Co. V. Donnelly, 93 N. Y. 557. This principle is as fatal to a suit in
equity as to an action at law. It goes not to defeat any particular
cause of action, but to defeat the right to any rehef. Nor is this an
unjust or inequitable result. One who offers to contract to do work
for a city which he knows has the right to reject his bid ought not to
have the power to compel that city to enter into a contract with him
simply because it decides to make a contract for the same work with
his rival. He knowingly puts the labor and expense of preparing his
bid at the hazard of the city's action. It is admitted that, if the city
rejects all bids, he has no rights, no equities; and we fail to see how its
acceptance of another's bid can give to the unsuccessful bidder any
greater right than he would have had if all bids had been rejected.
{Colorado Paving Co. v. Murphy, 37 L. R. A. 630, 635.)
In a case involving the same principle the Supreme Court
of Missouri said: —
In the case in hand the advertisement has the following caption:
" Proposals for the erection of the new high school building on Grand
Avenue." But the opening hues of the official statement, which
follows, show that the caption refers to the proposals to be received,
and is not intended to describe the effect of the advertisement as a
whole. If there was otherwise any doubt on this point, it is set at rest
b}^ the last sentence, viz., "The board reserves the right to reject any
or all bids." That language demonstrates the nature of the advertise-
ment as a mere invitation for offers for a contract. As such it did not
lay the foundation of a completed contract. It was merely the open-
ing of negotiations for a contract. ... No claim is advanced in the
petition looking to a recovery for fraud or deceit in making the pro-
posals for bids. It is, indeed, asserted that the defendant rejected
the plaintiffs' bid "without cause, arbitrarity and capriciously, through
favoritism and bias." But, if the defendant had the absolute right to
reject an}^ and all bids, no cause of action would arise to plaintiffs
because of the motive which led to the rejection of their bid. The
right to reject the bids was unconditional. Defendant was entitled
to exercise that right for any cause it might deem satisfactorj'-, or even
without any assignable cause. Whatever its rules or practice as to
the acceptance of bids may have been, plaintiffs' rights cannot be
justly held to be greater than those conferred by the published ad-
vertisement on which their bid was made. {Anderson v. Board of
President and Directors of Public Schools, 26 L. R. A. 707, 712.)
162 ATTORNEY-GENERAL'S REPORT. [Jan.
It is my opinion that under the circumstances described in
your letter the rejection of any bid would not give the bidder
whose offer was rejected any right of action against the
Commonwealth nor against the members of your Board,
either in their official capacity or as individuals.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Laiv — Railroads — Regulation of Compensation
of Employees.
It is not within the constitutional powers of the Legislature to compel
railroads to give certain employees two days' rest in a month with
full compensation.
June 29, 1914.
His Excellency David I. Walsh, Governor of the Commonwealth.
Sir: — In response to your oral inquiry in reference to the
bill now before you providing for two days' rest in a month
for certain employees with full compensation, I refer you to
an opinion rendered March 25, 1914, to the committee on
railroads on a similar measure. House Bill No. 453.
The leading case in this Commonwealth upon that principle
that relates to freedom of contract is Commonwealth v. Ferry,
155 Mass. 117. A statute had been enacted which provided
that no employer should impose a fine upon, or withhold the
wages or any part of the wages of, an employee engaged in
weaving, for imperfections that may arise during the process
of weaving. The court, speaking by Chief Justice Knowlton,
say : —
The act recognizes the fact that imperfections may arise in weaA^ing
cloth, and it is evident that a common cause of such imperfections
may be the neghgence or want of skill of the weaver. When an em-
ployer has contracted with his employee for the exercise of skill and
care in tending looms, it forbids the withholding of am^ part of the
contract price for non-performance of the contract, and seeks to com-
pel the payment of the same price for work which in quahty falls far
short of the requirements of the contract as for that which is properly
done. . . .
... It might well be held that, if the Legislature should determine
it to be for the best interests of the people that a certain class of em-
ployees should not be permitted to subject themselves to an arbitrary
imposition of a fine or penalty by their employer, it might pass a law
1915.] PUBLIC DOCUMENT — No. 12. 163
to that effect. But when the attempt is to compel pa3'ment under a
contract of the price for good work when only inferior work is done, a
different question is presented.
There are certain fundamental rights of every citizen which are
recognized in the organic law of all our free American States. A
statute which violates any of these rights is imconstitutional and
void, even though the enactment of it is not expressly forbidden.
Article I. of the Declaration of Rights in the Constitution of Massa-
chusetts enumerates among the natural, unahenable rights of men the
right ''of acquiring, possessing, and protecting property." Article
I., § 10, of the Constitution of the United States provides, among
other things, that no State shall pass any "law impairing the obhgation
of contracts." The right to acquire, possess and protect property
includes the right to make reasonable contracts, which shall be under
the protection of the law.
... If the statute is held to pemiit a manufacturer to hire weavers,
and agree to pay them a certain price per yard for weaving cloth with
a proper skill and care, it renders the contract of no effect when it
requires him, under a penalty, to pay the contract price if the emploj^ee
does his work neghgently and fails to perform his contract. For it
is an essential element of such a contract that full payment is to be
made only when the contract is performed. If it be held to forbid
the making of such contracts, and to permit the hiring of weavers
only upon terms that prompt payment shall be made of the price for
good work, however badly their work may be done, and that the
remedy' of the employer for their derelictions shall be only b}^ suits
against them for damages, it is an interference with the right to make
reasonable and proper contracts in conducting a legitimate business,
which the Constitution guarantees to every one when it declares that
he has a "natural, essential, and unalienable" right of "acquiring,
possessing, and protecting property." (Commonwealth v. Perry, 155
Mass. 117.)
A statute attempting to fix the price and hours of labor as between
certain private contractors and their employees could not in my judg-
ment be sustained as a legitimate exercise of the police power con-
tained in the Constitution. It would tend to promote the pecuniary
welfare of one class of citizens at the expense of another class. (II.
Op. Atty.-Gen. 267.)
The case of Commonwealth v. Perry has been cited with
approval in our own Commonwealth and by the Supreme
Court of Missouri in the case of State v. Loomis, 115 Mo. 307,
and by the Supreme Court of Illinois in the case of Braceville
Coal Co. y. The People of the State of Illinois, 147 III. 66. In
the last-mentioned case it is said: —
164 ATTORNEY-GENERAL'S REPORT. [Jan.
The privilege of contracting is both a hberty and a property right,
and if A is denied the right to contract and acquire property in the
manner which he has hitherto enjoyed under the law, and which
B, C and D are still allowed by the law to enjoy, it is clear that he is
deprived of both hberty and property to the extent that he is thus
denied the right to contract. The man or the class forbidden the
acquisition or enjoyment of property in the manner permitted the
community at large would be deprived of liberty in particulars of
primary importance to his or their pursuit of happiness.
It is evident that if the Legislature may constitutionally
enact a law that an employer must pay an employee for two
days' labor in every month that is not performed, it may also
enact a statute providing that employees must work two days
in a month without pay, the unconstitutionality of which
would be very readily apparent to every thinking individual.
Such an enactment as is proposed interferes, both with the
personal liberty of the citizen and with the right of freedom
of contract. In my opinion such an act would also be
obnoxious to that provision of the Fourteenth Amendment of
the Constitution of the United States, to the effect that
**no state shall deprive any person of life, liberty or property
without due process of law."
Very truly yours,
Thomas J. Boynton, Attorney-General.
Boston, Cape Cod (& Neiv York Canal Company — Deposit
with State Treasurer.
Under St. 1899, c. 448, the deposit of $200,000 with the State Treasurer
as security for land damages cannot be applied for any other purpose
or taken by virtue of an execution.
June 30, 1914.
Hon. Frederick W. Mansfield, Treasurer and Receiver-General.
Dear Sir: — You have requested my opinion as to whether
the moneys deposited with the Treasurer and Receiver-
General of the Commonwealth by the Boston, Cape Cod &
New York Canal Company, under the provisions of chapter
448 of the Acts of 1899, are a proper fund out of which to
pay an execution issued by the Superior Court in and for the
county of Barnstable in favor of Valina T. Bassett, judgment
creditor, and against the Boston, Cape Cod & New York
Canal Company, judgment debtor.
1915.] PUBLIC DOCUMENT — No. 12. 165
Sections 23, 24 and 25 of the chapter referred to provide as
follows : —
Section 23. This act shall be null and void unless said canal
company shall, within four months from the passage of this act, and
before the filing of the plan of the proposed location as provided in
section four, deposit with the treasurer of the commonwealth the sum
of two hundred thousand dollars in cash or in United States govern-
ment bonds, as security for all damages for the taking of land by said
company; which money or bonds shall be subject to attachment or
levy upon any legal process issued in behah of any person against said
company for the recovery of damages for taking such land. . . .
Section 24. All persons whose lands shall be taken by con-
demnation for the location of said canal as filed by said canal company
under the provisions of section four of this act shall, within six months
after the fihng of such location in the registry of deeds for the county
of Barnstable, file with the county commissioners of the county of
Barnstable a written statement, setting forth substantially the quantity
of land so taken, and the amount of damages so claimed by them,
respectively, for the taking thereof, and the county commissioners'
shall thereupon, after giving to all parties interested such notice as
they shall deem sufficient, determine and award the amount of damages
to which such persons are entitled.
Section 25. Any party dissatisfied with the award of the count}^
commissioners may, at any time within one year after the date of
such award, apply by petition to the superior court of the county of
Barnstable for a jury to assess the damages, and like proceedings
shall be had therein as in proceedings for damages for laying out rail-
roads. The treasurer of the commonwealth is hereby empowered and
directed, upon the fihng with him of a certified copy of the final decree
as appears of record in any such proceeding, to pay to the parties
appearing by such decree to be entitled thereto, or their legal repre-
sentatives, the sum of money set forth in said decree.
The funds deposited with the Treasurer and Receiver-General
by the canal company are subject to attachment or levy upon
legal process for one purpose only; that is, to satisfy claims for
land damages. The funds above specified were deposited with
the Treasurer and Receiver-General for this single purpose.
By section 24 above quoted all persons whose lands were
taken or condemned for the location of the canal were re-
quired, within six months after the filing in the registr}" of
deeds for the county of Barnstable of the proper instruments
showing the location of the canal, to file with the county com-
missioners of that county a written statement setting forth
substantially the quantity of land taken and the amount of
166 ATTORNEY-GENERAL'S REPORT. [Jan.
damages claimed by such persons, respectively. Upon the filing
of such statement the county commissioners were required to
make an award of the amount of damages to Avhich such
persons were entitled. After this any party dissatisfied with
the award of the commissioners might within one year bring
his petition to the Superior Court of Barnstable County to
have his damages assessed by a jury; and the Treasurer and
Receiver-General is empowered and directed, upon the filing
with him of a certified copy of the final decree as appears of
record in any such proceeding, to pay to the parties appearing
by such decree to be entitled thereto, or to their legal repre-
sentatives, the sum of money set forth in said decree.
The copy of the execution submitted does not disclose
whether the cause of action of the judgment creditor therein
named was the taking of land by the defendant company or
something else; but the funds in the hands of the Treasurer
and Receiver-General can be used only to pay land damages.
No certificate accompanies this execution. Before the Treas-
urer and Receiver-General pays any claim against the canal
company there should be filed with him a certified copy of the
final decree in the proceeding in which payment is claimed.
The execution presented is not such a certified copy as the
statute requires, and does not show compliance with the
various steps required by the statute.
It is my opinion that as the matter now stands the Treas-
urer and Receiver-General should not pay this execution, and
that this claim cannot properly be paid out of the fund above
mentioned until compliance with the terms of the statute is
shown.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Civil War Veteran — Gratuities — Re-enlistment as Substitute.
Under St. 1912, c. 702, as amended by St. 1913, c. 4.43, a Massachusetts
veteran who served as a volunteer in the civil war and was honorably
discharged is not debarred from receiving a gratuity from the Com-
monwealth by reason of subsequent service as a substitute.
July 1, 1914.
Commission on Gratuities.
Gentlemen: — You state that you have on file a claim
made by a veteran who served as a volunteer in the civil war
1915.] PUBLIC DOCUMENT — Xo. 12. 167
from July, 1S62, to September, 1863, and that by reason of
this service he would be entitled to the gratuity provided by
chapter 702 of the Acts of 1912, but that in August, 1864,
he re-enlisted as a substitute, from which service he was dis-
charged in August, 1867; and you ask my opinion on the
following question: "Does the fact of his second service as a
substitute debar the veteran from any benefit under this act?"
The first section of the chapter above referred to contains
a very clear and emphatic declaration of the intention and
purpose of the Legislature in its enactment. That section
reads as follows: —
For the purpose of promoting the spirit of loyalty and patriotism,
and in recognition of the sacrifice made both for the commonwealth
and for the United States by those veteran soldiers and sailors who
volunteered their services in the civil war, and for the purpose of pro-
moting the public welfare, by giving visible evidence to this generation
and future generations that, if danger should again threaten the nation
and the call should again come for men, Massachusetts will not forget
the great service of those who volunteer, a gratuity of one hundred
and twenty-five dollars to each veteran is hereb}^ authorized to be
paid from the treasury of the commonwealth under the conditions
hereinafter set forth.
Section 2 of said act, as amended by chapter 443 of the Acts
of 1913, provides as follows: —
The gratuity herein provided for shall l)e paid to every person, or
his legal representative, not l:)eing a conscript or a substitute, and
not having received a bounty from the commonwealth or from any
city or town therein, who served in the army or navy of the United
States to the credit of the commonwealth during the civil war, or who
served in the army or navy of the United States during the civil war
and was an actual bona fide resident of the commonwealth at the time
of his enhstment, or who served in a mihtary organization from or
raised by the commonwealth, and was honorably discharged from
such service, and is living at the time of the passage of this act; it
being intended and provided that the said gift shall not be a bounty,
nor a payment in equalization of bounties, nor a payment for services
rendered, nor a payment for the purpose of making the result of their
contracts of enlistment more favorable to them because the contracts
of other soldiers were on better terms, but a testimonial for meritorious
service such as the commonwealth may rightly give, and such as her
sons may honorabh' accept and receive.
168 ATTORNEY-GENERAL'S REPORT. [Jan.
I assume that the applicant was at the time of his enhst-
ment an actual bona fide resident of the Commonwealth; that
he was honorably discharged; and that there is no reason
why he should not receive the gratuity provided by this act
except the fact that after serving his country as a volunteer,
and after being honorably discharged from the service, not
having received a bounty from the Commonwealth or from
any city or town therein, he voluntarily re-entered the coun-
try's service as a substitute.
The statement of the reasons suggested for rejecting the
claim of this applicant indicates quite clearly what the answer
to your question ought to be. Here is a man who did not
wait for any financial consideration but who offered his
services freely to the defence of the Union, whose only fault
is, that having earned an honorable discharge, he was willing
to do still further service for his country, and that on entering
the service the second time he took the place of some one
who would at best have been an unwilling soldier. To reject
this claim for such a reason would, in my opinion, be entirely
contrary to the plain provisions of the statute, and in this
and all similar cases would defeat its spirit and purpose.
The statute bars those whose only service was as conscripts
or substitutes, not those who after honorable service as vol-
unteers may have re-enlisted as substitutes.
It is my opinion that the claim referred to in your question,
and all other like claims, should be allowed.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Salem Fire — Authority of Legislature
to grant Relief.
It is within the constitutional authority of the Legislature to grant such
relief to sufferers from a public disaster as may be deemed necessary
for the protection of the health and safety of the people.
July 3, 1914.
His Excellency David I. Walsh, Governor of the Commonwealth.
Sir: — In response to your oral inquiry whether the Legis-
lature has authority under the Constitution to appropriate
money to be placed in the hands of a commission and- loaned
to sufferers by the Salem fire, to aid them in rebuilding their
1915.] PUBLIC DOCUMENT — Xo. 12. 169
homes and places of business, I have to sa}^ that the subject-
matter covered by your inquiry was very carefully and fully
considered by the Supreme Judicial Court in the case of
Lowell V. Boston, 111 Mass. 454, a case that grew out of
legislation for the relief of sufferers by the great Boston fire
of 1872 The act in question, St. 1872, c. 364, provided for
the issue by the cit^' of Boston of an issue of bonds to an
amount not exceeding $20,000,000; and for the appointment
of a commission authorized to loan the proceeds of the bonds
so issued, in sums such as they should determine, to the
owners of land, the buildings upon which were burned by the
fire in Boston on the ninth and tenth days of November,
1872. In a discussion which seems to cover every point raised
by your inquiry the court said: —
It is a question, not of municipal authority, but of legislative power.
The point of difficulty is not as to the distribution of the burden by
allowing it to be imposed upon a limited district within the State,
but as to the right of the Legislature to impose or authorize anj^ tax
for the object contemplated by this statute.
The power to le\y taxes is founded on the right, duty and responsi-
bility to maintain and administer all the governmental functions of
the State, and to provide for the public weKare. To justify any
exercise of the power requires that the expenditure which it is in-
tended to meet shaU be for some pubhc service, or some object which
concerns the public welfare. The promotion of the interests of indi-
viduals, either in respect of property or business, although it may
result incidentally in the advancement of the public welfare, is, in its
essential character, a private and not a public object. However
certain and great the resulting good to the general pubhc, it does not,
by reason of its comparative importance, cease to be incidental. The
incidental advantage to the public, or to the State, which results from
the promotion of private interests, and the prosperity of private enter-
prises or business, does not justify their aid by the use of public money
raised by taxation, or for which taxation may become necessary.
It is the essential character of the direct object of the expenditure
which must determine its vahdity, as justif^dng a tax, and not the
magnitude of the interests to be affected, nor the degree to which
the general advantage of the community, and thus the public welfare,
may be ultimately benefited by their promotion.
The ultimate end and object of the expenditure, as indicated by
the provisions of the statute itself, is '4o insure the speedy rebuilding
on said land."
The general result may indeed be thus stated collectively, as a single
object of attainment; but the fund raised is intended to be appro-
170 ATTORNEY-GENERAL'S REPORT. [Jan.
priated distributiveh^ by separate loans to numerous individuals, each
one of which will be independent of any relation to the others, or to
any general purpose, except that of aiding indi\idual enterprise in
matters of private business. The property thus created will remain
exclusively private property, to be devoted to private uses at the
discretion of the o\Miers of the land; with, no restriction as to the
character of the buildings to be erected, or the uses to which they
shall be devoted; and with no obligation to render any service or duty
to the Commonwealth, or to the city, — except to repay the loan, —
or to the community at large or any part of it. If it be assumed that
the private interests of the o\^^lers will lead them to re-establish ware-
houses, shops, manufactories, and stores; and that the trade and
business of the place will be enlarged or revived by means of the facil-
ities thus provided ; still, these are considerations of private interest,
and, if expressly declared to be the aim and purpose of the act, they
would not constitute a pubhc object, in a legal sense.
As a judicial question the case is not changed by the magnitude of
the calamity which has created the emergency; nor by the greatness
of the emergency, or the extent and importance of the interests to be
promoted. These are considerations affecting only the propriety and
expediency of the expenditure as a legislative question. If the ex-
penditure is, in its nature, such as ^all justify taxation under any state
of circumstances, it belongs to the Legislature exclusively to determine
vdiether it shall be authorized in the particular case; and however
slight the emergency, or limited or unimportant the interests to be
promoted thereby, the court has no authority to revise the legislative
action.
On the other hand, if its nature is such as not to justify taxation
in any and all cases in which the Legislature might see fit to give
authority therefor, no stress of circumstances affecting the expediency,
importance or general desirableness of the measure, and no con-
currence of legislative and municipal action, or preponderance of
popular favor in any particular case, tniII supph" the element necessary
to bring it within the scope of legislative power.
The expenditure authorized by this statute being for private and
not for public objects, in a legal sense, it exceeds the constitutional
power of the Legislature; and the city cannot la^\iulh' issue the bonds
for the purposes of the act. {Lowell v. Boston, 111 Mass. 454, 460, 472.)
This decision has never been overruled or in any degree
limited or at all criticized by any later decision of the Supreme
Judicial Court. It has been many times cited with approval,
and I quote from an Opinion of the Justices, 204 Mass. 607,
611, a reference to this case, after quoting a portion of the
opinion above set forth, and saying that the statement of the
law in the case of Lowell v. Boston is clear and accurate: —
1915] PUBLIC DOCUMENT — Xo. 12. 171
It has governed all later decisions upon kindred questions in this
Commonwealth. Opinion of the Justices, 155 Mass. 598. Mead v.
Acton, 139 Mass. 341. It is the law of the Supreme Court of the
United States as laid down in an able and exhaustive opinion by Mr.
Justice Miller, in Loan Association v. Topeka, 20 Wall. 655, in which
it was held that a statute authorizing a town to issue its bonds in aid
of a manufacturing enterprise was invahd. It has been followed by
that court in later cases. Parkersbtirg v. Brown, 106 U. S. 487. Cole
V. LaGrange, 113 U. S. 1. Missouri Pacific Railway v. Nebraska, 164
U. S. 403. It has been apphed in different forms in a variety of cases
in courts all over the United States. Opinion of the Justices, 58 Maine,
590. Allen v. Jay, 60 Maine, 124. Markley v. Mineral City, 58 Ohio
St. 430. State v. Osawkee Township, 14 Kans. 418. Central Branch
Union Pacific Railroad v. Smith, 23 Kans. 745. Coates v. Campbell,
37 Minn. 498. Deering & Co. v. Peterson, 75 Minn. 118. Minnesota
Sugar Co. v. Iverson, 91 Minn. 30. Eufaula v. McNab, 67 Ala. 588.
Manning v. Devil's Lake, 13 No. Dak. 47. Michigan Sugar Co. v.
Auditor General, 124 Mich. 674. Deal v. Mississippi County, 107
Mo. 464. Feldman & Co. v. City Council of Charleston, 23 S. C. 57.
Sutherland-Innes Co. v. Evart, 30 C. C. A. 305.
Without further discussion of this ciuestion I may say that
the decisions of our Supreme Court above quoted unquestion-
ably express the law^ covering your inquiry as it stands to-
day, and are conclusive as to the power of the Legislature
to authorize the loan of any part of the public funds of the
Commonwealth for individual or private use, and preclude
the possibility of such action. These considerations, however,
relate to the matter of rebuilding the city.
But other and more important considerations arise as to
the condition of things now existing at Salem. A great
calamity has befallen, one w^hich, while it affects more keenly
the residents of the stricken city and those w^ho without
warning have been thrown out of employment and stripped
of their w^orldly possessions, is still a disaster in which every
citizen of the Commonwealth shares. Such a condition as
now exists in Salem presents a public emergenc}', one that
justifies and demands the exercise of the constitutional power
of the government in making proper provision for the health
and safety of the people.
When a great public disaster has occurred leaving thousands
of people without food, shelter or emplo^'ment, it is un-
thinkable that the hands of the government of the Common-
wealth are so tied as to render it utterly supine and powerless
172 ATTORNEY-GENERAL'S REPORT. [Jan.
to render aid, and that the sufferers must of necessity be left
to the haphazard of private charity. The local authorities
are necessarily practically powerless in the presence of such
great destruction and suffering. The condition of things so
suddenly precipitated, the claims of humanity, and the good
of the Commonwealth call for immediate and extraordinary
relief. It is my opinion that the Legislature has power under
the Constitution to appropriate money from the funds of the
Commonwealth to be used under such direction and super-
vision as it may deem proper for providing proper food,
clothing and shelter for the sufferers by the Salem fire during
such period of time as may be deemed necessary, as a measure
for the protection of the health and safety of the people,
and for the promotion of the general welfare.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Labor — Eight-hour Day — Police Drivers.
Civilians employed as hostlers or drivers in the Boston police department
are within the provisions of St. 1911, c. 494, § 1, restricting employ-
ment of certain persons to eight hours in a calendar day, but police
officers detailed to perform the work of drivers or hostlers are not so
restricted.
July 8, 1914.
State Board of Labor and Industries.
Gentlemen: — You have requested my opinion upon the
following questions: —
First, are civilians employed as hostlers or drivers for the police
department of the city of Boston mthin the provisions of chapter 494
of the Acts of 1911?
Second, are police officers who are detailed to perform the work of
drivers and hostlers of the police department of the city of Boston
entitled to the benefit of the eight-hour law?
Section 1 of chapter 494 of the Acts of 1911 provides as
follows: —
The service of all laborers, workmen and mechanics, now or here-
after employed by the commonwealth or by any county therein or by
any city or town which has accepted the provisions of section twenty
of chapter one hundred and six of the Revised Laws, or of section
forty-two of chapter five hundred and fourteen of the acts of the year
nineteen hundred and nine, or by any contractor or sub-contractor
for or upon any public works of the commonwealth or of any county
1915.] PUBLIC DOCUMENT — Xo. 12. 173
therein or of any such city or town, is hereby restricted to eight hours
in any one calendar day, and it shall be unlawful for any officer of the
commonwealth or of any county therein, or of any such city or town,
or for any such contractor or sub-contractor or other person whose
duty it shall be to employ, direct or control the ser\dce of such laborers,
workmen or mechanics to require or permit any such laborer, work-
man or mechanic to work more than eight hours in any one calendar
day, except in cases of extraordinary emergency. Danger to propert\^,
life, public safety or pubUc health only shall be considered cases of
extraordinar}^ emergency ^\'ithin the meaning of this section. In
cases where a Saturday half holiday is given the hours of labor upon
the other working days of the week may be increased sufficiently to
make a total of forty-eight hours for the week's work. Threat of
loss of employment or to obstruct or prevent the obtaining of em-
plojTnent or to refrain from emplojdng in the future, shall each be con-
sidered to be ^'requiring" \\dthin the meaning of this section. Engi-
neers shall be regarded as mechanics ^\athin the meaning of this act.
Your letter does not state, and I am not informed, whether
the city of Boston has accepted the provisions of the eight-
hour law, but for the purposes of this opinion I assume that
it has done so.
In answer to the first c^uestion I have to say that it is my
opinion that civilians employed as hostlers or drivers for the
police department of the city of Boston are within the pro-
A'isions of section 1 of chapter 494 of the Acts of 1911.
In answer to your second question I have to say that it is
my opinion that regular officers of the police department de-
tailed to perform the duties of hostlers and drivers of that
department are not within the provisions of the eight-hour
law. They have a civil service rating as patrolmen, and draw
salaries as police officers and not as hostlers or drivers.
Yours truly,
Thomas J. Boynton, Attorney -General.
Clerks of Courts — Assistant Clerks — Clerks Pro Tempore.
Unless an assistant clerk of court is appointed clerk pro tempore in the
absence of the clerk, such assistant is not entitled to any increase
in his regular sala^3^
July 13, 1914.
Hon. Frank L. Dean, Controller of County Accounts.
Dear Sir: — You have requested my opinion upon the
following question: —
174 ATTORNEY-GENERAL'S REPORT. [Jan.
When an assistant clerk of a police, district or municipal court is
appointed clerk -pro tempore is he entitled to the salary of the clerk
while holding such position?
R. L., c. 160, §§ 11, 12 and 70, provide: —
Section 11. The clerk of a police, district or municipal court
may, subject to the approval of the justice, from time to time appoint
one or more assistant clerks, who shall be removable at his pleasure
or at the pleasure of the court, for whose official acts the clerk shall
be responsible and who shall be paid by him unless they receive salaries
which may be allowed and fixed by law.
Section 12. In case of the absence, death or removal of a clerk
of a pofice, district or municipal court, the court may appoint a clerk
pro tempore, who shall act until the clerk resumes his duties or until
the vacanc}^ is filled.
Section 70. Clerks pro tempore of police, district and municipal
courts shall receive from the county as compensation for each day's
service an amount equal to the rate by the day of the salary of the
clerk; but compensation so paid to a clerk pro tempore for service,
in excess of thirty days in any one calendar year, shall be deducted
bv the county treasurer from the salarv of the clerk.
St. 1906, c. 256, provides: —
Section 1. In case of the absence, death or removal of an assistant
clerk of a pohce, municipal or district court, other than the municipal
court of the city of Boston, whose office is estabhshed by law, the
clerk, subject to the approval of the justice, may appoint an assistant
clerk pro tempore, who shall act until the assistant clerk resumes his
duties or until the vacancy is filled, and who shall receive from the
county as compensation for each day's service an amount equal to
the rate by day of the salary of the assistant clerk; but compensation
so paid to an assistant clerk pro tempore for service, in excess of twenty
days in any one calendar year, shall be deducted by the county treas-
urer from the salary of the assistant clerk.
There is nothing in the law w^hich prohibits the appointment
of an assistant clerk of a court to the office of clerk pro tempore,
but it is my opinion that the two positions are incompatible and
cannot be held by one person at one and the same time.
When an assistant clerk accepts an appointment as clerk pro tem-
pore he vacates the position of assistant clerk, and is entitled to
receive from the county as compensation for each day's service
1915.] PUBLIC DOCUMENT — No. 12. 175
an amount equal to the rate by the day of the salary of the clerk.
Upon the expiration of his term as clerk pro tempore he is, of
course, again eligible to appointment as assistant clerk.
Very truly yours,
Thomas J. Boynton, Aitorncy-Gcncral.
Registers of Deeds — Salaries.
Salaries of registers of deeds are to be readjusted each year in accordance
with the classifications provided in St. 1904, c. 452.
July 24, 1914.
Frank L. Dean, Esq., Controller of County Accounts.
Dear Sir: — You ask my opinion as to the proper method
of determining the salary of the register of the Franklin
Registry of Deeds, in view of the fact that the receipts of
said registry in 1913 exceeded $3,000.
Chapter 452 of the Acts of 1904 established the salaries of
registers and assistant registers throughout the Common-
wealth. Certain classifications were made: Class A, where
the yearly receipts for the five years preceding the year 1903
amounted to $3,000 or more, and where the register was given
an initial salary of $1,600 plus a sum equal to 15 per cent, of
said receipts; Class B, where the receipts were between $1,500
and $3,000, with an initial salary of $900 plus 40 per cent.;
Class C, where the receipts were less than $1,500 per year,
with a salary equal to the receipts and not less than $600.
Several registries were mentioned by name and the salaries
stated.
Section 2 of that chapter reads as follows: —
The salaries of registers of deeds and assistant registers of deeds
hereinbefore specified shall be readjusted in Januarj--, 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 preceding
3'ears, in accordance with the classification set forth in section one.
This was amended by chapter 682 of the Acts of 1913, as
follows: —
Section 1. Chapter four hundred and fifty-two of the acts of the
year nineteen hundred and four is hereby amended by striking out
section two and inserting in place thereof the following: — Section 2.
The salaries of registers of deeds and assistant registers of deeds here-
176 ATTORNEY-GENERAL'S REPORT. [Jan.
inbefore specified shall be readjusted in January, nineteen hundred
and fourteen, and in the month of January of each year thereafter,
upon the basis of the receipts of the respective registries for the year
preceding, every such readjustment to be in accordance ^\^th the
classification set forth in section one.
Section 2. This act shall take effect upon its passage.
The plain purport of the recent enactment was to readjust
the salaries each year, the readjustment to be in accordance
with the classification set forth in the prior act, and by
classification is meant that all registries whose receipts are
more than $3,000 in the year shall be in Class A; those whose
receipts are between $1,500 and $3,000 shall be in Class B,
etc. It was not intended that a registry named as a Class
B registry in the 1904 act should remain so if it had attained
the rank of a Class A registry.
As the Franklin Registry is now in Class A, the salary of
the register must be determined by the Class A rate, namely,
$1,600 plus 15 per cent, of the receipts.
Very truly yours,
Thomas J. Boynton, Attorney-General .
Savings Bariks — Boards of Investment — Mortgages.
The position held by a member of a board of investment of a savings
bank becomes vacant in sixty days after such member holds, either
personally or as trustee, property mortgaged to said bank.
July 27, 1914.
Hon. Augustus L. Thorxdike, Bank Commissioner.
Dear Sir: — In a recent communication you state that
you have received a letter from one of the savings banks in
the Commonwealth which reads as follows: —
For several years we have had a mortgage on a piece of property
which has now been sold to an association known as The Twenty-five
Associates. One of the trustees of The Twenty-five Associates, in
whom the title of the property is vested and by whom the papers
assuming the mortgage are signed, is a member of our board of in-
vestment. Would there be Siny objection to our continuing this
mortgage under the circumstances?
You ask for an opinion upon the cjuestion raised by the
bank, and further inquire if this loan is taken by the bank,
1915.] PUBLIC DOCUMENT— Xo. 12. 177
whether it woukl be a violation of section 44 of chapter 590
of the Acts of 1908.
The bank does not state whether the mortgage in question
is now due or whether it still has some time to run. If the
mortgage is underdue it cannot be foreclosed until maturity.
It might be assigned; but if held by the bank the position of
the member of the board of investment who has become a
trustee of The Twenty-five Associates will become vacant in
sixty days from the time when he became such trustee, under
the provisions of the section above referred to. With this
member off the board of investment, only the usual business
question will be present, either as to holding the mortgage or
renewing it. If, however, the mortgage has matured and the
question under consideration is really as to its renewal, I am
of the opinion that this cannot be done legally while any
member of the board of investment holds title to the
mortgaged property, whether in his own right or as a trustee;
and that this is so whether he holds as a sole trustee or as a
member of a body of trustees. The making of a loan by a
savings bank to a trustee or to a body of trustees, one of
whom is a member of the board of investment of the bank,
would, in my opinion, constitute a violation of the provisions
of section 44 of chaptet 590 of the Acts of 1908.
Very truly yours,
Thomas J. Boyxtox, Attorney Geivral.
State Board of Health — Civil Service.
The powers and duties of the State Board of Health are retained until the
Department of Health is organized.
The secretary of the State Board of Health ceases to hold office upon the
abolition of the Board.
Employees of the State Board of Health holding offices not created by
statute hold office until removed or until their successors are ap-
pointed.
July 28, 1914.
State Board of Health.
Gentlemex: — You have requested my opinion upon the
following questions: —
First. — Will its previously existing powers and duties reside in
the State Board of Health until the new Department of Health is
organized?
178 ATTORNEY-GENERAL'S REPORT. [Jan.
Second. — Will the secretary of the State Board of Health continue
to hold office until the organization of the new Health Department?
Third. — In case the office of secretary to the State Board of Health
ceases to exist on Aug. 6, 1914, would the official known as "assistant
to the secretary" (not under Civil Service Rules) share in the status
of the secretary or would he continue to hold office as an emploj^e
"under section 7 of chapter 792, Acts of 1914"?
The State Board of Health was appointed and holds office
under the provisions of section 1 of chapter 75 of the Revised
Laws. This section is expressly repealed by section 8 of
chapter 792 of the Acts of 1914.
This act contains no provision as to the time when it shall
take effect, and your first ciuestion is really whether section 8
takes effect on the passage of the bill or falls w^ithin the pro-
visions of section 1 of chapter 8 of the Revised Laws, w^hich
section reads as follows: —
A statute shall take effect throughout the commonwealth, unless
otherwise expressly provided therein, on the thirtieth day next after
the day on wliich it is approved by the governor, or is otherwise passed
and approved, or has the force of a law, conformably to the constitution.
The rule established by the section last quoted is a statutory
rule, and may be repealed or altered by statute, and it may
be argued that in case of a repealing statute the later enact-
ment takes effect immediately, and repeals by implication
the provisions of section 1 of chapter 8 of the Revised Laws,
above ciuoted, in so far as the particular later enactment is
concerned; but it should be noted that repeals by implication
are not favored.
It is presumed that the Legislature does not intend to
make unnecessary changes in the pre-existing body of law.
The construction of a statute w^ill, therefore, be such as to
avoid any change in the prior laws bej^ond what is necessary
to effect the specific purpose of the act in question. Manuel
V. Manuel, 13 Ohio St. 450; Sykes v. ,S/. Louis & S. F. R.R.
Co., 127 Mo. App. 326; State v. Hooker, 22 Okla. 712.
It is in the last degree improbable that the Legislature
would depart from the general system of law without ex-
pressing its intention with irresistible clearness. Maxwell on
Interpretation of Statutes, 2d ed. 96.
It is my opinion, therefore, that the repeal of sections 1,
2 and 3 of chapter 75 of the Revised Laws does not take effect
1915.] PUBLIC DOCUMENT — No. 12. 179
until the thirtieth day next after the day on which chapter
792 of the Acts of 1914 was approved.
It is also my opinion that when the new law goes into effect,
and the statute under which the State Board of Health now
exists is abolished, the official powers and duties of the State
Board of Health come to an end and expire with the statute
under which that Board was appointed.
In response to your second question I have to say that the
secretary of the Board holds his office by virtue of the pro-
visions of section 3 of chapter 75 of the Revised Laws. This
section provides for the election of a secretary "who will be
the executive officer and shall hold office during the pleasure
of the board." This section is repealed by section 8 of
chapter 792 of the Acts of 1914, and while this chapter pro-
vides for the retention of the employees of the State Board of
Health it makes no provision for the retention of any member
of the Board nor of its officers The secretary, being the
executive officer of the Board, it is my opinion that when
chapter 792 of the Acts of 1914 takes effect, and the State
Board of Health ceases to exist, the secretary of the Board of
Health will cease to hold office.
Referring now to your third inquir^^ which relates to the
position of assistant secretary of your Board, it appears that
this is not an office created under the provisions of sections
1, 2 and 3, or either or any of them, and that the assistant
secretary is an employee of your Board and is within the
provisions contained in section 7 of chapter 792 of the Acts
of 1914, to the effect that all present employees shall be con-
tinued in office until their successors are appointed and
qualified or until removed by the commissioner.
Very truly yours,
Thomas J. Boyntox, Attorney-General.
Labor — Public JJorks — Citizens.
Under St. 1914, c. 900, where a city has a fist of United States citizens
eligible for employment in the street department, it is the duty of the
city to discharge noncitizen employees, although their employment
commenced prior to the enactment of the statute.
Aug. 3, 1914.
Civil Service Commission.
Gentlemen: — You state that citizens of the city of
Newton complain that there are employed in the street de-
180 ATTORNEY-GENERAL'S REPORT. [Jan.
partment of that city a number of persons who are not
citizens of the United States and insist that under the pro-
visions of section 4 of chapter 600 of the Acts of 1914 the
commission take steps to enforce the dismissal of these non-
citizens. You further state that it appears upon investigation
that in most of the cases the noncitizen employees referred to
were appointed long prior to the enactment of chapter 600 of
the Acts of 1914, and you ask my opinion as to whether your
commission should insist upon the discharge of these non-
citizens who were appointed prior to the passage of this act.
The statute referred to provides as follows: —
Section 1. In all work of any branch of the service of the com-
monwealth, or of any city or town therein, citizens of the common-
wealth shall be given preference.
Section 2. The civil ser\ace commission shall not place upon its
lists an}^ person not a citizen of the United States.
Section 3. If an appointing officer, because of the non-existence
of a fist of ehgible appointees, appoints under provisional authority
from the civil service commission a person not a citizen of the United
States, he shall discharge the person so appointed and appoint from
the eligible list whenever the civil service commission establishes a
list of the proper class.
Section 4. Whenever the attention of the civil service commission
shall be caUed b}' complaint on the part of any citizen of the common-
wealth to the employment of a non-citizen when there is a list of
eligibles existing, the commission shall take steps to enforce the dis-
ixdssal of such non-citizens and the appointment in his place from
the suitable ehgible list.
Section 5. Whenever it shall appear that am' appointing officer
has had due notice of unlawful employment of a non-citizen and that
the said appointing officer has continued such emplojmient for ten
days after such notice, he shall be subject to a fine of not less than ten
nor more than one hundred dollars for each offence.
Section 6. This act shall take effect upon its passage.
This statute seems to have been enacted with a double
purpose. Sections 1, 2 and 3 relate to appointments; sections
4 and 5 to employment. I assume that the employees to
which you refer are laborers. The act is not, in my opinion,
retroactive so as to affect the legality of appointments made
prior to its enactment, but section 4 relates to continuous em-
ploj'ment after the passage of the act. For a man to be
registered on the civil service list by a city and designated
or appointed as a laborer is one thing; continuous employ-
1915.1 PUBLIC DOCUMENT — No. 12. 181
ment is quite another. This section does not relate to things
past, but provides that whenever after its enactment the
attention of the Civil Service Commission shall be called by
complaint on the part of any citizen of the Commonwealth
to the employment of a noncitizen when there is a list of
eligibles existing, action shall be taken to enforce the dis-
missal of such noncitizen.
It is my opinion that in the case stated, if the city of
Xewton has a list of eligibles made up of citizens as required
by the provisions of this act, it is the duty of your Board to
insist upon the discharge of the noncitizens whose employ-
ment is complained of.
Yours truly,
Thomas J. Boynton, Attorney-General.
County Commissioners — Expenses — Controller of County
Accounts.
County commissioners may be allowed reimbursement for expenses, under
St. 1911, c. 162, only such sums as are expended in the performance
of official duty, whether within or without the Commonwealth, if such
expenses are reasonable and proper in amount.
Aug. 4, 1914.
Frank L. Dean, Esq., Controller of County Accounts.
Dear Sir — You have requested my opinion upon the
following question : —
IVIay expenses of county commissioners incurred outside the limits
of the Commonwealth be allowed by the controller of county accounts?
The statute governing this matter (section 1 of chapter 162
of the Acts of 1911) provides as follows: —
An itemized statement of the actual and proper cost to the com-
missioners for transportation and other necessary expenses incurred
in the performance of their official duties shall on the first day of
each month be certified by them to the controller of county accounts
who shall audit and if correct certify the same to the county treasurer
who shall reimburse the commissioners for such expenses from the
county treasury.
The question does not appear to be as to the place where the
expense is incurred, but whether the item charged represents
the proper cost or expense to the commissioners of trans-
182 ATTORNEY-GENERAL'S REPORT. [Jan.
portation or other necessary expenses incurred in the per-
formance of their official duties. The test is not whether the
duty is to be discharged or performed within this Common-
wealth or outside of it, but whether the expense charged was
incurred in the performance of official duty, and whether it is
reasonable and proper in amount.
You enclose correspondence containing an inquiry whether
the expenses of county commissioners in attending the Con-
gress of the American Prison Association should be allowed.
Admitting that the commissioners by attending the congress
would gain much useful and important information, it is still
my opinion that attending the Congress of the American
Prison Association could not be regarded as official business,
and therefore that expenses incurred in attending that or
other similar gatherings cannot properly be allowed except in
cases where a special appropriation has been made. The rule
which you state you have hitherto followed seems to me to be
correct.
Ver}^ truly yours,
Thomas J. Boynton, Attorney-General.
Labor — Materials and Supplies — Eight-hour Day.
Wood finish, doors, casings, etc., purchased in the open market under a
contract to which the Commonwealth is a party, and which enter
into the construction of a building, are materials and supplies, and
St. 1911, c. 494, § 2, providing an eight-hour day for employees on
State work, does not apply.
Aug. 12, 1914.
State Board of Labor and Industries.
Gentlemen: — You have requested my opinion on the
following question: —
Are wood finish, doors, casings and other wood-trim material or
suppfies within the meaning of the provisions of section 2 of chapter
494 of the Acts of 1911?
That section reads as follows: —
Every contract, excluding contracts for the purchase of material
or suppfies, to which the commomvealth or any county therein or
any cit}^ or to\^^l which has accepted the provisions of section twenty'
of chapter one hundred and six of the Revised Laws, is a party wiiich
may involve the emploj^ment of laborers, workmen or mechanics
1915.] PUBLIC DOCUMENT — No. 12. 183
shall contain a stipulation that no laborer, workman or mechanic
working within this commonwealth, in the employ of the contractor,
sub-contractor or other person doing or contracting to do the whole
or a part of the work contemplated by the contractor shall be re-
quested or required to work more than eight hours in any one calendar
da}^, and everj^ such contract wliich does not contain this stipulation
shall be null and void.
Your question possibly arises from the fact that you con-
sider wood trim, wood finish, doors and casings as a finished
product. They may be so, but it is true that many other
kinds of material going into the construction of a building,
and properly falling under the head of material or supplies,
are also finished products. Such things as nails, putty, paint
and many other kinds of articles represent somebody's finished
product. The}" are, however, part of the necessary material
of the building. If wood finish doors, casings and other
wood trim are purchased of a manufacturer in the open
market under a contract to which the Commonwealth or any
tow^n or city having adopted the provisions of the eight-hour
law is a party, they are, in my opinion, to be regarded as
material or supplies within the meaning of the statute above
referred to.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Board of Education — Fraviingham Normal ScJiool — Laundry^
A resolve providing for the erection and furnishing of a dormitory in a
normal school does not authorize the equipment of a laundry.
Aug. 12, 1914.
State Board of Education.
Gentlemen: — You have submitted a copy of chapter 141
of the Resolves of 1914, and you ask *'if there is an\Hhing in
this act which would prevent this Board from equipping a
laundry in connection with this building."
The resolve referred to reads as follows: —
Resolved, That there be allowed and paid out of the treasury of the
commonwealth a sum not exceeding one hundred and forty-five thou-
sand dollars, to be expended at the state normal school at Framingham,
under the direction of the board of education, for erecting and furnish-
184 ATTORNEY-GENERAL'S REPORT. [Jan.
ing a new dormitory, for additional sewer beds and drains, for repairs
to the heating plant and the installation of new boilers, and for engi-
neers' and architects' fees.
The appropriation is made for the specific purposes named
in the act. Those purposes are (1) to erect and furnish a new
dormitory; (2) for additional sewer beds and drains; (3) for
repairs to the heating plant and the installation of new
boilers; and (4) for engineers' and architects' fees.
The question seems to be whether the word "dormitory"
may properly include equipping a laundry. The w^ord
"dormitory" is defined as —
A place, building, or room to sleep in. . . . That part of a boarding-
school or other institution where the inmates sleep, usually a large
room, either open or di\ided by low partitions, or a series of rooms
opening upon a common hall or corridor: in American colleges,
sometim.es an entire building divided into sleeping-rooms. (Century
Dictionary.)
The word "dormitory" has been held not to include a dining
hall. Hillsdale College v. Rideout, 82 Mich. 94. By the same
reasoning it would not include a laundry.
It is not what is contained in but what is omitted from this
act that creates your difficulty. Your Board may lawfully
exercise in this matter only such authority' as is conferred upon
it by the Legislature, and this act does not, in my opinion,
confer authority to equip a laundry.
Very truly yours,
Thomas J. Boynton, Attorney -Gene red. .
District Police — Building Inspectors — Revocation of Certificates.
Certificates of the proper equipment of buildings, issued under St. 1913,
c. 65^ § 25, may be revoked by the inspector for the district where
said buildings are located, whether such inspector issued the original
certificate or not.
Aug. 17, 1914.
Gen. J. H. Whitney, Chief of the District Police.
Dear Sir: — You have requested my opinion upon the
following question : —
May an inspector of the building inspection department of the
District PoHce revoke a certificate issued bj^ his predecessor in office,
1915.] PUBLIC DOCUMENT — Xo. 12. 185
under the provisions of section 25 of chapter 655 of the Acts of 1913,
to the owner, lessee or occupant of a builcUng in the district of said
inspector?
The section of the statute above referred to provides as
follows: —
Section 25. Except as is otherwise provided by law, the inspectors
shall from time to time examine all buildings wdthin their respective
districts which are subject to the provisions of this act. If, in the
judgment of any such inspector, sudi building conforms to the require-
ments of this act for buildings of its class, he shall issue to the owner,
lessee or occupant thereof, or of any portion thereof used in the manner
described in section twenty of this act, a certificate to that effect,
specifying the number of persons for whom the egresses and means
of escape from fu-e are sufficient. Such certificate shall continue in
force for not more than five years after its date, but so long as it con-
tinues in force it shall be conclusive evidence of a comphance by the
person to whom it is issued with the provisions of this act. It shall
be void if a greater number of persons than is therein specified are
accommodated or employed or assemble, lodge or reside within such
building or portion thereof, or if such building is used for any purposes
materially different from the purpose or purposes for wliich it was
used at the time of the granting thereof, or if its interior arrangement
is materially altered, or if any egresses or means of escape from fire
in such building at the time of granting the said certificate are rendered
unavailable or are material^ changed. The certificate may be re-
voked by such inspector at any time upon written notice to the holder
thereof or to the occupant of the premises for which it was granted,
and shall so be revoked if, in the opinion of the inspector, circumstances
have so changed that the existing egresses and means of escape are
not proper and sufficient. A copy of said certificate shall be kept
posted in a conspicuous place upon each story of such building by the
occupant of the premises covered thereb3\
The certificate provided for by this section, so long as it
remains in force, is conclusive evidence of a compliance with
the statute by the owner, lessee or occupant of the building
for which it was issued, but the certificate may be revoked- by
the inspector at any time upon written notice to the holder
of it or to the occupant of the premises for which it was
granted. No question can arise as to the power of the in-
spector issuing the certificate to revoke it, but your question
refers to a situation that arises when an inspector having
issued such a certificate dies or leaves the service or is trans-
ferred to another district.
186 ATTORNEY-GENERAL'S REPORT. [Jan.
The Legislature in enacting this statute did not, in my
opinion, intend that it should be necessary that the same
individual who issued the certificate should be the only one
who could possibly revoke it. It is my opinion, therefore,
that w^hile such a certificate may not be revoked by an in-
spector other than the one who issued it, who may, by
chance or upon some sudden exigency, be in the district, it
may be revoked at any time upon notice in writing by the
inspector for the district in which the building is located
without regard to the personality or individuality of the in-
spector. In other words, the fact that the inspector who
issued the license is not the same person who revokes it is
not material so long as it was issued by the inspector for the
district in which the building is situated and is revoked by
the inspector for the same district. As this answers your
first question in the affirmative, consideration of your second
question becomes unnecessary.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Directors of the Port of Boston — Time devoted to Work.
Under St. 1914, c. 712, each member of the Directors of the Port of Boston
is required to devote the regular working hours of every working day
to the work of the Board.
Aug. 19, 1914.
Hon. Edward F. McSweeney, Chairman, Directors of the Port of Boston.
Dear Sir: — You have requested my opinion as to the
proper construction to be placed upon that part of chapter
712 of the Acts of 1914, entitled "An Act relative to the
Directors of the Port of Boston," which relates to the time
to be devoted to the work of the Directors of the Port by the
respective members of the Board. Section 1 of the chapter
referred to provides as follows: —
The governor, with the advice and consent of the council, shall
appoint three persons who shall constitute a board to be known as
the Directors of the Port of Boston, hereinafter called the directors.
The terms of office of the persons first appointed by the governor shall
be so arranged and designated at the time of their appointment that
the term of one member shall expire in three 3^ears, one in two years
and one in one year from the first day of July, nineteen hundred and
1915.] PUBLIC DOCUMENT — No. 12. 187
fourteen. Annually thereafter the governor shall appoint one member
to serve for three years, as the term of an}'- member expires. Any
vacancy occurring among the directors shall be filled for the unexpired
term by the governor. The governor shaU designate one member as
chairman and another as secretary, whose duties shall be those custom-
arily performed by chairmen and executive secretaries. Each member
shall devote his entire time to the work of the directors. Each member
shall receive an annual salary of six thousand dollars.
Your inquiry relates solely to the following sentence:
"Each member shall devote his entire time to the work of the
directors."
It is provided by law that "in construing statutes . . .
words and phrases shall be construed according to the common
and approved usage of the language." R. L., c. 8, § 4.
Applying this rule of construction it hardly need be said
that the phrase "entire time," as used in the statute, refers to
the usual and regular time for work, and has no relation to
any time other than the regular hours of labor; and the con-
struction of this statute depends upon the common and
approved usage of the word "entire." It has been said that
"the best lexicographers define 'entire' to be the whole, un-
divided, not participated in with others." Hcathman v. Hall,
3 Iredell, 414.
This word is more fully defined as "whole; unbroken; un-
diminished; perfect; not mutilated; . . . full; complete; un-
divided; wholly unshared, undisputed, or unmixed." (Century
Dictionary.)
Applying the statutory rule of construction above stated to
the statute in question, it is my opinion that the provisions of
chapter 712 of the Acts of 1914 require that each member of
the Directors of the Port of Boston shall devote the regular
working hours of every working day to the work of the Board.
Very truly yours,
Thomas J. Boynton, Attorney-General.
188 ATTORNEY-GENERAL^S REPORT. [Jan.
Liquor Laic — Common-law Right to enter a Nolle Prosequi.
The common-law authority of district attorneys to enter a nolle prosequi
m prosecutions for violation of liquor laws is prohibited by R. L.,
c. 100, § 55.
Aug. 26, 1914.
Hon. William J. Corcoran, District Attorney for the Northern District,
Cambridge.
Dear Sir: — You have requested my opinion upon the
following question : —
Does R. L., c. 100, § 55, regulating the disposition of prosecutions
for violation of law relative to intoxicating liquors, constitute a pro-
hibition of the connnon-law authority of the district attorney to
enter a nolle prosequi in such cases?
The Constitution of Massachusetts, Chapter VI., Article VI.,
provides that —
All the laws which have heretofore been adopted, used, and approved
in the Province, Colony, or State of Massachusetts Baj^, and usually
practised on in the courts of law% shall stiU remain and be in full force,
until altered or repealed by the legislature; such parts only excepted
as are repugnant to the rights and liberties contained in this consti-
tution.
This provision of the Constitution served in the first place
to preserve in the Commonwealth a body of law and a system
of legal procedure during the time that must necessarily
elapse between the adoption of the Constitution and the
enactment and adoption of such other body of laws and
methods of procedure as the Legislature might determine
upon.
It is perfectly clear that the common law and the laws
adopted by the province, colony or state of Massachusetts
Bay are subject to revision and repeal at the will of the
Legislature. At the common law a district attorney might
enter a nolle prosequi in cases of violation of the laws in regard
to intoxicating liquors. And here the statute comes in with
the provision that —
A prosecution for the violation of any provision of law relative to
intoxicating liquors shall not, unless the purposes of justice require
such disposition, be placed on file or disposed of except by trial and
judgment according to the regular course of criminal proceedings.
1915.] PUBLIC DOCUMENT — No. 12. 189
It shall be otherwise disposed of only upon motion in writing stating
specifieaUy the reasons therefor and verified by affidavit if facts are
relied on. If the court or magistrate certifies in writing that he is
satisfied that the cause rehed on exists and that the interests of public
justice require the allowance thereof, such motion shall be allowed
and said certificate shall be filed in the case. (R. L., c. 100, § 55.)
A statute is the written expression of the legislative wall. It is the
positive declaration of what the law shall be by that branch of the
government possessing legislative functions, . . . When duly enacted
it becomes controlling in respect to the matter to which it properly
relates, and unless transcribing certain fixed constitutional limitations,
its effect is absolute until again changed bj'- like legislative authority.
(36 Cyc. 941.)
A statute is impUedly repealed by a subsequent one revising the
w^hole subject-matter of the first; Bartlett v. King, 12 Mass. 545;
Nichols V. Squire, 5 Pick. 168; and in the case of a statute revising the
common law, the impUcation is at least equally strong. {Common-
wealth V. Cooky, 10 Pick. 37.)
Section 55 of chapter 100 of the Revised Laws was
evidently intended to revise and change the statute and
the common law in regard to prosecutions for violation of
law relative to intoxicating liquors. It is true that a nolle
prosequi is not specifically mentioned in this section. But
entering a nolle prosequi is one way of disposing of a prose-
cution of this kind, and the statute provides that such a
prosecution shall not, unless the purposes of justice require
such disposition, be placed on file or disposed of except by
trial and judgment according to the regular course of criminal
proceedings. And if the purposes of justice require that such
a prosecution be placed on file or otherwise disposed of without
trial, this section contains elaborate provisions for bringing
the fact to the attention of the court and for such action as
the court may deem proper.
It is my opinion that section 55 of chapter 100 of the Re-
vised Law^s does prohibit the exercise of the common-law
authority of the district attorney to enter a nolle prosequi
in prosecutions for violation of any provision of law relative
to intoxicating liquors.
Ver}' trul}' 3'ours,
Thomas J. Boynton, Attorney-General.
190 ATTORNEY-GENERAL'S REPORT. [Jan.
Highway Commission — Contract.
Under a statute authorizing the construction of a street, and providing
for a "roadway above the finished subgrade of wood block pavement
upon a cement base, or some other suitable material," the last clause
refers to the base, and does not warrant the use of pavement other
than wood block.
The Highway Commission, in the absence of statutory direction, has
authority to exercise its discretion as to the materials to be used in
any work.
' Aug. 31, 1914.
Massachusetts Highway Commission.
Gentlemen: — You have requested my opinion upon the
following questions: —
(1) Has this Commission authority, under the provisions of section
5 of chapter 778 of the Acts of 1913 relating to the construction of
Humphrey Street in the Town of Swampscott, to change, by agree-
ment with the contractor, the contract and specification heretofore
made for paving said street w^ith wood block upon a cement base so
that said street may be paved with some material other than w^ood
block? (2) Has this Commission in constructing certain approaches
to Humphrey Street authority to use any material other than wood
block for paving?
Chapter 778 of the Acts of 1913 is entitled "An Act relative
to the laying out and construction of Humphrey Street in the
tow^n of Sw^ampscott." This chapter contains full and elaborate
provisions for the preparation of plans and specifications for
the laying out and construction of Humphrey Street in the
town of Sw^ampscott, for the approval of such plans and
specifications by county commissioners for the county of
Essex and the selectmen of the town of Swampscott, for the
la3^ing out of said street, the acquisition of such lands as may
be necessary in order to carry this act into effect, for the pay-
ment of damages and for other things incident to and at-
tendant upon the laying out and construction of a public way
that is expected and intended to be a thoroughfare.
Your questions seem to be founded upon or to arise in re-
gard to the provisions of section 5 of this chapter, which pro-
vides as follows: —
Upon the completion of the layout of said Humphrey street as afore-
said, the Massachusetts highway commission shall construct said
street to the finished subgrade line, and shall construct sidewalks
wdth curbs, the necessary retaining walls, and all necessary means of
1915.] PUBLIC DOCUMENT — No. 12. 191
drainage, including any changes which may be necessary in the present
underground structures and connections, and shall build a roadway
above the finished subgrade of wood block pavement upon a cement
base, or some other suitable material, from a line eighteen inches
outside the car tracks to the sidew^alk curb on each side, in accordance
with said plans and specifications.
Does the expression "and shall build a roadway above the
finished subgrade of wood block pavement upon a cement
base, or some other suitable material," as used in section 5,
limit your board to the use of w^ood block as the only paving
material it may lawfully use in the construction of this street?
In construing, a statute the effort always is to ascertain and
carry out the intention of the Legislature. It is ever to be
borne in mind, however, that the intention of the law^-making
power is to be ascertained by a careful examination and a
reasonable construction of the language of the statute and
not by a construction founded upon mere arbitrary rule or
conjecture.
In one case it was said by a judge of great learning that —
Our decision may perhaps in this particular case operate to defeat
the object of the statute but it is better to abide by this consequence
than to put upon it a construction not warranted by the words of the
act in order to give effect to what we may suppose to have been the
intention of the Legislature. (Lord Tenterden in King v. Inhabitants
of Barham, 8 Barn. & C. 99.)
It has been suggested that in the phrase "and shall build
a roadway above the finished subgrade of w^ood block pave-
ment upon a cement base or some other suitable material"
the words "or some other suitable material" relate back to
and include the words 'Svood block pavement" as well as to
the words "cement base," the claim being that this phrase
as it stands means the same and is to be given the same effect
that it ^vould have if it read "shall build a roadway above the
finished subgrade of w^ood block pavement or some other
suitable material, upon a cement base or some other suitable
material."
It is suggested that the fact that a comm.a is found after
the word "base" is of some peculiar force and significance in
the construction of this statute. While punctuation may be
resorted to as an aid, it is at best of slight value in the in-
192 ATTORNEY-GENERAL'S REPORT. [Jan.
terpretation of vStatutes and has been more frequently dis-
regarded entirely than resorted to for assistance.
The Supreme Court of the United States has said that —
Punctuation is a most fallible standard by which to interpret a
writing; it may be resorted to when all other means fail; but the court
will first take the instrument bj^ its four corners, in order to ascertain
its true meaning; if that is apparent on judicially inspecting the
whole, the punctuation will not be suffered to change it. {Ewing v.
Burnet, 11 Pet. 41.)
In the interpretation of written instruments, very little consideration
is given by the courts to the punctuation, and it is never allowed to
interfere with or control the sense and meaning of the language used.
The words emploj^ed must be given their common and natural effect,
regardless of the punctuation or grammatical construction. (Black
on Interpretation of Laws, §§ 86-88.)
The Supreme Judicial Court of this Commonwealth, in a
case in which the punctuation of the draft of a bill as passed
by the Legislature to be engrossed was urged in support of a
certain theory of statutory- construction, said: —
It is unnecessary to resort to the draft of the biU as passed to be
engrossed, in order to explain the statute as actualty engrossed, for
the general rule is that punctuation is no part of a statute. Barrington
on Sts. (oth ed.) 439, note. 3 Dane Ab. 558. Dwarris on Sts. (2d
ed.) 601. {Gushing v. Worrick, 9 Gray, 382.)
Again, in the case of Martin v. Glcason, 139 Mass. 183, the
Supreme Judicial Court, speaking by Allen, J., began its opinion
deciding the case with these words: —
Disregarding punctuation, as may properly be done in construing
a statute.
The same doctrine was laid down by the Supreme Judicial
Court in the case of Browne v. Turner, 174 Mass. 150.
In another case the Supreme Judicial Court said: —
Although it has been held that punctuation may be disregarded
{Cusking v. Worrick, 9 Graj^, 382, 385), it may be resorted to as an
aid in construction when it tends to throw light on the meaning.
{Commonwealth v. Kelley, 177 Mass. 221.)
In a later case the Supreme Judicial Court has again de-
clared that punctuation may be disregarded entirely or re-
sorted to as an aid in construction, and that it is at best only
1915.] PUBLIC DOCUMENT — Xo. 12. 193
an aid in construction. Friherg v. Builders' Iron & Steel Co.,
201 Mass. 458.
Taking up the construction of the phrase above quoted
without regard to its punctuation, we find that the ordinary
and usual rule of construction in cases like the one presented
by your first question has been declared by the Supreme
Judicial Court in the following language: —
The ordiniViy rule of construction in a case like this confines the
exception to the last antecedent. . . . See also Bidlard v. Chandler,
149 Mass. 532. {Commonwealth v. Kclley, 177 Mass. 221.)
The words of the statute under consideration are to be read
in their ordinary and usual significance. They acquire no
new, strange or technical meaning because found in a statute.
The phrasing of the sentences of the statute is to be given
the same force that would be given to sentences of like
phrasing in other writings. The position of the words in the
phrase above referred to, in which a succession of particulars
is followed by an exception apparently single in purpose, is,
in m}^ opinion, of sufficient force to control the meaning of the
phrase and make it subject to the ordinary rule of con-
struction, that the exception refers to the last antecedent
only, which in the sentence referred to is "cem.ent base."
I am aware that this rule, like most rules of construction, is,
under certain circumstances, subject to modification, but the
statute before me presents, in my opinion, a proper case for the
application of the ordinary rule as established by the Supreme
Judicial Court as stated above.
It is therefore my opinion that your commission is not
authorized by chapter 778 of the Acts of 1913 to use any
material for paving Humphrey Street other than wood block.
Referring to j^our second question, which relates to the
material to be used for paving the approaches to Humphrey
Street, we find that no provision for such approaches was made
by chapter 778 of the Acts of 1913. The authority to lay out
and construct the approaches v.^as conferred on your com-
mission by chapter 398 of the Acts of 1914. By section 1 of
the last-mentioned act your commission is authorized "to
prepare forthwith or to include in its plans and specifications
for the layout and construction of Humphrey street in the
town of Swampscott, in accordance with the provisions of
chapter seven hundred and seventy-eight of the acts of the
194 ATTORNEY-GENERAL'S REPORT. [Jan.
year nineteen hundred and thirteen, plans and specifications
for such suitable approaches at either end of said Humphrey
street as it may deem proper."
It has been urged that the words "in accordance with the
provisions of chapter seven hundred and seventy-eight of the
acts of the year nineteen hundred and thirteen" mean that
the construction of the approaches must in all particulars be
identical with the construction of Humphrey Street, and that
if the commission is bound by chapter 778 of the Acts of 1913
to use only wood block for paving that street it is bound to use
the same material only for paving the approaches to the street.
It is to be observed, how^ever, that the words "in accordance
with" do not necessarily relate to the construction of the
approaches but to plans and specifications that have been, or
that may be, made for the layout and construction of
Humphrey Street in the town of Swampscott in accordance
with chapter 778 of the Acts of 1913.
The last part of the sentence above quoted from chapter 398
of the Acts of 1914, "for such suitable approaches at either end
of said Humphrey street as it [the commission] may deem
proper," confers upon your commission authority for the
exercise of a broad discretion as to what are or will be suitable
approaches, and as to what your commission may deem
proper. It is my opinion that your commission is authorized
to exercise its judgment and discretion as to the material to
be used for paving the approaches to Humphrey Street.
Very truly yours,
Thomas J. Boynton, Aitorney -General.
Sealers of Weights and Measures — Signatures.
The signatures of sealers or deputy sealers of weights and measures on
sealed scales should be in the handwriting of the officer who affixes
the seal, and not a printed facsimile of his signature.
Sept. 24, 1914.
Thure Hanson, Esq., Commissioner of Weights and Measures.
Deak Sir: — You have requested my opinion upon the
following question: —
Would it be legal for the Sealer of Weights and Measures, or deputy
sealer, to use a seal . . . with his name printed thereon, or should he
sign his name, together with date, in his own handwriting, at the
time of sealing a scale or other device?
1915.] PUBLIC DOCUMENT — No. 12. 195
Your question relates entirely to the necessity of a signature
in the handwriting of the officer whose official act is to be
attested by the signature.
Clause 25 of section 5 of chapter 8 of the Revised Laws
provides that —
The words ''written" and "in writing" may include printing, en-
graving, lithographing and any other mode of representing words and
letters; but if the written signature of a person is required by law, it
shall always be his own handwriting or, if he is unable to write, his
mark.
In a discussion of this provision of the statute the Supreme
Court of the Commonwealth has said: —
We think it was intended to require a signature in the proper hand-
writing of a person only in those cases where, by express language, or
b}'^ usage, or by implication arising from the nature of the document
to be signed, a written signature is required by- law, as the direct
personal act of the person whose name is to be signed. Numerous
instances of this character are to be found in the Constitution and
statutes. For example, a certain oath is required to be taken and
subscribed by every person chosen or appointed to any office (Amend.
to Mass. Const., Art, VI.); and the oaths of the Governor, Lieutenant
Governor and Councillors are to be taken and subscribed in the presence
of the two houses of assembly. Const. Mass., Pt. II., c. VL, art. I.
For various statutes respecting the taking and subscribing of oaths by
different officers, by insolvent debtors, and by poor debtors, see Pub.
Sts., c. 14, § 55; c. 18, §§ 10, 14; c. 21, §§ 3, 4; c. 27, § 88; c. 157,
§ 76; c. 158, §§ 2, 6; c. 162, § 38. Various certificates also are to be
made by different public officers, which according to usage bear their
signatures in their own handwriting, such as certificates of the ac-
knowledgment of deeds, and of the taking of oaths. See Pub. Sts.,
c. 27, § 88; c. 120, § 6; c. 150, § 5; c. 157, § 77; c. 162, §§ 1, 2, 17,
19, 40; c. 169, §§ 40, 48. Commissioners to take acknowledgments
in other States and in foreign countries must file in the office of the
Secretary of the Commonwealth impressions of their seals, together
with their oaths of office and their signatures. This must necessarily
impty signatures in the proper handwriting of such commissioners.
Another illustration is found in the Twentieth Amendment to the
Constitution, though this was not adopted till after the establishment
of the statutory rule under consideration. This amendment provides
that no person shall have the right to vote or be eligible to office who
shall not be able to read the Constitution in the English language,
and write his name. A signature in the proper handwriting of the
voter or officer is plainly contemplated.
196 ATTORXEY-GEXERAL'S REPORT. [Jan.
The fact that you ask this question indicates that the use
of facsimiles of the signatures of your officers is of doubtful
legality, while there is no doubt whatever if the genuine
signature is used. The signature of the Sealer or deputy
sealer upon such a seal as the one submitted with your
inquiry is the attestation of an official act. It is an official
signature. Clearly, the safe practice is in ever}^ instance to
require the signature in the handwriting of the official who is
acting, and this, it seems to me, is required by usage. While
the Ciuestion may not be entirely free from doubt, it is my
opinion that the official signatures in cases of the kind covered
by your question should be in the handwriting of the officer
who affixes the seal.
Very trul\^ yours,
Thomas J. Boyntox, Attorney-General.
Cold Storage Eggs — Sales in Storage — Interstate Shipments.
Under St. 1913, c. 538, as amended by St. 1914, c. 545, eggs which are in
cold storage when sold, and which are to remain until called for by
the purchaser, need not be marked until withdrawn from storage.
Cold storage eggs withdrawn for sale for consumption within the State
or for export are required to be marked, under the statute.
Sept. 29, 1914.
William C. Hanson, M.D., Acting Commissioner of Health.
Dear Sir: — You have requested my opinion upon the
following questions : —
I. Suppose A owns 1,000 cases of eggs in a storage warehouse in
Boston, and sells 500 cases to-day to B, it being understood that B
is still to allow the eggs to be kept in storage until such time as
he needs them; must A mark these eggs in storage "cold storage
eggs"?
II. If A sells to-day 500 cases of eggs in storage to B, whose business
is in Newport, R. I., and the eggs are delivered into a car switched
into the warehouse, must these eggs be marked ''cold storage eggs,"
it being imderstood that Rhode Island has no cold storage law?
III. Must all shipments to another State of eggs that have been
cold stored be marked "cold storage eggs"?
The statute (section 1 of chapter 538 of the Acts of 1913,
as amended by chapter 545 of the Acts of 1914) provides
that —
1915.] PUBLIC DOCUMENT — No. 12. 197
Whenever eggs that have been in cold storage are sold at wholesale
or retail, or offered or exposed for sale, the basket, box or other con-
tainer in which the eggs are placed shall be marked plainly and con-
spicuously with the w^ords " cold storage eggs," or there shall be attached
to such container a placard or sign having on it the said words. If
eggs that have been in cold storage are sold at retail or offered or
exposed for sale without a container, or placed upon a counter or
elsewhere, a sign or placard, having the words "cold storage eggs"
plainly and conspicuoush' marked upon it, shall be displayed in, upon
or immediately above said eggs; the intent of this act being that cold
storage eggs sold or offered or exposed for sale shall be designated in
such a manner that the purchaser will know that they are cold storage
eggs. The display of the words '^ cold storage eggs," as required by
this act, shall be in letters not less than one inch in height and shall be
done in such a manner as is approved by the state board of health.
Your questions relate to the sale of eggs which are at the
time of sale in cold storage. The language of the statute is,
"whenever eggs that have been in cold storage are sold," etc.
The intention of the Legislature in the enactment of this
legislation was to protect the public against the sale of cold
storage eggs for those of a more desirable quality.
You call attention to the self-evident fact that eggs that
are in cold storage have been in cold storage. Notwithstand-
ing this very apparent fact, I have to say that in m^^ opinion
the statute in regard to marking containers and in regard to
placards and signs applies to eggs that have been in cold
storage and have been withdrawn from cold storage for the
purpose of sale or to be offered or exposed for sale, and that
the words "eggs that have been in cold storage," as used in
this statute, do not relate to eggs that are in cold storage
when sold or offered for sale.
The purpose of this statute is set forth in the statute itself
in the following words: "the intent of this act being that cold
storage eggs sold or offered or exposed for sale shall be desig-
nated in such a manner that the purchaser will know that
they are cold storage eggs." Obviously, when eggs are sold
while actually in cold storage, the facts as to storage are
necessarily known to both buyer and seller, and the oppor-
tunity for fraud as to the fact of storage in such a case does
not exist. It is onh' when eggs in cold storage are withdrawn
therefrom that opportunity is offered for fraud in their sale.
I therefore answer your first inquiry in the negative; and the
answer to this question, with the views above set forth, seems
198 ATTORNEY-GENERAUS REPORT. [Jan.
also to dispose of your second inquiry, and further comment
seems unnecessary.
In response to your third question I have to say that
whenever eggs that have been in cold storage and have been
withdrawn therefrom are sold or exposed or offered for sale
in this Commonwealth, whether for consumption here or for
export, the containers of such eggs must be marked as re-
quired by statute.
Very truly yours,
Thomas J. Boynton, AUorney-Gencral.
Civil Service — Inspectors of Masonry Consiruction — Building
Inspectors.
Under St. 1914, c. 540, it is the duty of the Civil Service Commissioners
to certify for positions as inspectors of masonry construction only
persons who have had practical experience as journeymen masons,
but the provisions of this statute do not apply to the position of a
building inspector unless his principal duty is the inspection of
masonry construction.
Oct. 6, 1914.
Civil Service Commission.
Gentlemen: — You have requested my opinion upon the
following questions: —
First. ■ — Is it the duty of the Civil Service Commission to certify
for positions as inspectors of masonry construction only persons who
have had practical experience as journeymen masons, or may it certify
persons who without any experience as journejanen masons have
acquired a knowledge of masonrj^ construction by working as foremen,
civil engineers, or architects, or other lines of employment which
would give them a knowledge of masonry construction?
Second. — In certifying for the position of building inspectors in
the different cities and toA\Tis of the Commonwealth, is it the duty of
the commission to certify only such persons as have had practical
experience as journeymen masons?
The statute in regard to this matter (chapter 540 of the
Acts of 1914) provides as follows: —
Sectiox 1. Persons employed by the commonwealth, or by any
metropolitan board or commission, or bj?^ an}' county, city or town,
as inspectors of masonry construction, shall have had at least three
j^ears' practical experience in masonry construction, but shall not be
1915.1 PUBLIC DOCUMENT — Xo. 12. 199
required to have technical knowledge as engineers, architects or drafts-
men, unless thej^ have other duties for which such knowledge is neces-
sary. The provisions of this section shall apply only to persons whose
principal duty is the inspection of masonrj^ construction, consisting
of stone, brick or substitutes therefor.
The answer to your question depends upon the definition
given to the phrase ''practical experience." The w^ord
"practical," so far as its definition is necessary in the con-
sideration of this question, rnay be defined as "relating or
pertaining to action, practice, or use: opposed to theoretical,
speculative or ideal, (a) Engaged in practice or action; con-
cerned w^ith material rather than ideal considerations, (b)
Educated by practice or experience; as, a practical gardener,
(c) Derived from experience; as practical skill; practical knowl-
edge, (d) Used, or such as may advantageously be used,
in practice. . . . (e) Exemplified in practice." "Experience"
is defined as "a trial, proof, experiment, experimental knowl-
edge. The state or fact of having made trial or proof, or of
having acquired knowledge, wisdom, skill, etc., by actual
trial or observation; also, the knowledge so acquired; personal
and practical acquaintance with anything."
"Experience," then, may be gained either by actual trial or
by observation. "Practical experience" clearly means experi-
ence gained by actual trial, that is, by the actual manual
performance of work in masonry construction. This definition
coincides precisely with the popular use of the term "practical
experience." It is provided by clause 3 of section 4 of chapter
8 of the Revised Laws that —
Words and phrases shall be construed according to the common
and approved usage of the language; but technical words and phrases
and such others as may have acquired a pecuhar and appropriate
meaning in the law shall be construed and understood according to
such meaning.
The popular use of the word "practical," as applied to
various callings, as, a practical gardener, practical mechanic,
practical farmer, coincides exactly with the definition and con-
struction above given.
I have not found any decision of the Supreme Court de-
fining the phrase "practical experience." My attention has
been directeil to the case of State v. Starkey, 49 Minn. 503,
and to the case of People v. Board of Aldermen, 42 N. Y.
200 ATTORNF.Y-GENERAL'S REPORT. [Jan.
Supp. 545, but a distinction may readily be drawn between
each of these cases and the question now under consideration.
It is my opinion that under this statute your commission
should certify for positions as inspectors of masonry construc-
tion only such persons as have had three years' experience
as journeymen masons.
In answer to your second question I have to call your
attention to the language of the statute itself: "the provisions
of this section shall apply only to persons whose principal duty
is the inspection of masonry- construction, consisting of stone,
brick or substitutes therefor." This seems to me to clearly
answer your question. The fact that a building inspector of a
city or town may at some time be required to inspect masonry
construction does not affect the matter of his qualification for
appointment unless his principal duty is the inspection of that
kind of work.
Very truly yours,
Thomas J. Boynton, AUorney-General.
Civil Service — Foremen and Inspectors — Vacancies.
Whenever the Civil Service Commission is required to certify a list of
names of persons by reason of a vacancy' in the position of foreman
or inspector in any department, it must, when practicable, include the
name of one person serving as a laborer or mechanic in such depart-
ment.
Oct. 21, 1914.
Civil Service Commission.
Gentlemen: — You ask for a construction by the Attorney-
General of chapter 479 of the Acts of 1914, and whether your
commission shall certify for each vacancy the name of one
person who is serving as a laborer or mechanic in any de-
partment, or whether the person to be certified must have had
special experience in the service required in the position which
he is to fill.
The statute is clear and is, I think, to be taken literally.
It reads as follows: —
Whenever an appointing officer or board shall make requisition
upon the civil service commission to fill a vacancy or vacancies in
the position of foreman or inspector, and a request is made in said
requisition for the certification of persons having had experience in
1915.] PUBLIC DOCUMENT — No. 12. 201
the department from which the requisition comes, the commission
shall, so far as may be practicable, include among the names certified
the name of at least one person for each vacancy who is serving as
a laborer or mechanic in such department.
The w^ords "persons having had experience in the depart-
ment" are not, in my opinion, to be taken to mean experience
in some special work of the department. The last clause of
section 1 — "the commission shall, so far as may be practi-
cable, include among the names certified the name of at least
one person for each vacancy who is serving as a laborer or
mechanic in such department" — should be construed exactly
as it reads; that is, any person serving as a laborer or me-
chanic in such department is eligible to certification.
Very truly yours,
Thomas J. Boyxton, Attorney-General.
Board of Education — Superintendency Union — Towns.
Under St. 1914, c. 556, only such towns as are required to join a superin-
tendency union are required to belong to such a union.
Nov. 12, 1914.
Massachusetts Board of Education.
Gentlemen: — I am in receipt of your letter making
inquiry as follows : —
Chapter 556 of the Acts of 1914 places upon the Board of Education
the responsibility of estabUshing standards of organization, equip-
ment and instruction for high schools maintained by the towns re-
quired to belong to a superintendency union. In the discharge of
this duty the Board finds it is necessary to secure the opinion of the
Attorney-General as to the interpretation of the phrase ''required to
belong to a superintendency union."
In my opinion the words in question refer only to towms
required to join a union; i.e., to the towns enumerated in
section 43 of chapter 42 of the Revised Laws. The fact that
other towns which have the option to join a union or not,
may, by joining voluntarily, render themselves forever bound
to that union, does not classify them as towns "required to
belong to a superintendency union."
Very truly yours,
Thomas J. Boyntox, Attorney-General.
202 ATTORNEY-GENERAL'S REPORT. [Jan.
Metropolitan Park Commission — Deeds — Mercantile Purposes.
A waiting room used for the sale of ice cream, soda, etc., comes within
the restriction in a deed of land prohibiting the use of a building for
mercantile purposes.
Where similar building restrictions are attached to different portions of
a tract of land, each grantee has a right in the nature of an easement,
which may be enforced against the grantee of another lot.
Nov. 19, 1914.
Metropolitan Park Commission.
Gentlemen: — You have submitted to me various inquiries
relative to a certain deed of Eugene G. Ayer. The facts are
briefly as follows : when your Board constructed Fellsway West,
under the authority of chapter 288 of the Acts of 1894, all of
the deeds which you obtained from the owners of land taken
imposed certain restrictions on the remaining land of the own-
ers. These restrictions contained substantially the following
language: —
No building erected or placed upon said premises shall be used for
a livery or pubhc stable or for any mechanical, mercantile or manu-
facturing purposes.
Such a deed was received from Eugene G. Ayer. He now
proposes to erect a building on his land covered by these re-
strictions, to be used as a general waiting room for the
traveling public, and for the sale of ice cream, soda, cigars and
tobacco, and such light commodities as are usually sold in
street railway waiting rooms, and for the purposes of a drug
store.
You have requested my opinion on the following four
points : —
I. Would the use of this building, as set forth in the petition of
Mr. Ayer, be for mechanical, mercantile or manufacturing purposes,
and in \nolation of said restrictions ?
II. Would a building of the nature and cost above set forth be
erected and maintained in violation of said restrictions ?
III. Has this Board authority under any circumstances to release
this land from the operation of restrictions imposed in the manner
above set forth?
IV. What would be the effect on the authority of the Board to
enforce similar restrictions on other lands abutting on said Fellsway
West, if it has authority to and should release the land of Ayer in
question from the operation of the particular restrictions referred to
above?
1915.] PUBLIC DOCUMENT — Xo. 12. 203
With regard to the first point I will say that our Supreme
Judicial Court has recently quoted with approval the following
definitions : —
The word "merchant" is defined in the Century Dictionarj^ as "one
who is engaged in the business of buying commercial commodities
and selling them again for the sake of profit, especially one who buys
and sells in quantity or by wholesale," or "a shopkeeper or store-
keeper;" and "mercantile" is defined thus: "Of or pertaining to
merchants or the traffic carried on by merchants; having to do with
trade or commerce, trading, commercial." {Carr v. Riley, 198 Mass.
70, 75.)
Both that definition and the common acceptance of the
word clearly show that the use of the building as contemplated
by Mr. Ayer is for mercantile purposes.
With regard to the second point I will say that it naturally
follows, from the answer to your first question, that such a
building would violate the restrictions.
With regard to the third point.
It is a famiUar principle of law, wliich has been apphed in many
cases, that when one makes deeds of different portions of a tract of
land, each containing the same restriction upon the lot convcA^ed,
which is imposed as a part of a general plan for the benefit of the
several lots, such a restriction not only imposes a habihty upon the
grantee of each lot as between him and the grantor, but it gives him
a right in the nature of an easement, which vdW be enforced in equity
against the grantee of one of the other lots, although there is no
direct, contractual relation between the two. {Evans v. Foss, 194
Mass. 513, 515.)
The principle should be the same when the restrictions are
imposed by deeds from the various owners to a central
authority instead of from one person to various owners. The
other abutters on Fellsway West who have given deeds similar
to that of Mr. Ayer have a right in Mr. Ayer's land in the
nature of an easement which your Board cannot release. I
therefore answer your third question in the negative.
The answer to the third inquiry disposes of the fourth.
Very truly yours,
Thomas J. Boyntox, Attorney-General.
204 ATTORNEY-GENERAL'S REPORT. [Jan.
Teachers' Retirement Act — Evening Schools.
A teacher who resigned in 1911 as principal of a public school, but who
has since been employed in evening school work, is not eligible for
retirement under the provisions of St. 1913, c. 832,
Nov. 25, 1914.
Edmund S. Cogswell, Esq., Secretary, Teachers' Retirement Board.
Dear Sir: — You have asked my opinion as to whether
the facts relating to the petition of Mr. Dwight Clark for a
pension come within the scope of the teachers' retirement act
(St. 1913, c. 832). The facts as we understand them are as
follows: Mr. Dwight Clark, eighth-three years of age, has
been connected with the teaching force of the city of Spring-
field for fifty-one years. Because of failing health Mr. Clark
resigned his principalship in June, 1911, but the school board
intended to continue Mr. Clark's service in the public schools,
and engaged him in evening school work for the two years
following. Since September, 1913, Mr. Clark has been re-
employed in the day school service.
Paragraph (5) of section 6 of this act provides —
Any teacher who shall have become a member of the retirement
association under the provisions of paragraph numbered (2) of section
three, and who shall have served fifteen years or more in the pubhc
schools of the commonwealth, not less than five of which shall im-
mediately precede retirement. . . .
The word "teacher," as used in this act, is defined in section
1, paragraph (4), to mean "any teacher, principal, supervisor
or superintendent employed b}'' a school committee, or board
of trustees, in a public day school within the commonwealth."
The words "public school" are defined, in section 1,
paragraph (5), to mean "any day school conducted within
this commonwealth under the order and superintendence 'of a
duly elected school committee and also any day school con-
ducted under the provisions of chapter four hundred and
seventy-one of the acts of the year nineteen hundred and
eleven."
The language of the statute with relation to a consideration
of the questions involved in this particular case admits of
only one interpretation, namely, that a teacher before he is
eligible for a pension "shall have served fifteen years or more
in the public schools of the commonwealth, not less than five
1915] PUBLIC DOCUMENT — No. 12. 205
of which shall immediately precede retirement." The language
of the statute specifically precludes the presumption that
service in the evening schools is included within the scope of
the public school service. It follows, therefore, that Mr.
Clark's service in the evening schools was not a remedy for
the interruption of his service in the public school service, and
the two years devoted to the evening schools cannot be
reckoned in as a period of his service in the public schools
within the meaning of the w^ords as used in the statute.
I note what you say about the intention of the school
board being to continue Mr. Clark in the public school
service, but I am limited and confined by the statutory
definitions and prescriptions which require service in the
public day schools, and which make no provision for evening
school work, so that permanent and continuous employment
in an evening school is neither a substitute nor a remedy for
the lack of the required continuous service in day school work.
I again refer you to the definition of the words "teacher"
and "public schools" as defined specifically for the purposes
of this act.
Very truly yours,
Thomas J. Boynton, AUorney-Gcncral.
t Internal Revenue — Tax on Insurance Policies — Rebates.
Under the Federal internal revenue law insurance companies are required
to pay the tax on policies.
If the tax on insurance policies is added by insurance companies to the
premiums it would be a violation of the anti-rebate law for agents to
pay the amount of the tax.
Dec. 4, 1914.
Hon. Frank H. Hardison, Insurance Commissioner.
Dear Sir: — I have received from you a request in the
following language : —
The new internal revenue law, which goes into effect on December 1
next, puts a tax upon insurance policies thereafter issued. I beg to
inquire whether fire insurance companies may, under the law, collect
the amount of this tax from the policjdiolders without making it a
part of the consideration or premium for the policies?
Also whether, if the answer to this question is that the companies
TUdiY collect the tax from the policyholders as^ a separate matter from
the premium, agents who pay the tax instead of collecting it from their
customers would be guilty of rebating?
206 ATTORNEY-GENERAL'S REPORT. [Jan.
The Federal act of Oct. 22, 1914, contains the following
provisions : —
Sec. 6. That if any person or persons shall make, sign, or issue, or
cause to be made, signed, or issued, any instrument, document, or
paper of any kind or description whatsoever, without the same being
duly stamped . . . such person or persons shall be deemed guiltj^ of
a misdemeanor, . . .
Sec. 11. That any person or persons who shall register, issue, sell,
or transfer, or who shall cause to be issued, registered, sold, or
transferred, any instrument, document, or paper of any kind or de-
scription whatsoever mentioned in Schedule A of this Act, without
the same being duly stamped, . . . shall be deemed guilty of a mis-
demeanor, . . .
Schedule A.
Stcmip Taxes.
Insurance: Each policy of insurance . . . upon property of any
description . . . made by any person, association, or corporation,
upon the amount of premium charged, one-half of 1 cent on each
doUar or fractional part thereof: Provided, That purely cooperative or
mutual fire insurance companies or associations carried on by the
members thereof solely for the protection of their o^m property and
not for profit shall be exempted from the tax herein provided : . . .
Each policy of insurance ... of indemnity for loss, damage, or
liability issued, or executed, or renewed by any person, association,
company, or corporation, . . . upon the amount of premium charged,
one-half of 1 cent on each dollar or fractional part thereof. i
Briefly, the Federal law in question imposes a stamp tax
on certain insurance policies. From sections 6 and 11, above
quoted, it is clear that the tax is on the person issuing the
policy. This is made more clear by the fact that the proviso
above quoted exempts certain companies, rather than exempt-
ing their policies or their customers. Thus the tax is for the
insurance companies to pay.
But from this it does not follow that the companies may
not pass the tax along.
Insurance companies, however, have no authority in law to
charge their customers for a part of their running expenses,
except as such expenses are included in and form a part of
the consideration paid for insurance. If this tax could be
passed on, as such, to the customers, so could local taxes,
office rent, etc. The charging of doctors' fees for examinations
of applicants is no precedent, for there an actual service is
1915.] PUBLIC DOCUMENT — No. 12. 207
rendered; and, in fact, it is usual not to charge such fees if
the policy is finally written.
There is, however, no legal limit on premiums in Massa-
chusetts, the only requirements being that they be uniform
and that they be set forth in the policy. Therefore, an insur-
ance company may lawfully add, as a part of the premium,
the amount of the Federal tax; that is, the premium to be
paid for insurance may be increased by that amount, but the
company cannot charge the Federal tax in addition to the
premium.
In the case of fire insurance companies, St. 1911, c. 493,
provides a board of appeals, with recommendatory powers.
I suggest that as to this class of companies this board has
authority to pass upon the question of including the Federal
tax in the premiums, and to make such recommendations as
may seem meet.
With respect to the anti-rebate law, I will say that if the
tax is included in the premium it would clearly be rebating for
the agent to pay it. But, if not so included, the agent has
merely paid an obligation of the company, which cannot pos-
sibly be a rebate to the customer.
Very truly yours,
Thomas J. Boyxtox, Attorney-General.
Civil Service — Department of Fire Prevention Commissioner.
Under St. 1914, c. 795, the appointees in the department of the Fire Pre-
vention Commissioner are subject to the provisions of the civil service
law and rules.
Dec. 7, 1914.
Civil Service Commission.
Gextlemen: — You have requested my opinion as to the
status under civil service requirements of the appointees in
the department of the Fire Prevention Commissioner. R. L.,
c. 19, § 9, provides as follows: —
Judicial officers and officers elected by the people or by a citj^ council,
or whose appointment is subject to confirmation by the executive
council or city council of any city, officers, elected by either branch of
the general court and the appointees of such officers, heads of principal
departments of the commonwealth or of a city, the employees of the
treasurer and receiver general, of the board of commissioners of savings
banks, and of the treasurer and collector of taxes of any city, two em-
208 ATTORNEY-GENERAL'S REPORT. [Jan.
ployees of the city clerk of any city, teachers of the piibhc schools, the
secretaries and confidential stenographers of the governor, or of the
mayor of any city, police and fire commissioners and chief marshals,
or chiefs of police and fire departments, shall not be affected as to their
selection or appointment by any rules made as aforesaid; but, with the
above exception, such rules shall apply to members of police and fire
departments.
Acts of 1914, chapter 795, entitled *' An Act to provide for
the better prevention of fires throughout the metropolitan
district," in section 1 defines certain words. At the end of
section 2 it is provided as follows: —
Subject to the approval of the governor and council, the commis-
sioner shall be provided with suitable offices suitably furnished and
equipped for the performance of his duties. Subject to the approval
of the governor and council, the commissioner may employ such clerks,
stenographers and office employees, engineering and legal assistance
as he may deem necessarj^
It is a general rule of statutory construction, to be applied
under proper conditions and with important limitations, that
the express mention of one person, thing or consec{uence is
tantamount to the express exclusion of all others. Black on
Interpretation of Laws, p. 219.
It would seem that "proper conditions" and "important
limitations" are observed for the purpose of applying this
particular principle to the case in hand. The section of the
Revised Laws above quoted having expressly mentioned the
persons and classes of persons who shall be exempt from the
civil service requirements, it must be taken that the appointees
about whom you inquire cannot be exempt unless they fall
within a class or group mentioned expressly in the section of
the Revised Laws above quoted.
Obviously, the only phrase or clause mentioning a class into
which they could fall is "whose appointment is subject to con-
firmation by the executive council." The only ground upon
which it could be contended that the appointees in question
may fall within the class coming under this phrase is that the
phrase "subject to the approval of the governor and council,"
in St. 1914, c. 795, means the same thing that the phrase
"subject to confirmation by the executive council" means in
the quoted section of the Revised Laws. This contention is
not w^ell taken.
1915.] PUBLIC DOCUMENT — No. 12. 209
In an opinion rendered by one of 1113' learned predecessors,
Hon. Dana Malone, upon a similar matter, he said: —
I am of opinion that the approval of the employment and compensa-
tion of clerks in the several departments of the Commonwealth is not
an exercise of this function (meaning the function of confirmation of
appointments exercised by the Executive Council, provided for by the
Constitution and mentioned in the above-quoted section of the Revised
Laws), even as designated in R. L., c. 19, § 9, and is rather an approval
by the Council, acting with the Executive, of a scheme for proposed
appointments and expenditures, than a confirmation of the particular
appointment to be made.
I see no reason to differ from the opinion of my predecessor.
It follows, therefore, that the proposed appointments are not
exempt from the requirements of the civil service.
Very truly yours,
Thomas J. Boynton, Aitorncy-Gcncnd.
Public Schools — Tuition of Xourcsidcut Pupils.
Where pupils are attending school in a town other than that of their resi-
dence, the cost of such attendance should be computed on the average
expense for each pupil in that school, and not on the average expense
for pupils in such town.
Dec. 9, 1914.
State Board of Charity.
Gentlemen: — I am in receipt of your letter requesting my
interpretation of St. 1913, c. 779, § 4. A State minor ward
between the ages of five and fifteen years has been placed else-
where than in his own home by the State Board of Charity,
and is receiving tuition in the public schools of that town.
The school committee has expressed its desire for reimburse-
ment at the so-called "average expense rate."
You ask: —
Shall the amount reimbursed by the State in this case be an amount
equal to the average expense for each pupil in the particular school
which the State minor ward is attending, or shall it be an amount
equal to the average expense per pupil in all of the pubUc schools of
the said town?
The language of the statute seems perfectly clear on this
point. The w^ords are, "an amount equal to the average ex-
pense for each pupil of such school." It is to be noted that
210 ATTORNEY-GENERAL'S REPORT. [Jan.
the word "school" is singular and not plural. Although the
word "such" has apparently no antecedent in the paragraph
containing it, and although this paragraph refers to "attend-
ance of ever}^ such child in the public schools," yet preceding
paragraphs of the same section contain the word "school" in
the singular. The first paragraph contains the words "attend
school," "attending school," "such school." The second para-
graph contains the words "attend school," "admission to a
school." Only in the paragraph in question is the word
"school" used in the plural.
In the paragraph relative to reimbursement for transporta-
tion it is clear that the average expense to the individual
school in question is contemplated.
Taking all these matters together it is my opinion that the
words "such school" in the third paragraph refer to the par-
ticular school which the child in question attends.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Prison Commissioner — Prison Camp — Labor.
Under R. L., c. 225, §§63 and 65, the employment of prisoners at the Prison
Camp is limited to the reclamation and improvement of waste places,
the cultivation of lands and the preparing of material for road building.
Dec. 10, 1914.
Board of Prison Commissioners.
Gentlemen: — You have requested my opinion upon the
following questions: —
First. Is emplo>anent of prisoners at the Prison Camp limited to
reclaiming land and to road building?
Second. If such employment is not limited, is it within the power
vested in the Prison Commissioners to establish at said Prison Camp
such industries, in addition to reclaiming land and road building, as in
their opinion are best suited to the institution and its inmates?
R. L., c. 225, §§ 63 and 65, provide as follows: —
Section 63. The governor and council may purchase or otherwise
take in fee smy parcel of waste or unused land, not exceeding one thou-
sand acres in area, for the purpose of reclaiming, improving and dis-
posing of it for the benefit of the commonwealth. When land has been
so taken, the governor and council shall cause a description thereof as
1915.] PUBLIC DOCUMENT — No. 12. 211
certain as is required in an ordinary conveyance of land to be filed in
the registry of deeds for the county or district in which the land lies,
with a statement, signed by the governor, that it is taken on behalf of
the commonwealth for the purposes described in this section. The act
and time of filing such description shall be considered the act and time
of taking such land, and shall be sufficient notice to all persons that the
land has been so taken. The title to such land shall then vest in the
commonwealth.
Section 65. After such land has been so taken, the prison com-
missioners, with the approval of the governor and council, shall cause
iron buildings of cheap construction to be erected thereon for the ac-
commodation of not more than one hundred prisoners. When such
buildings are ready for occupancy, the governor may issue his proclama-
tion establishing on such land a temporary industrial camp for pris-
oners, and the prison commissioners may appoint a superintendent
thereof, who shall hold his office at their pleasure, give such bond as
they require, receive such salary as they determine and who shall have
the custody of all prisoners removed thereto. The superintendent,
with the approval of the prison commissioners, may appoint and
determine the compensation of assistants, and they shall hold their
office at his pleasure.
Section 66 of chapter 225 of the Revised Laws contained an
explicit provision that prisoners at a camp should be employed
in reclaiming and improving land and in preparing material
for road building, but this section was expressly repealed by
section 5 of chapter 243 of the Acts of 1904, while section 1 of
that act provides as follows: —
Prisoners who are removed to the temporar}^ industrial camp for
prisoners shall be governed and employed there under regulations made
by the prison commissioners. The Massachusetts highway commission
and the board of agriculture shall from time to time, at the request of
the prison commissioners, give to them such information as may enable
them to prosecute to the best advantage the work of reclaiming and
improving waste land and of preparing material for road building by
hand labor.
It will be seen that the provision of section 66 of chapter
225 of the Revised Laws, above referred to, was omitted in
the revision of that section, and as the law now stands pris-
oners in the Prison Camp and Hospital shall be governed and
emplo3'ed there under regulations made by the Prison Com-
missioners.
212 ATTORNEY-GENERAL'S REPORT. [Jan.
The authority of your commission appears to be limited by
section 1 of chapter 633 of the Acts of 1913, which provides
as follows: —
During all times in which outdoor labor is practicable, inmates of
psnal institutions who are required to labor shall be employed, so far
as is possible, in the reclamation of waste places, and in cultivating
lands for raising produce to be used in pubhc institutions. Prisoners so
employed shall be at all times in the custod}^ and under the direction of
the prison officers.
The intention and purpose of the Legislature to make the
work of reclaiming land and preparing material for road
building the principal industries at the Prison Camp are
indicated by the provisions of section 1 of chapter 243 of the
Acts of 1904, to the effect that the Highway Commission and
the Board of Agriculture shall, upon request of your Board,
give such information as may enable you to prosecute to the
best advantage the work of reclaiming and improving waste
land, etc., as well as by section 1 of chapter 633 of the Acts
of 1913, above quoted. But I do not think that as the stat-
utes now^ stand your Board is absolutely precluded from em-
ploying prisoners at the Prison Camp in suitable lines of
industry other than the reclamation and improvement of land
and preparing material for road building at such times as it
may be found impracticable to carry on this work.
I note that road building is mentioned in both your ques-
tions. May I suggest that preparing material for road build-
ing is the industry named in the statute.
It is my opinion that the employment of prisoners at the
Prison Camp is limited to the reclamation and improvement
of waste places, the cultivation of lands for raising produce
to be used in public institutions, and preparing material for
road building, during all the time when outdoor labor is
practicable, and that your Board may provide for such period
of time as outdoor work is not practicable such employment
as is best suited to the welfare of the prisoners.
Very truh' yours,
Thomas J. Boynton, Attorney-General .
1915.] PUBLIC DOCUMENT — No. 12. 213
Co-operative Banks — Loans — Reduction of Rate.
A co-operative bank authorized by its by-laws to dispense with offering its
money for bids, and in lieu thereof to loan money at not less than 5
per cent., as fixed by its directors, may reduce the rate of interest to
any rate not less than 5 per cent, to a borrower who applied for and
received a loan at a fixed rate, fixed by the board of directors when
the loan was made.
Dec. 16, 1914.
Hon. Augustus L. Thorndike, Bank Commissioner.
Dear Sir: — You have requested my opinion upon the
following question: —
In a case in which a co-operative bank is authorized by its by-laws
to loan its money at such rate of interest, not less than 5 per cent, per
annum, as may be fixed from time to time by its directors, in lieu of
offering money for bids, may such bank reduce the rate of interest to a
borrow^er who applied for and received a loan at the rate so fixed by the
board of directors when the loan was made, or can the rate be reduced
only in cases where the bank offers its money for bids?
St. 1912, c. 62.3, §§ 19 and 26, provide as follows: —
Section 19. The funds accumulated, after due allowance for all
necessary expenses and the payment of shares, shall, at each stated
monthly meeting, be offered to applicants according to the premium
bid by them for priority of right to a real estate or share loan, which
shall consist of a percentage charged on the amount loaned in addition
to interest, at a rate not less than five per cent per annum, payable in
monthly instalments. If the corporation so provides in its by-laws, the
bid for loans shall, instead of a premmm, be a rate of annual interest
not less than five per cent per annum payable in monthly instalments
upon the amount desired. Any such corporation may, when so author-
ized by its by-laws, dispense with the offering of its money for bids, and
in lieu thereof may loan its money at such rate of interest not less than
five per cent per annum or interest and premium as may be fixed, from
time to time, by the board of directors, in which case the priority of
right to a loan shall be decided by the priority of the approved apphca-
tions therefor. Such bids or rates shall include the whole interest to be
paid and may be at any rate not less than five per cent per annum.
Section 26. If a borrower purchases money at a lower rate than
that paid by him on an existing loan, secured by a mortgage, for the
purpose b}^ him declared of reducing the premium or rate of interest
upon said loan, a new mortgage shall not be required, but an agreement
in writing for the reduction of said premium or rate of interest, signed
by the borrower and the treasurer of the bank, with the written approval
214 ATTORNEY-GENERAL'S REPORT. [Jan.
of the president, shall be valid, and shall not impair or otherwise affect
the existing mortgage; and thereafter the borrower shall make the
monthly pajnnents on the loan in accordance with the terms of said
agreement, and the amount of money previously so purchased by him
maj^ be resold by the banlv at the same meeting.
Your question appears to have been suggested, in part at
least, by the use of the phrase in the statute, "if a borrower
purchases money," etc., in section 26, and by the idea that
one who obtains a loan of money by bidding for it purchases
the money, and that one who borrows money at a rate of
interest not less than 5 per cent, fixed by the directors of the
bank is not one who purchases.
The answer to your question, then, turns, in part at least,
upon the scope and meaning of the word *' purchase" as used
in the statute. This word is defined as —
A tenn including ever>^ mode of acquisition of estate known to the
law, except that by which an heir on the death of his ancestor becomes
substituted in his place as owner by operation of law. (Bouvier's Law
Dictionary.)
The word "purchase" is further defined as —
Acquisition; the obtaining or procuring of something by effort,
labor, sacrifice, work, conquest, art, etc., or by the payment of money
or its equivalent; procurement; acquirement. (Century Dictionar\\)
These definitions indicate that the word "purchase" is not
confined in its meaning to the process of bidding for some-
thing, nor to the acquisition of property b}' the payment of
money, but to many other and different transactions; and
that one who procures a loan from a bank at a rate of interest
fixed by its directors is just as truly a purchaser of a loan as
the man who procures a loan by bidding for it.
Your question may have been suggested also, in some part
at least, by the fact that in those cases in which the bank
loans its money at a rate fixed by the directors a written ap-
plication is made for the loan; but the man who bids for the
loan makes application for a loan at the rate named in his
bid.
It is my opinion that a co-operative bank authorized by its
by-laws to dispense with offering its money for bids, and in
lieu thereof to loan money at a rate of interest not less than
1915.] PUBLIC DOCOIEXT — Xo. 12. 215
5 per cent., fixed from time to time by its directors, may
reduce the rate of interest to any rate not less than 5 per cent,
per annum to a borrower who applied for and received a loan
at a rate fixed by the board of directors when the loan was
made, and that all the provisions of section 26 of chapter 623
of the Acts of 1912 apply to such a transaction.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Constitutional Law — Cities — Charters — General Act.
The Legislature has no authority to enact a general municipal corporation
act, giving cities the right to adopt one of several forms of* charters,
vrithout further special legislative enactment.
Authority to legislate so as to amend a citj^ charter cannot be granted to a
city.
It is within the power of the Legislature to enact a general act giving cities
the right to change, alter, consolidate, create or abolish departments
without special legislation in each particular instance.
The Legislature has power to authorize a city to choose by vote between
two or more charters, and may provide that a form of charter once
adopted shall remain in force for a fixed term of years.
Dec. 18, 1914.
Joint Special Committee on City Charters.
Gentlemen: — You have requested my opinion upon the
following questions: —
1. Can the Legislature enact a general municipal corporation act,
the effect of which ^^ill be to pennit cities to adopt one of several forms
of charters set forth in such municipal corporation act \^-ithout further
special enactment on the part of the Legislature?
2. Can the Legislature in such act or otherwise make provision for
changes in existing charters without further special enactment on the
part of the Legislature; i.e., leave the charter in the main as heretofore
granted, but giving authority to make changes in minor provisions?
3. Can the Legislature enact a general act which will give to cities
the right to change, alter, consohdate, create or abohsh departments as
convenience or exigency demands, without fm'ther special legislation
in each particular instance?
4. Can pro^dsion be made in the general act above referred to that
when a municipahtj^ has rejected one of the several forms therein set
forth, the same shall not again be available; i.e., voted upon, for a
fixed termx of years thereafter ?
{a) It accepted, that no other form shall be acted upon for a fixed
term of years thereafter.
216 ATTORNEY-GENERAL'S REPORT. [Jan.
Article IV. of Section I. of Chapter I. of Part the Second of
the Constitution of Massachusetts provides as follows: —
Full power and authorit}' are hereby given and granted to the said
general court, from time to time to make, ordain, and estabhsh, all
manner of wholesome and reasonable orders, laws, statutes, and
ordinances, directions and instructions, either with penalties or with-
out; so as the same be not repugnant or contrary to this constitution,
as they shall judge to be for the good and wehare of this commonwealth,
and for the government and ordering thereof, and of the subjects of the
same. . . .
Article II. of the Amendments to the Constitution pro-
vides: —
The general court shall have full power and authority to erect and
constitute municipal or city governments, in any corporate town or
to^Mis in this commonwealth, and to grant to the inhabitants thereof
such powers, privileges, and immunities, not repugnant to the consti-
tution, as the general court shall deem necessary or expedient for the
regulation and government thereof, and to prescribe the manner of
calhng and holding pubhc meetings of the inhabitants, in wards or
otherwise, for the election of officers under the constitution, and the
manner of returning the votes given at such meetings. Provided, that
no such government shall be erected or constituted in any town not
containing twelve thousand inhabitants, nor unless it be ^\^th the con-
sent, and on the apphcation of a majority of the inhabitants of such
town, present and voting thereon, pursuant to a vote at a meeting duly
warned and holden for that purpose. And pro^^ded, also, that all
by-laws, made by such municipal or city government, shall be subject,
at all times, to be annulled by the general court.
Under the constitutional provisions above quoted it is my
opinion that the special action of the Legislature is necessary
to the erection and constitution of city governments. Indeed,
no such government can be erected or constituted in any
town unless it be with the consent and upon the application
of a majority of the inhabitants of such town. That is, the
inhabitants of a town who desire to have a city government
instituted in their municipality cannot, in my opinion, be per-
mitted or authorized to adopt a form of charter and establish
a city government without first making the application to the
General Court provided for in Article II. of the Amendments
to the Constitution; and to establish a city government this
must be followed by some action of the General Court in ac-
cordance with the provisions of the Constitution for the
1915.1 PUBLIC DOCUMENT — No. 12. 217
establishment of a city government. It is my opinion, there-
fore, that your first question, as it stands, must be answered
in the negative. It would be possible, however, for the Gen-
eral Court to establish two or more standard forms of charter,
and upon each and every application for a charter or for a
change of charter to enact a special law submitting these
different forms, or some of them, to the choice by vote of the
people of the municipality concerned.
Referring now to your second question, I have to say that
it is my opinion that the authority to legislate so as to amend
its charter cannot be granted to a city under our present
Constitution.
In response to your third inquiry I have to say that such a
provision as this question contemplates may be incorporated
in the charter of a city, and might, in my opinion, be incor-
porated in a general act. It will, of course, occur to 3'ou that
such an act would have no permanence but would be subject
to amendment and repeal at the pleasure of the Legislature.
In answer to your fourth inquiry I have to sa}^ that if the
Legislature authorizes the people of a city or town to choose
by vote between two or more charters, it may, in my opinion,
provide that the rejected form or forms shall not again be
submitted to the people of the city wherein the rejection has
taken place, nor be voted upon for a fixed term of years after
such rejection; and that a form of charter once accepted and
adopted shall remain in force for a fixed term of years after
such acceptance or adoption.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Schools — Domicil of Parent — Tuition.
The domicil of the parent of a minor attending school is the domicil of the
minor, and the city of such domicil is responsible for the tuition of the
child.
Dec. 24, 1914.
State Board of Education.
Gentlemen: — In your letter of recent date you state the
following case: —
It appears that a child resides during the spring and fall months in a
town adjoining a city in which the father of the child is a legal voter.
218 ATTORNEY-GENERAL'S REPORT. [Jan.
The child attends school in the city. Said city claims that the town in
which the child resides should pay tuition during the time of such resi-
dence. The town claims that the city, by virtue of the fact that the
father of the child is a legal voter therein, is responsible for all the
schooling of the child.
You ask to be advised as to the solution of the question
whether the city or the town is right in the claims above
stated.
I assume that the domicil of the father is, for all purposes,
in the city in which he is a voter. It is a well-established rule
of law^ that the domicil of a child follows that of the father.
An infant, being no7i sui juris, is incapable of fixing his domi-
cil, which therefore, during his minority, follow^s that of the
father, provided such child is legitimate, and the mere separa-
tion of the parents does not affect the application of the rule.
14 Cyc, pp. 843-844.
By application of this rule it follows that since the father of
the child has his domicil in the city, the city is responsible for
the schooling of the child.
Very truly yours,
Thomas J. Boyxton, Attomey-GcneraL
Teachers' Retirement Board — Suhstitute Teachers.
Only such substitute teachers as are duly elected and regular 1^^ employed on
a salary are entitled to participate in the teachers' retirement fund,
under St. 1913, c. 832.
Dec. 31, 1914.
Teachers' Retirerneiit Board.
Gentlemen: — I am in receipt of your letter requesting
an opinion as to whether substitute service performed by
former teachers in the public schools is service within the
meaning of paragraph 5 of section 6 of chapter 832 of the
Acts of 1913.
The definition of "teacher" in the act might be broad
enough to include call substitutes. St. 1913, c. 832, § 1,
par. 4.
But the act must be taken as a whole. The act contem-
plates that the members shall be on a regular salary, and shall
serve throughout the school year. This is clearly shown by
the follow^ing proviso: —
1915.] PUBLIC DOCUMENT — Xo. 12. 219
When the total sum of assessments on the salary of any member at
the rate established by the retirement board would amount to more
than one hundred dollars or less than thirty-five dollars for any school
year, such member shall in lieu of assessments at the regular rate be
assessed one hundred dollars a year or thirty-five dollars a j^ear as the
case may be, pa3'able in equal instalments to be assessed for the num-
ber of months during which the schools of the community in which such
member is em^ployed are commonly in session. (St. 1913, c. 832, § 5,
par. 2.)
Even construing the definition by itself, the word "em-
ployed" may mean regularly employed. The United States
Supreme Court has ruled: —
The terms "officers" and "empWees" both, alike, refer to those in
regular and continual service. Within the ordinarj^ acceptation of the
terms, one who is engaged to render service in a particular transaction
is neither an officer nor an emploj^ee. The}^ imply continuity of ser\dce,
and exclude those employed for a special and single transaction.
{LoiiisviUe R.R. Co. v. Wilson, 138 U. S. 501, 505.)
This interpretation is strengthened by the rest of the act
before us. The act would be unw^orkable if it applied to call
substitutes. For if the act so applied it w^ould be impossible to
draw a line at any one point between those who were called
for constant service and those who were called for only one
day. The absurdity of applying the minimum assessment of
$35 to a substitute who w^orks only one day is apparent.
Equally apparent is the absurdity of placing a substitute who
serves a few days a year for thirty years on a par with a
teacher who serves steadily for thirty years, with respect to
receiving an annuity of S300 under section 6, paragraph 5.
It is therefore my opinion that the act applies only to teachers
in regular salaried positions.
You say wdth respect to call substitutes —
None of these teachers has been elected as permanent substitute at a
guaranteed salarj^ bj^ the school committees, and the amount of com-
pensation is entirety on a per diem basis for actual day's service ren-
dered.
Teachers of this class cannot, in my opinion, be regarded as
eligible to participation in the benefits of the retirement system.
I understand, however, that there are substitute teachers in
the Commonwealth who are duly elected as such by the
220 ATTORNEY-GENERAL'S REPORT. [Jan.
school boards, whose entire time throughout the school year
is devoted to teaching, and who are paid a regular salary.
Substitute teachers of the last-named class are, in my opinion,
entitled to participate in the retirement system, and may, of
course, properly become members of the retirement associa-
tion. This ruling makes the act apply, as above stated, only
to teachers in regular salaried positions.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Public Institutions — Water Pipes — Highivays — Grant by
Selectmen.
Selectmen of towns may authorize the laying of water pipes in streets by
trustees of a public institution.
Jan. 5, 1915.
Trustees of Hospitals for Consumptives.
Gentlemen: — You have requested my opinion upon the
following question: —
Is it necessary to have the Legislature authorize the Board of Trus-
tees to lay a water pipe in highways in Lakeville, or would it be sufficient
for the board of selectmen to grant this franchise?
Chapter 459 of the Acts of 1903 provides as follows: —
Section 1. The mayor and aldermen of a city and the selectmen of
a town may, upon terms and conditions prescribed by them, authorize
persons and corporations to la}^ pipes and conduits for the conversance
of w^ater under any public way in such city or town : provided, however,
that nothing in this act shall authorize persons or corporations to supply
water to persons or corporations other than themselves, in any city or
town, in which a municipal water plant is established, except with the
consent of the board or authority having charge of such water plant in
such city or town.
R. L., c. 8, § 5, cl. 16, provides that the word "person"
may extend and be applied to bodies politic and corporate.
It is my opinion that the authorization of the board of
selectmen would be entirely sufficient. If, how^ever, the select-
men will not grant you the authority needed, I would suggest
that you apply to the Legislature for such authority as you
may need.
Very truly yours,
Thomas J. Boynton, Attorney-General.
1915.1 PUBLIC DOCUMENT — No. 12. 221
Cities and Towns — School Departments — Manual Training
Schools — Liability for Accidents.
Cities and towns conducting manual training schools in compliance with
law, and deriving no pecuniary benefit therefrom, are not liable in
damages for injuries resulting to pupils from accidents, nor are school
officers so liable except for their own wrongful conduct or negligence.
Jan. 6, 1915.
State Board of Education.
Gentlemen: — You have requested my opinion upon the
following question: —
Is either the school department of a city or the city itself hable in
damages for personal injury to pupils resulting from accidents in the
manual training work in the schools?
By the provisions of section 9 of chapter 42 of the Revised
Laws ''the teaching of manual training" as a part of the ele-
mentary and high school system is required by law in all
towns and cities having a population of 20,000 or more. It
will be seen that it is not optional with a city or tow^n having
the required population to establish a department of manual
training or not, as it may see fit. The law is mandatory.
Manual training must be made a part of the educational sys-
tem of every such city or town. The city or town derives no
pecuniary profit or benefit from the manual training depart-
ment. The school officers are not the agents of the city but
are public officers whose duty it is to perform and discharge
certain functions as required by law. A municipalit}' is not
liable in damages for the acts of its public officers.
The rule relating to the subject-matter of your question has
been stated in the following language: —
Whether the neglected duty involves a liabilit}^ depends, in the
judgment of the court, upon the nature of the duty; that is to saj^,
whether it is imposed for the pecuniar}^ profit or other special advantage
of the city, — • if so, the city is hable; or whether it is a dutj^ imposed
upon the city as a public instrumentafity of the State, without pecuniary
or other special advantage to the city, — if so, the city is not liable.
(Dillon on Municipal Corporations, Vol. IV., § 1643.)
See, also, Hill v. Boston, 122 Mass. 344.
The city or town conducting a manual training school in
strict compliance with the requirements of the law, and deriv-
222 ATTORNEY-GENERAL'S REPORT. [Jan.
ing no pecuniary benefit therefrom, will not, in my opinion, be
liable in damages for injuries resulting to pupils from accidents
in such department; ncr will the school officers be liable except
for injuries caused by their own wrongful act or negligence.
Very truly yours,
Thomas J. Boynton, Attorney-General.
Labor — Right to fine Employees for Damages.
Except in certain cases prohibited by statute, employers of labor may,
where provision is made in the contract of employment, lawfully with-
hold money, due employees as wages, to cover damage to the employer
caused by the negligent or wTongful act of the employee.
Jan. 6, 1915.
State Board of Labor and Industries.
Gentlemen: — You have requested my opinion upon the
following question: —
Have emplo3'ers of labor the right to fine employees for damage done
by them, as in the breaking of dishes, spoihng goods in process of manu-
facture or damage to machinery?
A servant is directly liable to his master for any damage
occasioned by his negligence or misconduct in connection with
his work, whether such damage be directly to the property of
the master or arises from compensation which he has been
obliged to make to third persons for injuries sustained by
them through the negligence or misconduct of the servant.
26 Cyc, p. 1023.
In a case in which the plaintiff sued a subcontractor on
work done for the plaintiff, charging the subcontractor with
negligence, the Supreme Judicial Court said: —
It is immaterial whether the defendants are to be regarded as the
servants and agents of the plaintiff or as contractors under the principal
contractor, which the defendants contend w^as the case. In either in-
stance they owed the plaintiff the duty of not injuring his property by
their neglect or wrongful acts. If they were the plaintiff's servants and
their negligent actions caused injury to his building, they would be hable
to him for the damage. (Bacon's Abridgement, Master and Servant, M.)
Smith, Master and Servant, 4th ed. 134, and cases cited;
White V. Phillipston, 10 Met. 108; Walcott v. Swampscott,
1 Allen, 101; Bickford v. Richards, 154 Mass. 163.
1915.] PUBLIC DOCUMENT — Xo. 12. 223
If, then, dishes are broken or goods spoiled in process of
manufacturing or damage is done to machinery through the
negligence or misconduct of the employee, the employee is
directly liable to the employer for the damage so caused.
There seems to be no doubt that where it is made a part of
the contract of employment that such damages shall be ad-
justed and taken out of the wages of the employee, the con-
tract is lawful and may be enforced. Gallagher v. Hathaway
Mfg. Co., 172 Mass. 230.
There is a statute in regard to fines imposed on weavers
which need not be discussed here, but I have found no
statute in regard to fines imposed by employers in any other
industry.
It is not to be understood that fines may be imposed arbi-
trarily or at the mere whim or caprice of the employer, but
for a just cause and to a fair and just amount. In cases in
which the contract of employment provides for it, the em-
ployer may, in my opinion, lawfully withhold money due the
employee as wages to cover damages to the employer caused
by the negligent or wrongful act of the employee.
Very truly yours,
Thomas J. Boynton, Attorney -General.
Cities and Towns — Public Domain — Sales.
Land acquired for a public domain under St. 1914, c. 564, cannot be sold or
used for any purpose not specified in the act without the authority of
the Legislature.
Land acquired by a city or town for a public domain, and placed under the
management of the State Forester, must be maintained at the expense
of such city or town.
Jan. 8, 1915.
F. W. Raxe, Esq., State Forester.
Dear Sir: — You ask whether under the provisions of
section 1 of chapter 564 of the Acts of 1914 a town or city
having taken land for a public domain has the right to dispose
of the land by sale or by making use of it for purposes other
than the culture of forest trees; and second, in case the State
Forester is given supervision of such public domain by the
town, under section 2 of said chapter, whether the cost of
control and management should be paid by the town or by
the Forester's department.
224 ATTORNEY-GENERAL'S REPORT. [Jan.
The provisions of the first two sections of said act, so far as
material, are as follows: —
Section 1 . A town ... or a city . . . may take or purchase land
within their limits, which shall be a public domain, and may appropri-
ate money and accept gifts of money and land therefor; . . . Such
public domain shall be devoted to the culture of forest trees, or to the
preservation of the water supply of such city or town and the title
thereto shall vest in the city or town in which it lies.
Section 2. The city or town forester in each city or town . . .
shall have the management and charge of all such pubhc domain in
that city or town . . . But a town ... or a city . . . may place all
such pul^lic domain within its limits under the general supervision and
control of the state forester, who shall thereupon, upon notification
thereof, make regulations for the care and use of such public domain
and for the planting and cultivating of trees therein, and the city or
town forester in such case and his keepers, under the supervision and
direction of the state forester, shall be charged with the duty of enforcing
all such regulations and of performing such lal^or therein as may be
necessar}^ for the care and maintenance thereof. . . .
Lands acquired under this act cannot, in my opinion, be
sold by the town or used for any purpose other than the cul-
ture of forest trees or for the preservation of the water supply
of the city or town making the taking, without first obtaining
permission or authority from the Legislature to make the sale
or to change the use.
In response to your second question I have to say that the
only difference in the regulation of such public domains as is
contemplated by placing them under the supervision and con-
trol of the State Forester in accordance with the provisions of
section 2, above quoted, is to secure the advantage of a
trained forester over the planting and cultivation of trees.
The public domains still remain the property of the city or
town, and all expenses must be defrayed by the city or town
even though supervision and control have been vested in the
State Forester.
Very truly yours,
Thomas J. Boyntox, Attorncii-Gcncral.
1915.1 PUBLIC DOCUMENT— Xo. 12. • 225
Employment of Labor — Building Laws.
A building containing two or more establishments, each estabUshment em-
ploying less than ten persons but in the aggregate ten or more persons,
comes within the provisions of St. 1913, c. 655, §§15 and 20.
Jan. 12, 1915.
Gen. J, H. Whitney, Chief of the District Police.
Dear Sir: — You ask: —
Would a building containing two or more establishments, each em-
ploying less than ten persons but in the aggregate ten or more
persons, come within the provisions of sections 15 and 20 of chap-
ter 655 of the Acts of 1913?
You have quoted from the two sections the language most
directly relating to your inquiry, as follows: —
Section 15. No building which is designed to be used, in whole or
in part, and no building in which alteration shall be made for the pur-
pose of using it, or continuing its use, in whole or in part, as a public
building, pubhc or private institution, schoolhouse, church, theatre,
special hall, public hall, miscellaneous hall, place of assemblage or
place of pubhc resort, or as a factory, workshop or mercantile or
other establishment and to have accommodations for ten or more
emploj^ees. . . .
Section 20. A building which is used, in whole or in part, as a
public building, public or private institution, schoolhouse, church,
theatre, special hall, public hall, miscellaneous hall, place of assemblage
or place of pubhc resort, and a building in which ten or more persons
are employed in a factory, workshop, mercantile or other establish-
ment. . . .
In each of the foregoing quotations from the statute the
clause "a factory, w^orkshop, mercantile or other establish-
ment" might be regarded as indicating one shop or factory,
etc., as the object at which the law is aimed, but the real pur-
pose of the statute is the preservation of life and safety. The
mischief aimed at is the crow^ding of people together, not
necessarily in a single Avorkshop but in a single building, under
such circumstances as to make their condition one of danger
in case of fire unless proper safeguards are adopted. To say
that though there are a hundred workmen employed in a
building, \ et so long as not more than nine are employed in
any one shop or factory the building is not subject to the
226 ATTORNEY-GENERAL'S REPORT. [Jan.
inspection laws of the Commonwealth, would be to defeat the
purpose of those laws in most important particulars. The
clause above quoted was undoubtedly intended to, and does,
relate to the building in which the factory, workshop or other
place of employment may be located, and whenever ten or
more persons are employed in a building, whether employed
in one shop or factory or divided between two or more places
within the building, that building is subject to the provisions
of the two sections to which you refer.
Very truly yours,
Thomas J. Boynton, Attorney -Gene red.
Loan Agencies — Expenses of Loans — Interest.
Under St. 1911, c. 727, actual expenses actually incurred by the lender may
be collected of a debtor.
Although the addition of actual expenses to the interest collected by a loan
agency from a debtor would make the cost to the borrower more than
3 per cent, per month, the transaction is lawful under St. 1911, c. 727.
Jan. 18, 1915.
George C. Neal, Esq., Deputy Chief of the District Police, Acting Super-
visor of Loan Agencies.
Dear Sir: — You have requested my opinion upon the
following questions: —
(1) Under the Acts of 1911, chapter 727, and amendments thereto,
can the supervisor of loan agencies require by regulation the borrower
in negotiating a loan of less than $300 to pay any expense incurred by
the lender connected with the making of such loan?
(2) If such expense may be demanded by regulation can the amount
of such expense, together with the interest placed on the loan, exceed the
sum of 3 per cent, a month?
The authority of the Supervisor of Loan Agencies in regard
to making regulations is contained in section 4 of chapter 727
of the Acts of 1911, which provides as follows: —
The supervisor shall, from time to time, estabhsh regulations respect-
ing the granting of hcenses and the business carried on by the licensees,
and b}^ loan companies and associations estabhshed by special charter.
He shall either personally, or by such assistants as he may designate,
at least once a year, and oftener if he deems it necessar3^ investigate the
affairs of such licensees, companies and associations and for that pur-
1915.] PUBLIC DOCUMENT — No. 12. 227
pose shall have free access to the vaults, books and papers thereof, and
shall ascertain the condition of the business, and whether it has been
transacted in compliance with the provisions of law and the regulations
made hereunder. The supervisor may, if he deems it expedient, cause
an examination of the said books and business to be made by an ac-
countant whom he may select, and the cost of any such examination
shall be paid by the person, corporation or association whose books are
so examined.
His authority to establish rates of interest rests in the pro-
visions of section 7 of the same chapter, which provides as
follows: —
The supervisor shall estabhsh the rate of interest to be collected, and
in fixing said rate shall have due regard to the amount of the loan and
the nature of the security and the time for which the loan is made; but
the rate shall, in no case, exceed three per cent a month; and no licensee
or company or association to which this act applies, shall charge or
receive upon any loan a greater rate of interest than that fixed by the
supervisor.
The statute does not in terms declare that any expense
charge shall or may be made by the lender and collected from
the borrower; neither does the statute in terms prohibit such
a charge.
Statutes of the character of the one under consideration are
framed and enacted with relation to some existing business,
and this is true of chapter 727 of the Acts of 1911. It is a
matter of very common knowledge that for many years prior
to the passage of this statute, in the business of making small
loans it was the custom of individuals and concerns to make
a charge against borrowers to cover alleged expenses, and this
statute, while it does not contain express provision allowing
such charges, does contain provisions in which mention is
made of expenses, in such terms as, in my opinion, to raise a
fair implication that it was the intention of the Legislature
to leave the law in such condition that actual expenses in-
curred in making small loans might still be charged to and
collected from the borrow^er.
Section 3 of the statute, as amended contains the following
provisions: —
In prosecutions under this act, the amount to be paid upon any loan
of three hundred dollars or less for interest or expenses shall include all
sums paid or to be paid by or on behalf of the borrower for interest,
228 ATTORNEY-GENERAL'S REPORT. [Jan.
brokerage, recording fees, commissions, services, extension of loan, for-
bearance to enforce payment, and all other sums charged against or
paid or to be paid by the borrower for making or securing or directly or
indirectly relating to the loan, and shall include all such sums when pa^d
by or on behalf of or charged against the borrower for or on account of
making or securing the loan, directly or indirectly, to or by any person,
partnership, corporation, or association other than the lender, if such
payment or charge was known to the lender at the time of making the
loan, or might have been ascertained by reasonable inquir5\ Any
person, partnership, corporation or association directly or indirectly
engaging in the business of negotiating, arranging, aiding or assisting
the borrower or lender in procuring or making loans of three hundred
dollars or less for which the amount paid or to be paid for interest and
expenses, including all amounts paid or to be paid to any othe-r party
therefor, exceeds in the aggregate an amount equivalent to twelve per
cent per annum, whether such loans are actually made by such person,
partnership, corporation or association, or by another party or parties,
shall be deemed to be engaged in the business of making small loans
and shall be subject to the provisions of this act.
Section 10, as amended, provides as follows: —
Anj^ person, partnership, corporation or association violating any
provision of this act or any regulation made hereunder or any rule or
order made by the supervisor, shall be subject to a fine of not more than
five hundred dollars, and the license may be suspended or revoked by
the supervisor. Anj^ loan upon which a greater rate of interest or ex-
pense is charged or received, than is allowed by this act and the regu-
lations made hereunder, may be declared void by the supreme judicial
court or the superior court in equity upon petition by the person to
whom the loan was made.
The words "interest" and "expenses" as they occur in this
chapter are evidently not intended to cover one and the same
thing. The word "interest" is defined by authorities to mean
the sum paid for the use of money, and as used in this chapter
means nothing else. The word "expense" is defined as —
A laying out or expending; the disbursing of money; emplo^mient
and consumption, as of time or labor. (Century Dictionary.)
As used in this statute the word means expense of this kind
on the part of the lender in and about the making of a loan.
In construing statutes we are bound by the rule that —
AVords and phrases shall be construed according to the common and
approved usage of the language. (R. L., c. 8, § 4, cl. 3rd.)
1915.] PUBLIC DOCUMENT — No. 12. 229
The application of this rule to the construction of this
statute makes it apparent that the two words "interest" and
"expenses" mean two different things. "Expenses," as the
word is here used, means actual expense, — expense that is
actually and necessarily involved in the transaction of making
the loan and is incurred and charged in good faith. It does
not mean an arbitrary charge to be made whether actual
expense is incurred or not, nor can this term be lawfully used
to cover a charge and collection of a sum that is beyond the
actual expense incurred, or to cover a charge where there was
no actual expense. Authority to make regulations does not
confer authority to regulate in contravention of the meaning
and intention of the statute itself.
If by your first question you intended to ask whether the
Supervisor of Loan Agencies has authority to impose upon the
borrower of a sum less than three hundred dollars the pay-
ment of a sum of money as expense in making the loan, with-
out regard to the question whether any expense has been in-
curred by the lender, it is my opinion that the supervisor has
not that authority. It is my opinion that under the authority
of section 4 above quoted the supervisor has no authority to
require that any sum whatever be paid by the borrower as a
charge for the expense of making the loan, but under the stat-
ute the supervisor has authority to regulate charges made by
the lender for expenses. He has authority to prevent the abuse
of the opportunity to make charges of that kind, and as it is
not possible for the supervisor to examine the details and cir-
cumstances attendant upon the making of each and every
loan, he may make regulations, not requiring the payment of
a stated sum as expenses, but requiring that only actual ex-
penses necessarily incurred in the making of the loan be
charged by the lender.
In response to your second question I have to say that in
cases where only expenses actually and necessarily incurred in
making the loan are charged to the borrower, even though the
expenses together with interest on the loan make the cost to
the borrower more than 3 per cent, a month, the transaction
is, in my opinion, lawful.
Very truly yours,
Thomas J. Boynton, Atforney-General.
230 ATTORNEY-GENERAL'S REPORT. [Jan.
Charitable Corporations — Educational Institutions — Returns.
Although an institution for the education of the deaf may be essentially an
educational institution, it may also be a charitable institution within
the meaning of St. 1903, c. 402, and thereby be required to make an
annual report to the State Board of Charity.
Jan. 18, 1915.
State Board of Charity.
Gentlemen: — You have requested the opinion of the
Attorney-General upon the following question: —
Under the provisions of chapter 402 of the Acts of 1903 is the Clarke
School for the Deaf required to make an annual report to the State
Board of Charity?
Chapter 402 of the Acts of 1903 provides as follows: —
A charitable corporation whose personal property is exempt from
taxation under the provisions of clause three of section five of chapter
twelve shall annually, on or before the first day of November, make to
the state board of charity a written or printed report for its last finan-
cial year, showing its property, its receipts and expenditures, the whole
number and the average number of its beneficiaries and such other in-
formation as the board may require.
Corporations whose personal property is exempt from taxa-
tion are designated in Revised Laws, chapter 12, section 5,
clause 3 id, as follows: —
The personal propert}^ of hterarj^, benevolent, charitable and scien-
tific institutions and of tempei'ance 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 stock-
holders or members, or is used or appropriated for other than literary,
educational, benevolent, charitable, scientific or rehgious 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
fortv-one.
1915.] PUBLIC DOCUMENT — No. 12. 231
Chapter 125 of the Revised Laws deals with the formation
of corporations for charitable and other purposes. Section 2
thereof provides in part: —
Such corporation may be formed for any educational, charitable,
benevolent or rehgious purpose; for the prosecution of any antiquarian,
historical, hterary, scientific, medical, artistic, monumental or musical
purpose; for establishing and maintaining libraries; for supporting any
missionary enterprise having for its object the dissemination of religious
or educational instruction in foreign countries; for promoting temper-
ance or morality in this commonwealth. . . .
In connection with the general subject I submit section 19
of chapter 39 of the Revised Laws, which reads as follow^s: —
The governor may, upon the request of the parents or guardians and
with the approval of the board, send such deaf persons as he considers
proper subjects for education, for a term not exceeding ten years, but,
upon hke request and with, hke approval, he may continue for a longer
term the instruction of meritorious pupils recommended by the princi-
pal or other chief officer of the school of which they are members, to the
American School, at Hartford, for the Deaf, in the state of Connecticut,
to the Clarke School for the Deaf at Northampton, to the Horace Mann
School at Boston, or to any other school for the deaf in the common-
wealth, as the parents or guardians may prefer; and with the approval
of the board he maj^, at the expense of the commonwealth, make such
provision for the care and education of children who are both deaf and
bhnd as he may deem expedient. No distinction shall be made on ac-
count of the wealth or poverty of such children or their parents. No
such pupil shall be withdrawn from such institutions or schools except
with the consent of the authorities thereof or of the governor; and the
expenses of the instruction and support of such pupils in such institu-
tions or schools, including their necessary travelhng expenses, whether
daily or otherwise, shall be paid by the commonwealth; but the parents
or guardians of such children may pay the whole or any part of such
expense.
If there is an}' difficulty in reaching a prompt conclusion in
this case it is due to the failure of the statutes to distinguish
between purely charitable and purely educational institutions.
In the broad sense an institution of learning may be said to be
a charitable institution, and gifts to colleges or similar cor-
porations are upheld as charitable gifts. This is true even
though such institutions make no pretence of being charitable
in the narrow sense, and though their doors open to admit
rich and poor alike.
232 ATTORNEY-GENERAL'S REPORT. [Jan.
It is not confined to mere almsgiving or tlie relief of poverty and
distress, but has a wider signification, which embraces the improvement
and promotion of the happiness of man. {Molly Varnum Chapter,
D. A. R. V. Lowell, 204 Mass. 487.)
Gifts to colleges and other educational institutions, for the advance-
ment of learning or to aid necessitous students in procuring an educa-
tion, are charitable even if the donee may derive revenue from other
investments and from students who are able to pay. {Mount Herman
Boys' School v. GUI, 145 Mass. 139.)
In the case of Nciv England Sanitarium v. Stoncham, 205
Mass. 335, at 341, the court says: —
It may be conceded that a trust for the exclusive benefit of the least
wealthy of a well-to-do or prosperous class could not be sustained as a
charity under the St. of 43 Eliz. c. 4. Attorney-General v. Northumber-
land, L. R. 7 Ch. D. 745. But the controlhng purpose may be none
the less charitable, even if those who need no pecuniary aid are either
directly or indirectlj^ benefited. A hospital established for the free
treatment of poor patients may receive payments from rich persons who
are permitted to avail themselves of its benefits. Every charity created
for the gratuitous treatment and relief of disease, or the phj^sical infirmi-
ties of the indigent, or other purposes enumerated in this statute, or if
not enumerated, which are held to come within its spirit and intend-
ment, in a large sense helps and aids the community, \vithout regard to
the social rank or pecuniary condition of its members.
In the Century Dictionary a ''charitable institution" is de-
fined as, "A foundation for the relief of a certain class of
persons by alms, education, or care, especially a hospital."
Again: "A gift in trust for promoting the welfare of the com-
munity or of mankind at large, or some indefinite part of it,
as an endowment for a public hospital, school, church or
library. ..."
Charit}", in its legal sense, comprises four principal divisions, — •
trusts for the relief of poverty, trusts for the advancement of education,
trusts for the advancement of religion, and trusts for other purposes
beneficial to the community not falling under any of the preceding
heads. (Bouvier's Law Dictionar}^, ''Charitable Uses, Charities.")
Before the Statute of 43 Elizabeth, chapter 4, money given
for the education of youth and the support of schools was
recognized in England as given for a charitable use. Since the
Statute of 43 P^lizabeth, chapter 4, educational institutions
furnishing tuition free of charge or for a smaller sum than
1915.] PUBLIC DOCUMENT — Xo. 12. 233
actual cost have })een declared in a certain sense charitable
trusts. Chief Justice Shaw said: —
That a gift designed to promote the public good, by the encourage-
ment of learning, science and the useful arts, without any particular
reference to the poor, is regarded as a charit}', is settled by a series of
judicial decisions, and regarded as the settled practice of a court of
equit5^ {American Academy of Arts and Sciences v. Harvard College,
12 Gray, 582.)
Other courts have entertained similar views.
Nor has it ever been supposed in this country, that an institution
established for the purposes of education is not a charity within the
meaning of the law, because it sheds its blessings, like the dews of
heaven, upon the rich as well as the poor. {Price v. Maxwell, 28 Pa. 23.)
It has been asserted, however, that there is a recognized dis-
tinction between strictly educational institutions and chari-
table institutions. In a minority opinion in State v. Board of
Control, 85 Minn. 189, the court said: —
It is, howevei", now the settled law in all jurisdictions in which the
statute of Elizabeth is in force that a gift or devise for the advancement
of education, even if it be made without reference to the poor, is a
charity, within the law of charitable uses. It was necessary for courts
of equity to so define ''charity" in order to sustain such gifts or devises,
and not permit them to lapse. The cause justified the definition. But
the broad, common-sense, and popular distinction between ''education"
and "charity" has always been recognized by the courts of this coun-
tr}', except in cases involving the doctrine of charitable uses, or the
taxation of property held for such uses. It is true that the statute of
Ehzabeth expressly declared that the maintenance of schools of learning
and free schools was a charity; but the fact is not significant, for at
that time there were not, and never had been, any free schools in
England, except those maintained by the charity of the church or other
organizations. It was not until after the commencement of the reign of
Queen Victoria that the government began seriously to recognize that
it was any part of the duty of the State to provide for the education of
all of her citizens. Prior to that time the cause of education was in
fact, as well as in law, a charity.
In the same opinion the justice said: —
I cannot beheve that the Legislature, in adopting the title of the
statute in question, intended to reject the usual and popular meaning
of the word "charitable, " and substitute therefor the ancient and moss-
234 ATTORNEY-GENERAL'S REPORT. [Jan.
covered definition of '^ charity" which the chancery court invented
centuries ago for the purpose of sustaining charitable uses, and thereby
classify the State normal schools and the State university as charitable
institutions. . . . Now, as conclusively^ demonstrated, . . . the con-
stitutional, legislative, executive, and popular classification of such in-
stitutions is, and always has been, in this State, based, upon the popular
and common-sense distinction between education and charity. In such
classification our institutions of learning are classified by themselves
as "educational institutions," and our institutions for defectives are
also separately classified as "charitable institutions."
While the court in the above case divided on the main
point in issue, there seems to have been no division on the
point involved in the question here On page 192 the minority
opinion further states: —
We need not cite definitions from the lexicographers to show what,
in the present age, are generally understood to be "charitable" and
what "educational" institutions, but it may be stated that the former
are usually defined as founded "for the rehef of certain classes of per-
sons by alms, education, or care; especially a hospital;" as "institu-
tions estabhshed for the help of the needy;" as "pertaining to charity;
springing from or intended for charity;" while the latter are institutions
founded for the express purpose of instructing the youth of our land
along mental and physical lines, such instruction not being granted as
a bounty, but as of right.
If we were compelled solely to rely upon these definitions, they would
be quite sufficient to justify the assertion that our educational institu-
tions are not charitable, within any of the definitions, but the paramount
question here is an entirely different one. We are called upon to ascer-
tain what should be understood when these words are used in the
statutory jurisprudence of this State; and, as a consequence, what
would their use by the Legislature suggest or convey to the reader of
such a title. To what institutions have these terms been applied, and
how have they been used? An examination for this purpose should
lead to but one conclusion, in my judgment, namely, that the words
"charitable institutions" mean institutions, supported in whole or in
part at the expense of the State, for the rehef of the indigent, the defec-
tive, and the unfortunate, — institutions in which the State dispenses
and administers charity to those dependent upon it, and the inmates of
which (victims of misfortune) are the beneficiaries and recipients of
charity.
In People V. New York, 161 N. Y. 233, it was contended
that as the defendant corporation had been given legal capac-
ity to take and administer gifts and bequests under the Statute
1915.] PUBLIC DOCUMENT — No. 12. 235
of 43 Elizabeth, and under the general rules applicable to
trusts, it was a charitable institution. To this claim the court
answered: —
It is said that this corporation, in order to promote the objects of its
incorporation, has been given legal capacity to take and administer
gifts and bequests that would be called charitable under the statute of
EHzabeth and under general rules of law applicable to trusts, and all
that is quite true. But it is an error to conclude that a corporation
must necessarily be of a charitable nature because it has capacity to
take and administer such gifts. A very large class of corporations may
do that, without affording the slightest ground for an argument that
they are or must be charitable institutions or corporations. Colleges,
academies and nearly all institutions of learning or of a literary char-
acter, and even cities, villages and other municipal corporations, may
take and administer such gifts ; but that fact cannot in the least affect
their true character, or convert them into charitable institutions.
Again, it was said: ''It is only necessary to add that if we were to hold
that every corporation with capacity to take and administer such a
gift or bequest is a charitable institution within the meaning of the
Constitution and the statute, we would have to include a great number
of corporations whose objects are entirely foreign to any work of charity,
even in the broadest sense. Capacity to take a bequest proceeding from
charitable motives is no real test of the class to which the corporation
taking it belongs."
A similar question to the one at issue arose in People v.
Fitch, 154 N. Y. 14. In this case it was decided that an insti-
tution for the blind was such a charitable corporation as
would come under the supervision of the State Board of
Charities. At page 26 the court said: —
The relator is, doubtless, to an extent, an educational institution.
But that fact alone does not justify the conclusion that it is not a
charitable institution within the meaning and intent of the Constitution
and statutes. An institution may be in a sense educational and at the
same time be wholly or partly charitable, as the education and mainte-
nance of indigent pupils, while being educated, may be the subject of
charity as well as support alone. An institution may be both educa-
tional and charitable, and if so, it falls within the provisions of the Con-
stitution and statutes, as it is to be observed that the provisions are
that the board of charities shall visit and inspect all institutions which
are of a charitable character or design, and, hence, to fall within that
description, it is not necessary that the institution shall be wholly chari-
table. It need only be an institution which is wholly or partly chari-
table in its character and purpose.
236 ATTORNEY-GENERAL'S REPORT. [Jan.
Nor is the fact that institutions for the instruction of the bhnd are
made subject to the visitation of the superintendent of pubhc instruc-
tion controlhng in determining this question. It may be conceded that
this institution is partially educational and subject to the visitation of
the superintendent of public instruction, and yet by no means follow
that it is not an institution which is charitable in its character and
purpose, and, therefore, also subject to the visitation of the board of
charities, as the Constitution provides that the visitation by the board
of charities is not exclusive of any visitation then provided by law,
which would clearly include the visitation by the superintendent of
public instruction. .
Another case in point is that of Asylum v. Phocni.v Bank,
4 Conn. 172. Here a corporation had for its sole object the
education and instruction of the deaf and dumb, which sup-
ported and instructed indigent persons of that class gratui-
tously, received a pecuniary compensation from pupils of
abilit}' to make it, derived its means of dispensing charity
from the donations of individuals and of the public, and ap-
plied its funds exclusively to the general object of its institu-
tion. The court said, at pages 177-8: —
The American Asylum may, with the strictest propriety, be defined,
an incorporated school for charitable purposes. It is a school, which is a
generic term, denoting an institution for instruction or education; and
from the nature of its object, is a private incorporation. Its objects and
operations are all of a private character; and the donations of States to
aid in effectuating them, do not, in the minutest degree, change its
nature. The institution is exclusively ''for charitable purposes;" its
sole object being to pour instruction into the minds of the deaf and
dumb; to elevate them from the lowest degradation of intellect to the
dignity of inteUigent, and fit them to become moral and rehgious beings ;
to open their blind eyes, and unstop their deaf ears; and to accomphsh
this, through the means of funds, derived from the gratuities of the be-
nevolent. A purpose so honorable and noble, and free from the dross of
self-interest, brings the American Asylum peculiarly within the spirit,
as it is ob\'iously within the letter, of the law, which authorizes a com-
pulsorv subscription of the stock of the Phoenix Bank. The Asylum, in
no sense of the expression, is a money-making institution. All its funds
are necessarily applicable to the charitable object of educating the deaf
and dumb; and this is done gratuitously, except so far as the power of
doing is enlarged, by the sums paid for instruction, by the rich and able.
By this operation, the funds of the institution are not absorbed, but
augmented; the charitable object of the As3dum is not diminished, but
promoted; and the nature of it is not changed, but pursued.
1915.] PUBLIC DOCUMENT — Xo. 12. 237
It is my opinion that the Clarke School for the Deaf is a
charitable institution within the meaning of chapter 402 of the
Acts of 1903, and that a report should be made annually to
the State Board of Charity. The Clarke School was incor-
porated for the purpose of benefiting a class of defectives who
are most seriously handicapped in their struggle for existence
and in their participation in the blessings of life. Such was
the noble end of the founders of the school, and these pur-
poses and aims have never been lost sight of by those having
the care and education of this weaker portion of our society.
To suggest that such an institution is not charitable would
seem to cast a reflection on the school and all those interested
in its achievements. That it is also an educational institution
in no way lessens its charitable nature. There would seem to
be no reason why many institutions may not be both chari-
table and educational, and the fact that this school, by reason
of its educational features, submits a report to the State Board
of Education is no reason in itself why it ought not to report
likewise to the State Board of Charity.
It might also be argued that the Legislature intended to
give the State Board of Charity supervision over all institu-
tions which exercise a control over the weaker elements of
society, as a guard against the abuse of the confidence reposed
in them by the contributing public, and as a protection to the
unfortunates intrusted to their care, the latter being obviously
handicapped in any effort to protect themselves.
Very truly yours,
Thomas J. Boynton, Atiomcy-GeneraL
238 ATTORNEY-GENERAL'S REPORT. [Jan.
INDEX TO OPINIONS.
PAGE
Agricultural societies, bounties; interpretation of 12-mile restriction, . 8
Agriculture, Board of, authority to award prizes for system of farm book-
keeping and plan of dairy barn. ...... 58
Alimony, provision for, on annulment ot marriage,
Assessors, first assistant, of Boston, civil service rules, .
Automobiles and motor vehicles, regulation of operation in the town of
Nantucket; constitutional law, .....
Boards of health, appointment of member as inspector of slaughtering
approval by State Board of Health, ....
Bond, certificate of renewal of, ...... •
Boston, Cape Cod & New York Canal Company, deposit with Treasurer
and Receiver-General, .......
Boston Transit Commission, extension of term of office; constitutional
law, ........••
Building laws, application of, building containing two or more establish
ments each employing less than ten persons, .
Call fireman, appointment to permanent force without civil service exam
ination, captain, ........
Certificate, increase of capital stock, filing fee, ....
Issued by building inspectors, revocation, ....
Of renewal, bond filed with State Treasurer, ....
Charitable corporations, educational institutions, returns,
Charters, general municipal corporation act ; constitutional law.
Cities and towns, bonds and notes, municipal debts,
Liability of, for injuries resulting from accidents in manual training
schools, .........
Sales of land acquired for a public domain; supervision of State
Forester, expenses, .......
Citizens of the United States, employment of, by a city, discharge of
non-citizens, civil service, ......
Civil service, appointment of call fireman to position of captain of per
manent force without civil service examination.
Certification of laborer or mechanic having had experience in the de-
partment making requisition, to fill vacancy in position of fore-
man or inspector, ......... 200
Citizens of United States, employment of, by a city, discharge of
non-citizens, . . . . . . . . .179
Department of Health, employees of State Board of Health, .
Eligibility of person above fifty years of age for appointment as in
spector of factories and public buildings.
First assistant assessors of Boston, .....
Inspectors of masonry construction, building inspectors, .
Sealers of weights and measures, election of, provided for by city
charters, .........
Tenure of office of, in certain towns, annual appointment,
Ci\'il Service Commission, approval of appointments to planning board
of Boston, .......... 38
60
56
66
31
92
164
139
225
35
111
184
92
230
215
141
221
223
179
35
177
17
56
198
94
11
1915.] PUBLIC DOCUMENT — No. 12. 239
Civil war veteran, gratuities, re-enlistment as substitute,
Clerks of court, assistant clerks, clerks pro tempore,
Naturalization fees, ........
Cold-storage eggs, sales in storage, interstate shipments,
Commutation of life sentence to imprisonment for a term of years; con
stitutional law, ........
Constitutional law, appropriation of public funds for relief of sufferers by
Salem fire, .........
Authority of cities and towns to harvest and sell ice.
Authority to enact general municipal corporation act; power of city
to amend charter, .......
Authority to fix time for filing report by grade crossing commission,
Authority to take water from interstate stream, damages to non
residents, .........
Boston Transit Commission, extension of term of, .
Guaranty by Commonwealth of bonds of a railroad corporation.
Members of the bar to be made justices of the peace and notaries
public, .........
Newspapers and periodicals, sole agents for the sale of, .
Plumbers, interference with freedom of contract.
Publication of name of drugs or chemicals taken with suicidal intent,
Publication of name of person arrested for drunkenness, .
Regulation of automobiles and motor vehicles in the town of Nan
tucket, .........
Regulation of compensation of employees of railroads.
Regulation of corporations, representation of minority stockholders on
boards of directors, .......
Regulation of price of gas, Boston Consolidated Gas Company, con
tract, ..........
Regulation of price of ice, great ponds, .....
Regulation of sale of tickets to places of amusement,
Taxation of industries, exemptions, .....
Trading stamps, excise taxes, license fees, ....
Contract, reference to specifications as an aid in interpreting,
Rejection of bids, liability, .......
Co-operative banks, loans, reduction in rate of interest,
Corporations, certificate of increase of capital stock, filing fee.
Representation of minority stockholders on boards of directors, con-
stitutional law, ........
County commissioners, reimbursement of expenses.
Directors of the Port of Boston, interpretation of "entire time to the work
of the directors," ........
District Police, inspector of factories and public buildings, transfer from
State Board of Labor and Industries, ....
Divorce certificate presented by divorced person seeking marriage license
English language, .......
Drugs or chemicals, publication of name of, when taken with suicidal in-
tent, constitutional law, ......
Drunkenness, publication of name of person arrested for; constitutional
law, ..........
Education, Board of, supervisory powers, textile schools supported or
aided by Commonwealth, . . . .
Employees, fines imposed for damage caused bj' their negligence or mis-
conduct, .........
In manufacturing or mercantile establishments; twenty-four hours
rest in every seven days, ......
PAGE
166
173
77
196
168
44
215
81
124
139
156
9
23
132
62
20
66
162
121'
152
145
89
74
96
14
160
213
111
121
181
186
105
62
20
144
222
21
240 ATTORNEY-GENERAL'S REPORT. [Jan.
Expenses for travel, etc., necessarily incurred by persons in the service of
the Commonwealth, allowance of, . . . . . .86
Fines imposed upon employees for damage caused by their negligence or
misconduct, ......... 222
Fire Prevention Commissioner, appointees subject to civil service rules, . 207
Fisheries and Game, Commissioners on, retention by city and town clerks
of hunters' certificates of registration, ..... 36
Traveling expenses, reimbursement, ...... 86
Framingham Normal School, erection and furnishing of dormitory;
laundry 183
Gas, regulation of price of, contract, Boston Consolidated Gas Company;
constitutional law, ........ 152
Glass bottles or jars used in the distribution of milk or cream; use for
other purposes, ......... 65
Grade crossing, authority of Legislature to fix time for filing of report by
commission; constitutional law, . . . . . .81
Great ponds, authority of Harbor and Land Commissioners to limit public
right to take ice, ......... 52
Health, Department of, employees of State Board of Health, civil service, 177
Health, State Board of, right to refuse approval of appointment by local
board of health of one of its own members as inspector of slaugh-
tering, 31
Highways, discretion of Massachusetts Highway Commission as to mate-
rials to be used in construction of, . . . . . .190
Hospitals and dispensaries, registered pharmacists in charge of drug-dis-
pensing departments, ........ 27
Hospitals, State, salaries of appointees of trustees, subject to approval of
Governor and Council, ........ 48
Hours of labor, chauffeurs employed as drivers of police patrol, 8-hour
law, ........... 42
Drivers or hostlers in Boston police department, police officers, 8-hour
law, 172
Employees in manufacturing or mercantile establishments; twenty-
four hours' rest in every seven days, . . . . .21
Employment of citizens or residents of Massachusetts on public works
outside the State ; 8-hour law, ...... 25
Materials and supplies used in public works, 8-hour law, . . 182
Minors, employed as bookkeepers, stenographers, clerks and clerical
assistants, .......... 3
Minors, liability of employers and parents, notice, .... 137
Hunters' certificates of registration, books of; retention by city and town
clerks, 36
Ice, cutting of, on great ponds; jurisdiction of Harbor and Land Commis-
sioners, .......... 52
Harvesting and selling of, by cities and towns; constitutional law, . 44
Regulation of price of, taken from great ponds; constitutional law, . 145
"Illegitimate," use of term in record of the birth of a child, ... 10
Imprisonment, term of, expiring on Sunday, prisoner to be discharged
when, ........... 105
Insane hospital, State, duty of trustees as to mail of inmates, . . 101
Inspector of buildings, eligibility of person above fifty years of age for
appointment as, . . . , . . . . .17
Revocation of certificates issued by, . . . . . .184
Transfer from State Board of Labor and Industries to District Police, 1
Inspector of masonry construction, actual experience as journeyman
mason, .......... 198
1915.] PUBLIC DOCUMENT — No. 12. 241
Inspector of slaughtering, appointment by local board of health of one of
its members, approval by State Board of Health, . . .31
Insurance company, pecuniary interest of member of finance committee
in investments, ......... 90
Investments in mortgage bonds; "funded indebtedness," "contin-
gent liability," ......... 29
Insurance policies, internal revenue tax thereon, rebates, . . . 205
Intoxicating liquors, violation of laws relative to; entry oi nolle prosequi, . 188
Justices of the peace, all members of the bar to be made such; constitu-
tional law, .......... 9
Labor, construction outside the Commonwealth of materials to be used in
public works, ......... 85
Legislature, members of, eligibility for appointment to office, . .119
Liability of city or town for damages for personal injuries when school-
houses are used for municipal and other purposes, ... 83
License, special, engineer's or fireman's, termination of; continuous em-
ployment, .......... 6
Status during pendency of appeal on conviction of licensee for viola-
tion of its terms, . . . . . . . . .41
Trading stamps, fees; constitutional law, ..... 96
Loan agencies, expenses of loans, interest, ...... 226
Lowell, sealer of weights and measures of, civil service rules, . . .94
Mail of inmates of State insane hospital, duty of trustees, . . .101
Manual training schools, liability of cities and towns for injuries resulting
from accidents, . . . . . . . . .221
Massachusetts Highway Commission, discretion as to materials to be
used in construction of highways, ...... 190
Metropolitan Park Commission, authority to release land abutting on
parkway from operation of restrictions, ..... 202
Milk or cream, use of glass bottles or jars used in the distribution thereof,
use for other purposes, ........ 65
Minors, hours of employment of, as bookkeepers, stenographers, clerks
and clerical assistants, ........ 3
Liability of employers and parents as to hours of labor, notice, . . 137
Naturalization fees, portion that may be retained by clerks of courts, . 77
Newspapers and periodicals, sole agents for sale of; constitutional law, . 23
Notaries public, all members of the bar to be made such; constitutional
law, 9
Officers appointed by trustees of State hospitals, salaries, approval by
Governor and Council, ........ 48
Parole, violation of, duration of sentence of prisoner, .... 109
Pharmacists, registered, in hospitals and dispensaries, . . . .27
Stockholders in corporation; application for permit, ... 53
Pharmacy, Board of Registration in, duty to pass upon each application
for permit to do drug business, ...... 27
Planning board of Boston, approval by Civil Service Commission of ap-
pointments to, ......... 38
Plumbers, interference with freedom of contract; constitutional law, . 132
Police officers, special, chauffeurs employed as drivers of police patrol,
hours of labor, ......... 42
Poultry associations, aid from poultry premium bounty fund, . . 103
Prison Camp, employment of prisoners, limitations, . . . .210
Public documents, disposition of, by cities and towns^ . . • .93
Public institution, authority of trustees to lay water pipes in streets, . 220
Public records, use of the term "illegitimate" in record of the birth of a
child 10
242 ATTORNEY-GENERAL'S REPORT. [Jan.
PAGE
Public works, construction of materials and supplies, S-hour law, . . 182
Construction of materials outside the Commonwealth by non-citizens, 85
Employment of citizens or residents of Massachusetts thereon out-
side the Commonwealth, ......
Wages of laborers and mechanics employed thereon,
Railroad corporation, guaranty by Commonwealth of bonds of; constitu-
tional law, .........
Railroad employees, regulation of compensation; constitutional law.
Rebates, internal revenue tax on insurance policies,
Registers of deeds, adjustment of salaries, .....
Residence of applicants for admission to industrial schools,
Restrictions, authority of Metropolitan Park Commission to release land
abutting on parkway from operation of , .
Riparian proprietors, liability of Commonwealth for damages caused by
construction of bridge, .......
Salaries of appointees of trustees of State hospitals, approval by Governor
and Council, ........
Salem fire, appropriation of public funds; constitutional law, .
Savings bank, board of investment, property held by member thereof and
mortgaged to bank, .......
Investments, municipal bonds, ......
Schoolhouses, use for municipal and other purposes; liability of city or
town for damages for personal injuries, ....
Schools, domicil of parent, responsibility for tuition of pupil, .
Residence of applicants for admission to industrial schools.
Transportation of pupils to cities and towns other than that of resi-
dence; claims for board; returns of school committees as to
expenditures for preceding year, .....
Tuition of nonresident pupils, average expense for each pupil, .
Sealers of weights and measures, exemption from civil service rules, city
charter, .........
Tenure of office, deputy sealers, civil service, ....
Use of printed facsimile signature, .....
Shuttles, suction, use of, in factories, ......
Signature, printed facsimile, use of, bj^ sealers and deputy sealers of weights
and measures, ........
Typewritten, validity of, ...... .
State bonds, duty of the Treasurer and Receiver-General as to disclosing
names of purchasers of, ......
State Forester, receipts from sales of trees, wood, etc., disposition of.
Supervision of land acquired by cities and towns for public domain,
expenses, .........
Statistics, Bureau of, certification of town notes by Director, irregularity
in form of vote of town, . . . . .
Determination by Director as to necessity for emergency appropria-
tions by towns, ........
Superintendency Union, towns required to belong to, .
Surgical operations on inmates of State institutions without the consent
of the patient, ........
Tax returns, inspection of, for purposes other than assessment or collection
of taxes, .........
Taxation of industries, exemptions; constitutional law, .
Teachers' Retirement Fund, interruption of service, effect of, .
Substitute teachers, participation in, .... .
Textile schools supported or aided by Commonwealth, supervisory powers
of Board of Education, .......
1915.1 PUBLIC DOCUMENT — No. 12. 243
PAGE
Tickets to places of amusement, power of Legislature to regulate sale of;
constitutional law, ........ 89
Town notes, certification by Director of Bureau of Statistics, irregularity
in form of vote, ......... 33
Towns, emergency appropriations, determination of Director of Bureau
of Statistics as to necessity for, . . . . . .18
Trading stamps, license to be obtained from county auditors; license fees;
constitutional law, ........ 96
Transportation of pupils attending school in cities or towns other than
that of residence; claims for board, ..... 43
Trust companies, use of word "bank" as part of business name, . . 73
Tuition of minor, responsibility for; domicil, . . . . .217
Water, authority to take, from interstate stream; damages to property
of nonresidents, ......... 124
Water pipes in streets, authority of trustees of public institutions to lay, . 220
Workmen's Compensation Act, gypsy and brown-tail moth suppression,
cities and towns, reimbursement for expenses incurred for per-
sonal injuries, ......... 136
LIST OF CASES
IN WHICH THE
ATTORNEY-GENERAL
HAS APPEARED
DuEis"G THE Year 1914.
GEADE CROSSINGS.
Notices have been serve^ upon this department of the filing
of the following petitions for the appointment of special com-
missioners for the abolition of grade crossings : —
BerTcsMre County.
Adams. Hoosac Valley Street Railway Company, petitioners.
Petition for abolition of Commercial Street crossing in
Adams. George W. Wiggin, William W. McClench and
Edmund K. Turner appointed commissioners. Commis-
sioners' report filed. Frank H. Cande appointed auditor.
Auditor's fourth report filed. Disposed of.
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. Disposed of.
Lanesborough, Selectmen of, petitioners. Petition for abolition
of Valley Eoad and Glen Eoad crossings. Eailroad Com-
missioners appointed commissioners. Commissioners' report
filed. Frank H. Cande appointed auditor. Auditor's sec-
ond report filed. Pending.
North Adams. Hoosac Valley Street Eailway Company, peti-
tioners. Petition for abolition of Main Street crossing,
Imown as Braytonville crossing, in North Adams. Edmund
K. Turner, William W. McClench and Joseph P. Magenis
appointed commissioners. Commissioners' report filed.
Frank H. Cande appointed auditor. Auditor's second re°
port filed. Disposed of.
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.
248 ATTORNEY-GENERAL'S REPORT. [Jan.
Pittsfield;, Mayor and Aldermen of, petitioners. Petition for
abolition of Merrill crossing in Pittsfield. Thomas W. Ken-
nefick, Frederick L. Green and Edmimd K. Turner ap-
pointed commissioners. Pending.
Stockbridge, Selectmen of, petitioners. Petition for the abolition
of " Eiver Eoad " 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. Disposed
of.
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 ^rad'e crossing at Albany Street. James D.
Cote. Charles W. Bosworth and James L. Tighe appointed
commissioners. 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. Disposed of.
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. Disposed of.
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. George F. Swain appointed commissioner in place
of Wm. Jackson, deceased. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 249
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. Disposed of.
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. Edward A. Thurston appointed auditor. Audi-
tor's first report 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. Edward A. Thurston appointed auditor. Auditor's
first 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. Charles H. Beckwith
appointed commissioner in place of Thomas M. Babson,
deceased. Commissioners' report filed. James A. Stiles
appointed auditor. 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. A.
AV. DeGoosh appointed auditor. Auditor's first report filed.
Pending.
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. E. A.
250 ATTORNEY-GENERAL'S REPORT. [Jan.
McLaughlin appointed auditor in place of Fred E. Jones,
deceased. Auditor's fifteenth 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. E. A. McLaughlin appointed auditor in
place of Fred E. Jones, deceased. Auditor's fourth report
filed. Pending.
Lawrence, Mayor and Aldermen of, petitioners. Petition for
abolition of crossing at Merrimac and other streets in
Lawrence. Robert 0. Harris, Edmund K. Turner and
Henry V. Cunningham appointed commissioners. Pending.
L}Tin, 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 Edmund K. Turner appointed commis-
sioners. Commissioners' report filed. Edward A. McLaugh-
lin appointed auditor. Auditor's third report filed. Pend-
ing.
Lynn, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of grade crossings at Pleasant and Shepard streets. Gas
A^Tiarf 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.
Franhlin 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.
Erving, Selectmen of, petitioners. Petition for abolition of
grade crossing on the road leading from Millers Falls to
Northfield. Pending.
1915.J PUBLIC DOCraiEXT — No. 12. 251
Greenfield, Selectmen of, petitioners. Petition for the abolition
of Allen and Eussell 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.
Greenfield, Selectmen of, petitioners. Petition for abolition of
grade crossing at Silver Street. Stephen S. Taft, Henry
P. Field and Thomas J. O'Connor appointed commissioners.
Commissioners' report filed. Pending.
Northfield, Selectmen of, petitioners. Petition for abolition of
crossing on road to South Vernon. Edmund K. Turner,
Charles W. Hazelton and Charles H. Innes appointed com-
missioners. Commissioners' report filed. James J. Irwin
appointed auditor. Auditor's first report filed. Pending.
Hampden County.
Palmer, Selectmen of, petitioners. Petition for abolition of
Burley's crossing in Palmer. Pending.
Russell, 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 third 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, Richard W. Irwin and Franklin
T. Hammond appointed commissioners. Chas. E. Hibbard
appointed commissioner in place of Richard W. Irwin, re-
signed. Commissioners' report filed. Walter F. Frederick
appointed auditor. Auditor's first report filed. Pending.
Hampshire County.
Amherst, Selectmen of, petitioners. Petition for abolition of
grade crossings at Whitney, High and Main streets. Rail-
road Commissioners appointed commissioners. Pending.
Belchertown, Selectmen of, petitioners. Petition for the aboli-
tion of crossing of road from Belchertown to Three Rivers
and road from Bondville to Ludlow. Edmund K. Turner,
F. G. Wooden and George P. O'Donnell appointed com-
missioners. Commissioners' report filed. Wm. H. Feiker
appointed auditor. Auditor's first report filed. Pending.
252 ATTORNEY-GENERAL'S REPORT. [Jan.
Middlesex County.
Acton, Selectmen of, petitioners. Petition for abolition of Great
Eoad crossing in Acton. Benj. W. Wells, George D. Bur-
rage and William B. Sullivan appointed commissioners.
Commissioners' report filed. Fred Joy appointed auditor.
Pending.
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.
Chelmsford, Selectmen of, petitioners. Petition for abolition of
grade crossing at Middlesex Street. Pending.
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.
Framingham, Selectmen of, petitioners. Petition for abolition
of grade crossing at Willis Crossing. Pending.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Middlesex and Thorndike streets crossings. George
F. Swain, Patrick H. Cooney and Nelson H. Brown ap-
pointed commissioners. Pending.
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. Wyman appointed commissioners. Commissioners'
report filed. A. W. DeGoosh appointed auditor. Audi-
tor's eighth report filed. Pending.
Lowell, Mayor and Aldermen of, petitioners. Petition for abo-
lition of crossing at Western Avenue and Fletcher Street.
Pending.
^Jalden, Mayor and Aldermen of, petitioners. Petition for abo-
lition of Pleasant and Winter streets crossing in Maiden.
1915.] PUBLIC DOCUMENT — No. 12. 253
George W. Wiggin, Edmund K. Turner and Fred Joy ap-
pointed commissioners. Commissioners' report filed. Win-
field S. Slocum appointed auditor. Auditor's sixth 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.
Xewton, 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.
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. Eeport of commissioners filed. Thomas W.
Proctor appointed auditor. Auditor's first report filed.
Pending.
Somerville, Mayor and Aldermen of, petitioners. Petition for
abolition of Park Street, Dane Street and Medford Street
crossings' in Somerville. George W. Wiggin, George F.
Swain and James D. Colt appointed commissioners. Com-
missioners' report filed. Patrick H. Cooney appointed audi-
tor. Auditor's tenth report filed. Pending.
Somerville, Mayor and Aldermen of, petitioners. Petition for
abolition of Somerville Avenue crossing in Somerville.
George W. Wiggin, George F. Swain and James D. Colt
appointed commissioners. Commissioners' report filed.
Patrick H. Cooney appointed auditor. Auditor's ninth
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.
254 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.
Wayland, Selectmen of, petitioners. Petition for abolition of
grade crossing at State Eoad. George F. Swain, Harvey
E. Shepherd and Arthur ^Y. DeGoosh appointed commis-
sioners. Pending.
AYeston, Selectmen of, petitioners. Petition for abolition of
Church Street, Pigeon Hill and Concord Eoad crossings.
Railroad Commissioners appointed commissioners. Commis-
sioners' report filed. Joseph W. Lnnd, Esq., appointed
auditor. Auditor's third report filed. Disposed of.
Weston, Selectmen of, petitioners. Petition for abolition of
grade crossings at Central Avenue, Conant Eoad, Church
and Viles streets. P. H. Cooney, Louis A. Frothingham
and Andrew M. Lovis appointed commissioners. 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. Commissioners' report filed. Pending.
Norfolk County,
Braintree, Selectmen of, petitioners. Petition for the abolition
of the Pearl Street crossing at South Braintree. Patrick H.
Cooney, Frank IST. Nay and George F. Swain appointed com-
missioners. Pending.
Braintree. Directors of New York, New Haven & Hartford
Eailroad Company, petitioners. Petition for abolition of
grade crossing at School, Elm, Eiver and Union streets in
Braintree. John L. Bates, Winfield S. Slocum and Arthur
H. Wellman appointed commissioners. Commissioners' re-
port filed. Pending.
Brookline. Directors of Boston & Albany Eailroad Company,
petitioners. Petition for the abolition of Kerrigan Place
crossing in Brookline. William Sullivan, Henry M. Hutch-
ings and Wade Keyes appointed commissioners. Commis-
sioners' report filed. Henry M. Hutchings appointed
auditor. Auditor's second report filed. Disposed of.
Canton. Directors of New York, New Haven & Hartford Eail-
road Company, petitioners. Petition for abolition of Ded-
ham Eoad crossing in Canton. Samuel L. Powers, Stephen
1915.1 PUBLIC DOCUMENT — No. 12. 255
S. Taft and Wm. Jackson appointed commissioners. Com-
missioners report filed. Recommitted. 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.
Dover, Selectmen of, petitioners. Petition for abolition of grade
crossing at Springdale Avenue and Dedham and Haven
streets. Public Service Commission appointed commis-
sioners. Pending.
Foxborough. Directors of New York, New Haven & Hartford
Railroad 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. Recommitted. Pending.
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. Commissioners' report filed.
Thomas W. Proctor appointed auditor. Auditor's third re-
port filed. Pending.
Needham, Selectmen of, petitioners. Petition for abolition of
Charles River Street crossing in Needham. Pending.
Quincy. Directors of New York, New Haven & Hartford Rail-
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. Commissioners' report filed. Pending.
Sharon. Directors of New York, New Haven & Hartford Rail-
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. Re-
committed. 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.
Disposed of.
256 ATTORNEY-GENERAL'S REPORT. [Jan.
Westwood. Directors of New York, New Haven & Hartford
Railroad 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. Recommitted.
Pending.
Plymouth County.
Rockland, Selectmen of, petitioners. Petition for abolition of
grade crossings at Union and other streets in Rockland.
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. 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 twentieth report filed. Pend-
ing.
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-
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 seventeenth report filed.
Pending:.
1915.] PUBLIC DOCUMENT — No. 12. 257
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. Kobert 0.
Harris appointed auditor. Auditor's first report filed.
Pending.
Bevere, Selectmen of, petitioners. Petition for abolition of Win-
throp Avenue crossing in Severe of the Boston, Kevere
Beach & Lynn Eailroad. Pending.
Worcester County.
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. Commissioners'
report filed. David F. Slade appointed auditor. Frederic
B. Greenhalge appointed auditor in place of David F. Slade
deceased. Auditor's sixth report filed. Pending.
Fitchburg, Mayor and Aldermen of, petitioners. Petition for
abolition of Eollstone 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 fifth report
filed. Disposed of.
Harvard. Boston & Maine Eailroad, petitioner. Petition for
abolition of a grade crossing near Harvard station. Pend-
ing.
Holden, Selectmen of, petitioners. Petition for abolition of
Dawson's crossing and Cedar Swamp crossing in Holden.
Charles A. Allen,- Arthur P. Eugg and Henry G. Taft ap-
pointed commissioners. Commissioners' report filed. H.
L. Parker appointed auditor. Auditor's second report filed.
Pending.
Hubbardston, Selectmen of, petitioners. Petition for abolition
of Depot Eoad 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. Commissioners' report filed.
Eecommitted. Pending.
Southborough, Selectmen of, petitioners. Petition for abolition
of crossing on road from Southborough to Framingham.
258 ATTORNEY-GENERAL'S REPORT. [Jan.
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.
Soutlibridge^ Selectmen of, petitioners. Petition for abolition
of grade crossings at Foster, Central and Hook streets.
George F. Swain, P. H. Cooney and William F. Garcelon
appointed commissioners. Pending.
Webster, Selectmen of, petitioners. Petition for abolition of
grade crossing at Main Street. 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 E.
Dunbar, James H. Flint and George F. Swain appointed
commissioners. Commissioners' report filed. James A.
Stiles appointed auditor. Auditor's sixty-eighth report
filed. Pending.
1915.1 PUBLIC DOCOIEXT — Xo. 12. 259
CASES ARISING IN THE COURTS
UNDER THE
Acts relative to Ixheritaxce axd Succession Taxes.
Petitions for Instructions.
Barnstable County.
Dyer, Henry K., estate of. James P. Warbasse et al._, executors,
petitioners. Petition for abatement of inheritance tax.
Pending.
Berli shire County.
Barnard, Anna Eliza, estate of. Joseph R. Walker, administra-
tor c. t. a., petitioner. Pending.
Smith, Henry L., estate of. Harry Smith, executor, petitioner.
Attorney-General waived right to be heard.
Bristol County.
Borden, Matthew C. D., estate of. Bertram H. Borden et ah.,
executors, petitioners. Pending.
Essex County.
Clines, Mary G., estate of. Catherine A. Laycock, administra-
trix, petitioner. Petition for abatement of inheritance tax.
Pending.
Hoyt, William P., estate of. Charles N'eal Barney, executor,
petitioner. Pending.
Lane, Annie B., estate of. Helen N. Allen, executrix, petitioner.
Petition for abatement of inheritance tax. Decree.
Meserve, Chastina S., estate of. James W. Leitch, executor,
petitioner. Petition for abatement of inheritance tax.
Pending.
Nichols, Mary C, estate of. Frank 0. Woods, executor, peti-
tioner. Pending.
260 ATTORNEY-GENERAL'S REPORT. • [Jan.
Smith, Robert I., estate of. Sheridan U. Grant, administrator
c. t. a., petitioner. Petition for abatement of inheritance
tax. Attorney-General waived right to be heard.
Hampden Comity.
Bates, Henry C, estate of. Charles H. Barrows, executor, peti-
tioner. Decree.
Bellamy, Charles J., estate of. Asher Allen, administrator c. t. a.,
petitioner. Pending.
George, Julinah R. C, estate of. Allen Webster, executor, peti-
tioner. Petition for abatement of inheritance tax. Pend-
ing.
Moore, Margaret, estate of. Charles H. Barrows, executor, peti-
tioner. Decree.
Hampshire County.
Welton, Walter B., estate of. Henry W. Kidder, administrator,
petitioner. Pending.
Middlesex County.
Aspell, Mary Louise, estate of. Jane L. Quinn, petitioner.
Decree.
Bancroft, Frederick, estate of. John F. Moors, executor, peti-
tioner. Petition for abatement of inheritance tax. Decree.
Barker, Felicia H., estate of. Maria Barker, executrix, peti-
tioner. Attorney-General waived right to be heard.
Bouton, Eliza J., estate of. Louis Bell et ah, executors, peti-
tioners. Rescript.
Cronin, William P., estate of. Ha-nnah J. Thomassin, executor,
petitioner. Petition for abatement of inheritance tax.
Pending.
Hobart, William D., estate of. Clarence P. Weston, administra-
tor c. t. a., petitioner. Petition for abatement of inherit-
ance tax. Decree.
Palmer, Edward H., estate of. Emily M. Palmer et als., exec-
utors, petitioners. Pending.
Perry, Emery B., estate of. Thomas Weston, executor, peti-
tioner. Pending.
Proudfoot, David, et al. v. Third Congregational Society in
Cambridge et al. Decree.
Scott, Julia A., estate of. Emma E. Doty, executrix, petitioner.
Petition for abatement of inheritance tax. Pendinof.
1915.] PUBLIC DOCUMENT — No. 12. 261
Slater, Andrew C, estate of. Joseph T. Brown et al., executors,
jDetitioners. Petition for abatement of inheritance tax.
Pending.
AVolfe, Georgette Enieline, estate of. Newton Trust Company,
administrator, petitioner. Decree.
Norfolk County.
Hill, William H., estate of. William H. Hill et ah, trustees,
petitioners. Decree.
Mchols, Luc}^, estate of. Edward H. Xichols et aJ., administra-
tors, petitioners. Petition for abatement of inheritance
tax. Pending.
Tobin, Ellen A., estate of. William Sullivan, executor, peti-
tioner. Pending.
Tobin, Lawrence, absentee, estate of. Howard A. Wilson, re-
ceiver, petitioner. Pending.
Plymouth County.
Blenkinsop, James S., estate of. John E. Mills, administrator,
petitioner. Petition for abatement of inheritance tax.
Pending.
Killoran, Catherine, estate of. Harry W. Flagg, administrator.
Decree.
Low, Cordelia A., estate of. John F. Low, executor, petitioner.
Petition for abatement of inheritance tax. Attorney-Gen-
eral waived right to be heard.
Peirce, Harriot 0., estate of. "Osgood Putnam, executor, peti-
tioner. Petition for abatement of inheritance tax. Pending.
Suffolk County.
Amorv, Arthur, estate of. Ingersoll Amory, trustee, petitioner.
Decree.
Babcock, Lucy F., estate of. Joseph C. Hagar, executor, peti-
tioner. Petition for abatement of inheritance tax. Attor-
ney-General waived right to be heard.
Bliss, Cornelius X., estate of. Cornelius N". Bliss, Jr., et ah.,
executors, petitioners. Petition for abatement of inherit-
ance tax. Pending.
Bliss, Cornelius X., estate of. Cornelius X. Bliss, Jr., et dls.,
executors, petitioners. Pending.
262 ATTORNEY-GENERAL'S REPORT. [Jan.
Burnham, John A.^ estate of. William A. Burnham et ah, peti-
tioners. Decree.
Butler, Joanna C, estate of. Wilfred Bolster, executor, peti-
tioner. Pending.
Dwight, Mary S., estate of. Grenville Clark et als., petitioners.
Rescript.
Henderson, Charles W., estate of. Martha J. Henderson, execu-
trix, petitioner. Attorney-General waived right to be heard.
Murdoch, James, estate of. Archibald C. Jurdan et ah, execu-
tors, petitioners. Attorney- General waived right to be
heard.
Park, William D., estate of. Osmond S. Park, executor, peti-
tioner. Petition for abatement of inheritance tax. Pend-
ing.
Single, Anna Katharina, estate of. Frank Ganter, executor,
petitioner. Submitted to determination of the court.
Skinner, Eliza B., estate of. George A. Gardner et ah, trustees,
petitioners. Pending.
Tucker, Lawrence, estate of. Robert H. Gardiner et ah, execu-
tors, petitioners. Petition dismissed.
Worcester County.
Buss, Ellen M., estate of. Joseph A. Tjovering, trustee, peti-
tioner. Pending.
Invextoeies.
Berhsliire County.
Dale}^, Eliza, estate of. Edward A. Fisher, administrator.
Pending.
Hall, Sidney L., estate of. Mary R. Hall, administratrix. Dis-
missed.
Roberts, Herbert L, estate of. Lura M. Roberts, administratrix.
Pending.
Williams, Frederick S., estate of. Edward P. Williams, admin-
istrator. Dismissed.
Bristol County.
Atwood, Lizzie, estate of. Elizabeth M. Tripp, executrix. Dis-
missed.
Benson, Susan F., estate of. Azuba A. Bumpus, administrator.
Dismissed.
1915.] PUBLIC DOCUMENT — No. 12. 263
Grilo, Augusto T., estate of. Maria de Estrella Grilo, admin-
istratrix. Dismissed.
Hargreaves, Eobert, estate of. Margaret E. Hargreaves, admin-
istratrix. .Dismissed.
McFarlane, Eobert, estate of. William James McFarlane, ad-
ministrator. Dismissed.
McKenna, Patrick P., estate of. James P. Kiernan, administra-
tor. Dismissed.
Murphy, Mary A., estate of. Bridget T. Lord, administratrix.
Dismissed.
Olson, Clara S., estate of. Carl A. Olson, administrator. Dis-
missed.
Percival, Amanda M., estate of. Charles X. Kichmond, admin-
istrator. Dismissed.
Pokross, Jennie, estate of. Israel Pokross, administrator. Dis-
missed.
Sullivan, Mary E., estate of. Anna M. Sullivan, administratrix.
Dismissed.
Essex County.
Antiello, Gaetana, estate of. Samuele Antiello, administrator.
Dismissed.
Birenbaum, Etta, estate of. Joseph Birenbaum, administrator.
Dismissed.
Brown, Lucy E., estate of. Nellie Brown, administratrix. Dis-
missed.
Burrill, Louise, estate of. Augustus L. Burrill, administrator.
Pending.
Cahill, Martin, estate of. E. B. O^Brien, administrator. Dis-
missed.
Crowley, Plindy, estate of. Michael P. Haven, executor. Dis-
missed.
Goldthwait, Edward 0., estate of. Clarence £. Goldthwait, exec-
utor. Dismissed.
Green, William F., estate of. Margaret Green, administratrix.
Decree.
Hennessy, William, estate of. Margaret A. Hennessey, admin-
istratrix. Dismissed.
Ilewett, Peter H., estate of. John C. Kane, executor. Dis-
missed.
Holdsworth, L. C, estatje of. Lillian A. Edgar, administratrix.
Dismissed.
264 ATTORNEY-GENERAL'S REPORT. [Jan.
Lyons, Sadie F., estate of. Frank H. Lyons, administrator.
Dismissed.
Magee, John A., estate of. Bella H. Magee, executrix. Dis-
missed.
Magner, Matthew J., estate of. Annie T. Magner, administra-
trix. Pending.
Pike, Hattie K., estate of. Grace E. Beard, administratrix
c. t. a. Dismissed.
Prescott, Angusta S., estate of. William F. Moyes, admin-
istrator. Dismissed.
Rosenthal, Victor, estate of. Ida Rosenthal, administratrix.
Dismissed.
Thompson, Annie B., estate of. Moses W. Thompson, adminis-
trator. Dismissed.
Franl-Jm County.
Devino, Louis E., estafe of. Joseph H. Devino, administrator.
Dismissed.
Hampden Couniy.
Bien venue, Albina, estate of. Laura A. Renand, administratrix.
Dismissed.
Boucher, Edgar A., estate of. Joseph E. Boucher, adminis-
trator. ■ Dismissed.
De Giacomo, Alfonso, estate of. Gaetano Poccardi, adminis-
trator. Dismissed.
Easton, George A., estate of. Minnie E. Hannum, adminis-
tratrix. Dismissed.
GritBn, Eugene, estate of. Thomas Griffin, administrator. Dis-
missed.
Guiel, Conrad, estate of. Louis Guiel, administrator. Dis-
missed.
Harrington, Mary E., estate of. Margaret L. Harrington, ad-
ministratrix. Dismissed.
Kennier, Bartholomew, estate of. Catherine Kennier, admin-
istratrix. Dismissed.
Melaszansky, Joseph, estate of. L^rsula J. Melaszansky, admin-
istratrix. Pending.
Moriarty, Dennis, estate of. Xorah Moriarty, administratrix.
Dismissed.
1915.] PUBLIC DOCUMENT — No. 12. 265
Ilampsliire County.
Charron, Alfred J., estate of. Cordelia Charron, executrix.
Dismissed.
Middlesex County.
Bartlett, Charles C, estate of. Lewis H. Lovering, adminis-
trator. Dismissed.
Bedell, Isabelle J., estate of. ]\relanctlion Bedell, administrator.
Dismissed.
Browne, Caroline L., estate of. George H. Browne, adminis-
trator. Dismissed.
Calef, Helen M., estate of. Susan M. Barker, administratrix.
Pending.
Calivas, Christos, estate of. Caliron Calivas, administrator.
Dismissed.
Campbell, Thomas D., estate of. Ella R. Campbell, adminis-
tratrix. Dismissed.
Cavanaugh, Mary, estate of. Bridget Maher, administratrix.
Dismissed.
Chadbourne, Marshall W., estate of. Addie Chadbourne, execu-
trix. Pending.
Collins, Frank H., estate of. Ida I. Collins, administratrix.
Dismissed.
Conners, Ellen, estate of. John P. Conners, executor. Dis-
missed.
Crocker, Mae S., estate of. Philander R. Crocker, adminis-
trator. Dismissed.
Donahoe, Bridget, estate of. Philip ]\IcLaughlin, executor.
Dismissed.
Edmands, Hannah B., estate of. George E. Crafts, administra-
tor. Dismissed.
Gilchrist, Isabella L, estate of. John J. Briggs et al., executors.
Dismissed.
Haderbolets, Joseph, estate of. Mary C. Haderbolets, adminis-
tratrix. Dismissed.
Hill, Charles IT., estate of. Aphia C. F. Hill, executor. Dis-
missed.
Howard, Joseph W., estate of. Henry C. liache, executor. Dis-
missed.
Johnson, Caroline, estate of. Francis B. Burns, administrator.
Dismissed.
266 ATTORNEY-GENERAL'S REPORT. [Jan.
Lambert^ Alvian L., estate of. William J. Lambert, adminis-
trator. Dismissed.
Lang, Augustus M., estate of. Harriet E. Lang, executrix.
Dismissed.
Lathe, Leonora F., estate of. Leonora M. Lockhart, adminis-
tratrix. Dismissed.
Marcbant, Helen L, estate of. Henry J. Marcbant, adminis-
trator. Dismissed.
McCall, Bridget, estate of. Joseph L. Keogh, executor. Dis-
missed.
Nelson, Charles, estate of. Arthur E. Nelson, executor. Dis-
missed.
Pace, John, estate of. Nellie L. Pace, administratrix. Dis-
missed.
Pullen, John F., estate of. Harriet L. Pullen, administratrix.
Dismissed.
Eevelle, John J., Jr., estate of. John J. Revelle, administrator.
Dismissed.
Eobard, Samuel E., estate of. Catherine King, administratrix.
Dismissed.
Sebastiano, Rigoli, estate of. Antonio Paladino, administrator.
Dismissed.
Shanney, AYilliam, estate of. Patrick Shanney, administrator.
Dismissed.
Sheehan, Grace E., estate of. George M. Shechan, administrator.
Dismissed.
Stiles, Diantha L., estate of. William H. Durkee, executor.
Dismissed.
Storti, Soccorso, estate of. Sal)atina Storti, administratrix.
Dismissed.
Thompson, William G., estate of. Mary T. Thompson, adminis-
tratrix. Dismissed.
Touello, Angelo, estate of. Emiliano Touello, administrator.
Dismissed.
Norfolh County.
Davies, John C, estate of. Mary Delilah Da vies, administra-
trix. Dismissed.
Kannally, Richard H., estate of. Ellen F. Kannally, adminis-
tratrix. Dismissed.
Lockney, Johanna, estate of. Joseph A. Sheehan, administrator.
Dismissed.
1915.] PUBLIC DOCUMENT — No. 12. 267
McPherson, Mary A., estate of. Duncan McPherson, adminis-
trator. Pending.
Pasqualone, Francisco^ estate of. J. J. McAnarney, adminis-
trator. Dismissed.
Pederson, Maria, estate of. John A. Johnson, executor. Dis-
missed.
Record, Delphina K., estate of. Sarah A. Waterman, executrix.
Dismissed.
Shackett, Adrianna, estate of. Joseph Shackett, administrator,
c. t. a. Dismissed.
Wenstrom, Oscar A., estate of. Oscar F. Wenstrom, administra-
tor. Dismissed.
Plymouth County.
Bardwell, Emma M., estate of. Josiah Bardwell, administrator.
Dismissed.
Brown, Augusta W., estate of. Frank L. Brown, executor. Dis-
missed.
Morse, Amos, estate of. Julia M. Pollard, administratrix. Dis-
missed.
Suffolk County.
Amory, Francis, estate of. George A. Goddard et al., adminis-
trators. Dismissed.
Barrett, John J., estate of. Delia L. Barrett, administratrix.
Dismissed.
Bartholomew, Susan W., estate of. Sarah B. James, administra-
trix. Decree.
Baxter, Albert, estate of. Elizabeth A. Baxter, administratrix.
Pending.
Blodgett, Minnie L., estate of. Clement B. Blodgett, adminis-
trator. Pending.
Boleisha, Kazimerz C, estate of. Mary Boleisha, administratrix.
Dismissed.
Bullard, Mary, estate of. Annie M. Fitzgerald, executrix. Dis-
missed.
Byrne, William P., estate of. Catherine M. Byrne, administra-
trix. Pending.
Campbell, Patrick J., estate of. John J. Campbell, adminis-
trator. Dismissed.
Case}^ Frank, estate of. Abbie Casey, administratrix. Dis-
missed.
268 ATTORNEY-GENERAL'S REPORT. [Jan.
Cliajjlin, Matilda C, estate of. Samuel Chaplin, administrator.
Dismissed.
Clifford, Mary A., estate of. James E. Clifford, executor. Dis-
missed.
Collins, Ellen L. E., estate of. Henry S. Ormsby, executor.
Dismissed.
Crane, Lida D., estate of. i^aron M. Crane, executor. Dis-
missed.
Crowley, Dennis, estate of. William A. H. Crowley, administra-
tor. Dismissed.
Cunningham, William, estate of. James J. Heggie, adminis-
trator. Dismissed.
Daly, Michael, estate of. Ellen E. Murray, administratrix.
Pending.
Damelio, Antonio, estate of. Rose Damelio, administratrix.
Dismissed.
Damelio, Michael, estate of. Genovario Damelio, administrator.
Dismissed.
Davis, Nicholas J., estate of. Matilda Davis, administratrix.
Dismissed.
Dizwegeleski, Julius, estate of. William W. Clarke, adminis-
trator. Dismissed.
Dorini, Celestina, estate of. Antonio Dorini, administrator.
Pending.
English, Hortense B., estate of. Mary A. Tennyson, adminis-
tratrix. Dismissed.
Evers, Erank, estate of. Michael Evers, administrator. Dis-
missed.
Fiori, Angelo, estate of. Maria Eiori, administratrix. Dis-
missed.
Flaherty, Margaret, estate of. Margaret J. Burns, administra-
trix. Dismissed.
Galligan, Brian B., estate of. Richard J. Galligan, administra-
tor. Decree.
Giacobbe, Marianna, estate of. Santo Giacobbe, administrator.
Pending.
Gibbons, Bernard, estate of. Ellen Gibbons, executrix. Dis-
missed.
Griffin, John P., estate of. Irene J. Griffin, administratrix.
Dismissed.
Hart, John H., estate of. William H. Hart, administrator.
Dismissed.
1915.] PUBLIC DOCUMENT — No. 12. 269
Hirshberg, Max, estate of. Louis Schwartz, administrator. Dis-
missed.
Holmes, Olive E., estate of. M. Sumner Holbrook, administra-
tor. Dismissed.
Johnston, Catharine G., estate of. Julian E. Johnstone, execu-
tor. Dismissed.
Kilday, 'Thomas, estate of. Patrick Kilday, administrator.
Dismissed.
Kilroy, Mary E., estate of. Martin J. Kilro}^, administrator.
Dismissed.
Lane, John, estate of. Francis W. Lane, administrator. Dis-
missed.
Lehmann, Frank G., estate of. James W. Colgan, administrator.
Dismissed.
Lehmann, Michael, estate of. James W. Colgan, administrator.
Dismissed.
Littig, Katherine, estate of. Henry Zepp, executor. Dismissed.
Lucy, Ellen M., estate of. Daniel J. Lucy, administrator. Dis-
posed of.
Moriarty, Patrick J., estate of. Edward P. Barry, administra-
tor. Dismissed.
O'Brien, Cornelius, estate of. Catherine A. Xash, administra-
trix. Dismissed.
O'Earrell, Mary M., estate of. John D. Carmody, executor.
Dismissed.
O'Hara, Margaret, estate of. John O'Hara, administrator.
Dismissed.
O'Xeil, Ellen, estate of. John O'Xeil, administrator. Dis-
missed.
Palma, Cosima, estate of. Xunzio Santaniello, administrator.
Dismissed.
Peterson, Peter, estate of. Christina Peterson, administratrix.
Dismissed.
Poulos, Thomas, estate of. Amanda Teresa Poulos, adminis-
tratrix. Dismissed.
Eeddish, Mary E., estate of. Agnes T. Reddish, administratrix.
Dismissed.
Richardson, Frank, estate of. Willard P. Lombard, administra-
tor. Dismissed.
Ridge, John, estate of. Catherine Ridge, administratrix. Dis-
missed.
270 ATTORNEY-GENERAL'S REPORT. [Jan.
Santoorj, Samuel, estate of. Margaret Mikaelian, executrix.
Dismissed.
Scannell, David J., estate of. Margaret J. Scannell, adminis-
tratrix. Dismissed.
Shea, Mary A., estate of. John F. Shea, administrator. Pend-
ing.
Simpson, Louis A., estate of. Vincent B. Simpson, adminis-
trator. Dismissed.
Sirvain, Marcelin, estate of. Aglar Sirvain, executor. Dis-
missed.
Smith, Sarah M., estate of. A. DeFilippo, executor. Dismissed.
Stedman, Elizabeth, estate of. Edward Hall, administrator.
Dismissed.
Sullivan, Daniel J., estate of. Annie T. Sullivan, executrix.
Dismissed.
Sullivan, Jeremiah, estate of. Julia Y. Smith, administratrix.
Dismissed.
Tow, Annie, estate of. William E. Burke, executor. Dismissed.
Wilbur, George A., estate of. Louis T. Wilbur, administrator.
Dismissed.
Woixestei' County.
Copp, Charles D., estate of, Isabel C. Copp, executrix. Pend-
ing.
Decuyper, Charles L., estate of. Hortense Deeuyper, adminis-
tratrix. Dismissed.
Falvey, Richard S., estate of. Nellie L. Lynch, executrix. Dis-
missed.
Gaudreau, Adelaide, estate of. Adelard Gaudreau, adminis-
trator. Dismissed.
Hartwell, Eveline E., estate of. Susan R. Hartwell, adminis-
tratrix. Dismissed.
Hosmer, Leaffie A., estate of. Merrill Mills Hammond, admin-
istrator c. t. a. Dismissed.
Kennedy, Thomas F., estate of. Rose Kennedy, administratrix.
Dismissed.
Leary, John J., estate of. Timothy J. Leary, administrator.
Dismissed.
Mahoney, James J., estate of. Frank J. Mahoney, adminis-
trator. Dismissed.
1915.] PUBLIC DOCUMENT — No. 12. 271
Mroczska. Maryjanna, estate of. Thomas Mroczska, executor.
Dismissed.
Oliveri, Leonardo, estate of. Carmina Oliveri, administratrix.
Dismissed.
Setaro, Christopher, estate of. John B. Setaro, administrator.
Dismissed.
Steinecke, Henr}-, estate of. Julia Steinecke, administratrix.
Dismissed.
272 ATTORXEY-GEXERAL'S REPORT. [Jan.
PUBLIC CHAEITABLE TRUSTS.
Berlisliire Countij.
Camp, Daniel A., estate of. James B. Turner, executor, peti-
tioner. Petition for instructions. Attorney-General
waived right to be heard.
Bristol County.
Freese, John AYesley, estate of. Helen M. Freese, executrix,
petitioner. Petition for instructions. Decree.
Oldfield, Charles T., et al. v. Attorney-General. Petition for
instructions. Pending.
White, John, estate of. Irani ^. Smitli, executor, petitioner.
Petition for instructions. Pending.
Essex Count y.
Atwood, Margaret, estate of. Henry B. Little et als., peti-
tioners. Petition for appointment of petitioners as trus-
tees. Pending.
Barr, Henry, estate of. Salem Young Men's Christian Associa-
tion, petitioner. Petition for authority to sell real estate.
Decree.
Beach, Persis A., estate of. Edward F. Childs et ah., formerly
trustees of the First Methodist Episcopal Church of Law-
rence, petitioners. Petition for instructions. Pending.
Bonne}^, Nellie H., estate of. George W. Noyes, executor, peti-
tioner. Petition for instructions. Submitted to determina-
tion of the court.
Cliftondale Chapel x\ssociation. J. Arthur Eaddin, petitioner.
Petition for appointment of trustee. Attorney-General
waived right to be heard.
Cliftondale Chapel Association. J. Arthur Eaddin, trustee, pe-
titioner. Petition for license to sell real estate. Attorney-
General waived right to be heard.
Corliss, Mary, estate of. George H. Carleton, administrator
c. t. a., petitioner. Petition for instructions. Decree.
1915.] PUBLIC DOCUMENT — Xo. 12. 273
Dole's Pasture Burying Ground Corporation, petitioner. Peti-
tion for instructions. Submitted to determination of the
court.
Gile, David, estate of. Cliarles E. Sawyer, petitioner. Petition
for appointment of trustee. Attorney-General waived right
to be heard.
Hahn, Eliza J., estate of. Charles A. Cross, trustee, petitioner.
Petition for instructions. Decree.
Haskins, Leander M., estate of. Grafton Butman, petitioner.
Petition for appointment of trustee. Pending.
Hawks, Esther H., estate of. Hannah T. Carret et als., trus-
tees, petitioners. Petition for allowance of sixth account.
Attorney-General waived right to be heard.
Moore, Martha, estate of. Mary Barker, executrix, petitioner.
Petition for instructions. Pending.
Moseley, Julia M., estate of. Oliver H. Perry et ah, executors.
Petition for instructions. Submitted to determination of
the court.
Moseley, Julia M., estate of. Oliver H. Perry et al., executors,
petitioners. Petition for instructions. Decree.
Smith, Joseph ^N"., estate of. Henry B. Sprague et ah, executors,
petitioners. Petition for instructions. Pending.
Stearns, Artemas W., estate of. John P. Sweeney et ah, trustees,
petitioners. Petition for allowance of first account. At-
torney-General waived right to be heard.
Wingate, Charles, estate of. Charles P. Parker et ah, petitioners.
Petition for appointment of trustees. Attorney-General
waived right to be heard.
Wingate, Charles, estate of. Charles P. Parker et ah., trustees,
petitioners. Petition for license to sell real estate. At-
torney-General waived right to be heard.
Franl-Jin County.
Belcher, Eliza, and Mary A. Belcher, estates of. Osgood L.
Leach et ah, trustees, petitioners. Petition for allowance of
first account. Attorney-General waived right to be heard.
Delano, Lucy J., estate of. Thomas F. Harrington, petitioner.
Petition for appointment of trustee. Attorney-General
waived right to be heard.
Durkee, Lauriston C, estate of. William G. Packard et ah,
trustees. Petition to have part of estate set out in fee.
Attornev-General waived riorht to be heard.
274 ATTORNEY-GENERAL'S REPORT. [Jan.
Fields Simeon A., estate of. Henry W. Montague, trustee, peti-
tioner. Petition for allowance of third account. Pending.
Stratton, Abigail, estate of. Frank H. Montague et ah, trustees,
petitioners. Petition for allowance of tenth account. Pend-
ing.
Tilton, Chauncev B., estate of. Otis Hagar et als., trustees, v.
Attorney-General et al. Petition for modification of de-
cree. Submitted to determination of the court.
Hampden County.
Chapin, Emily J., estate of. Carlos M. Gage, executor, peti-
tioner. Petition for instructions. Pending.
Conner, Lydia T., estate of. James C. S. Taber, executor, peti-
tioner. Petition for instructions. Pending.
Dearborn, Danville A., estate of. American Baptist Home Mis-
sion Society, petitioner. Petition for authority to sell real
estate. Decree.
Harkins, Catherine, estate of. John T. Madden, petitioner.
Petition for appointment of trustee. Attorney-General
waii'ed right to be heard.
Monson Academy, Trustees of, v. Attorney-General. Petition
for instructions. Submitted to the determination of the
court.
Moseley, Jane A., estate of. Peter King, petitioner. Petition
for instructions. Pending.
Scott, Mary E., estate of. Asbury Methodist Episcopal Church,
petitioner. Petition for appointment of trustee. Attorney-
General waived right to be heard.
Taylor, Ethan, estate of. Springfield Safe Deposit and Trust
Company, trustee. Petition for allowance of fourth ac-
count. Attorney-General waived right to be heard.
Winter, Sarah J., estate of. Thomas W. Kenefick, executor, pe-
titioner. Petition for instructions. Attorney-General
waived right to be heard.
Winter, Sarah J., estate of. Wesson Memorial Hospital, peti-
tioner. Petition for appointment of trustee. Attorney-
General waived right to be heard.
Winter, Sarah J., estate of. Wesson Memorial Hospital, trus-
tee, petitioner. Petition for authority to sell real estate.
Pendins:.
1915.] PUBLIC DOCUMENT — No. 12. 275
Hampshire County.
Goodwin, Moses G., trustee under a deed of trust from Carroll
J. Hasbrook^ petitioner. Petition for authority to transfer
real estate. Submitted to determination of the court.
Pusseli Church in Hadley. Francis S. Reynolds^ trustee. Peti-
tion for instructions. Pending.
Middlesex Countij.
Barrett, Martha L., estate of. Frank E. Sircom et als., execu-
tors, petitioners. Submitted to determination of the court.
Bugbee, Samuel W., et al. v. Attorney-General. Petition for
instructions. Pending.
Bull, Sara C, estate of. Joseph G. Thorp et al. v. John Lund
et al. Petition for instructions. Pending.
Child, Lydia Maria, estate of. Eleanor G. May, petitioner. Pe-
tition for leave to transfer trust fund. Dismissed.
Copeland, Sarah E., estate of. Alba A. Giles, executor, peti-
tioner. Petition for allowance of second account. Pending.
Donaghey, Henry, estate of. William E. Whitney et al. v. Annie
J. Davenport et al. Petition for instructions. Decree.
Hammond, George P., estate of. EHzabeth F. Johnson, execu-
trix, petitioner. Petition for instructions. Pending.
Manning, Lucinda, estate of. Petition for appointment of trus-
tee. Attorney-General waived right to be heard.
Martin, Webster Warner, estate of. Wesley T. Lee et al., trus-
tees, petitioners. Petition for allowance of ninth account.
Attorney-General waived right to be heard.
McEvoy, Elizabeth, estate of. Thomas A. McAvoy, trustee, pe-
titioner. Petition for allowance of first and final account.
Attorney-General waived right to be heard.
Mellen, William H., estate of. Tow^n of Framingham, petitioner.
Petition for authority to sell real estate. Pending.
Eoby, Christopher, estate of. George F. Snow et al., trustees,
petitioners. Petition for allowance of sixteenth account.
Attorney-General w'aived right to be heard.
Simonds, Marshall, estate of. Town of Burlington r. Attorney-
General. Petition for instructions. Decree.
Tabor, Frances F., estate of. Charles S. Norris, executor, peti-
tioner. Petition for allowance of first and final account.
Attorney-General waived right to be heard.
Talbot, Isabella W., estate of. Adelbert L. Wait et al., petition-
ers. Petition for appointment of trustees. Pending.
276 ATTORNEY -GENERAL'S REPORT. [Jan.
Thompson, Emulus, estate of. Melvin G. Rogers, administrator,
petitioner. Petition for instructions. Decree.
White, Daniel, estate of. AVinslow Warren et ah, trustees, peti-
tioners. Petition for allowance of sixteenth, seventeenth
and eighteenth accounts. Pending.
Norfolk County.
Brigham, Elizabeth F., estate of. New England Trust Com-
pany et ah., trustees, petitioners. Petition for allowance of
first account. Attorney-General waived right to be heard.
Brigham, Elizabeth F., estate of. New England Trust Com-
pany et als., trustees, petitioners. Petition for allowance of
second account. Attorney-General waived right to be heard.
Lee, Henry, estate of. Schuyler S. Bartlett, executor, petitioner.
Petition for instructions. Pending.
Mann, Jonathan, estate of. John F. Brown et ah, executors,
petitioners. Petition for instructions. Rescript.
Mann, Jonathan, estate of. Carrie S. Leeds, petitioner. Peti-
tion for removal of trustee. Pending.
Quincy, City of, v. James M. Swift, Attorney-General, et ah.
Petition for authority to sell land held in trust and reinvest
proceeds. Pending.
Plymouth County.
Edgar, James, estate of. Emery M. Low, petitioner. Petition
for appointment of trustee. Assented to appointment of
trustee.
Perritt, Dora, estate of. Henry W. Barnes, administrator c. t. a.
Petition for instructions. Pending.
Sujfolk County.
Amory, Francis I., et ah v. Trustees of Amherst College et ah
Petition for instructions. Pending.
Bartlett, Schuyler S., v. William Endicott et ah Petition for in-
structions. Decree.
Bird, John H., estate of. Charles T. Gallagher et ah, trustees,
petitioners. Petition for allowance of fortieth account.
Pending.
Brigham, Robert B., estate of. New England Trust Company,
trustee. Petition for allowance of third account. Attor-
ney-General waived right to be heard.
1915.] PUBLIC DOCUMENT — No. 12. 277
Dewing Memorial v. Attorney-General. Petition for leave to sell
real estate. Decree.
Franklin Square House v. A ttorne}^- General. Petition for au-
thority to sell real estate. Submitted to determination of
the court.
Geyer, Mary French, estate of. George H. Car}', trustee, peti-
tioner. Petition for allowance of first and second accounts.
Attorney-General waived right to be heard.
Gregerson, Mary E., estate of. Zachariah Chafee, trustee, peti-
tioner. Petition for allowance of first and final account.
Attorney-General waived right to be heard.
Hall, Conray P., et al., trustees, v. Attorney-General. Petition
for instructions. Pending.
Hanim, Sarah A., estate of. James W. Moore, administrator
c. t. a. petitioner. Petition for instructions. Submitted to
determination of the court.
Healy, x\nna M., estate of. William Eopes Trask, executor, peti-
tioner. Petition for instructions. Decree.
Lang, Betsey E., estate of. Enoch Foster, trustee, petitioner.
Petition for allowance of third and final account. Account
allowed.
Lawrence, Abbott, estate of. John Lawrence et ah, trustees, pe-
titioners. Petition for allowance of twenty-fourth account.
Attorney-General waived right to be heard.
Liversidge, Thomas, estate of. Eichard C. Humphreys et ah.,
trustees, petitioners. Petition for allowance of twenty-sixth
to thirty-third accounts, inclusive. Attorney-General
waived right to be heard.
Liversidge, Thomas, estate of. Clift Eogers Clapp et ah., trus-
tees, petitioners. Petition for authority to sell real estate.
Pending.
Locke, Elbridge W., estate of. Otis Merriam et al., trustees, pe-
titioners. Petition for instructions. Dismissed.
Lowe, Janet M., et al. v. Leopold Morse Home for Infirm He-
brews et al. Petition for instructions. Pending.
Mabie, William L, et al. v. Edwin S. Gardner and the Attorney-
General. Petition for instructions regarding a public char-
itable trust under will of Mary Eedding. Pending.
Eanlett, Leonard B., estate of. Dana D. Holbrook, executor,
petitioner. Petition for instructions. Pending.
Eefuge in the City of Boston, The, v. The Bethesda Society.
Petition for instructions. Decree.
278 ATTORNEY-GENERAL'S REPORT. [Jan.
Sargent, Anna Coombs, estate of. Edmund D. Codman, execu-
tor, petitioner. Petition for instructions. Attorney-Gen-
eral waived right to be heard.
Society for Promoting Theological Education, The, v. Attor-
ney-General. Petition for leave to sell real estate. Sub-
mitted to determination of the court.
Soren, George Wales, estate of. Lucy E. Buffington, petitioner.
Petition for appointment of trustee. Decree.
Sterling, Virginia A., estate of. AVilliam H. Ballon et al., exec-
utors, petitioners. Petition for instructions. Decree.
Thompson, Thomas, estate of. Richards M. Bradley et ah,
trustees, petitioners. Petition for allowance of second
account. Attorney-General waived right to be heard.
Warren Avenue Baptist Church v. Attorney-General. Petition
for authority to use a certain trust fund. Pending.
White, Joseph H., ct al. v. Attorney-General. Petition for in-
structions. Submitted to determination of the court.
Whitne}^, Sarah W., estate of. Charles A. Stone, trustee, peti-
tioner. Petition for allowance of first and second accounts.
Accounts allowed.
Whitney, Sarah W., estate of. Charles A. Stone, trustee, peti-
tioner. Petition for authority to sell real estate. Attorney-
General waived right to be heard.
Withee, Josiah E., estate of. Daniel S. Davis, executor, peti-
tioner. Petition for instructions. Pending.
^Yorcester County.
Bartlett, Nancy, estate of. Chester F. Williams, petitioner.
Petition for appointment of trustee. Attorney- General
waived right to be heard.
Bemis, George, estate of. Myron A. Young et als., trustees, pe-
titioners. Petition for allowance of first and second ac-
counts. Attorney-General waived right to be heard.
Cummings, Lurinda, estate of. Moses P. Greenwood, executor,
petitioner. Petition for instructions. Decree.
Eames, Mary E., estate of. Mount Yernon Cemetery Associa-
tion, petitioner. Petition for authority to transfer trust
fund. Attorney- General waived right to be heard.
Grout, Eliza P., estate of. Robert L. Carter et als., trustees,
petitioners. Petition for allowance of ninth account. At-
tornev-General waived risrht to be heard.
1915.] PUBLIC DOCUMENT — No. 12. 279
Meagher, Luke, estate of. John W. Sheehan, executor. Petition
for appointment of trustee. Attorney-General assented to
petition.
Newton, Kate L., et als. v. Harry W. Fay et als. Petition for
instructions. Submitted to determination of the court.
Pierce, Sarah J., estate of. D. Oscar Putnam et als., petition-
ers. Petition for authority to transfer trust funds. Attor-
ney-General waived right to be heard.
Upton, George C, estate of. Edwin Upton, petitioner. Peti-
tion for instructions. Attorney-General waived right to be
heard.
Williams, Henry, estate of. Eeason T. Lee et als., trustees, v.
Methodist Episcopal Church in the United States et al. Pe-
tition for instructions. Decree.
280 ATTORNEY-GENERAL'S REPORT. [Jan.
SUITS CONDUCTED BY THE ATTORNEY-GENERAL.
Ix Behalf of State Boards axd 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. Metropolitax Water axd 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.
Stoneham, Town of, v. Commonwealth. Pending.
Ward, George A., et als. v. Commonwealth. Pending.
^Vorcester County.
Allen, Byron D., v. Commonwealth. Dismissed.
Allen, Byron D., v. Commlonwealth. Dismissed.
Bradley, Patrick, v. Commonwealth. Dismissed.
Cutting, Louis, administrator, v. Commonwealth. Dismissed.
Wood, J. Frank, et als. v. Commonwealth. Dismissed.
2. 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.
Barnstable County.
Gibbs, E. Porter, r. Commonwealth. Pending.
Wagner, Jeanette, v. Commonwealth. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 281
BerJcsJiire County.
Connelly, William H., r. Commonwealth. Pending.
Eogerson, Sophia, v. Commonwealth. Pending.
Stevens, John A., ct al. v. Commonwealth. Pending.
Hampshire County.
Flagg, Lucretia Taft, v. Commonwealth. Pending.
Xash, Harlan E., et al. v. Commonwealth. Settled.
Taft, Kate P., v. Commonwealth. Pending.
Middlesex County.
Hogan, James J., v. Commonwealth. Pending.
Howe, Louis P., v. Commonwealth. Pending.
Huntington, Herbert E., v. Commonwealth. Pending.
McGee, John P., v. Commonwealth. Pending.
Mower, Clara I., v. Commonwealth. Settled,
bourse, Joseph P., v. Commonwealth. Pending.
Norfolk County.
Ireson, Jennie E., v. Commonwealth. Pending.
Jordan, S. Annie, r. Commonwealth. Pending.
York, Addie A., et al. v. Commonwealth. Pending.
Suffolk County,
Jones, Lizzie E., v. Commonwealth. Pending.
Jones, Lizzie E., et al. v. Commonwealth. Pending.
"Williams, William, et al. v. Commonwealth. Pending.
Worcester County.
Mahan, Annie T., et als. v. Commonwealth. Settled.
Pay, Foster S., v. Commonwealth. Pending.
3. Board of Harbor and Laxd Commissioners.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by said
commissioners.
Suffolk Comity.
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.
282 ATTORNEY-GENERAL'S REPORT. [Jan.
4. Charles River Basin Commissioners.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by said
commissioners.
Suffolk County.
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., v. Commonwealth. Pending.
Fields, Annie, v. Commonwealth. Pending.
Hooper, James R., v. Commonwealth. Pending.
Hooper, Robert C, et al. v. Commonwealth. Pending.
Inches, Louise P., v. Commonwealth. Pending.
Jewell, Edward, t'. Commonwealth. Pending.
Niles, Sarah F., et al. v. Commonwealth. Pending.
Parker, George W., et al. v. Commonwealth. Pending.
Pierce, Katherine C, v. Commonwealth. Pending.
Prince, Fannie L., v. Commonwealth. Pending.
Prince, Lillian C, v. Commonwealth. Pending.
Sears, Mary C, v. Commonwealth. Pending.
Sears, Richard D., v. Commonwealth. Pending.
Shaw, Francis, v. Commonwealth. Pending.
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.
5. Armory Commissioners.
Petitions to the Superior Court for assessment of damages
alleged to have been sustained by the taking of land by the said
board.
Berlshire County.
Pittsfield & North Adams Railroad et al. v. Commonwealth.
Pending.
Essex County.
Griffin, Henry, v. Commonwealth. Pending,
1915.] PUBLIC DOCUMENT — No. 12. 283
6. 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.
Suffollc County.
Beatty, John F., v. Commonwealth. Pending.
Callahan, George A., et al. v. Commonwealth. Pending.
Flint, James H., et al., trustees, v. Commonwealth. Pending.
Holbrook, Wellington, et al. v. Commonwealth. Pending.
Kiley, Daniel J., v. Commonwealth. Pending.
Shea, Julia A., et als., trustees, v. Commonwealth. Pending.
7. Mount Everett Reservation Commission.
Berkshire County.
Macnaughton, Elizabeth P., v. Commonwealth. Pending.
8. Directors of the Port of Boston.
Suffolk County.
Codman, Edmund D., et al., trustees, v. Commonwealth. Pend-
ing.
Haskins, Elizabeth S., et al., trustees, v. Commonwealth. Pend-
ing.
9. Miscellaneous Cases from Above Commissions.
Essex County.
Peed, William H., v. Commonwealth. Claim for damages on
account of injury to horse on State highway in Gloucester.
Pending.
Trembla}^, Paul, v. Commonwealth. Action of tort for injuries
caused by defect in State highway in East Boston. Pending.
Middlesex County.
International Automobile and Vehicle Tire Company v. Com-
monwealth. Petition for damages to petitioner's property
caused by change of east 1)ranch of Charles Eiver by Park
Commission. Pending.
284 ATTORNEY-GENERAL'S REPORT. [Jan.
McFarland, Mark, v. Edward J. Doyle. Claim for damages ab-
leged to have been caused b}' collision with motorcycle
owned by the Metropolitan Park Commission. Settled.
SuffolJv County.
Davis, James A., et al. v. Commonwealth et ah Petition to re-
cover for labor and materials used in construction of sewer.
Pending.
De las Casas, William B., et al. v. Sewer Commissioners of
Revere. Petition for injunction to restrain town from
obstructing sewer built by the Park Commission for bath
house. Pending.
Dickey, Leroy "W., v. Commonwealth et al. Claim for money
due the petitioner for materials furnished Joseph Wagen-
bach & Son in the constmction of a section of State high-
way in Dracut. 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.
Ellinwood, Ralph E., Commonwealth v. Petition to restrain re-
spondent from infringing park regulations on Revere boule-
vard. Pending.
Ellis, William H., v. Commonwealth. Claim for compensation
for removing auto truck from Charles River Basin.
Settled.
Gibbons, William H., v. Commonwealth. Damage caused by
blasting in construction of metropolitan sewer. Pending.
H. B. Smith Company v. Commonwealth. Claim for money due
under contract for Boston State Hospital. Pending.
Hildreth Granite Company v. Commonwealth et al. Claim for
money due the petitioner for materials furnished P. Rosetti
& Sons in the construction of a section of State highway
in Revere. Pending.
Kinmond, John D., v. Commonwealth. Action of tort to recover
for injuries caused by defect in State highway in Salisbury.
Disposed of.
1915.] PUBLIC DOCOIEXT — Xo. 12. 285
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 r. Bill in equity to re-
strain defendant from encroaching on land of the Common-
wealth. Pending.
Mereno, Andrew, et ah, Henry P. Walcott et als., v. Petition
for an injunction enjoining the respondents from violating
certain rules established by the Metropolitan Water and
Sewerage Board. Injunction issued.
Xational Contracting Company et al., Commonwealth v. Action
of contract to recover on bond. Pending.
Niland, 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.
Xormile, Francis, v. Commonwealth of Massachusetts et al. Pe-
tition for a jury to assess damages caused by construction
of sewer in Eoxbury. Pending.
Xormile, Francis, v. Edward W. Everson & Co. and Henry H.
Sprague et aJ. Action of tort. Pending.
O'Connell, Dennis F., v. Michael J. McGawley et als. Bill of
complaint to restrain the respondent McGawley from assign-
ing his interest in a contract entered into with the Metro-
politan Park Commission. Pending.
Old Colony Construction Company, Commonwealth v. Action
of contract to recover on bond. Pending.
Pacific Surety Company v. Commonwealth et al. Petition to
recover from McBride & Co. certain sums expended by pe-
titioner. Pending.
Smith, Frederick W., et al. v. Commonw^ealth. Claim for money
due under contract for Boston State Hospital. Pending.
Waterproof Leatherboard Company, Henry H. Sprague et als.,
Metropolitan Water and Sewerage Board, v. Bill of com-
plaint to restrain resjoondent from discharging factory
wastes into Beaver Dam Brook. Pending.
Waterproofing Company, The, v. Commonwealth. Claim for
money due for labor performed on Psychopathic Hospital.
Pending.
286 ATTORNEY-GENERAL'S REPORT. [Jan.
10. State Boards of Charity and Insaxity.
Actions of contract pending in tiie Superior Court to recover
charges for the support of persons in State hospitals.
Suffolk County.
Mansfield, Treasurer, v. Adams, town of. Settled.
Mansfield, Treasurer, v. Horatio N". Allin, executor of the will
of Abbie N. Tilton. Settled.
Mansfield, Treasurer, v. Franklin, town of. Settled.
Stevens, Treasurer, v. Warren M. Andrews. Pending.
Stevens, Treasurer, v. Franklin Batch, administrator of the
estate of Benjamin H. Potter. Pending.
Stevens, Treasurer, v. Boston, cit}' of. Pending.
Stevens, Treasurer, v. Boston, city of. Pending.
Stevens, Treasurer, v. Boston, city of. Pending.
Stevens, Treasurer, v. Boston, city of. Pending.
Stevens, Treasurer, v. Charles F. Bushby. Pending.
Stevens, Treasurer, v. Caroline R. Clasby. Pending.
Stevens, Treasurer, v. Caroline E. Clasby. Pending.
Stevens, Treasurer, v. Mary E. Clasby. Pending.
Stevens, Treasurer, v. Joseph C. Colligan. Pending.
Stevens, Treasurer, v. John J. Cronin, administrator of the
estate of Mary Murphy. Pending.
Stevens, Treasurer, v. Fall River, city of. Pending.
Stevens, Treasurer, v. John Grieneeks. Pending.
Stevens, Treasurer, v. Michael Harper, guardian. Settled.
Stevens, Treasurer, v. Lowell, city of. Pending.
Stevens, Treasurer, v. New Bedford, city of. Pending.
Stevens, Treasurer, v. Newton, city of. Settled.
Stevens, Treasurer, v. Newton, city of. Settled.
Stevens, Treasurer, v. Emma C. Russell, guardian. Pending.
Stevens, Treasurer, v. Rutland, town of. Pending.
Stevens, Treasurer, v. Josiah Ryder. Pending.
Stevens, Treasurer, v. Thomas J. Sexton, guardian. Pending.
Stevens, Treasurer, r. Julia Tully. Pending.
Stevens, Treasurer, v. Louise C. Westcott. Pending.
1915.1 PUBLIC DOCUMEXT — No. 12. 287
MISCELLANEOUS CASES.
Abbott, Lillian, administratrix of the estate of Eunice M. Ab-
bott, Attorney-General ex rel. v. Petition to recover inher-
itance tax. Pending.
Acme White Lead and Color Works v. Commonwealth. Petition
to recover excise tax for the year 1914 paid by foreign cor-
poration. Pending.
Adams, Fannie A., petitioner. Petition for registration of title
to land in Billerica. Pending.
Ahmeek Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Ahmeek Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Ahmeek Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Aldrich, Frank E., petitioner. Petition to register title to land
in Xorthfield. Pending.
Algomah Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Algomah Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Allouez Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Allouez Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Amalgamated Xevada Mines Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
288 ATTORNEY-GENERAL'S REPORT. [Jan.
Amalgamated Nevada Mines Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1913 paid by foreign
corporation. Pending.
American Agricultural Chemical Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
American Agricultural Chemical Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
American Agricultural Chemical Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
American Axe and Tool Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
American Axe and Tool Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
American Bank Note Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Final decree.
American Bank Note Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpo-
ration. Final decree.
American Brass Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid hy foreign corpora-
tion. Final decree.
American Brass Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpora-
tion. Final decree.
American Can Company v. Commonwealth. Petition 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 1912 paid by foreign corporation.
Pending.
American Can Company v. Commonwealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Pending.
American Can Company v. Commonwealth. Petition to recover
excise tax for the year 1914 paid by foreign corporation.
Pendinor.
1915.] PUBLIC DOCUMENT — No. 12. 289
American Chicle Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
American Chicle Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 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 Dyewood Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
American Hide and Leather Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
American Hide and Leather Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
American Investment Securities Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by for-
eign corporation. Pending.
American Investment Securities Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by for-
eign corporation. Pending.
American Investment Securities Company v. Commonwealth.
Petition to recover excise tax for the year 1913 paid by for-
eign corporation. Pending.
American Laundry Machinery Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1913 paid by foreign
corporation. Final decree.
American Piano Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
American Pneumatic Service Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
American Pneumatic Service Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
American Eadiator Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pinal decree.
290 ATTORXEY-^GEXERAL'S REPORT. [Jan.
American Radiator Company v. Commonwealth. Petition to re-
cover excise tax for the 3'ear 1912 paid by foreign corpora-
tion. Final decree.
American Radiator Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpora-
tion. Final decree.
American Steel and Wire Company of Xew Jersey v. Common-
wealth. Petition to recover excise tax for the year 1910
paid by foreign corporation. Final decree.
American Steel and Wire Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Final decree.
American Steel and Wire Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Final decree.
American Steel and Wire Company of Xew Jersey v. Common-
wealth. Petition to recover excise tax for the year 1913 paid
by foreign corporation. Final decree.
American Thread Company of Xew Jersey v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Final decree.
American Thread Company of Xew Jersey v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Final decree.
American Woolen Company v. Commonwealth. Petition to re-
cover excise tax for the years 1909 and 1910 paid by foreign
corporation. Final decree.
American Woolen Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Final decree.
American Woolen Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Final decree.
Ames Shovel and Tool Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
23oration. Pending.
Ames Shovel and Tool Company v. Commonwealth. Petition to
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Ames Shovel and Tool Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpora-
tion. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 291
Amoskeag Manufacturing Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1910 paid by foreign
corporation. Pending.
Amoskeag Manufacturing Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 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.
Arizona Commercial Copper Company v. Commonwealth. Peti-
tion to recover excise tax for the j^ear 1911 paid by foreign
corporation. Pending.
Arlington Five Cents Savings Bank, Attorney-General v. Peti-
tion for withdrawal of deposits under St. 1908, c. 590, p. 56.
Decree.
Armstrong Cork Company v. Commonwealth. Petition to re-
cover excise tax for the 3'ear 1911 paid by foreign corpora-
tion. Pending.
Armstrong Cork Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Armstrong Cork Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpora-
tion. Pending.
Asbestos Protected Metal Company v. Commonwealth. Petition
for abatement of franchise tax. Pending.
Ashland Emery and Corundum Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by for-
eign corporation. Pending.
Ashland Emery and Corundum Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Ashland Emery and Corundum Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1913 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.
Atlas Tack Company v. Commonwealth. Petition to recover
excise tax for the j^ear 1912 paid by foreign corporation.
Pending.
292 ATTORNEY-GENERAL'S REPORT. [Jan.
B. F. Goodrich Com23any v. Commonwealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Final decree.
B. T. Babbitt v. Commonwealth. Petition to recover excise tax
for the year 1914 paid by foreign corporation. Pending.
Babb, George W. P., executor of the will of Hannah D. Gaynor,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Ball, Eustace H., executor of the will of Harriet S. Ball, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Final decree.
Baltic Mining 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 1912 paid by foreign corporation.
Pending.
Barney, Alanson S., petitioner. Petition for registration of
title to land in Nantucket. Attorney- General waived right
to be heard.
Barrett, Josephine, et ah, petitioners. Petition for registration
of title to land in Dennis. Pending.
Bates Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Bates Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Beaman, Charles Hall, executor of the will of Charles Henry
Beaman, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
Belding Brothers & Co. v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Belding Brothers & Co. v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Belding, Eainsford W., et als., petitioners. Petition for registra-
tion of title to land. Attorney-General waived right to be
heard.
Bellows Falls Power Company v. Commonwealth. Petition for
abatement of franchise tax. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 293
Bentlev, Alice L., executrix of the will of Eli E. Bentley, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
Berry Brothers, Ltd. v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Berry Brothers, Ltd. v. Commonwealth. Petition to recover
excise tax for the year 1913 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.
Blair, Frank AY., administrator of the estate of Mary F. Blair,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Blake & Knowles Steam Pump Works v. Commonwealth, Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Bliss, Elmer J., et al., executors of the will of Eosilla Gould,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Bohemia Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Boston & Corbin Copper and Silver Mining Company v. Com-
monwealth. Petition to recover excise tax for the year 1912
paid by foreign corporation. Pending.
Boston & N'orthern Street Eailway Company. Claim for amount
expended in relaying water pipes in Washington Street,
Lynn, destroyed by electric currents. Pending.
Boston & Eoxbury Mill Corporation, petitioner for dissolution.
Petition of the Commonwealth for leave to intervene. Pend-
ing.
Boston & Worcester Street Eailway Company v. Board of Eail-
road Commissioners. Petition for • modification of ruling
by Eailroad Commissioners. Pending.
Boston Bedding Supply Company v. Commonwealth et al. Peti-
tion for assessment of damages alleged to have been caused
by the passage of legislation restricting the right to draw
water from the Charles Eiver during certain seasons. Pend-
ing.
294 ATTORNEY-GENERAL'S REPORT. [Jan.
Boston Sand & Gravel Company, petitioner. Petition for regis-
tration of title to land in Scituate. Decree.
Boston Securities Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid hy foreign corpora-
tion. Pending.
Boston Securities Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Bosw^orth, Charles 0., executor of the will of John P. Campion,
Attorne3^-General ex rel. v. Petition to recover inheritance
tax. Pending.
Boulevard Trust Company v. Commonwealth. Petition for
abatement of tax on deposits in savings department of trust
company. Pending.
Bourne, Inhabitants of, v. Public Service Commission et ah
Petition for writ of certiorari. Pending.
Bowles, Francis T., petitioner. Two petitions for registration of
title to land in Barnstable. Attorney-General waived right
to be heard on both petitions.
Bowman, Joseph W., v. Commonwealth. Petition for writ of
error. Pending.
Brackett, Arthur L., v. Commonwealth. Petition for assessment
of damages caused by the erection of the Anderson Bridge.
Charles K. Darling, John T. Swift and Joseph A. Conry
appointed commissioners. Pending.
Brady, Francis P., administrator d. h. n, of the estate of Bridget
German, Attorney- General ex rel. v. Petition to recover
inheritance tax. Final decree.
Breakwater Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Breakwater Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Bresnan, John H., administrator of the estate of Bridget Wall,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Bresnan, John H., administrator of the estate of Patrick Wall,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
1915.] PUBLIC DOCUMENT — No. 12. 295
Briggs, Benjamin F., v. Elmer A. Stevens, Treasurer and Ee-
ceiver-General. Appeal from decree of Land Court. Pend-
ing.
Brooks, Sarah H., et ah, executors of the will of Mary E. Braoks,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Brooks, William W., administrator of the estate of George S.
Smith, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
Brookside Mills v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pend-
ing.
Brookside Mills v. Commonwealth. Petition to recover excise
tax for the year 1913 paid by foreign corporation. Pend-
ing.
Brookside Mine v. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Pend-
ing.
Browning, Harry A., administrator of the estate of Harvey C.
Browning, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
Browning, King & Co. v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Bryne, Andrew W., et als. r. Commonwealth et al. Petition to
recover monev in hands of Commonwealth. Pendino^.
Bulkelev, "Morgan C, et al. v. Xew York, New Haven & Hart-
ford Eailroad Company and the Public Service Commis-
sion. Petition for annulment of an order of the Public
Service Commission approving the issue of certain deben-
ture bonds by the Xew York, Xew Haven & Hartford Rail-
road Company. Rescript.
Bullard, John C, executor of the will of Justina Dennison,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Bullard, John C, executor of the will of Sarah J. Hills, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Final decree.
Bullard, John D., petitioner. Petition for registration of title
to land in Hvde Park. Pendino-.
296 ATTORNEY-GENERAL'S REPORT. [Jan.
Bunzel, Gustave, Attorney- General ex rel. v. Bill in equity to
restrain the respondent from conducting the business of
slaughtering in Lexington. Pending.
Burke, Edmund, administrator of the estate of John Kelley,
Attorney-General ex rel. r. Petition to recover inheritance
tax. Pending.
Burke, William E., administrator of the estate of Margaret A.
Evans, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Decree.
Butchers' Slaughtering and Melting Association v. Common-
wealth. Petition for assessment of damages caused by the
erection of the Anderson Bridge. Charles K. Darling, John
T. Swift and Joseph A. Conry appointed commissioners.
Pending.
Caldwell, C. Chester, et ah, executors of the will of Joanna
Caldwell, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
Calumet k Hecla Mining Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Calumet & Hecla Mining Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Cambridgeport Savings Bank, Attorney-General v. Petition for
withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Campbell, Henry W., administrator of the estate of Sarah P.
Graves, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Dismissed.
Campbell, Louise H., et al., petitioners. Petition for registration
of title to land in Wareham. Pending.
Campbell, Louise H., petitioner. Petition for registration of
title to land in Wareham. Pending.
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.
Final decree.
Carmichael, James H., executor of the will of Oliver E. Willis,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
1915.] PUBLIC DOCUMENT — No. 12. 297
Casey, John F., v. Mar}' A. Smith et ah. Bill of complaint for
a writ of injunction enjoining the respondents from using
or occupying certain buildings located in Fitcliburg, im-
properly constructed. Disposed of.
Case}^, Mary N., et al., trustees, petitioners. Petition for regis-
tration of title to land in Billerica. Pending.
Centennial Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corjDoration. Pending.
Centennial Copper Mining Company r. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Chamber of Commerce of the State of New York v. New York
Central & Hudson Eiver Eailroad Company et als. Peti-
tion to intervene in differential rate cases. Disposed of.
Champion Copper Company r. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpo-
ration. Pending.
ChamjDion Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Champion Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Charles H. Schieren Company v. Commonwealth. Petition to
recover excise tax for the jeav 1911 paid by foreign corpo-
ration. Final decree.
Charlestown Trust Company v. Commonwealth. Petition for
abatement of tax on deposits in savings department of trust
company. Pending.
Chase, "William E., et ah., petitioners. Petition for registration
of title to land in Newburyport. Decree.
Chelsea Day Nursery and Children's Home v. Eufus S. Frost
General Hospital. Bill of complaint to com^Dcl defendant to
perform contract. Disposed of. *
Cheney Brothers v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
Cheney Brothers v. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Pending.
Chicopee, city of, v. Commonwealth. Claim for difference in
amount of monev allowed bv the State Board of Charity
298 ATTORNEY-GENERAL'S REPORT. [Jan.
and amount expended by the town in treatment of typhoid
patients. Pending.
Children's Health Fund, Attorney-General v. Information in
the nature of quo warranto to test the right of the corpora-
tion to continue to exercise its franchise as a charitable cor-
poration. Disposed of.
Childs' Dining Hall Comj^any v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Childs^ Dining Hall Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Churchill, Susan A., executrix of the will of John B. Churchill,
Attorney-General ex reh v. Petition to recover inheritance
tax. Disposed of.
City Institution for Savings, Lowell, Attorney-General i'. Peti-
tion for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Clapp, George W., executor of the will of Elmira S. Hinman, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Clark, Mary M., executrix of the will of Elizabeth N. Clark,
Attorney-General ex rel. v. Petition to recover inheritance
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. Worcester. To recover for land taken from
the Commonwealth. Pending.
Consolidation Coal Company v. Commonwealth. Petition to re-
cover excise tax for the year 1909 paid by foreign corpora-
tion. Disposed of.
Consolidation Coal Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Final decree.
Consolidation Coal Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Final decree.
Continental Gin Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
1915.] PUBLIC DOCUMENT — Xo. 12. 299
Continental Gin Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 jDaid by foreign corpora-
tion. Pending.
Continental Gin Company v. Commonwealth. Petition to re-
cover excise tax for the year 191 J: paid by foreign corpora-
tion. Pending.
Continental Mills v. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Pending.
Copper Eange Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
Copper Eange Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Copper Eange Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Copper Eange Consolidated Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Copper Eange Consolidated Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Copper Eange Consolidated Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1913 paid by foreign
corporation. Pending.
Costello, Michael W., executor of the will of Catherine Costello,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Creaden, William T., administrator of the estate of Nellie Eear-
don, Attorney-General ex rel. v. Petition to recover inherit-
ance tax. Pending.
Crossett, Lewis A., petitioner. Petition for registration of title
to land in Cohasset. Pending.
Cudahy Packing Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Curtis Publishing Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Decree.
300 ATTORNEY-GENERAL'S REPORT. [Jan.
Curtis Publishing Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Decree.
Curtis Publishing Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpora-
tion. Decree.
Damon, Daniel E., executor of the will of Maria L. Thompson,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Davis Sewing Machine Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Davis Sewing Machine Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Dean, John J., et ah, executors of the will of Thomas H. Buck-
ley, Attorney-General ex rel. v. Petition to recover inherit-
ance 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.
Dineen, Timothy, executor of the will of Julia Dineen, x\ttor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
di Pesa, Alfred, petitioner. Petition for registration of title to
land. Pending.
Dolan, Peter T., executor of the will of Nellie Young, Attorney-
General ex rel. v. Petition to recover inheritance tax. De-
cree.
Donahue, Abbie A., executrix of the will of Abbie McDonald,
Attorney-General ex rel. r. Petition to recover inheritance
tax. Pending.
Dorchester Trust Company r. Commonwealth. Petition for
abatement of tax on deposits in savings department of trust
company. Pending.
Draper Company v. Commonwealth. Petition to recover excise
tax for the year 1913 paid by foreign corporation. Final
decree.
Drohan, John, executor of the will of Anastasia Clapp, Attor-
ney-General ex rel. r. Petition to recover inheritance tax.
Pending.
1915.] PUBLIC DOCUMENT — No. 12. 301
Buddy, Josei^li H., jDetitioner. Petition for writ of habeas
corpus. Pending before the full court.
Dunham, Etta E., petitioner. Petition for writ of habeas corpus.
Dismissed.
Eagleston, Allen P., petitioner. Petition for registration of
title to land in Gay Head. Pending.
East Boston Company v. Directors of the Port of Boston. Writ
of entry. Pending.
East Butte Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1910 paid by foreign
corporation. Pending.
Easl Butte Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
East Butte Copper Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1913 paid by foreign
corporation. Pending.
East Cambridge Savings Bank, Attorney-General v. Petition
for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Eastman, Charles Albert, v. Board of Eegistration in Medicine.
Bill in equity to enjoin Board from revoking certificate.
Pending.
Edgerly, Erank H., et ah v. Cattle Bureau. Bill to recover for
horse killed by order of Cattle Commissioner under E. L.,
c. 90. Pending.
Edwards Manufacturing Company i\ Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Edwards Manufacturing Company v. Commonwealth. Petition
to recover excise tax for the year 1911 i^aid by foreign cor-
poration. Pending.
Elm Eiver Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Ennis, John D., et al., administrators of the estate of Edmund
Walsh, Attorney- General ex rel. v. Petition to recover in-
heritance tax. Pending.
Everton, Elfonso L, administrator of the estate of Charles H.
Dimond, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
302 ATTORNEY-GENERAL'S REPORT. [Jan.
F. Blumenthal Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Fairbanks Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Fairbanks Company r. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Farley, John, executor of the will of Maria A. Giddings, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Final decree.
Farr Alpaca Company v. Commonwealth. Petition for abate-
ment of franchise tax for the year 1912. Pending.
Farwell, John W., petitioner. Petition to register title to land
in Melrose. Attorney-General waived right to be heard.
Fidelity Trnst Company v. Commonwealth. Petition for abate-
ment of tax on deposits in savings department of trust
company. Pending.
Field, John Q. A., executor of the will of Caroline Wood, Attor-
nej'-General ex rel. v. Petition to recover inheritance tax.
Pending.
Fields, Annie, v. Charles Eiver Basin Commission. Bill to
enjoin Commonwealth from interfering with riparian rights
on Charles River. Pending.
Fishley, Cora 0., executrix of the will of Edward E. Fishley,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Fitts, Frank E., executor of the will of Harriet X. Fitts, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Final decree.
Fleming, Henry E., v. State Board of Health. Appeal from an
order of the State Board of Health in regard to the use of
ice cut from Flax Pond. Pending.
Foss-Hughes Company v. Commonwealth. Petition for abate-
ment of franchise 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 Trust Company v. Commonwealth. Petition for
abatement of tax on deposits in savings department of trust
company. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 303
Franklin County Trust Company v. Commonwealtli. Petition
for abatement of tax on deposits in savings department of
trust company. Pending.
Franklin Mining Company v. Commonwealth. Petition to re-
cover excise tax for the 3'ear 1911 paid by foreign corpora-
tion. Pending.
Franklin Mining Company r. Commonwealth. Petition to re-
cover excise tax for the 3'ear 1913 paid by foreign corpora-
tion. Pending.
Frazer, Charles F., executor of the will of Emma T. Cotton,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Free Home for Consumptives, Attorney-General v. Information
in the nature of quo warranto to annul the charter of the
respondent because of the misuse of its charter privileges
and franchises. Dismissed.
Frontenac Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Frontenac Copper Company r. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Fuller, Edgar S., petitioner. Petition for registration of title
to land in Falmouth. Pending.
Galena Signal Oil Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Galena Signal Oil Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpoi'a-
tion. Pending.
Gamash, David, petitioner. Petition for registration of title to
land in Ludlow. Pending.
Gamewell Fire Alarm Telegraph Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by for-
eign corporation. Pending.
Gamewell Fire Alarm Telegraph Company v. Commonwealtl].
Petition to recover excise tax for the year 1913 paid by for-
eign corporation. Pending.
Genzale, Michelina, petitioner. Petition for writ of habeas
corpus. Petition dismissed.
304 ATTORNEY-GENERAL'S REPORT. [Jan.
Georgia Home Insurance Company v. Commonwealth, xlction
to compel Treasurer and Receiver-General to return bond
deposited with him by said company. Pending.
Gorton-Pew Fisheries Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Gorton-Pew Fisheries Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Grace, William F., administrator of the estate of Nora Kelly,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Grant, Robert, Judge of Probate, v. William W. Risk et al.
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.
Gratiot Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Gratiot Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1912 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 Atlantic & Pacific Tea Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Great Western Cereal Company v. Commonwealth. Petition to
recover excise tax for the 3'ear 1910 paid by foreign cor-
poration. Pending.
Griffith, Mary, executrix of the will of Christopher Foster, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Gutta-Percha and Rubber Manufacturing Company v. Common-
wealth. Petition to recover excise tax for the year 1912
paid by foreign corporation. Pending.
Hale, Josiah L., executor of the will of Pauline H. Patterson,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 305
Hamlin, Katharine B., petitioner. Petition for registration of
title to land in Marion. Pending.
Harmon, Eollin, H., Judge of Probate, v. Samuel D. Hildretli
et al. Action to recover on administrators' bond. Pending.
Harrington, Charles C, executor of the will of Elizabeth A.
Harrington, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Hastings, George A., r. Commonwealth. Petition to recover un-
claimed bank deposit in the hands of the Treasurer. Dis-
posed of.
Hatch, Elizabeth M., et ah, petitioners. Petition for registration
of title to land in Bourne. Pending.
Havens, Jennie E., administratrix of the estate of Katherine L.
Mooney, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
Haverhill Gas Light Company v. Forrest E. Barker et cds., Board
of Gas and Electric Light Commissioners et al. Bill of
complaint brought in the United States Circuit Court to
restrain the Board of Gas and Electric Light Commissioners
from enforcing an order in regard to the price of gas.
Disposed of.
Haverhill Gas Light Company, Attorney-General v. Informa-
tion in equity to restrain respondent from transferring its
franchises and property. Eescript.
Healy, Mary, executrix of the will of Patrick Healy, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Pending.
Hecker-Jones-Jewell Milling Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Hecker-Jones-Jewell Milling Company r. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Hecker-Jones-Jewell Milling Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1918 paid by foreign
corporation. Pending.
Henry K. Wampole & Co., Inc., i'. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Hewitt, Fred L., petitioner. Petition for registration of title
to land in Salisburv. Decree.
306 ATTORNEY-GENERAL'S REPORT. [Jan.
Hill, Annie Leslie, petitioner. Petition for registration of title
to land in Webster. Pending.
Hill, Sarah T., executor of the will of Pvowena Hill, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
Holden, Maria, executrix of the will of Alice Maher, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
Holden, Nicholas F., v. Civil Sen'ice Commission. Petition for
writ of mandamus to compel the respondents to authorize
the reinstatement of the petitioner as a member of the police
department of Worcester. Pending.
Hollingsworth, Ellis, petitioner. Petition for registration of
title to land in Marblehead. Decree.
Holmes, Thankful A., executrix of the will of James Churchill,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Holt, Frank W., administrator of the estate of Elizabeth C.
Moulton, Attorney-General ex rel. v. Petition to recover
inheritance tax. Dismissed.
Hong, Harry Eng, jDetitioner. Petition for writ of habeas
corpus. Rescript from Circuit Court of Appeals dismissing
petition.
Houghton Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Houghton Coj^per Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Houghton, Neidhard H., administrator of the estate of Julius
H. Houghton, Attorne}'- General ex rel. v. Petition to re-
cover inheritance tax. Pending.
Hoyt, Grover C, v. Alfred W. Donovan et als., Petition for
writ of mandamus to compel the State Board of Labor and
Industries to reinstate the petitioner as its secretary. Re-
served for the full court.
Ingraham, Leonidas H., executor of the will of Mary A. Ingra-
ham, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Final decree.
International Paper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1914 jDaid by foreign corpora-
tion. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 307
Isle Eo3'ale Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Isle Eoyale Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Jackson Company v. Commonwealth. Petition to recover excise
tax for the year 1910 paid by foreign corporation. Pending.
Jackson Company r. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
Jackson, Ethel M., administratrix of the estate of George F.
Bailey, Attorney-General ex reJ. v. Petition to recover in-
heritance tax. Final decree.
Jacob Dold Packing Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpora-
tion. Pending.
James Cunningham Son & Co., v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
James Cunningham Son & Co., v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Jaynes Drug Company v. William S. Flint et als., constituting
the Board of Eegistration in Pharmacy. Petition for writ
of mandamus to compel said Board to grant a permit to
the petitioner to transact a retail drug business in Pittsfield.
Writ issued.
Jenney, E. C, executor of the will of Maria P. Stark, Attorney-
General ex rel. v.. Petition to recover inheritance tax.
Pending.
Jennings, Malachi L., administrator of estate of Mary McGee-
han, Attorney-General ex rel. v. Petition to recover inherit-
ance tax. Pending.
John L. Whiting-J. J. Adams Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
John L. Whiting-J. J. Adams Company v. Commonwealth. Pe-
tition to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Johnson, Susan M., petitioner. Petition for registration of
title to land in Tisbury. Decree.
308 ATTORNEY-GENERAL'S REPORT. [Jan.
JudkinSj C. Ernest^ executor of the will of Gertrude I. Sawyer,
Attorney- General ex rel. v. Petition to recover inheritance
tax. Final decree.
Kelley, Hannah, executrix of the will of Martin T. Walsh, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Dismissed.
Kelly, Charles A., et ah., executors of the will of Anna. E, Mon-
gan, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Final decree.
Kempton, Francis H., administrator of the estate of Maria M.
Lindsey, Attorney-General ex rel. v. Petition to recover
inheritance tax. Dismissed.
Kernwood Country Club, petitioner. Petition for registration
of title to land in Salem. Pending.
Keyes, Charles D., administrator d. h. n. of the estate of Eliza
A. DeShon, Attorney-General ex rel. v. Petition to recover
inheritance tax. Decree.
Keymes, William, administrator of the estate of James Keymes,
V. Commonwealth. Petition to recover bank deposit in the
hands of the Treasurer. Pending.
Keystone Watch Case Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Final decree.
Keystone Watch Case Company v. Commonwealth. Petition to
recover excise tax for the 3'ear 1913 paid by foreign corpora-
tion. Final decree.
Keystone Watch Case Company v. Commonwealth. Petition to
recover excise tax for the year 1914 paid by foreign corpora-
tion. Final decree.
King Philip Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Laedlein, Abby M., petitioner. Petition for registration of title
to land in Framingham. Attorney-General waived right to
be heard.
Lafayette Savings Bank, Augustus L. Thorndike, Bank Commis-
sioner, V. Information to restrain the respondent from
further prosecution of its business. Pending.
Lake Copper Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
1915.] PUBLIC DOCOIEXT — No. 12. 309
Lake Copper Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Lake Milling, Smelting and Eefining Company v. Common-
wealth. Petition to recover excise tax for the year 1911
paid by foreign corporation. Pending.
Lake Milling, Smelting and Eefining Company v. Common-
wealth. Petition to recover excise tax for the year 1912
paid by foreign corporation. Pending.
Lake Superior Smelting Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Lamont-Corliss Company v. Commonwealth. 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 1912 paid by foreign corporation.
Pending.
Lamson Consolidated Store Service Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
Lanston Monotype Machine Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Lanston Monotype Machine Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Lanston Monotype Machine Company r. Commonwealth. Peti-
tion to recover excise tax for the year 1913 paid by foreign
corporation. Pending.
Lanston Monotype Machine Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1914 paid by foreign
corporation. Pending.
LaSalle Copper Company v. Commonwealth. Petition to recover
excise tax for the year 1910 paid by foreign corporation.
Pending.
LaSalle Copper Company v. Commonwealth. Petition 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 1912 paid by foreign corporation.
Pending:.
310 ATTORNEY-GENERAL'S REPORT. [Jan.
LaSalle Copper Company v. Commonwealth. Petition to recover
excise tax for the 3'ear 1913 paid by foreign corporation.
Pending.
Laurinm Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Laurinm Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Lawrence Trnst Company v. Commonwealth. Petition for abate-
ment of tax on deposits in savings department of trust
company. Pending.
Lawton, Isaac M., executor of the will of Daniel T. Lawton,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Lee, Charles F., trustee, petitioner. Petition for registration of
title to land in Beverly. Decree.
Leland, Percy F., petitioner. Petition for registration of title to
hind in Ashland. Decree.
Lever Brothers Com^Dany v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Lever Brothers Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Libby, George ^Y., administrator of the estate of Oliver Libby,
Attorney- General ex rel. v. Petition to recover inheritance
tax. Pending.
Library Bureau r. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Final
decree.
Lilu'ary Bureau v. Commonwealth. Petition to recover excise
tax for the year 1913 paid by foreign corporation. Final
decree.
Liquid Carbonic Company, The, r.. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Liquid Carbonic Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpo-
ration. Pendinor.
1915.] PUBLIC DOCUMENT — No. 12. 311
Liquid Carbonic Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpo-
ration. Pending.
Lithuanian Alliance of America, Attorney-General ex rel. v.
Information at the relation of the Insurance Commissioner
for violation of insurance laws. Injunction issued.
Locomobile Company of America v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Locomobile Company of America r. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Locomobile Company of America v. Commonwealth. Petition
to recover excise tax for the year 1913 paid by foreign
corporation.
Long, John D., petitioner. Petition for registration of title to
land in Hingham. Pending.
Lowell Five Cents Savings Bank, Attorney-General v. Petition
for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Lowell Institution for Savings, Attorney-General r. Petition
for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Lundagen, Mary, executrix of the will of Lawrence Lundagen,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Lyons, John P., Attorney-General v. Petition for the use of the
Attorney-General's name in an information in the nature of
quo warranto to test the right of the respondent to be
granted a permit to transport intoxicating liquors in the
city of Brockton. Use of name allowed.
Maguire, William C, executor of the will of Margaret Dowden,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Decree.
Mahar, Joseph P., executor of the will of Thomas J. Eehill,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Mahone}^, Patrick, executor of the will of John Hart, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
312 ATTORNEY-GENERAL'S REPORT. [Jan.
Mallev, Edward B., executor of the will of Dennis F. McCloskey,
Attorne3'-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Manchester^ Abraham, executor of the will of Abraham E. Man-
chester, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Manitou Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1910 paid by foreign corpora-
tion. Pending.
Manitou Mining Com23any v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Mann, Edwin M., petitioner. Petition for registration of title
to land. Pending.
Marchant, Charles B., executor of the will of Edna L. Hinckley,
Attorne3'-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Marconi Wireless Telegraph Company of America v. Common-
wealth. Petition to recover excise tax for the year 1913
paid by foreign corporation. Final decree.
Marconi Wireless Telegraph Company of America v. Common-
wealth. Petition to recover excise tax for the year 1914
paid by foreign corporation. Final decree.
Marlborough Savings Bank, Attorney-General v. Petition for
withdrawals of deposits under St. 1908, c. 590, § 56. De-
cree.
Massachusetts Catholic Order of Foresters v. Elmer A. Stevens,
Treasurer and Receiver-General. Petition for writ of man-
damus to compel respondent to deliver securities to peti-
tioner. Disposed of.
Massachusetts Consolidated Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
Massachusetts Consolidated Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
Massachusetts Institute of Technology v. Boston Society of Natu-
ral History, et als. Petition brought in the Land Court
for instructions as to certain alleged easements in land
bounded by Berkeley, Boylston, Clarendon and Newbury
streets, Boston. Decree.
1915.] PUBLIC DOCUMENT — No. 12. 313
Massachusetts Trust Company v. Commonwealth. Petition for
abatement of tax on deposits in savings department of
trust company. Pending.
Mayflower Mining Company v. Commonwealth. Petition to re-
cover excise tax for tlie year 1911 paid by foreign corpora-
tion. Pending.
Mayflower Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
McCann, Charles J., et al. v. Charles Warren et ah.. 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.
McCauley, George D., petitioner. Petition for registration of
title to land in Springfield. Pending.
McClusky, Clara B., executrix of the will of Annie B. Dunn,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Dismissed.
McDonald, Theodore H., Insurance Commissioner of Connecti-
cut, V. The ^tna Indemnity Company. Intervening peti-
tion of the Commonwealth of Massachusetts. Pending.
McGee, Patrick S., petitioner. Petition for registration of title
to land in Attleborough. Pending.
McGuirk, Ann, executrix of the will of Terrence Farley, Attor-
ne3'-General ex rel. v. Petition to recover inheritance tax.
Pending.
Mclntire, Charles H., trustee under the will of Maria T. Clark,
Attornej'-General ex rel. v. Petition to recover inheritance
tax. Pending.
McLoughlin, Francis J., petitioner. Petition for registration of
title to land in Becket. Attorney-General waived right to
be heard.
Mead-Morrison Manufacturing Company v. Commonwealth.
Petition to recover excise tax for the 3^ear 1912 paid by
foreign corporation. Final decree.
Mechanics Savings Bank, Lowell, Attorney-General v. Petition
for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Medford Trust Company v. Commonwealth. Petition for abate-
ment of tax on deposits in savings department of trust com-
pany. Pending.
314 ATTORNEY-GENERAL'S REPORT. [Jan.
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. Reserved
for full court. Pending.
Michigan Smelting Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Midvale Steel Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Midvale Steel Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Moore, Mary, executrix of the will of Ellen M. Aston, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
Moore, William H., et dl., executors of the will of Edward W.
Murray, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Morgan, William M., et ah, administrators of the estate of
Charles A. Mitchell, Attorney-General ex rel. v. Petition to
recover inheritance tax. Final decree.
Morrill, Ellen A., et al., executors of the will of Emetine E.
Coolidge, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Disposed of.
Murphv, Mary E., executor of the will of Delia Martin, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
Murphy, Mary L., executrix of the will of Annie M. Crowdle,
x^ttorney- General ex rel. v. Petition to recover inheritance
tax. Decree.
Murphy, Michael, v. Harrie W. Pierce, Agent of the Commis-
sioner of Animal Industry. Claim for damages for death
of horse. Pending.
Murray, James H., petitioner. Petition for registration of title
to land in Salisbury. Pending.
X. K. Fairbank Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Final decree.
1915.] PUBLIC DOCUMENT — No. 12. 315
N. K. Fairbank Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Final decree.
N^. Iv. Fairbank Company v. Commonwealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Final decree.
Xantucket Cranberry Company, petitioner. Six petitions for
registration of title to land in Nantucket. Pending.
Nashua Manufacturing Company v. Commonwealth. Petition
to recover excise tax for the year 1910 paid by foreign cor-
poration. Pending.
Nashua Manufacturing Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Natick Five Cents Savings Bank, Attorney-General v. Petition
for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
National Casket Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
National Casket Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
National Contracting Company v. Commonwealth. Petition to
recover under E. L., c. 201. Pend'ing.
National Mercantile Compan}^ Limited, xlttorney-General v.
Information in the nature of quo ivarranto for violation of
St. 1904, c. 427. Injunction issued.
New England Maple Syrup Company v. Henry P. Walcott
et als. Bill in equity for an injunction. Pending.
Newport Fisheries, Ice and Cold Storage Company v. Common-
wealth. Petition for abatement of franchise tax for the
year 1912. Pending.
Newton, Frank B., v. Commonwealth. Petition for assessment
of damages alleged to have been sustained by reason of the
erection of a bridge across the Neponset Eiver. Pending.
Nickerson, Horace W., et al., petitioners. Petition for registra-
tion of title to land in Barnstable. Pending.
Norcross, Joseph E., administrator of the estate of Charles F.
Aldrich, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Decree.
316 ATTORNEY-GENERAL'S REPORT. [Jan.
Norman, Archibald AY., administrator of the estate of AYalter
Albert Norman v. Commonwealth. Petition to recover bank
deposit in hands of the Treasurer. Decree.
North End Savings Bank, Boston, Attorney-General v. Peti-
tion for withdrawal of deposits nnder E. L., c. 113, § 55.
Decree.
Northwestern Consolidated Milling Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
Northwestern Consolidated Milling Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
Northwestern Consolidated Milling Company v. Commonwealth.
Petition to recover excise tax for the year 1913 paid by for-
eign corporation. Pending.
Noyes, George E., petitioner. Petition for registration of title
to land in Swampscott. Pending.
Nye, Helen M. S., executrix of the will of Sarah E. Lane, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
O'Connor, James B., administrator. of the estate of Patrick H.
O'Connor, Attorney-General ex rel. v. Petition to recover
inheritance tax. Final decree.
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.
Odd Fellows Beneficial Corporation of Southern Massachusetts,
Attorney- General ex rel. v. Information at the relation of
the Insurance Commissioner for violation of insurance laws.
Injunction issued.
Old Colony Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Old Colony Coj^per Company r. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Old Colony Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign cor-
poration. Pending.
Old Colony Trust Company v. Commonwealth. Petition for
abatement of tax on deposits in savings department of trust
company. Pending.
1915.] PUBLIC DOCUMENT — Xo. 12. 317
Oliver Typewriter Comj^any v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpora-
tion. Pending".
Oliver Typewriter Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Oliver Typewriter Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpora-
tion. Pending.
Oliver Typewriter Company v. Commonwealth. Petition to
recover excise tax for the year 1914 paid by foreign corpora-
tion. Pending.
Order United Hebrews of America, Attorney-General ex rel. v.
Information at the relation of the Insurance Commissioner
for violation of insurance laws. Injunction issued and
Eleazer Freedman, Esq., appointed temporary receiver.
Osceola Consolidated Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Osceola Consolidated Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1912 paid by foreign
corporation. Pending.
Osceola Consolidated Mining Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1913 paid by foreign
corporation. Pending.
Owens, Fannie M., administratrix of the estate of Lucy Jones,
Petitioner. Petition to recover bank deposit in hands of
the Treasurer. Decree.
Oxford Linen Mills v. Commonwealth. Petition to recover ex-
cise tax for the year 1911 paid by foreign corporation.
Dismissed.
Oxford Linen Mills v. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Dis-
missed.
Parker, Galen A., executor of the will of Martha E. Temple,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Parmenter, Freeman A., petitioner. Petition for registration of
title to land in Dover. Decree.
Patten, Ina F., administratrix of the estate of Carrie M. Fitz,
xlttorney- General ex rel. v. Petition to recover inheritance
tax. Pending.
318 ATTORNEY-GENERAL'S REPORT. [Jan.
Perkins, Charles F., administrator of the estate of Amos E.
Aldrich, iVttorney-General ex reJ. v. Petition to recover
inheritance tax. Decree.
Pierce, George H., et al., petitioners. Petition for registration
of title to land in Manomet. Pending.
Pillsbury Flour Mills Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Pillsbury Flour Mills Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Pillsbury Flour Mills Company v. Commonwealth. Petition to
recover excise tax for the year 191-1 paid by foreign corpo-
ration. Pending.
Piper, Edith B., executrix of the will of Frederick B. Fanning,
Attorney-General ex rel. r. Petition to recover inheritance
tax. Pending.
Piatt, James C, et al., executors of the will of Margaret J.
Piatt, Attorney-General ex rel. v. Petition to recover in-
heritance tax. Final decree.
Plymouth County Trust Company v. Commonwealth. Petition
for abatement of tax on deposits in savings department of
trust company. Pending.
Pocahontas Fuel Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign coq^ora-
tion. Final decree.
Poole, Clara I., petitioner. Petition for registration of title to
land in Weymouth. Pending.
Pope Manufacturing Company, The, v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
Powers, James F., Attorney-General r. Petition for use of the
Attorney-Generars name in an information in the nature of
quo warranto to test the respondent's right to act as over-
seer of outdoor work in the city of Brockton. Use of name
allowed.
Purinton, Charles S., petitioner. Petition for registration of
title to land in Plymouth. Pending.
Quaker Oats Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
1915,] PUBLIC DOCUMENT — Xo. 12. 319
Quaker Oats Company v. Commomvealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Pending.
Quirk, Charles L, executor of the will of William Byrne, Attor-
ney-General ex rel. v. Petition to recover inheritance tax.
Pending.
Eamsdell, Hattie, petitioner. Petition for writ of habeas corpus
for discharge of Elton Eamsdell et ah. from the custody of
the State Board of Charity. Petition dismissed.
Eatlibun, Charles B., petitioner. Petition for registration of
title to land in Canton. Decree.
Eedfern, Mary E., petitioner. Petition for registration of
title to land in Swampscott. Pending.
Eeed, Andrew P., et ah, petitioners. Petition in equity for re-
moval of certain restrictions on land, Xantasket Beach
Eeservation. Decree.
Eegal Shoe Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Eegal Shoe Company v. Commonwealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Pending.
Eeilly, Margaret, executrix of the will of John Eeilly, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
Eeilley, William J., et ah, executors of the will of Charles A.
Goessman, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Eice & Hutchins, Incorporated, v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpo-
ration. Pending.
Eice & Hutchins, Incorporated, v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
Eichards, Fred J., et ah, petitioners. Petition for registration
of title to land in Springfield. Pending.
Eichardson Silk Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Eichardson Silk Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
320 ATTORNEY-GENERAL'S REPORT. [Jan.
Richardson Silk Compan}^ v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid hy foreign corpora-
tion. Pending.
Richmond, Charles P., petitioner. Petition for registration of
title to land in Wareham. Decree.
Riley, Richard G., v. Commonwealth of Massachusetts. Writ of
error to the Superior Court of Bristol County to set aside a
conviction for violation of the law governing the employ-
ment of women in factories. Mandate from Supreme Court
of the United States.
Ripley, Mary Ella, executrix of the will of Sarah B. King, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Ritchie, Christina, v. Treasurer and Receiver-General. Action
of contract under R. L., c. 128, § 96. Pending.
Roche, Teresa G., administratrix of the estate of Mary A. Roche,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Pending.
Rockland-Rockport Lime Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Rogers, Harlow H., petitioner. Petition for registration of title
to land in Marlboro. Attorne3'-General waived right to be
heard.
Ross, John H., petitioner. Petition for registration of title to
land in Hingham. Pending.
Rouillard, Cora L., executrix of the will of Sarah A. Gillett,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Dismissed.
Russell, Herbert J., et ciL, executors of the will of George H.
Russell, Attorne3-General ex rel. v. Petition to recover in-
heritance tax. Dismissed.
Russell-Miller Milling Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpo-
ration. Pending.
Russell-Miller Milling Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
S. S. White Dental Manufacturing Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
1915.] PUBLIC DOCUMENT — No. 12. 321
Saxonville Mills, petitioiier. Petition for registration of land
in Framingham. Decree.
Schaefer, Gustav, petitioner. Petition for registration of title
to land in Billerica. Pending.
Scott, Joseph P., et ah, administrators of the estate of Eobert
W. Scott, Attorney-General ex rel. v. Petition to recover
inheritance tax. Pending.
Seager Engine Works v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Sealshipt Oyster System v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Sealshipt Oyster System r. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Seneca Mining Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Shannon Copper Company v. Commonwealth. Petition to re-
cover excise tax for the 3'ear 1910 paid by foreign corpora-
tion. Pending.
Shannon Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Shapleigh, Samuel B., executor of the will of Ellen L. Shap-
leigh, Attorney-General ex reh v. Petition to recover in-
heritance tax. Pending.
Shattuck, Joseph, et ah v. City of Lawrence et ah Petition for
abatement of tax on personal property illegally assessed.
Disposed of.
Shepard & Morse Lumber Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Final decree.
Silver Fox Eanching Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpo-
ration. Final decree.
Simonds, Leon M., petitioner. Petition for registration of title
to land in Princeton and Holden. Decree.
Simons, Charles L., v. Commonwealth. Claim for reward
offered by Commonwealth for apprehension of the murderer
of Martha B. Blackstone. Pending.
322 ATTORNEY-GENERAL'S REPORT. [Jan.
Simpson, Esther P., petitioner. Petition for registration of title
to land in Chelmsford. Pending.
Skehill, Patrick J., administrator of the estate of John E. Ske-
hill, Attorne3'-General ex reJ. v. Petition to recover in-
heritance tax. Pending.
Slade, Ruthven Tucker v. Commonwealth. Petition to recover
bank deposit in hands of Treasurer. Decree.
Smith & Dove Manufacturing Company v. Commonwealth. Pe-
tition to recover excise tax for the 3'ear 1911 paid by for-
eign corporation. Pending.
Smith, Louisa, executrix of the will of George Smith, Attorney-
General ex rel. v. Petition to recover inheritance tax.
Final decree.
Sons of Freedom, Incorporated, Attorney-General ex rel. v.
Infonnation at the relation of the Insurance Commissioner
for violation of insurance laws. Injunction issued and
Thomas D. Lavelle, Esq., appointed receiver.
Sousa, Rosa Emily, executrix of the will of Joseph L. Matthews,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
South Lake Mining Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pending.
South Lake Mining Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Sprague, Charles M., executor of the will of Alonzo Miller, At-
torney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Springfield Breweries Company v. Commonwealth. Petition to
recover excise tax for the j^ear 1912 paid by foreign corpo-
ration. Pending.
Springfield Breweries Company v. Commonwealth. Petition to
recover excise tax for the year 1913 paid by foreign corpo-
ration. Pending.
Springfield Mutual Disability Company et ah, Attorney-General
ex rel. v. Information at the relation of the Insurance
Commissioner for violation of insurance laws. Injunction
issued and Judd Dewey, Esq., appointed receiver.
St. Mary's Mineral Land Company v. Commonwealth. Peti-
tion to recover excise tax for the year 1911 paid by foreign
corporation. Pending.
1915.1 PUBLIC DOCUMENT — No. 12. 323
St. Mary's Mineral Land Company v. Commonwealth. Peti-
tion to recover excise tax for the jesiv 1912 paid by foreign
corporation. Pending.
Stafford Company v. Commonwealth. Petition 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 1913 paid by foreign corporation. Pending.
Standard Plunger Elevator Company v. Commonwealth. Peti-
tion to recover excise tax for the 5^ear 1912 paid by foreign
corporation. Pending.
Stoughton Mills, Incorporated, Attorney-General ex rel. v. Bill
in equity to enjoin defendant from discharging waste into
Neponset Eiver. Pending.
Submarine Signal Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Submarine Signal Company v. Commonwealth. Petition to re-
cover excise tax for the year 1913 paid by foreign corpo-
ration. Pending.
Sugden Press Bagging Company, petitioner. Petition for regis-
tration of title to land in West Chelmsford. Pending.
Sullivan, Ellen E., executrix of the will of Daniel O'Connell,
Attorney-General ex reJ. v. Petition to recover inheritance
tax. Final decree.
Sullivan, Mary, v. Commonwealth. Petition to recover bank
deposit in hands of Treasurer. Pending,
Superior Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Superior Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Swampscott, Town of, v. Richard L. Beyer. Appeal from order
of inspector of factories and public buildings. Pending.
Tamarack Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Tamarack Mining Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pendins:.
324 ATTORNEY-GENERAL'S REPORT. [Jan.
Taylor, Louis C, executor of the will of "William J. Ta3^1or,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Trimonntain Mining Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Trimonntain Mining Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Turley, Thomas J., et ah, administrators of the estate of Mary
Benson, Attorne3'-General ex rel. v. Petition to recover in-
heritance tax. Pending.
Tuttle, Frank J., administrator c. t. a. of the estate of William
H. Chick, Attorney-General ex rel. v. Petition to recover
inheritance tax. Dismissed.
Tnttle, Horace F., petitioner on behalf of Isabella M. Brooks.
Petition for discharge from AYestborough State Hospital.
Pending.
Underwood, Henry 0., petitioner. Petition for registration of
title to land in Nantucket. Pending.
Union Copper Land and Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1911 paid by
foreign corporation. Pending.
Union Copper Land and Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1912 paid by
foreign corporation. Pending.
Union Copper Land and Mining Company v. Commonwealth.
Petition to recover excise tax for the year 1913 paid by
foreign corporation. Pending.
Union Curled Hair Company v. Commonwealth. Bill in equity
to restrain the State Department of Health from trespassing
upon land of the petitioner. Disposed of.
Union News Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
L^nion News Company v. Commonwealth. Petition to recover
excise tax for the year 1913 paid by foreign corporation.
Pending.
Union Square Methodist Episcopal Church, petitioner. Peti-
tion to register title to land in Charlestown. Decree.
1915.] PUBLIC DOCUMENT — Xo. 12. 325
United States Volunteer Life Saving Corps of Volunteer Life
Savers, Attorney-General v. Information in the nature of
quo warranto to annul the charter of the resjDondent because
of misuse of its charter privileges and franchises. Pending.
United States Worsted Company, Attorney-General v. Action of
contract to compel payment of filing fee. Pending.
L^pliam, George F., petitioner. Petition for registration of title
to land in Xorth Brookfield. Attorney-general waived right
to be heard.
Valvoline Oil Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
Valvoline Oil Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
Van Greenberg, Frank J., petitioner. Petition for registration
of title to land in Lowell. Pending.
Victoria Copper Mining Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Victoria Copper Mining Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Victoria Copper Mining Company v. Commonwealth. Petition
to recover excise tax for the yeav 1913 paid by foreign cor-
poration. Pending.
Viets, Samuel D., administrator of the estate of James H. Viets,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Vining, Floretta, executrix of the will of Elizabeth Jacobs, At-
torne3'-General ex rel. v. Petition to recover inheritance
tax. Pending.
W. L. Douglas Shoe Company v. Commonwealth. Petition to
recover excise tax for the year 1912 paid by foreign corpo-
ration. Pending.
Walen, William W., administrator of the estate of Almira C.
Walen, Attorney-General ex rel. r. Petition to recover in-
heritance tax. Pending.
Walkley, Mary Xesbit, petitioner. Petition for registration of
title to land in Lee. Decree.
326 ATTORNEY-GENERAL'S REPORT. [Jan.
Walling^ Area, administrator of the estate of Whipple Caswell,
Attorney-General ex rel. v. Petition to recover inheritance
tax. Final decree.
Walpole Rubber Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Walpole Rubber Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
Waltham Savings Bank, Attorney-General v. Petition for with-
drawal of deposits under St. 1908, c. 590, § 56. Decree.
Ward Baking Company v. Commonwealth. Petition to recover
excise tax for the year 1914 paid by foreign corporation.
Pending.
Watt, William D., executor of the will of Mary J. Pierson, At-
torne}'- General ex rel. v. Petition to recover inheritance tax.
Pending.
Webster, Anna C. M., petitioner. Petition for registration of
title to land in Beverly. Pending.
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. 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.
Welsbach Street Lighting Company of America r. Common-
Yv^ealth. Petition to recover excise tax for the year 1912
paid by foreign corporation. Pending.
Westinghouse, Church, Kerr & Co. v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
Westinghouse, Church, Kerr & Co. v. Commonwealth. Petition
to recover excise tax for the year 1912 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.
Whitall-Tatum Company v. Commonwealth. Petition to recover
excise tax for the year 1911 paid by foreign corporation.
Pending.
1915.] PUBLIC DOCUMENT — No. 12. 327
Whitall-Tatum Company v. Commonwealth. Petition to recover
excise tax for the year 1912 paid by foreign corporation.
Pending.
White Company v. Commonwealth. Petition to recover excise
tax for the year 1911 paid by foreign corporation. Pending.
White Company v. Commonwealth. Petition to recover excise
tax for the year 1912 paid by foreign corporation. Pending.
White Company v. Commonwealth. Petition to recover excise
tax for the year 1913 paid by foreign corporation. Pending.
White Pine Copper Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
White Pine Copper Company v. Commonwealth. Petition to
recover excise tax for the 3^ear 1912 paid by foreign cor-
poration. Pending.
White Sewing Machine Company v. Commonwealth. Petition
to recover excise tax for the year 1911 paid by foreign cor-
poration. Pending.
W^hite Sewing Machine Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Pending.
Whittemore, Charles, petitioner. Petition for registration of
title to land in Wareham. Pending.
Willett, Lewis, petitioner. Petition for registration of title to
land in Newbiiryport. Pending.
William L. Gilbert Clock Company v. Commonwealth. Petition
to recover excise tax for the 3^ear 1911 paid by foreign cor-
poration. Final decree.
William L. Gilbert Clock Company v. Commonwealth. Petition
to recover excise tax for the year 1912 paid by foreign cor-
poration. Final decree.
Williams, Charles H.^ petitioner. Petition for registration of
title to land in Billerica. Pending.
Williams, Susan S., petitioner. Petition for registration of
title to land in Nantucket. Attorney- General waived right
to be heard.
Winona Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
Winona Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1912 paid by foreign corpora-
tion. Pending.
328 ATTORNEY-GENERAL'S REPORT. [Jan.
Winslow Brothers & Smith Company, Attorney-General ex rel. v.
Bill in equity to restrain defendant from discharging waste
into Neponset Eiver. Pending.
Woburn Five Cents Savings Bank, Attorney-General v. Peti-
tion for withdrawal of deposits under St. 1908, c. 590, § 56.
Decree.
Wyandot Copper Company v. Commonwealth. Petition to re-
cover excise tax for the year 1911 paid by foreign corpora-
tion. Pending.
York Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1910 paid by foreign corpo-
ration. Pending.
York Manufacturing Company v. Commonwealth. Petition to
recover excise tax for the year 1911 paid by foreign corpo-
ration. Pendino^.
1915.
PUBLIC DOCOIEXT — Xo. 12.
329
COLLECTIOXS.
Collections have been made by this department as follows: —
Corporation taxes for the yesiv 1913, overdue and referred
by the Treasurer of the Commonwealth to the Attorney-
General for collection, 8201,275 93
Interest, 1,966 11
Costs, 2,467 00
Miscellaneous, 28,703 34
Total, 8234,412 38
The following table shows a detailed statement of the Corporation
Taxes : —
Collected on
Account
of Corporation
Interest.
Tax for 1913.
1
S152 32
$3 04
53 76
27
71 68
36
684 18
4 90
133 32
66
69 88
3 48
18 40
16
1,585 02
7 92
30 96
15
7 43
04
16 00
-
403 20
2 42
116 48
35
179 20
4 54
43 00
1 19
1,433 60
5 02
328 40
2 79
25 80
12
35 84
08
179 20
90
Totals.
A. B. Xoyes & Co., Corporation,
A. E. Jebb Refinishing Company
A. Himmel Company,
A. Homer Skinner Lumber Com
pany,
A. I. Asher Pants Company,
A. P. Xardini Company,
A. S. Tucker Company,
A. Ziegler & Sons Company,
Acme Register Companj^,
Alfred H. Aldrich Company,
Alpha Investment Company,
American Belting & Tanning Com-
pany,
American Cloak Company, .
American Cork Company,
American Cultivator PubUshing
Compan}^, ....
American Grocerv^ Company,
American Jewel Company, .
American Lithuanian Co-operative
Pubhc ^Market Corporation,
American Paper Stock Company
American Specialty Company,
$155 36
54 03
72 04
689 08
133 98
73 36
18 56
1,592 94
31 11
7 47
16 00
405 62
116 83
183 74
44 19
1,438 62
331 19
25 92
35 92
180 10
330
ATTORNEY-GENERAUS REPORT.
[Jan.
Collected on
Account
of Corporation
Tax for 1913.
Interest.
Totals.
American Stable Company, .
American Stay Company,
American Steam Gauge and Valve
Manufacturing Company, .
Apsley Rubber Company,
Aroostook Farming and Lumber
Company, ....
Arthur C. Harvey Company,
Ashoyton Knitting Company,
Athoi and Orange Street Railwaj
Company,
Atlantic Printing Company, .
Atlantic Rubber Company, .
Atwood Preserving Company,
Auto Renting Company,
Auto Sales Company,
B. F. Smith Construction Com
pany,
Bacon and Donnovan Engine
Company, ....
Baer's, Inc., ....
Bangs and Ramsey Express Com
pany,
Barlow Company, .
Baush Machine Tool Company,
Bay State Packing Company,
Bay State Silver Company, .
Bay State Storage and Warehouse
Companj^, ....
Bay State Tool Handle Company
Beacon Ice Cream Company,
Beacon ;Mining Company,
Beaver Construction Company
Inc.,
Bedford Safety Razor Companj^
Bellows Falls Power Compam^,
Belmont Spring Water Company
Bemis Rubber Companj^,
Bennett's, Inc.,
Beverly Lighter and Wrecking
Company, ....
Blanchard & Co., Inc., .
Blanchard Press,
Blanking Machine Company,
Bon-Ton Millinery Company,
Bonney Company, .
Booker Custom Laundry, Incor-
porated, ....
Boston Artesian Well Company,
Boston Bolt and Iron Company,
$70 96
$0 32
1,075 20
4 30
3,468 97
9,388 43
20 23
43 81
30 00
25
1,935 36
37 63
5 81
19
2,195 36
537 60
13 17
2 24
219 77
80
87 09
1 74
35 84
1 40
35 84
18
1,750 78
35 01
107 52
65
8 74
-
89 60
36
234 94
7 05
3,393 33
48 38
16 97
24
78 84
66
2,670 08
12 02
18 81
09
20 96
-
8 59
26
32 61
33
26 88
42
2,729 21
150 77
21 83
1 13
450 50
2 25
134 40
1 48
342 25
5 66
251 11
1 26
141 01
3 93
54 83
50
53 76
20
286 72
1 60
143 36
1 43
53 76
1 77
310 01
15 50
S71 28
1,079 50
3,489 20
9,432 24
30 25
1,941 17
37 82
2,208 53
539 84
220 57
88 83
37 24
36 02
1,785 79
108 17
8 74
89 96
241 99
3,410 30
48 62
79 50
2,682 10
18 90
20 96
8 85
32 94
27 30
2,751 04
151 90
452 75
135 88
347 91
252 37
144 94
55 33
53 96
288 32
144 79
55 53
325 51
1915.]
PUBLIC DOCUMENT — No. 12.
331
Collected oq
Account
of Corporation
Interest.
Tax for 1913.
$163 10
$0 95
3,158 56
169 56
21 50
10
143 36
86
537 60
2 69
32 97
16
26 88
08
27 32
1 38
430 29
8 52
34 04
15
64 51
32
10 75
-
10,639 96
49 65
35 84
18
26 88
27
89 60
50
157 69
7 88
81 55
33
120 06
1 30
32 72
1 30
86 01
-
15 05
-
348 54
1 74
155 68
-
125 44
2 50
61 07
31
60 92
-
349 44
2 09
372 73
3 48
31 36
78
107 52
2 15
92 25
3 13
250 36
1 50
53 76
22
75 26
38
346 89
1 38
65 00
-
537 60
10 75
53 76
36
35 84
21
148 98
4 44
224 03
1 33
837 76
12 40
Totals.
Boston Commercial Company,
Boston Condensed ^Milk Com-
pany,
Boston Express Exchange (Inc.),
Boston Felt and Rubber Com
pany,
Boston Felt Manufacturing Com
pany,
Boston Gazette Company,
Boston Hat and Bonnet Frame
Compan}^, ....
Boston Institute, Inc., .
Boston Lighter Company,
Boston Sash Weight Company,
Boston Store, Inc., .
Boston Surgical Specialty Com-
pany,
Boston Woven Hose and Rubber
Company, ....
Boulevard Pharmacy,
Boy den & Co., Inc.,
Boynton & Plummer, Inc., .
Brewer Elevator Company, .
Brighton Dressed Meat Company
Brockton Box Toe Corporation,
Brockton Die Company,
Brockton Family Market, Inc.,
Brookline Press,
Bruce-Heustis Electric Company
Budd Company,
Builders' Iron and Steel Company
Bullard Company, .
Burnham Shoe Company,
Butler Beef Company, .
Butman & Cressej^ Company,
C. & J. Manufacturing Company
C. D. Wright Company,
C. F. Coombs & Co., Inc., .
C. F. Tompkins Company, .
C. G. Howes Company,
C. H. Goulding Company, .
C. J. Peters & Son Company,
C. P. Hicks Company, .
C. P. Thompson Company, Inc.,
C. Sargent Bird, Inc.,
C. W. Stone Company, .
Cambyses Company,
Cape Ann Clothing Companj'
Inc.,
Cape Cod Products Company,
S164 05
3,328 12
21 60
144 22
540 29
33 13
26 96
28 70
438 81
34 19
64 83
10 75
10,689 61
36 02
27 15
90 10
165 57
81 88
121 36
34 02
86 01
15 05
350 28
155 68
127 94
61 38
60 92
351 53
376 21
32 14
109 67
95 38
251 86
53 98
75 64
348 27
65 00
548 35
54 12
36 05
153 42
225 36
850 16
332
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Tax for 1913.
Interest.
Totals.
Carder Wood Working Company,
Carl G. Westlund Company,
Carr Mines Company, .
Carter & Woodman Company,
Carter-Chesebro Company, .
Cattaraugus Tanning Company
Caverly-Plumer Company, .
Central Autogenous Welding and
INIanufacturing Company,
Ceylon Tea Growers, Inc.,
Chas. A. Jackson Company,
Charles E. Hall & Sons, Inc.
Charles E. Lauriat Company
Charles E. Perry Company,
Charles Emmel & Rose Company,
Chas. P. Whittle Manufacturing
Company,
Chattel Loan Company,
Chelsea Investment Association,
Inc.,
Church's Booking Office, Inc.,
Clark Remedies Compan}^, .
Coates Chpper Manufacturing
Companj',
Cobb & White Company,
Cochrane Manufacturing Com-
pany,
Coconis Cigarette Machine Com-
pany,
Codman & Co., Inc.,
Coldwell-Gildard Company, .
Colonial Counter Company, .
Columbia Comb Company,
Columbia Manufacturing
paiw, Inc.,
Columbian Furniture Company, .
Commonwealth Avenue Phar-
macy, Inc.,
Commonwealth Laundry Com-
pany,
Connecticut Valley Street Rail-
way Company, ....
Continental Fruit Products Com-
pany,
Converse Rubber Shoe Company,
Corey Klein Company, .
Cote Piano Manufacturing Com-
pany,
Cotuit Oj^ster Company,
Crocker Drug Company,
Com-
S89 60
56 16
10 00
25 23
85 47
375 00
13 51
53 83
197 12
22 40
61 98
1,792 00
222 45
135 47
131 89
1,115 08
78 27
21 50
15 39
SO 31
37
13
1 31
25
27
1 18
11
38
8 05
78
67
71
55 77
46
86
40
89 60
12 90
1-85
07
3,344 40
18 95
26 88
134 40
126 73
41 21
116 48
12
71
63
37
68
26 88
69 67
1 34
1 30
107 52
64
216 83
4 32
2,955 52
17 73
111 03
5,776 29
5 37
60
17 33
3,849 21
524 07
26 88
119 33
2 97
1 60
$89 91
56 53
10 00
25 36
85 47
376 31
13 76
54 10
198 30
22 51
62 36
1,800 05
223 23
136 14
132 60
1,170 85
78 73
22 36
15 79
91 45
12 97
3,363 35
27 00
135 11
127 36
41 58
117 16
28 22
70 97
108 16
221 15
2,973 25
111 63
5,793 62
5 37
3,968 54
527 04
28 48
1915.1
PUBLIC DOCUMENT — No. 12.
333
Collected on
Account
of Corporation
Tax for 1913.
Interest.
Totals.
Crown Linen Mills,
Crown Packing Company,
Cuba Importation Company,
Cunningham Brothers, Inc., .
Curtis & Cameron, Inc.,
Cushing Medical Supply Com
pany,
D. A. Smith Company, .
D. Doherty Company, .
D. L. Page Company,
Dadmun Company,
Dan E. Spaulding Restaurant
Company, ....
Dana Furniture Company, .
Daudelin & Cotton, Inc.,
Davies Rose & Co., Ltd.,
Dine Brothers, Company,
Dine Rubin & Macaulay Com
pany,
Donoghue Silk Company,
Douglas Granite Company, .
Dove Machine Company, Inc.,
Dr. Hallock Drug Company,
Dr. Swett Root Beer Company,
Driscoll & Co., Inc.,
Druggists' Manufacturing Associ
ation,
Dudley Mears & Stevens, Inc.,
Dukelow & Walker Company,
Dunn Flyer Company, .
Dunster Amusement Company,
E. C. Andrews Company,
E. C. Howard Company,
E. G. Tutein & Co., Inc., .
E. H. McCausland Company, Inc.
E. J. Scanlon Company,
E. L. French Company,
E. M. Sands (Inc.),
E. R. Brown Beer Pump Com-
pany,
E. R. Sherburne Company, .
E. S. Lincoln, Inc.,
Earle Provision Company, .
East Douglas Clothing Company
East India Extract Company,
Eastern Discount Compan}^,
Eastern Furniture Compan}^,
Eastern Handle Company,
Eastern Aletal and Refining Com-
pany,
$16 12
104 36
30 00
67 20
107 52
232 96
84 22
326 93
199 61
107 52
43 00
89 60
21 05
206 08
268 80
161 28
197 12
15 68
244 07
44 80
114 68
71 68
181 70
207 87
43 00
387 96
143 36
32 25
128 21
111 10
8 96
17 92
5 32
89 60
33 58
87 64
13 61
26 44
21 50
30 00
11 32
11 41
45 69
)1 08
52
17
1 34
50
1 24
53
9 15
69
3 65
22
45
58
1 34
1 41
4 88
22
46
40
5 05
42
1 74
72
104 38
62
78
04
11
04
52
08
13
1 56
08
38
42
$17 20
104 88
30 17
68 54
108 02
234 20
84 75
336 08
200 30
111 17
43 22
90 05
21 05
206 66
270 14
161 28
198 53
15 68
248 95
45 02
115 14
72 08
186 75
207 87
43 42
389 70
144 08
32 25
129 83
114 88
9 00
18 03
5 36
90 12
33 58
87 64
13 69
26 57
21 50
31 56
11 40
11 41
46 07
104 80
334
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Eastern Salt Companj^, .
$446 87
$446 87
Eastern Theatres Company,
46 59
$0 15
46 74
Eastern Underwriting Company,
18 81
-
18 81
Edge wood Garage Company, Inc.,
67 20
34
67 54
Electro-Chemical Fibre Company,
25 98
12
26 10
Electro Service Press,
21 50
10
21 60
Elliott & Douglas Manufacturing
Company,
125 44
50
125 94
Ehn Hill Pro\asion Company,
47 30
24
47 54
Elston & Swift, Inc.,
448 00
8 96
456 96
Ensign Manufacturing Company,
365 56
1 83
367 39
Essex Investment Company,
78 40
22
78 62
Essex Waste Company, .
55 91
34
56 25
F. A. Phelps Company, .
26 88
09
26 97
F. A. Teeling Carriage Company,
8 60
04
8 64
F. B. Tilton Company, . . \
39 42
22
39 64
F. H. Lane Company, .
286 72
1 29
288 01
F. H. Thomas Company,
1,194 27
3 58
1,197 85
F. J. Terrill Motor Company,
38 70
40
39 10
F. M. Butler Company,
131 53
79
132 32
F. W. Martin Company,
8 96
-
8 96
Fall Brook Cranberry Company,
41 21
25
41 46
Fall River Wholesale Grocery
Company, . . . . \
86 71
26
86 97
Farmer's Shoe Shop, Inc.,
53 04
1 27
54 31
Federal Metallic Packing Com-
pany,
259 84
10 65
270 49
Felton-Turner Heating Company,
198 23
47
198 70
Ferncroft Club, Inc.,
89 60
50
90 10
Field Holmes Company,
250 88
1 00
251 88
Fitchburg Drug Companj^, .
179 20
90
180 10
Fitchburg Real Estate and Loan
Company,
90 13
72
90 85
Foster Company, Inc., .
268 80
8 07
276 87
Four Seas Company,
69 15
82
69 97
Framingham Commission House,
Inc.,
59 60
1 19
60 79
Frank A. Andrews, Inc.,
35 84
09
35 93
Frank A. Arend & Co., .
44 80
09
44 89
Frank J. McGarry & Co., Inc., .
80 64
24
80 88
Frank P. Bennett & Co., Inc., .
129 02
75
129 77
Frank P. Brown Company, .
36 55
45
37 00
Frank Ridlon Company,
985 60
4 93
990 53
Franklin Clothing Company,
89 60
45
90 05
Fred A. Loud Company,
202 49
5 90
208 39
Fred D. Sperry Company, .
81 53
20
81 73
Frye & Crawford Drug Company,
17 92
08
18 00
Fudge Man Company, .
5 37
13
5 50
Fuller Whitney Surveys Corpora-
tion,
53 76
35
54 11
1915.
PUBLIC DOCUMENT — No. 12.
335
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
G. B. Lawrence Company, .
$98 91
SO 50
$99 41
G. H. PoUej^ Company, .
16 12
53
16 65
G. I. M. Vulcanizing Company, .
12 90
06
12 96
G. W. Lord Company, .
179 20
79
179 99
G. W. Sammet & Son Company,
482 04
2 89
484 93
Garden Cit}^ Laundry Company,
80 64
1 61
82 25
Gay Automobile Company, .
98 56
82
99 38
George Dietz Company,
21 50
10
21 60
George F. Vester Company, .
53 76
54
54 30
George H. Ball Company,
179 20
4 96
184 16
George H. Mason Company,
245 50
2 64
248 14
George H. Sallaway Companj^, .
205 72
1 03
206 75
George H. Sherbert, Inc.,
53 76
1 82
55 58
George T. Horan, Inc., .
224 00
7 61
231 61
George W. Gale Lumber Com-
pany,
1,013 37
6 76
1,020 13
Gloucester Gill -Net Fisheries
Company, Inc., .
143 00
75
143 75
Gloucester Loan Company, ,
107 52
65
108 17
Goldman Brothers Company,
44 80
-
44 80
Gordon & Sparrow Company,
241 92
1 25
243 17
Gordon Home, Inc.,
62 72
35
63 07
Gosnold Mills Company,
3,708 09
21 01
3,729 10
Coward's Market Company,
44 80
10
44 90
Graham Company, ....
53 76
24
54 00
Graustein Company,
241 92
15 06
256 98
Gray-Aldrich Company, Inc.,
185 29
74
186 03
Greendale Gas Engine Company,
112 00
2 08
114 08
Greene & Fish Company,
268 80
81
269 61
Grossman Cap Company,
17 92
-
17 92
Guilford Kendrick & Ladd, Inc., .
381 69
2 23
383 92
Gurvitz-Arbeter Company, .
10 75
50
11 25
Guy Furniture Company,
833 67
4 87
838 54
H. & B. Manufacturing Com-
pany,
71 05
49
71 54
H. B. Keen, Inc., ....
48 06
48
48 54
H. C. Girard Company,
150 62
75
151 37
H. C. H. Fruit Company, Inc., .
35 84
21
36 05
H. Dangel Company,
184 57
-
184 57
H. E. Lindbladh Company, .
25 08
48
25 56
H. I. Emmons Company,
4 50
-
4 50
H. M. Kinports Company,
81 69
4 24
85 93
Hall Automobile Specialties Com-
pany,
14 33
-
14 33
Hailstone Electric Company,
17 47
16
17 63
Hampden Creamery Company, .
135 33
2 70
138 03
Hampden Railroad Corporation, .
6,272 00
37 63
6,309 63
Harrington Manufacturing Com-
pany,
219 52
1 09
220 61
Harriott Company,
39 04
16
39 20
336
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Harry Eldredge Goodhue Com-
pany,
S89 60
$2 65
$92 25
Hartley Silk Manufacturing Com-
pany, Inc.,
704 14
4 22
708 36
Harvard Provision Company,
16 12
-
16 12
Haverhill Construction Company,
64 51
28
64 79
Henry D. Temple Company,
80 64
32
80 96
Henry F. Farrow Company',
156 24
78
157 02
Henry F. Miller & Sons Piano
Company, . . . . .
3,014 23
30 14
3,044 37
Henry Gray Company, .
32 25
1 06
33 31
Hertig Furnace Company, .
45 69
23
45 92
Hetherston Importing Company, .
403 20
13 84
417 04
Hide and Skin Importing Com-
pany,
143 36
84
144 20
Hide-ite Leather Company, .
689 47
10 34
699 81
Highland Paint and Wall Paper
Company,
114 68
92
115 60
Hill Dryer Company, .
394 59
1 38
395 97
Hill Press, Incorporated,
5 37
29
5 66
Hills Chair-Couch Manufacturing
Company,
26 52
-
26 52
Hilton Express Company,
40 32
87
41 19
Hjorth Lathe and Tool Company,
125 44
1 06
126 50
Hodgson Kennard & Co., Inc.,
1,073 40
10 54
1,083 94
Hollander Motor Company, .
109 81
3 59
113 40
Home Dairy Lunch Company,
107 52
60
108 12
Hooper Lewis & Co., Inc., .
322 56
-
322 56
Hooper Printing Company, .
62 72
. ??
63 04
Hotel Empire, Inc.,
179 20
5 55
184 75
Housatonic Water Works Com-
pany,
257 15
-
257 15
Howe Stove and Furniture Ex-
change, Inc., ....
34 47
17
34 64
Hoyt Company, ....
430 08
11 10
441 18
Hub Mattress Companj^,
29 03
15
29 18
Hudson Printing Compam^, .
35 84
18
36 02
Hunter Stationery Company,
37 75
-
37 75
Huntt's Lunch Company,
404 18
2 43
406 61
Ideal Dental Laboratory, Inc., .
20 42
10
20 52
Ideal Shoe Repairing Company, .
90 31
3 05
93 36
Idle Hour Theatre Company,
26 43
53
26 96
Import and Export Associates,
53 76
2 18
DO 94
Incorporated Realty Associates, .
50 17
1 83
52 00
Independent Button Fastener Ma-
chine Co.,
157 21
5 66
162 87
Interchangeable Rubber Heel
Company,
172 73
3 44
176 17
International Hide Company,
10 00
06
10 06
Investment and Trust Association,
53 76
27
54 03
1915.
PUBLIC DOCUMENT — No. 12.
337
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Isaac H. Dinner Company, .
$53 76
$0 19
$53 95
J. A. Brenner & Co., Inc.,
272 38
1 36
273 74
J. G. Bridge Company, .
154 39
90
155 29
J. 0. Walker & Son Corporation, .
201 65
1 20
202 85
J. H. Gerlach Company,
67 73
32
68 05
J. H. Green Company, .
89 60
1 79
91 39
J. H. RobiKson Company,
53 75
43
54 18
J. K. Taylor Manufacturing Com-
pany,
412 16
1 17
413 33
J. L, Legein Ice Cream Company,
128 12
86
128 98
J. M. Jameson Company,
22 57
-
22 57
J. Nardi Company,
80 64
-
80 64
J. S. Sieve Company,
135 11
67
135 78
James Barrett IManufacturing
Company,
519 68
1 81
521 49
James H. Malone, Inc., .
179 20
1 43
180 63
James J. Loughery Company,
214 50
1 07
215 57
James Miles & Son Company,
89 24
1 72
90 96
Jenkins & Smith, Inc. , . .
654 20
2 82
657 02
Jeremiah J. McCarthy Company,
16 12
20
16 32
John Cavanah & Son Building
Moving Company,
188 16
10 36
198 52
John E. Lynch Hardware Com-
pany,
71 68
40
72 08
John F. Johnston Company,
276 12
1 10
277 22
John Foster Company, .
1,311 49
5 24
1,316 73
John H. Bryer, Inc.,
16 30
12
16 42
John J. Cluin Company,
44 80
35
45 15
John Quin & Son Company,
322 56
1 61
324 17
Jordan-Goodridge Company,
83 68
75
84 43
Joseph Wilcox Company,
275 96
-
275 96
Kakas Brothers, Inc.,
940 80
4 70
945 50
Kelly Leather Good^ Company, .
7 31
02
7 33
Keystone Job Print, ...
36 73
18
36 91
Kilburn Lincoln & Co., .
1,383 74
17 76
1,401 50
Kimball Aeroplane Com_pany,
10 12
-
10 12
King Philip Tavern Company, .
36 55
70
37 25
Kinney Heating and Supply Com-
pany,
40 89
41
41 30
Kinney Manufacturing Company,
1,254 40
6 27
1,260 67
Klein Manufacturing Company, .
16 12
10
16 22
Kleno Manufacturing Company, .
17 92
-
17 92
Koerner & Mitchell Company,
101 66
41
102 07
L. A. WiUiamison Company, .
7 50
-
7 50
L. G. Fisk-Mooers Company,
179 20
1 83
181 03
L. K. Husted Company, Inc.,
43 00
23
43 23
L. P. Soule & Son Company,
397 37
2 32
399 69
Lamere & Robinson Company, .
44 08
2 20
46 28
Lang & Jacobs Com.pany,
94 08
47
94 55
Lawrence & Stanley Company, .
57 73
29
58 02
338
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Lawrence B. Smith Compan}^,
$404 32
S2 02
$406 34
Lawrence Fruit and Grocery Com-
pany,
13 08
-
13 08
Lawrence Market Company,
64 51
1 60
66 11
Lavv'rence Motor Mart, Inc.,
18 81
10
18 91
Lawrence Wholesale Drug Com-
pany,
268 80
1 82
270 62
Leavitts Scotch Polish Companj^,
23 56
2 10
25 66
L'Echo Publishing Companj'-,
402 57
1 21
403 78
Leominster Electric Companj',
35 84
18
36 02
Levy Bros., Inc., ....
59 13
2 11
61 24
Lewis F. Small, Inc.,
17 92
08
18 00
Liberty Paper Companj^,
215 04
1 08
216 12
Lincoln Leather Goods ^Company,
67 20
_
67 20
Linscott Motor Company,
396 92
3 18
400 10
Linscott Suppty Company, .
345 13
2 36
347 49
Lion Raincoat Company,
55 55
31
55 86
London Harness Company, .
806 40
6 77
813 17
Lovells (Inc.), . . .'^ .
64 51
1 29
65 80
Lunt Moss Com.pany,
738 75
4 43
743 18
Lyn Home Company,
17 92
08
18 00
Lynch Heel Company, .
80 64
1 64
82 28
Lynn Manufacturers and ]\Ier-
chants Mutual Fire Insurance
Companj^,
156 62
79
157 41
Ljmn Photo Chemical Company, .
10 75
26
11 01
Lyon Company, ....
197 69
1 00
198 69
Lyric Amusement Company,
49 28
39
49 67
M. & C. Hat Company,
50 17
25
50 42
M. D. Malbon Company,
496 18
2 48
498 66
M. Marks Company,
62 72
25
62 97
MacLean Produce Company,
62 72
36
63 08
Magee Furnace Company, .
1,692 41
8 46
1,700 87
Maine Ice Cream Companj^,
67 20
54
67 74
Maine State Creamery Company,
17 93
-
17 93
Majestic Compan}^, . . .
215 04
1 15
216 19
Maiden Leather Goods Company,
110 38
47
110 85
Manhattan Collar Company,
89 60
30
89 90
Manhattan Grocery and Provision
Companj^,
1,247 23
7 28
1,254 51
Mansfield Drug Company, .
44 80
22
45 02
Manufacturers Outlet Com^pany, .
17 92
06
17 98
Mark Motor Supply Companj^, .
53 90
32
54 22
Mason Manufacturing Company,
12 54
36
12 90
Massachusetts Investment Com-
pany,
17 31
14
17 45
Massachusetts Loan Society, Inc.,
97 19
48
97 67
Massasoit Companv,
539 03
10 78
549 81
Matchless Heater Company,
84 36
2 53
86 89
Matthew F. Sheehan Company, .
412 16
3 74
415 90
1915.1
PUBLIC DOCUMENT — Xo. 12.
339
Collected on
Account
of Corpoiation
Interest.
Totals.
Tax for 1913.
Mayfair Manufacturing Company,
$95 87
$0 48
S96 35
Mayflower Laundry Company, .
116 48
2 56
119 04
Maykel Automobile Company, .
35 84
27
36 11
Meilish & Byfield Manufacturing
Company,
152 32
88
153 20
Mellor Manufacturing Company,
44 80
1 35
46 15
Melville Pharmacy, Inc.,
107 52
72
108 24
Alelvin Bancroft Company, .
26 88
12
27 00
Merchandise and Laundry Tag
Company,
58 54
23
58 77
Methuen Granite Company,
6 25
03
6 28
Metropolitan Laundry Company,
507 85
7 10
514 95
^liddlesex Drug Company, .
81 05
41
81 46
Miles Patents Company,
80 31
24
80 55
Miller Brothers, Inc.,
388 86
1 36
390 22
Millers River Box Company,
87 80
51
88 31
Milton Laundry Company, .
21 50
3 32
24 82
Model Laundering Company, ^ .
95 87
2 11
97 98
^Monarch Valve and Manufacturing
Company,
782 92
17 74
800 66
Morse McDonald Company,
86 01
44
86 45
Moseiy & ^laschin. Inc.,
197 12
1 12
198 24
Motor Specialties Company,
89 99
1 79
91 78
Munroe & Arnold-Merritt Express
Company^
499 96
2 00
501 96
Murphy Boot and Shoe Company,
543 69
27 18
570 87
Alurphy Coal and Wood Com-
pany,
297 47
1 83
299 30
Murphy Cone Company,
5 37
02
5 39
Myrlite Company of America,
90 00
1 35
91 35
National Druggists Supply Com-
pany,
322 14
11 56
333 70
National Games Company, .
89 60
2 65
92 25
National Investment and Securi-
ties Company, ....
614 97
5 24
620 21
National Knitting Company,
179 20
86
180 06
National Manufacturing Com-
pany,
260 07
1 28
261 35
National Matzo Company of Bos-
ton,
19 03
12
19 15
National ^letalhc Bed Company,
238 33
4 76
243 09
Nelson Color Company,
112 89
2 07
114 96
New Bedford Clothing and Jew-
elry Company, ....
71 68
72
72 40
New England Cold Storage Com-
pany,
860 16
4 30
864 46
New England Converting Com-
pany,
35 84
-
35 84
New England Directory Company,
28 70
-
28 70
New England Discount Company,
1,364 93
11 24
1,376 17
340
ATTORNEY-GENERAL'S REPORT.
[Jan,
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
New England Hardware Com-
pany,
$44 80
$0 55
S45 35
New England Office Furniture
Company,
89 60
53
90 13
New England Reed Company, .
346 17
1 73
347 90
New England Supply Company, .
136 59
-
136 59
New York Mattress Company, .
329 72
16 48
346 20
Newport Provision Company,
24 00
-
24 00
Newport Transfer Express Com-
pany,
7 50
06
7 56
Niagara Laundry Company,
7 16
-
7 16
Nickles Cranberry Company,
31 18
07
31 25
Nobscot Mountain Spring Com-
pany,
258 04
75
258 79
Non-Corrosive Metal Manufactur-
ing Company, ....
54 47
-
54 47
North Shore Breeze Company, .
17 92
35
18 27
North Shore Red Granite Com-
pany,
125 44
2 50
127 94
Northampton Printing and Bind-
ing Companj^ ....
47 12
24
47 36
Norton Water Motor Company, .
22 57
15
22 72
Novelty Dress Company,
29 38
15
29 53
Oak Street Garage, Inc.,
61 82
31
62 13
Ocean Mills Company, .
132 94
66
133 60
Olympic Theatre Companj^ .
17 92
06
17 98
Omiros Cigarette Company, Inc.,
117 19
59
117 78
Ovington Aviation School of Cor-
respondence, ....
5 16
-
5 16
Oxford Rubber Company,
669 58
6 92
676 50
Oxidite Manufacturing Company,
31 18
16
31 34
P. Creedon Companv, .
322 56
1 61
324 17
P. F. Wood Boiler Works, Inc., .
161 28
1 00
162 28
Palmer Hunter Lumber Com-
pany,
492 80
2 87
495 67
Palmer Renting Company, .
62 72
3 44
66 16
Pamott Mines Company,
80 00
80
80 80
Panama Canal and Amusement
Company,
465 92
2 02
467 94
Park Theatre Amusement Com-
pany,
12 90
24
13 14
Parker Brothers Iron Companj^, .
64 65
-
64 65
Parsons Manufacturing Company.
412 16
13 60
425 76
Payson Mitchell Company, .
53 76
26
54 02
Peerless Welding and Manufactur-
ing Company, ....
148 73
8 06
156 79
Pemberton Sales Company, .
116 48
58
117 06
Peoples Drug Store Company, .
24 19
19
24 38
Perkins & Co., Inc.,
250 88
3 21
254 09
Perkins Appliance Company,
52 41
—
52 41
1915.
PUBLIC DOCUMENT — No. 12.
341
Collected on
Account
of Corporation
Tax for 1913.
Interest.
Totals.
Perlmuter Brothers Company,
Inc.,
Perry & Ayers (Inc.), .
Perry Mason Company,
Persian Rug Loft, Inc., .
Picture Shop, Inc., .
Pierce & Barnes Company. .
Pierce & Chesworth Company,
Pierce, Macomber Meat and Gro
eery Company, Inc., .
Pine Croft Orchard Company,
Pine Grove Floral Corporation,
Pinkham Press,
Plymouth Auto Company, .
Plymouth Manufacturing Com
pany
Pope-Hartford Company of Bos
ton,
Post Office Pharmacy, Inc., .
Presbrey-Field Company,
Prescott Auto Parts Company,
Progress Rubber Company, .
Prospect Auto Company,
Providence Scenic Theatre Com
pany, . . • •
Purity Confectionery Company,
Queen Manufacturing Company
Inc.,
R. B. Mason Company, Inc.,
R. C. Goudey Company,
R. F. Dodge Company, .
R. T. Todd Company, .
R. T. Sullivan Company,
Rayolite Company,
Re-New Lamp Company,
Reading Custom Laundry, Inc.,
Regal Laundry Company, .
Revere Boat Company, .
Rex Wrench Company, .
Riverside Park Amusement Com
pany,
Roackdale Woollen Company,
Robt. Cook & Sons Company,
Robert R. McNutt, Inc.,
Robinson Bramley Company
Inc.,
Robinson-Brockway Manufactur-
ing Company,
Rosengard Furniture Company,
Ross Brothers Company,
$35 84
7 16
6,318 59
74 17
43 00
17 92
16 12
33 97
11 46
7 52
82 55
5 37
89 60
890 62
53 76
358 40
46 59
89 60
57 34
72 09
62 72
94 97
515 20
68 43
• 26 88
387 07
276 41
63 63
487 42
41 21
53 76
8
46
52
12
159 93
10 21
110 74
67 20
26 88
138 75
168 44
1,344 00
$0 18
30 54
3 63
17
39
19
05
08
3 30
05
54
9 63
29
2 08
19
40
65
40
38
40
2 10
36
1 08
2 29
1 14
2 73
1 38
24
18
85
30
69
3 42
89
85
25 08
$36 02
7 16
6.349 13
77 80
43 17
18 31
16 12
34 16
11 51
7 60
85 85
5 42
90 14
900 25
54 05
360 48
46 78
90 00
57 99
72 49
64 10
95 37
517 30
68 79
27 96
389 36
277 55
66 36
488 80
41 45
53 94
9 37
46 42
160 62
10 21
110 74
70 62
26 88
139 64
169 29
1,369 08
342
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corooration
Interest.
Totals.
Tax for 1913.
Roj-al Furniture Company, .
$266 64
$15 96
$282 60
Royal Laundry Company,
16 12
08
16 20
Royal Shoe Company, .
142 64
81
143 45
Rutland Cade Company,
17 92
-
17 92
Ryan & Duffee, Inc., .
179 20
90
180 10
S. E. Cassino Company,
102 50
2 00
104 50
S. M. Howes Company,
2,279 42
7 22
2,286 64
S. W. Loomis Company,
114 36
57
114 93
St. Clairs' (Inc.), . .
216 41
1 30
217 71
St. Louis Rubber Company,
344 06
1 70
345 76
Sally's Embroidery and Cleansing
Companj^,
31 16
16
31 32
Samuel Ward Company,
2,329 60
6 98
2,336 58
Sanitary Paper Cup Company, .
49 28
2 16
51 44
Saskatchewan Investment Com-
pany,
44 79
13
44 92
Sawyer Drug Company,
73 38
37
73 75
Scandinavian Co-operative Gro-
cery Union,
64 49
37
64 86
School Arts Publishing Companj',
159 73
1 33
161 06
School Street Piano Storage Com-
pany,
64 51
1 29
65 80
Seth W. Fuller Company,
69 47
1 80
71 27
Shadduck and Normandin Com-
pany;
111 22
55
111 77
Sheedy Amusement Company,
71 68
2 37
74 05
Sheldon Brothers Company,
7 16
05
7 21
Shortstory Publishing Company, .
46 16
23
46 39
Show Card Shop, Inc., . . .
8 60
25
8 85
Shultz-Goodwin Companv, .
684 99
5 14
690 13
Silas Peirce & Co., Ltd., ^ .
2,128 98
6 39
2,135 37
Silox Pure Water Company of
New England, ....
66 07
33
66 40
Silver Lake Ice Company,
216 49
1 00
217 49
Simmons Cranberry Compan}^, .
7 52
15
7 67
Simplex Automobile Agency, Inc.,
101 06
2 16
103 22
Slattery Brothers Automobile
Company,
179 20
1 07
180 27
Small Maynard & Co. (Inc.),
1,344 00
5 06
1,349 06
Smith Tablet Company, Inc.,
250 88
1 25
252 13
Smithmade Suspender Company, .
71 68
21
71 89
Somerset Coal Company,
8 60
10
8 70
Somerset Raincoat Company,
26 88
13
27 01
Soule Art Publishing Company, .
41 21
15
41 36
South End Motor Car Company, .
198 58
2 50
201 08
Southgate Press — T. W. Ripley
Company,
466 36
2 72
469 08
Specialty Leather Goods Com-
pany,
50 76
15
50 91
Specialty Shop, ....
119 34
36
119 70
1915.
PUBLIC DOCUMENT — No. 12.
343
Collected on
Account
of Corporation
Tax for 1913.
Interest.
Totals.
Springfield Ice and Coal Com-
pany,
Springfield Manufacturing Com-
pany,
Springfield Office Supply Com-
pany,
Standard Dj^ewood and Extract
Company, ....
Standard Handle and Lumber
Compaii}'', ....
Standard Motor Car Company
Standard Scale and Equipment
Company, ....
Standard Supply Company, Inc.
Sterns & Waterman Company,
Steel Specialties Company, .
Stockbridge Water Company,
Stoddard Ice Cream Company,
Stoddard Union Company, .
Stones Express, Inc.,
Story Simmons Company,
Stratton Automobile Company,
Suffolk Manufacturing Company
Sullivan & Daly Company, .
Sunnymeade Farms, Inc.,
Sylvester Brothers Company,
Sylvester Tower Company, .
T. D. Borst Company, .
T. H. O'Donnell & Co., Inc.,
T. Shea, Inc., ....
T. T. Connolly Company,
Tarr's Structural and Marine
Paint Company, .
Taunton Co-operative Grocery
Company, Inc., .
Taunton Evening News,
Taunton Spindle Company, .
Taylor Chemical Company, .
Teiepost Company of Massachu-
setts,
Tenney Worcester Company,
Therapeutic Pubhshing Company,
Thermolac Manufacturing Com-
pany,
Thissell Company, ....
Thomas D. Card Company, Inc.,
Thomas J. Hind, Inc., . .
Thompson Snow & Davis Com-
pany,
Thorn Medicine Company, .
^2,610 94
192 46
241 92
28 67
6 30
98 56
289 83
95 85
43 00
71 68
174 72
11 28
482 94
268 80
112 89
7 16
31 18
224 00
26 88
5 37
1,465 85
62 84
107 52
224 00
7 52
21 71
31 89
161 28
17 92
483 64
17 92
52 41
20 85
62 54
35 84
64 51
28 42
601 28
53 76
$14 80
1 00
1 46
11
47
22
32
1 07
02
4 02
1 50
68
14
16
8 28
15
8 79
31
2 15
1 12
04
14
16
1 24
08
16
45
52
65
50
18
31
3 51
27
$2,625 74
193 46
243 38
28 67
6 41
98 56
289 83
96 32
43 22
72 00
175 79
11 30
486 96
- 270 30
113 57
7 30
31 34
232 28
27 03
5 37
1,474 64
63 15
109 67
225 12
7 56
21 71
32 05
162 52
18 00
497 80
18 37
52 93
21 50
63 04
36 02
64 82
28 42
604 79
54 03
344
ATTORNEY-GENERAL'S REPORT.
[Jan.
Tichnor Brothers, Inc., .
Times Companj^,
Torrey-Epstein Con^ipan}^, .
Totem Manufacturing Companj
Transcript Press, Inc., .
Transfer Pharmacy, Inc.,
Tribune-Enterprise, Inc.,
Trimount Laundry Company,
Trombly Jewelry Company, .
U. T. Hungerford Brass and Cop
per Company of Boston, .
Union Avenue Hospital, Inc.,
Union Commercial Paper Com
pany,
Union Curled Hair Company,
Union Furniture Company, .
Union Raincoat Company, .
Union Seal Companj^, /
Union Supply Company,
Union Trading Stamp Company
United Cleanser Company, .
United States Snuff Company,
Universal Manufacturing Com
pany
Utley's, Inc., . . . ]
Vail Galvanizing Plant, Inc.,
Van Tassel Leather Company,
Vesuvio Drug Company,
Victor Shoe Machinery Com-
^.Pany,
Victoria Aeroplane Automobile
and Amusement Company,
Viets Company,
Vulcan Manufacturing Company
W. A. Jefts Company, .
W. Bert Lewis Shoe Company,
W. C. Bates Company, .
W. C. Welch Company,
W. E. Greene Amusement Com
pany,
W. Georgie Greenlay Companv,
W. H. Marble Automobile Com
pany,
W. M. McDonald Companv, Inc.
W. M. Young Regalia ^ Com
panv,
W. P.B. Brooks & Co., Inc.,'
W. P. Goode Brush Companv,
W. Pence Mitchell Hat Com
pany,
Collected on
Account
of Corporation
Tax for 1913.
$259 84
13 44
7 16
228 30
71 68
12 54
5 37
56 44
206 40
89 60
22 22
60 69
7 16
295 08
86 01
78 84
160 34
6 45
61 64
59 24
8 06
165 70
96 76
805 50
17 92
286 72
24 76
18 24
163 23
82 96
312 84
48 38
98 00
8 96
38 70
215 04
220 41
29 74
74 38
112 89
17 92
Interest.
$1 46
04
4 57
20
10
23
2 27
36
12
40
04
1 48
69
78
64
03
4 42
35
Totals.
1
18
27
39
65 24
08
12 32
1 08
38
82
77
1 08
24
54
1 15
1 19
2 42
27
S261 30
13 44
7 20
232 87
71 88
12 64
5 37
56 67
208 67
89 96
22 34
61 09
7 20
296 56
86 70
79 62
160 98
6 48
66 06
59 59
8 24
166 97
97 15
870 74
18 00
299 04
25 84
18 62
164 05
83 73
313 92
48 62
98 54
8 96
39 85
216 23
222 83
29 74
74 65
113 57
17 92
1915.1
PUBLIC DOCUMENT — Xo. 12.
345
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Wachtel-Pickert Company, .
$225 75
$11 15
$236 90
Wade Machine Company,
170 24
85
171 09
Walbuck Crayon Company, .
32 25
18
32 43
Ward, Drouet & Foster, Inc.,
541 18
14 61
555 79
Warren- Allen Carpet Company, .
161 28
82
162 10
Washburn Brothers Company,
183 50
57
184 07
Washburn Realty Trust, Limited,
174 07
99
175 06
Waterhouse Welding Company, .
35 84
72
36 56
W^atson Blood Company,
116 48
1 17
117 65
Wellington Rubber Company,
179 20
1 91
181 11
Wells-Burrage Company,
241 92
-
241 92
West Lynn Lithuanian Co-opera-
tive Market, Inc.,
17 05
08
17 13
Western Massachusetts Essenkay
Company,
51 60
-
51 60
Western Oil Company, .
51 60
1 70
53 30
White Automobile Company,
77 46
58
78 04
White Motor Car Company,
86 58
50
87 08
White Store (Inc.),
163 43
-
163 43
Wliiting Manufacturing Com-
pany,
242 81
7 79
250 60
Whitney Law Corporation, .
292 04
3 46
295 50
Whittier Woodenware Company,
537 60
12 36
549 96
Wilbert E. Welch Company,
39 06
1 88
40 94
Wilkenda System, Inc., .
168 71
1 15
169 86
William Aliens Sons Company, .
281 34
1 50
282 84
William C. Norcross Company, .
319 88
1 65
321 53
William F. Brj^an Waste Com-
pany,
80 64
2 66
83 30
William Gilhgan Company, .
114 68
92
115 60
William J. McCarthy Company, .
50 17
15
50 32
William J. Rafferty Company, .
35 84
16
36 00
William L. Browne Electric Com-
pany,
111 46
46
111 92
William Porter & Son, Inc., .
60 00
23
60 23
Williamstown Glass Sales Com-
pany,
444 61
2 22
446 83
Wilhs C. Bates Company,
99 68
3 18
102 86
Willsite Flooring Company, Inc.,
20 00
-
20 00
Winchester News Company,
25 26
23
25 49
Witch City Tanning Company, .
354 86
-
354 86
Woodward-Reopell Company,
208 58
4 98
213 56
Worcester Automobile Company,
94 08
47
94 55
Worcester Co-operative Market
Company,
82 61
-
82 61
Worcester Hay and Grain Com-
pany,
173 82
90
174 72
W^orcester Paper Box Company, .
26 88
13
27 01
Workingmen's Loan Association,
• 2,464 00
-
2,464 00
Wright Cutter Company.
503 87
5 04
508 91
346
ATTORNEY-GENERAL'S REPORT.
[Jan.
Collected on
Account
of Corporation
Interest.
Totals.
Tax for 1913.
Wright Illustrative and Engraving
Company,
$140 33
$0 70
$141 03
Wj'co Products Company,
53 76
27
54 03
Wyn-Croft Company,
17 92
08
18 00
Yo Yo Beverage Company, .
107 52
2 15
109 67
Young & Follett Company, .
22 40
11
22 51
Zetterman Machinery Company, .
44 80
1 47
46 27
Total,
$201,275 93
$1,966 11
$203,242 04
1915.
PUBLIC DOCUMENT — No. 12.
347
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PUBLIC DOCUMENT — No. 12.
353
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354 ATTORNEY-GENERAL'S REPORT. [Jan.
EULES OF PEACTICE
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.
(6) That, in his opinion, the ends of public justice require
that the alleged criminal be brought to this Commonwealth for
trial, at the public expense.
(c) That he believes he has sufficient evidence to secure the
conviction of the fugitive.
(d) That the person named as agent is a proper person, and
that he has no private interest in the arrest of the fugitive.
(e) If there has been any former application for a requisition
for the same person growing out of the same transaction, it
must be so stated, with an explanation of the reasons for a
second 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.
1915.] PUBLIC DOCUMENT — No. 12. 355
(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 c'riminal 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. . *
356 x\TTORNEY GENERAUS REPORT. [Jan. 1915.
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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