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

Public Document 



No. 12 



®I|? Ql0mm0mu^aItl| nf iMaHjaartiusi^ttfi. 



REPORT 



ATTORNEY- GENERAL 



Year ending January 17, 1917, 




BOSTON: 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

32 DERNE STREET. 

1917. 



®l)e Commontocaltl) of itlaesocljusette. 



Department op the Attorney-General, 
Boston, Jan. 17, 1917. 

To the Honorable Seiiate and House of Representatives. 

I have the honor to transmit herewith my report for 
the year ending this day. 

Very respectfully, 

HENRY C. ATTWILL, 

A ttorney-General. 



^\)t ^ommoniDealtl) of iHasBacljusetts^ 



DEPARTMENT OF THE ATTORNEY- GENERAL, 
State House. 



A ttorney-General . 
HENRY C. ATTWILL. 

Assistants. 
Nelson P. Brown. 
H. Ware Barnum. 
Wm. Harold Hitchcock. 
Arthur E. Seagrave. 
John W. Corcoran. 
Charles W. Mulcahy. 



Chief Clerk. 
Louis H. Freese. 



Statement of Appropriation and Expenditures. 



Appropriation for 1916, $48,000 00 

Expenditures. 

For law library, $2,057 42 

For salaries of assistants, 17,101 25 

For clerks, 6,689 72 

For office stenographers, 4,425 00 

For telephone operator, . . 608 00 

For special legal services and expenses, .... 5,647 02 

For office expenses, 1,309 00 

For court expenses, 6,204 57 

Total expenditures, $44,041 98 

Costs collected, 2,731 16 

Net expenditures, $41,310 82 



S^tf^ Qlnmttuimit^altl; of Mnssntipxmtts. 



Department op the Attorney-General, 
Boston, Jan. 17, 1917. 

To the Honorable Senate and House of Representatives. 

Pursuant to the provisions of section 8 of chapter 7 of the 
Revised Laws I herewith submit my report for the year end- 
ing this day. 

The cases requiring the attention of this department dur- 
ing the year, to the number of 7,450 are tabulated below: — 

Corporate franchise tax cases, 1,096 

Extradition and interstate rendition, 154 

Grade crossings, petitions for abolition of, 85 

Indictments for murder, 51 

Inventories and appraisals, 15 

Land Court petitions, 103 

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

and Land Commission, 4 

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

River Basin Commission, . • 23 

Land-damage cases arising from the taking of land by the Massa- 
chusetts Highway Commission, 23 

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

Directors of the Port of Boston, 3 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Water and Sewerage Board, 3 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Park Commission, 22 

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

Armory Commissioners, 1 

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

House Building Commission, 7 

Miscellaneous cases arising from the work of the above-named 

commissions, 36 

Miscellaneous cases, 586 

Petitions for instructions under inheritance tax laws, ... 59 

Public charitable trusts, 112 

Settlement cases for support of persons in State Hospitals, . 35 
All other cases not enumerated above, which include suits to re- 
quire the filing of returns by corporations and individuals and 
the collection of money due the Commonwealth, . . . 5,032 



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: — 

Elizabeth C. Cannon, indicted in Hampden County, 
December, 1915, for the murder of Lucille Monty Thomas, 
at Russell, on Nov. 8, 1915. She was arraigned Jan. 4, 
1916, and pleaded not guilty. Richard J. Morrissey, Esq., 
appeared as counsel for the defendant. Later the defendant 
retracted her former plea, and pleaded guilty to man- 
slaughter. This plea was accepted by the Commonwealth, 
and the defendant was released on her own recognizance. 
The case was in charge of District Attorney Joseph B. Ely. 

Salvatore Mazzaferro, indicted in Plymouth County, 
October, 1915, for the murder of Pasquale Femia, at Hing- 
ham, on Aug. 1, 1915. He was arraigned Oct. 27, 1915, and 
pleaded not guilty. John E. Crowley, Esq., appeared as 
counsel for the defendant. On Feb. 24, 1916, the defendant 
retracted his former plea, and pleaded guilty to man- 
slaughter. 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 case 
was in charge of District Attorney Albert F. Barker. 

Julian Olesiewski and Peter Olesiewski, indicted in 
Hampshire County, October, 1915, for the murder of Bolack 
Klmocy, at Easthampton, on July 27, 1915. The defendants 
were arraigned Oct. 27, 1915, and each pleaded not guilty. 
N. Seelye Hitchcock, Esq., appeared as counsel for the 
(^efendants. In the case of Julian Olesiewski, on Feb. 28, 
1916, 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. In the case of Peter 
Olesiewski, on Feb. 28, 1916, the defendant retracted his 
former plea, and pleaded guilty to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 



1917.] PUBLIC DOCUMENT — No. 12. ix 

was sentenced to State Prison for a term not exceeding 
three and one-half years nor less than two and one-half 
years. The cases were in charge of District Attorney John 
H. Schoonmaker. 

DoMEXico Raia, indicted in Suffolk County, September, 
1915, for the murder of Guiseppe Yarano, at Boston, on 
Aug. 3, 1915. He was arraigned Nov. 19, 1915, and pleaded 
not guilty. John F. McDonald, Esq., and F. P. Fralli, Esq., 
appeared as counsel for the defendant. Later the defendant 
retracted his former plea, and pleaded guilty to man- 
slaughter. This plea was accepted by the Commonwealth, 
and the defendant was sentenced to one year in the House 
of Correction. The case was in charge of District Attorney 
Joseph C. Pelletier. 

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., appeared 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 defendant's bill 
of exceptions was sustained. In January, 1916, the defend- 
ant was again tried by a jury before Morton, J. The result 
was a verdict of guilty of murder in the first degree. The 
defendant was thereupon sentenced to death by electrocu- 
tion during the week beginning March 12, 1916, which 
sentence was executed March 16, 1916. The case was in 
charge of District Attorney Joseph T. Kenney. 

Joseph L. Roy, indicted in Plymouth County, February, 
1915, for the murder of Albertine Roy, at Brockton, on Nov. 
3, 1914. Feb. 1, 1915, the defendant was committed to 
the Bridge water State Hospital for observation. W. F. 
Kane, Esq., appeared as counsel for the defendant. On 
Mar. 1, 1916, the court directed that a verdict be entered 
of not guilty by reason of insanity, and ordered the defend- 



X ATTORNEY-GENERAL'S REPORT. [Jan. 

ant committed to the Bridgewater State Hospital for life. 
The case was in charge of District Attorney Albert F. 
Barker. 

Bow Young, indicted in Hampden County, September, 
1915, for the murder of Ng Hong, at Springfield, on Sept. 
12, 1915. He was arraigned Sept. 24, 1915, and pleaded 
not guilty. Herbert P. Ware, Esq., appeared 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 Joseph B. Ely. 



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

DoMENico Albanese, indicted in Plymouth County, 
October, 1916, for the murder of Fortunato Aprile, at Hing- 
ham, on Aug. 6, 1916. He was arraigned Oct. 24, 1916, and 
pleaded not guilty. Z. T. Zottoli, Esq., appeared as counsel 
for the defendant. On Oct. 26, 1916, the defendant re- 
tracted 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 six years. The case was 
in charge of District Attorney Albert F. Barker. 

Eldridge D. Atwood, indicted in Suffolk County, August, 
1916, for the murder of Wilfred E. Harris, at Boston, July 
18, 1916. George F. Bean, Esq., and James E. Henchey, 
Esq., appeared as counsel for the defendant. The defendant 
was arraigned Jan. 2, 1917, and pleaded guilty to murder 
in the second degree. This plea was accepted by the Com- 
monwealth, and the defendant was sentenced to State 
Prison for life. The case was in charge of District Attorney 
Joseph C. Pelletier. 



1917.] PUBLIC DOCUMENT — No. 12. xi 

Jacob Batckunas, indicted in Worcester County, January, 
1916, for the murder of Victor Sawiscki, at Worcester, on 
Nov. 4, 1915. David F. O'Connell, Esq., appeared as 
counsel for the defendant. The defendant was arraigned 
Feb. 2, 1916, 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 James A. Stiles. 

John Brown, indicted in Plymouth County, February, 
1916, for the murder of William H. McFadden, at West 
Bridgewater, on Oct. 31, 1915. W. F. Kane, Esq., and J. P. 
Vahey, Esq., appeared as counsel for the defendant. The 
defendant was arraigned June 23, 1916, and pleaded guilty 
to murder in the second degree. This plea was accepted by 
the Commonwealth, and the defendant w^as sentenced to 
State Prison for life. The case was in charge of District 
Attorney Albert F. Barker. 

Frank Camarra, indicted in Essex County, July, 1916, 
for the murder of Nicola Ciccarelli, at Lawrence, on July 12, 
1916. He was arraigned July 18, 1916, and pleaded not 
guilty. John A. O'Mahoney, Esq., appeared as counsel for 
the defendant. On Sept. 26, 1916, the defendant retracted 
his former plea, and pleaded guilty to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 
was released on his own recognizance. The case was in 
charge of District Attorney Louis S. Cox. 

Antonio Disrest, alias, indicted in Suffolk County, July, 
1916, for the murder of Max Weinstein, at Boston, on June 
16, 1916. Thomas J. Grady, Esq., appeared as counsel for 
the defendant. The defendant was arraigned Oct. 30, 1916, 
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 C. Pelletier. 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

Fkank Luciano, indicted in Suffolk County, March, 1916, 
for the murder of Eugenio Covino, at Boston, on Feb. 14, 
1916. He was arraigned March 22, 1916, and pleaded not 
guilty. John P. Feeney, Esq., P. S. Maher, Esq., Charles 
J. Martell, Esq., and J. Luciano, Esq., appeared as counsel 
for the defendant. In June, 1916, the defendant was tried 
by a jury before Hardy, J. The result was a verdict of 
guilty of manslaughter. The defendant was thereupon 
sentenced to State Prison for a term not exceeding twelve 
years nor less than eight years. The case was in charge of 
District Attorney Joseph C. Pelletier. 

Richard L. McCormick, indicted in Middlesex County, 
March, 1916, for the murder of Mary A. McCormick, at 
'Cambridge, on March 15, 1916. On March 22, 1916, the 
defendant was committed to the Bridgewater State Hospital 
until restored to sanity. The case was in charge of District 
Attorney William J. Corcoran. 

ViNCENZO Patrello, alias, Matteo Neapolitano, and 
Joseph Balzarano, indicted in Berkshire County, January, 
1916, for the murder of Vincenzo Cresci, at Dalton, on 
March 27, 1915. The defendants Vincenzo Patrello and 
Matteo Neapolitano were arraigned Jan. 19, 1916, and each 
pleaded not guilty. Michael L. Eisner, Esq., appeared as 
counsel for the defendant Patrello, and Frank H. Cande, 
Esq., appeared as counsel for the defendant Neapolitano. 
On July 24, 1916, the defendants retracted their former plea, 
and pleaded guilty to murder in the second degree. This 
plea was accepted by the Commonwealth, and the defendants 
were sentenced to State Prison for life. The defendant 
Joseph Balzarano has never been apprehended. The cases 
were in charge of District Attorney Joseph B. Ely. 

GusTAV Axel Person, indicted in Norfolk County, 
September, 1916, for the murder of Anna Person, at Need- 
ham, on April 18, 1916. He was arraigned Dec. 6, 1916, 
and pleaded not guilty. George Granville Darling, Esq., 



1917.] PUBLIC DOCUMENT — No. 12. xiii 

was assigned by the court as counsel for the defendant. 
In December, 1916, the defendant was tried by a jury 
before Raymond, J. During the progress of the trial 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 
iVttorney Albert F. Barker. 

x4lbert J. Roper, indicted in Middlesex County, March, 
1916, for the murder of Albert Roper, at Tewksbury, on 
March 1, 1916. He was arraigned April 4, 1916, and pleaded 
not guilty. Charles H. Mclntire, Esq., and William H. 
Wilson, Esq., appeared as counsel for the defendant. In 
September, 1916, the defendant was tried by a jury before 
Stevens, J. The result was a verdict of not guilty. The 
case was in charge of District Attorney William J. Corcoran. 

HoRMiDAS Saulnier, indicted in Essex County, January, 
1916, for the murder of Henry Willis, at Lawrence, on Oct. 
16, 1915. He was arraigned Jan. 17, 1916, and pleaded not 
guilty. Michael A. Sullivan, Esq., and James J. Sullivan, 
Esq., appeared as counsel for the defendant. On April 26, 
1916, 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 twelve years nor less than 
eight years. The case was in charge of District Attorney 
Louis S. Cox. 

Adam Tarzein, indicted in Suffolk County, February, 
1916, for the murder of Anna Ostrovick and Belle Ostrovick, 
on Jan. 17, 1916. He was arraigned March 20, 1916, and 
pleaded not guilty. J. H. McNally, Esq., and Thomas F. 
Vahey, Esq., appeared as counsel for the defendant. In 
May, 1916, the defendant was tried by a jury before Hardy, 
J. The result was a verdict of guilty of murder in the first 
degree. The defendant was thereupon sentenced to death 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

by electrocution during the week beginning Nov. 19, 1916. 
This sentence was commuted to imprisonment for life. The 
case was in charge of District Attorney Joseph C. Pelletier. 

Frank J. Tracy, alias, and Joseph Rogers, alias, in- 
dicted in Suffolk County, March, 1916, for the murder of 
Samuel M. Cohen, at Boston, on May 29, 1915. They were 
arraigned March 21, 1916, and each pleaded not guilty. J. W. 
Connelly, Esq., appeared as counsel for the defendant Frank 
J. Tracy, and R. J. Cotter, Esq., appeared as counsel for 
the defendant Joseph Rogers. In April, 1916, the defendants 
were tried by a jury before Hardy, J. The result in each 
case was a verdict of guilty of murder in the second degree. 
The defendants were thereupon sentenced to State Prison 
for life. The cases were in charge of District Attorney 
Joseph C. Pelletier. 

Arthur L. Wells, indicted in Franklin County, March, 
1916, for the murder of Sarah Hakes, at Greenfield, on Jan. 
10, 1916. He was arraigned March 15, 1916, and pleaded 
not guilty. Frank J. Lawler, Esq., and Timothy M. Hayes, 
Esq., appeared 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 John H. Schoonmaker. 

QuENTiN Wood, indicted in Suffolk County, January, 
1916, for the murder of Rose May, on Dec. 10, 1915. He 
was arraigned Jan. 24, 1916, and pleaded not guilty. J. P. 
Feeney, Esq., appeared as counsel for the defendant. On 
June 28, 1916, 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 C. Pelletier. 



1917.] PUBLIC DOCUMENT — No. 12. xv 

The following indictments for murder are now pending : — 

Ralph V. Baker, indicted in Plymouth County, October, 
1916, for the murder of William W. Cushing, at Marshfield, 
on Oct. 3, 1916. R. M. Walsh, Esq., appeared as counsel 
for the defendant. On Oct. 9, 1916, the defendant was com- 
mitted to the Bridgewater State Hospital for observation. 
The case is in charge of District Attorney Frederick G. 
Katzmann. 

Giovanni Boccorossa, indicted in Hampden County, 
September, 1916, for the murder of Rosie Boccorossa, at 
Holyoke, on July 3, 1916. He was arraigned Sept. 20, 1916, 
and pleaded not guilty. James O'Shea, Esq., and Thomas 
J. Lynch, Esq., appeared as counsel for the defendant. No 
further action has been taken in this case. The case is in 
charge of District Attorney Joseph B. Ely. 

Edwin D. Ca^rter, indicted in Hampden County, May, 
1916, for the murder of Richard F. Lawton, at Russell, on 
Jan. 11, 1916. He was arraigned May 10, 1916, and pleaded 
not guilty. Richard P, Stapleton, Esq., appeared as counsel 
for the defendant. No further action has been taken in this 
case. The case is in charge of District Attorney Joseph 
B. Ely. 

Frank Coletti, indicted in Norfolk County, April, 1916, 
for the murder of Josephine M. Coletti, at Quincy, on Jan. 
20, 1916. On April 27, 1916, the defendant was committed 
to the Bridgewater State Hospital for observation. The 
case is in charge of District Attorney Frederick G. Katz- 
mann. 

Harold Craft, indicted in Suffolk County, February, 
1916, for the murder of Eilleen T. Kern, at Boston, on Jan. 
28, 1916. He was arraigned May 24, 1916, and pleaded not 
guilty. No further action has been taken in this case. The 
case is in charge of District Attorney Joseph C. Pelletier. 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

Salvador Cremona, indicted in Hampshire County, 
October, 1916, for the murder of Aristides Rodrigues, at 
Northampton, on Aug. 4, 1916. He was arraigned Oct. 23, 
1916, and pleaded not guilty. George P. O'Donnell, Esq., 
appeared as counsel for the defendant. No further action 
has been taken in this case. The case is in charge of 
District Attorney John H. Schoonmaker. 

Richard Dadah, alias, indicted in Hampden County, 
December, 1916, for the murder of Mahomet Derbas Haz- 
ardine, at Springfield, on Oct. 14, 1916. He was arraigned 
Dec. 29, 1916, and pleaded not guilty. William H. McClin- 
tock, Esq., and James E. Dunleavy, Esq., appeared as 
counsel for the defendant. No further action has been taken 
in this case. The case is in charge of District Attorney 
Joseph B. Ely. 

Francis Ducharme, indicted in Hampden County, 
December, 1916, for the murder of Ellen Kaczor, at Chic- 
opee, on Oct. 21, 1916. He was arraigned Dec. 29, 1916, 
and pleaded not guilty. N. Seelye Hitchcock, Esq., appeared 
as counsel for the defendant. No further action has been 
taken in this case. The case is in charge of District Attorney 
Joseph B. Ely. 

Hassan Durpast, alias, indicted in Hampden County, 
December, 1916, for the murder of Sarkus Dadah, at 
Springfield, on Oct. 14, 1916. He was arraigned Dec. 29, 
1916, and pleaded not guilty. William G. McKechnie, Esq., 
appeared as counsel for the defendant. No further action 
has been taken in this case. The case is in charge of District 
Attorney Joseph B. Ely. 

Manuel Santos Ferreira, indicted in Plymouth County, 
October, 1916, for the murder of Jose Domingo Coutinho, at 
Middleborough, on Aug. 16, 1916. He was arraigned Oct. 
25, 1916, and pleaded not guilty. W. M. Alston, Esq., 
appeared as counsel for the defendant. No further action 



1917.] PUBLIC DOCUMENT — No. 12. xvii 

has been taken in this case. The case is in charge of 
District Attorney Frederick G. Katzmann. 

Emma Gianusso, alias, indicted in Hampden County, 
May, 1916, for the murder of Frank Daniels, Jr., at Ludlow, 
on March 11, 1916. She was arraigned May 10, 1916, and 
pleaded not guilty. E. A. McClintock, Esq., and D. B. 
Hoar, Esq., appeared as counsel for the defendant. No 
further action has been taken in this case. The case is in 
charge of District Attorney Joseph B. Ely. 

John Gilstrap, indicted in Suffolk County, October, 1916, 
for the murder of Albert Newton, at Boston, on Sept. 11, 
1916. The defendant has not yet been arraigned. The case 
is in charge of District Attorney Joseph C. Pelletier. 

Michael Glasheen, alias, indicted in Berkshire County, 
January, 1916, for the murder of Lafayette L. Battelle, at 
Monterey, on Dec. 13, 1915. He was arraigned April 24, 
1916, and pleaded not guilty. Patrick J. Moore, Esq., and 
John S. Stone, Esq., appeared as counsel for the defendant. 
No further action has been taken in this case. The case is 
in charge of District Attorney Joseph B. Ely. 

John J. Herrick, indicted in Essex County, September, 
1916, for the murder of Mabel Leary, at Gloucester, on 
Sept. 2, 1916. He w^as arraigned Sept. 27, 1916, and pleaded 
not guilty. No further action has been taken in this case. 
The case is in charge of District Attorney Louis S. Cox. 

Harry Hinds, indicted in Middlesex County, June, 1915, 
for the murder of Marvil Elizabeth Hinds and Barbara 
Jesstena Hinds, at Cambridge, on April 9, 1915. He was 
arraigned June 24, 1915, and pleaded not guilty. William 
H. Lewis, Esq., and Isidore H. Fox, Esq., appeared as 
counsel for the defendant. In November, 1915, the defend- 
ant was tried by a jury before Raymond, J. The result was 
a verdict of guilty of murder in the first degree. Two 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

motions for a new trial filed by the defendant are now 
pending. The case is in charge of District Attorney Nathan 
A. Tufts. 

Charles H. Hunnewell, indicted in Middlesex County, 
September, 1916, for the murder of Alexander Bryan, at 
Somerville, on July 3, 1916. He was arraigned Oct. 10, 
1916, and pleaded not guilty. On Nov. 23, 1916, the de- 
fendant retracted his former plea, and pleaded guilty to 
manslaughter. This plea was accepted by the Common- 
wealth. The defendant has not yet been sentenced. The 
case is in charge of District Attorney Nathan A. Tufts. 

Michael Lopio, indicted in Essex County, September, 
1916, for the murder of James Germono, at Salem, on Aug. 
15, 1916. He was arraigned Sept. 28, 1916, and pleaded 
not guilty. No further action has been taken in this case. 
The case is in charge of District Attorney Louis S. Cox. 

Michael Manning, indicted in Essex County, September, 
1916, for the murder of Lizzie Manning, at Lawrence, on 
Aug. 23, 1916. He was arraigned Sept. 18, 1916, and pleaded 
not guilty. John P. Kane, Esq., appeared as counsel for the 
defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Louis S. Cox. 

Daniel Manzeiu, indicted in Essex County, September, 
1916, for the murder of Yousefka Manzeiu, at Pea body, on 
Aug. 28, 1916. Sept. 16, 1916, the defendant was committed 
to the Danvers State Hospital for observation. The case 
is in charge of District Attorney Louis S. Cox. 

Andrew Nelson, indicted in Suffolk County, November, 
1916, for the murder of Carrie Baer, on Oct. 24, 1916. He 
was arraigned Nov. 16, 1916, and pleaded not guilty. 
Francis F. Harrington, Esq., appeared as counsel for the 
defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Joseph C. Pel- 
letier. 



1917.] PUBLIC DOCUMENT — No. 12. xix 

Irving E. Olmstead, indicted in Suffolk County, April, 
1916, for the murder of Violet C. Mooers, at Boston, on 
March 13, 1916. He was arraigned April 11, 1916, and 
pleaded not guilty. Harvey H. Pratt, Esq., and J. A. Tirrell, 
Esq., appeared as counsel. On Nov. 10, 1916, the defend- 
ant was committed to the Psychopathic Hospital and later 
to the Danvers State Hospital, for observation. The case 
is in charge of District Attorney Joseph C. Pelletier. 

Oscar F. Puss, indicted in Suffolk County, September, 
1915, for the murder of Emily Russ, at Boston, Aug. 23, 
1915. He w^as arraigned Oct. 8, 1915, and pleaded not 
guilty. Thomas F. Vahey, Esq., appeared as counsel for 
the defendant. In February, 1916, the defendant was tried 
by a jury before Sisk, J. The result was a verdict of guilty 
of murder in the second degree. The defendant's bill of 
exceptions is pending. The case is in charge of District 
Attorney Joseph C. Pelletier. 

Theodore Semon, indicted in Suffolk County, November, 
1915, for the murder of Johanna E. Donovan, at Boston, 
on Oct. 7, 1915. The defendant has not yet been arraigned. 
William J. Miller, Esq., and David Mancovitz, Esq., ap- 
peared as counsel for the defendant. No further action has 
been taken in this case. The case is in charge of District 
Attorney Joseph C. Pelletier. 

Stelianos Zacharachi, alias, indicted in Suffolk County, 
September, 1916, for the murder of Charles W. Craney, at 
Boston, Aug. 28, 1916. The defendant has not yet been 
arraigned. The case is in charge of District Attorney Joseph 
C. Pelletier. 

Grade Crossings. 

The following is the report of the work done in connec- 
tion wdth the elimination of grade crossings during the 
year 1916: — 

Six hearings before commissions and auditors have been 
attended. 



XX ATTORNEY-GENERAL'S REPORT. [Jan. 

No work of construction has been done during the year. 

Statements of expenditures, numbering 11, amounting to 
$52,515.85, have been examined, and objection to items 
amounting to $26,388.24 has been made, $5,079.52 of which 
has been withdrawn, and decisions as to the balance are 
pending. 

A summary of the statement of expenditures examined 
in the period 1909 to date is as follows: — 

Number of statements, 311 

Total amount, $12,858,512 03 

Amount of items objected to, 1,069,692 74 

Amounts disallowed or withdrawn, 442,107 94 

Amount of items to which objection has been made 

and decisions are pending, 411,473 44 

Savings Bank Investments. 

A situation has come to my attention which indicates 
the necessity of further legislation to protect the assets of 
savings banks in this Commonwealth. 

St. 1908, c. 590, limits and defines the investments which 
savings banks may legally make, and authorizes savings 
banks to invest in bonds and notes of Massachusetts rail- 
roads which have paid in dividends in cash an amount 
equal to not less than 4 per cent, per annum on all the 
outstanding stock for the five years next preceding the in- 
vesting. This provision was, obviously, enacted to restrict 
the investments of savings banks to bonds and notes of 
successful railroads. Nevertheless, I have learned that dur- 
ing the year 1912 notes of the Hampden Railroad Corpora- 
tion, a corporation which has never become a railroad in 
fact, were acquired by savings banks in this Commonwealth 
to the amount of nearly $1,000,000. At the time of the 
issuance of substantially all of these notes the Hampden 
Railroad Corporation had no capital stock lawfully issued, 
and its only substantial assets were represented by certain 
construction work which had been paid for with borrowed 
money, together with certain borrowed money in its treasury. 

It is not by any means clear that under the provisions of 
the laws pertaining to savings banks these notes were legal 



1917.] PUBLIC DOCUMENT — No. 12. xxi 

investments for savings banks. It is claimed, and I under- 
stand it to be the opinion of the Bank Commissioner, that 
these notes were a legal investment, as coming under the 
provisions of St. 1908, c. 590, § 68, cl. 8, 6, as amended by 
St. 1909, c. 491, which authorizes savings banks to take 
notes of Massachusetts corporations with one or more sub- 
stantial indorsers, provided that no such loan shall be made 
or renewed unless within eighteen months next preceding 
the making or renewing of such loan an examination of 
the affairs, assets and liabilities of the borrowing corpora- 
tion or association has been made, at the expense of such 
borrowing corporation or association, by an accountant 
approved by the Commissioner. 

On Jan. 1, 1912, a report of such an examination of the 
Hampden Railroad Corporation was made by the New 
England Audit Company, which stated that the total assets 
of the Hampden Railroad Corporation were $2,403,017.04, 
and the total liabilities were the same. The report of the 
New England Audit Company set forth that said liabilities 
included liability for common stock to the amount of $1,400,- 
000. Stock at that time could not, under the law, have been 
issued, as no approval of any issue had been made by the 
Board of Railroad Commissioners. Therefore, to put it 
mildly, the statement was inaccurate, since it set forth a 
liability of $1,400,000, which would constitute a claim against 
the assets only after the other liabilities had been satisfied, 
when in fact the money received for said alleged issue of 
stock created a debt of the railroad to that amount. 

The only indorser to most of the notes issued to savings 
banks was the Hampden Investment Company, the incorpo- 
rators of which were all persons who were incorporators of 
the Hampden Railroad Corporation. This corporation was 
organized on Aug. 24, 1911. The purpose for which it was 
organized was to transact any business that may be done 
by a corporation organized under St. 1903, c. 437, and acts 
in amendment thereof and in addition thereto. The only 
real purpose for its incorporation seems to have been to 
facilitate the financing of the Hampden Railroad Corpora- 
tion and to provide a purchaser of its stock and an indorser 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 

of its paper. The only amount of stock issued and paid for 
in the Hampden Investment Company was $7,000. 

I am informed that before loaning S 1,400,000 to the 
Investment Company with which to pay for the entire author- 
ized capital stock of the Hampden Railroad Corporation, 
14,000 shares, the bankers from w^hom the loan was made 
stipulated that these shares should be deposited by the In- 
vestment Company with them as collateral for the loan, and 
that $200,000 should be paid into the corporation in addition 
to the capital stock of $7,000, in order that the corporation 
should have $200,000 cash resources in addition to the $7,000 
paid into it on "account of its capital stock. I have no 
knowledge of where this $200,000 came from, or whether 
it was a bona fide contribution to the Hampden Investment 
Company. In any event, in its certificate of condition filed 
Oct. 3, 1912, it is represented as surplus in the corporation. 
On Jan. 1, 1913, a note of the Hampden Railroad Corpora- 
tion for $200,000 was given to the Hampden Investment 
Company, and the $200,000 paid in, under the stipulation 
above referred to, was paid out by the Hampden Invest- 
ment Company for some purpose not entirely clear; and 
thereafter a note of $200,000 was carried as an asset of the 
Hampden Investment Company until in its certificate of 
condition for 1916 it disappeared as an asset of the com- 
pany. 

The Hampden Investment Company was used as the 
'^ substantial " indorser of the larger amount of the notes 
taken by the savings banks. 

At the time of all of these indorsements the liabilities 
of the Hampden Investment Company, exclusive of liability 
for its capital stock, amounted to $1,400,000 or more, and 
its return of 1912 shows that its entire assets, in addition 
to the amounts received for the sale of its capital stock and 
the $200,000 above referred to, plus $2,040.41, which seems 
to have been accrued interest thereon, consisted entirely of 
the entire capital stock of the Hampden Railroad Corpora- 
tion, estimated at $1,400,000. 

It follows, therefore, considering the situation in its best 
light, that w^hen some of the notes given to the savings 



1917.] PUBLIC DOCUMENT — No. 12. xxiii 

banks were indorsed by it, its liability upon these notes 
and its direct liabilities amounted to over $2,000,000, with 
but $209,040.41, exclusive of the capital stock of the Hamp- 
den Railroad Corporation, to meet these liabilities. 

Substantially all these notes, or renewals thereof, remain 
unpaid. There is, in my judgment, no hope of their being 
paid by the Hampden Railroad Corporation, unless by 
authority of the Public Service Commission sufficient bonds 
are issued and sold to take care of them, or some arrange- 
ment is made by which the Hampden Railroad Corporation 
is made a physical part of some other railroad, and that 
railroad assumes the liabilities of the Hampden Railroad 
Corporation. 

If the reasonable cost of the construction of the Hampden 
railroad was less than its outstanding indebtedness, any 
provision to take care of this indebtedness creates a situ- 
ation which the provisions of law relating to stock watering 
were designed to prevent. 

There is some doubt in my mind as to whether railroad 
companies are included in the corporations referred to in 
that part of said section 68, clause 8, subdivision b, pro- 
viding that corporations whose notes are indorsed by a 
substantial indorser may be used as an investment by 
savings banks. There is much more serious doubt in my 
mind as to whether the Hampden Investment Company, in 
the condition it was at the time of the indorsement of 
said notes, was a substantial indorser of notes of hundreds 
of thousands of dollars. Furthermore, from my present 
knowledge of the situation it is not entirely clear to me 
but that a question might be raised as to the legality of 
these indorsements. 

However that may be, the Bank Commissioner is, I 
understand, of the opinion that these notes were legal in- 
vestments. 

The provisions of law now require a report of the exami- 
nation of the accountant, above referred to, in such form as 
the Bank Commissioner shall require, to be made to the 
bank before the loan is made, and also provide that within 
thirty days after the completion of the examination a cer- 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

tified copy of the report shall be delivered by the accountant 
to the Bank Commissioner. 

Under the law as it now exists a bank may legally make 
a loan although such loan is not approved by the Commis- 
sioner, and although he may be of the opinion that the 
corporation is not in a sound financial condition. 

In view of the fact that all the funds of savings banks are 
held exclusively for the benefit and security of the depositors, 
it seems imperative that further legislation be enacted to 
make a recurrence of such a situation impossible. 

I suggest the advisability of providing by law that no 
such loan shall be legal unless it meets with the approval of 
the Bank Commissioner, or at least he certifies that the cor- 
poration proposing to make the loan is in a sound financial 
condition and is engaged in a profitable business. 

I also recommend a consideration of the advisability of 
restricting the issuance by railroad corporations of notes or 
other evidences of indebtedness payable . within a year for 
construction purposes. 

St. 1908, c. 590, § 8, provides — 

If, in the opinion of the commissioner, such bank or its officers or 
trustees have violated any law relative thereto, he shall forthwith 
report such violation to the attorney-general, who shall forthwith, in 
behalf of the commonwealth, institute a prosecution therefor. If, in 
the opinion of the commissioner, such bank is conducting any part 
of its business in an unsafe or unauthorized manner, he shall direct in 
writing that such unsafe or unauthorized practice shall be discon- 
tinued; and if any such bank shall refuse or neglect to comply with 
any such direction of the commissioner, or if, in the opinion of the 
commissioner, a trustee or officer of such bank has abused his trust, 
or has used his official position in a manner contrary to the interests 
of such bank or its depositors, the commissioner shall, in the case of a 
savings bank, forthwith report the facts to the attorney-general, who 
may, after granting a hearing to said savings bank, trustee or officer, 
institute proceedings in the supreme judicial court, which shall have 
jurisdiction in equity of such proceedings, for the removal of one or 
more of the trustees or officers, or of such other proceedings as the 
case may require; . . . 

Until the Bank Commissioner reports to the Attorney- 
General, as therein provided, this department, obviously, 
is not authorized to act under this section. 



1917.] PUBLIC DOCUMENT — No. 12. xxv 

I deem it desirable, and so recommend, that provision be 
made that where facts come to the attention of the Attorney- 
General, which in his judgment warrant proceedings under 
this section, he may act of his own initiative under the pro- 
visions thereof. 

Combinations to control Prices. 

The recent advance in the cost of necessaries of life has 
caused this department, so far as it was able, to ascertain 
whether complaints in the Commonwealth as to prices 
charged for such necessaries were based upon facts which 
warranted prosecutions. 

There is a general impression that all agreements among 
dealers to fix the prices at which commodities shall be sold 
are criminal acts under the law of the Commonwealth. 

Undoubtedly this impression has arisen from the definition 
of the crime of conspiracy as given by most textbook writers 
of the criminal law; that is, that a criminal conspiracy is a 
combination between two or more persons to do an unlawful 
thing, or to do a lawful thing by unlawful means. A careful 
consideration of the law seems to indicate that this definition 
is too broad. As was said by Shaw, C.J. :^ — 

But yet it is clear that it is not every combination to do unlawful 
acts to the prejudice of another by a concerted action which is punish- 
able as conspiracy.^ 

Agreements in unreasonable restraint of trade,* at the com- 
mon law, were voidable by any of the parties thereto. They 
were not necessarily unlawful in the sense of being criminal 
or giving rise to a civil action for damages in favor of one 
prejudicially affected thereby, but were simply unenforce- 
able.^ Not every agreement to do an act which is unlawful 
in the sense that the agreement will not be enforced by the 
courts, on the ground of its being contrary to public policy, 
is criminal. True, an agreement to do an act in itself crim- 
inal is always a criminal conspiracy. Beyond this, agree- 
ments to do certain other acts are criminal which if done by 

1 Commonwealth v. Hunt, 4 Met. Ul, 124; Rex v. Turner, 13 East. 228. 

2 Addlyston Pipe & Steel Co. v. United States, 85 Fed. 271 (affirmed 175 U. S. 211); Mogul 
Steamship Co. v. McGregor, L. R. 1892, App. Cas. 25; Urnston v. Whitelegg Bros., 63 L. T. 
Rep. 455 (n. s.). 



xxvi ATTORNEY-GENERAL'S REPORT. [Jan. 

one would not be criminal. These are usually confederacies 
wrongfully to prejudice another in his property, his person or 
his character. 

It is to be observed that not all agreements to fix prices, 
although they have a tendency to restrain trade, are invalid, 
and such agreements, w^hen relating to articles not of prime 
necessity or of common use, have been held to be valid con- 
tracts in this Commonwealth and enforceable by the parties 
thereto.^ Obviously, such agreements are not criminal. 

In certain cases in some of the States and Canada it has 
been held that agreements to control the prices of necessaries 
of life are not criminal unless a monopoly is in fact thereby 
created.^ 

While no criminal case has arisen in this Commonwealth 
which presents this precise question, the views of the court 
in the case of Comviomvealth v. North Shore Ice Delivery Co., 
220 Mass. 55, incline me to the opinion that the law in this 
Commonwealth is probably the same. 

There are expressions in some of the cases in other juris- 
dictions tending to a contrary view, but it is interesting to 
find, upon examination, that these cases arose in States 
where statutes have been passed extending the common law 
principles as to conspiracies.^ Other instances of such ex- 
pressions appear in civil cases, which of course are not con- 
trolling. 

In a number of States in the Union statutes have been 
passed making such agreements and confederacies in re- 
straint of trade criminal acts, and of course this is true 
under the provisions of the so-called Sherman act in rela- 
tion to interstate transactions. Illustrations of this are 
found in the statutes of the States of Illinois, Ohio and New 
York.^ It is to be observed that the Sherman act has no 
application to intrastate transactions. 

Although several statutes have been enacted in this Com- 

1 Central Shade Roller Co. v. Cushman, 143 Mass. 353; Gloucester Glue Co. v. Russia 
Cement Co., 154 Mass. 92; Gamewell Fire Alarm Telegraph Co. v. Crane, 160 Mass. 50. 

2 Herriman v. Menzies, US Cal. 16; Ontario Salt Co. v. Merchant Salt Co., 18 Grant (U. C, 
540; State v. Eastern Coal Co., 29 R. I. 254. 

3 Chicago, etc., Coal Co. v. People, 214 111. 421; People v. Sheldon, 139 N. Y. 251. 

* 111. Stats. Ann. § 3550; Ohio Gen. Code, §§ 6390-6402; Cons. Laws of N. Y., c. 20, art. 22. 



1917.] PUBLIC DOCUMENT — No. 12. xxvii 

monwealth with reference to this subject-matter, they by 
no means cover the situation now under consideration. 

R. L. c. 56, § 1, prohibits a vendor from making it a 
condition of the sale of goods that the purchaser shall not 
deal in the goods of another. 

St. 1907, c. 469, contains a similar provision in regard to 
the sale, lease or use of tools or machinery. 

St. 1908, c. 454, forbids combinations in violation of the 
common law in three stated particulars, namely, in that a 
monopoly in articles in common use is or may be created or 
maintained; in that competition in the supply or price of 
any such article is or may be restrained or prevented; or 
in that, for the purpose of establishing a monopoly in such 
article, the free pursuit of any lawful business is or may be 
restrained or prevented. As interpreted by the court in 
the case of Commonwealth v. North Shore Ice Delivery Co., 
220 Mass. 55, this statute created no new offence but only 
specified certain kinds of combinations in violation of the 
common law that might be restrained under the provisions 
of the act. The court in this case apparently limits the 
effect of this statute to cases where a monopoly is in fact 
created, or to cases where the opportunity of competition 
by persons outside of the combination is restricted. It 
should be noted, also, that this statute provides no penalty 
for its violation. 

St. 1911, c. 503, provides for a new form of procedure in 
cases within the purview of St. 1908, c. 454, but creates 
no new offence. 

St. 1912, c. 651, makes unlawful all combinations for the 
purpose of destroying the trade or business of persons 
engaged in selling goods and for the purpose of creating a 
monopoly. As both purposes are stated conjunctively in the 
statute, it seems to require proof of both, and therefore is 
inapplicable to ordinary combinations to fix prices. 

St. 1913, c. 709, provides only for procedure in case of a 
violation of law in regard to this matter but creates no 
new offence. 

I suggest the advisability of a statute which will make it 
a criminal offence to enter into such agreements to fix prices 



xxviii ' ATTORNEY-GENERAL'S REPORT. [Jan. 

of commodities of prime necessity or in common use, as 
may be deemed expedient, and also to extend the principles 
of the Sherman act to intrastate transactions. 

Corrupt Practices in Elections. 

Under the provisions of the statutes relating to corrupt 
practices, if it appears to the Secretary of the Common- 
wealth that any statement filed thereunder discloses any 
violations of the provisions of law relating to corrupt prac- 
tices he shall notify the Attorney-General thereof, and shall 
furnish him with copies of all papers relating thereto, and 
the Attorney-General within two months thereafter shall 
examine every such case, and if he is satisfied there is cause, 
he shall, in the name of the Commonwealth, institute ap- 
propriate civil proceedings or refer the case to the proper 
district attorney for such action as may be appropriate in 
the criminal courts. St. 1913, c. 835, § 366, provides that 
action to compel the filing of statement in compliance with 
it shall be begun within sixty days after such election. 

In view of the great number of returns and the short time 
given to the Secretary of the Commonwealth for examina- 
tion, irregularities and failures to comply with law are fre- 
quently not brought to the attention of this department 
until after the time has expired in which action may be 
begun. It is difiicult for the Secretary of the Common- 
wealth to bring all instances of irregularity or failure to 
comply with law in these cases to the attention of the 
Attorney-General, in any event until the time for action 
by the Attorney-General has nearly expired. 

I recommend that the time allowed for proceedings be 
extended. 

Under the law as it now stands five or more voters may 
bring an election petition in equity to investigate the elec- 
tion of any candidate. In such proceeding it is provided 
that a witness who testifies therein shall not be prosecuted 
or subjected to any penalty or forfeiture for or on account 
of any matter or thing concerning which he may so testify, 
except for perjury committed in such testimony. Criminal 
prosecutions by the district attorney may often be barred 



1917.] PUBLIC DOCUMENT — No. 12. xxix 

by such proceedings, where, if no such proceeding had 
been instituted, a conviction for the violation of law might 
have been obtained. I am of the opinion that some provi- 
sion should be made so that such proceedings shall not be 
had or shall be suspended when the court is of the opinion, 
upon representation of the district attorney, that the pro- 
ceedings may obstruct the course of public justice. 

During the year my attention has been called to ex- 
penditures made directly by individuals in the furtherance 
of the candidacy of others or the defeat of candidates for 
office. It was claimed that such action was not a violation 
of law so long as the expenses incurred were for purposes 
defined in St. 1913, c. 835, § 349, as amended by St. 1914, 
c. 783, § 3, as personal expenses, and so long as they were 
incidental to the rendering of services as a speaker, pub- 
lisher, editor, writer or other person enumerated in St. 1913, 
c. 835, § 361, as amended. After careful consideration of the 
matter I came to the conclusion that this construction was 
correct, as otherwise, in my judgment, there would be grave 
doubt as to the constitutionality of said section 361. If it 
is desired that such expenditures be limited beyond the 
limitations imposed by said section 349, that intention 
should be made manifest by the Legislature. 

I also recommend that the act be revised in conformity 
with the decision of the Supreme Judicial Court in the case 
of Dinan v. Swig, 223 Mass. 516, and so as to make it con- 
sistent with the Federal statutes relating to corrupt practices 
in elections. 

Boston & Maine Reorganization. 
I feel it my duty to bring to the attention of the Legis- 
lature the situation in which the Commonwealth may be 
placed by the proposed reorganization of the Boston & 
Maine Railroad. Undoubtedly every member of the Legis- 
lature is aware of the receivership proceedings now pending 
in the United States District Court, and of the possibility 
that the appointment of the receiver will be made perma- 
nent, as well as the fact that the current earnings of the 
road appear as the largest in its history. 



XXX ATTORNEY-GENERAL'S REPORT. [Jan. 

Apparently one of the results of the appointment of a 
permanent receiver will be to make it possible to avoid 
certain of the leases of other roads now held by the Boston 
& Maine, or to force a reduction of the agreed rentals, or 
a consolidation of such lines with the Boston k Maine. 
The Legislature of 1915, by the enactment of chapter 380 
of the Special Acts of that year, seems to have sanctioned 
some such action. 

It is my duty, however, clearly to point out that the 
Federal receivership v/ill make it possible to avoid all 
contracts of the Boston & Maine Railroad to which it is a 
party as readily as its agreements with the leased lines. 
The Commonwealth holds certain obligations of the Boston 
& Maine Railroad. Its rights may be abrogated by the 
same receivership proceedings, and the favor granted by it 
by virtue of said act may be used for the cancellation of 
its contract rights. 

The Commonwealth owns S5,400,000 of the bonds of the 
Boston & Maine Railroad which were issued to it in pay- 
ment for the common stock of the Fitchburg Railroad, 
ow^ned by the Commonwealth. 

Prior to the construction of Commonwealth Pier in South 
Boston, on which the State has spent over 84,000,000, a con- 
tract was made with the Boston & ]\Iaine Railroad and 
the New York, New Haven & Hartford Railroad Com- 
pany, guaranteeing that these roads would make their flat 
Boston rates apply to the pier when constructed; or, stated 
in another form, guaranteeing that the rates to the piers 
constructed by the Commonwealth would be the same as to 
piers owned by. the railroads themselves. In the opinion 
of the then chairman of the Directors of the Port of Boston 
such a rate arrangement was absolutely a necessary pre- 
requisite to the construction of such piers by the State. No 
steps toward the expenditure of the large sums which were 
involved were taken until the agreement was made. In the 
opinion of all public officials who have considered the mat- 
ter, so far as I am aware, the value of the piers in South 
Boston will be enormously impaired if such arrangement is 
abrogated. Steamship lines cannot be expected to make 



1917.] PUBLIC DOCUMENT — No. 12. xxxi 

use of the piers unless they are assured an equality in rail- 
road rates with steamship lines using the piers owned by 
the railroads. 

Very likely other contracts w^ith the Commonwealth exist 
which may be similarly affected. 

I submit to the consideration of this Legislature whether 
it desires to release the Boston & Maine Railroad or its 
successors from these obligations to the Commonwealth. 
If it does not, the opportunity to protect the Common- 
wealth will hardly be open after the privileges granted by 
chapter 380 of the Special Acts of 1915 have been availed of. 

There are some phrases interspersed in that act which it 
might be argued furnish some protection to the Common- 
wealth. In my opinion, however, in order to secure full 
protection of the obligations to the State, the grant of the 
privileges contained in said act should be made conditional 
upon the performance of the present contracts of the Boston 
& Maine Railroad with the Commonwealth, and I recom- 
mend legislation to that end. Furthermore I advise that 
the grant of any further privilege to the New York, New 
Haven & Hartford Railroad be conditioned upon terms that 
will secure to the Commonwealth the advantages contem- 
plated by said contract. 

Bonds of Trustees and Receivers. 
My attention has been called by the Chief Justice of the 
Supreme Judicial Court to the fact that there is no provi- 
sion of law determining to whom a bond should run given 
by a trustee appointed by the Supreme Judicial Court or 
the Superior Court under the provisions of sections 5 and 6 
of chapter 147 of the Revised Laws. In the Probate Court 
the forms adopted and approved by the Supreme Judicial 
Court provide that such bond shall run to the judge of 
probate, like all other probate bonds. The absence of any 
provision in case the appointment is made by the Supreme 
Judicial Court or the Superior Court has given rise to some 
embarrassment. I also find that there is no provision of 



xxxii ATTORNEY-GENERAL'S REPORT. [Jan. 

law as to whom a bond should run given by a receiver 
appointed by the Supreme Judicial Court or the Superior 
Court. It appears to be the custom in the Supreme Judicial 
Court for such bonds to run to the Commonwealth, and in 
the Superior Court, to the Treasurer and Receiver-General. 
It seems to me in all these cases there should be a uniform 
practice established by law. Accordingly, I recommend the 
enactment of legislation to the effect that, in all cases where 
bonds are required to be given in connection with court 
proceedings other than in the Probate Court, and where 
there is no other provision of law determining the form of 
the bonds, such bonds should run to the Commonwealth, 
with appropriate provision for the bringing of suit upon 
such bonds, with the approval of the court, by any person 
injured by a breach. 

Public Administrators. 
Under the provisions of section 12 of chapter 138 of the 
Revised Laws, when an estate has been fully administered 
by a public administrator he is required to deposit the bal- 
ance of such estate with the Treasurer and Receiver-General, 
if no heirs appear who are entitled to the same. Section 14 
provides that at any time within six years after such deposit 
any person legally entitled to this fund may file in the Pro- 
bate Court a petition for administration. If this petition is 
granted the fund is paid over by the Treasurer and Receiver- 
General to the new administrator, who administers it for the 
benefit of the parties interested. This section provides that 
upon such a petition notice shall be served upon a public 
administrator of the county, "who shall appear in behalf of 
the Commonwealth." Under this provision it becomes the 
duty of the public administrator to defend, if a defence is 
required, any such claims. The statute, however, makes no 
provision for the compensation of a public administrator for 
such services. It is the practice, when he is unsuccessful in 
his defence and the petition is allowed, for the Probate 
Court to require the new administrator to compensate the 
public administrator for such services out of the fund. 
Where, however, the public administrator is successful in his 



1917.] PUBLIC DOCUMENT — No. 12. xxxiii 

defence, there is no way in which he may be compensated 
out of the fund, and, accordingly, if he is to receive com- 
pensation, he must be paid by the Attorney-General out of 
his appropriation. As all such defences are really made in 
behalf of any persons who may thereafter become entitled 
to the fund, it would seem that the fund itself should be 
charged with all such expenses. I therefore recommend 
legislation authorizing the judge of the Probate Court, in all 
cases where a public administrator appears upon such peti- 
tions, to enter a decree for the payment of his compensation 
out of the fund in the hands of the Treasurer and Receiver- 
General, and authorizing that official to make payments 
upon such decrees. 

It not infrequently happens, shortly after a public ad- 
ministrator has settled his account and turned over the bal- 
ance in his hands to the Treasurer and Receiver-General, 
that persons will be discovered who are undoubtedly heirs 
of the deceased and entitled to the fund. Particularly in 
cases where the balance is small, it is a hardship to require 
such persons to go through the form of proceedings required 
by section 14 above mentioned, but under our present law 
the Treasurer and Receiver-General is authorized to pay 
out the fund only upon a decree entered after such proceed- 
ings. I suggest legislation authorizing the judge of the Pro- 
bate Court, upon application of a public administrator, to 
reopen his account after an estate has thus been closed, and 
to enter a decree requiring the Treasurer and Receiver- 
General to return the fund so deposited to the public ad- 
ministrator, to be administered by him according to law. 

Land Court. — Report of Cases. — Jurisdiction. 
In a recent case the Supreme Judicial Court has held that 
the Land Court has not yet been given by the Legislature 
the power, given to the Superior Court in 1910, to report for 
decision by the Supreme Court important questions of law 
arising in the course of a proceeding, unless the case has 
been so far disposed of that it is in shape for entry of final 
decree. Riverbank ImproTement Co. v. Chapman, 224 IMass. 
424.) 



xxxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

^ Questions of law frequently arise in the course of legal 
proceedings, the settlement of which may save the trouble 
and expense incident to a lengthy trial and furnish a guide 
to other possible litigants who stand in a similar situation. 

The exact case mentioned above, in which an adverse 
decision was rendered, shows most aptly the injustice which 
may result from such a state of the law, and the need for 
legislation to remedy the situation. Chapter 112 of the 
General Acts of 1915 permits the Land Court to register the 
title of land which has been made subject to restrictions in 
cases where the restrictions would no longer be specifically 
enforced in equity, and in place thereof damages would be 
allowed for a breach of the restriction. Procedure is estab- 
lished for the determination of the damages by a jury in the 
Superior Court, and payment of the amount thereof by the 
petitioner into court, whereupon the Land Court may register 
the title free and clear of the restrictions. 

Such a petition was presented to the Land Court, but at 
the outset it was indicated that the adjoining landowners, 
who objected to the registration, claimed that this statute 
was unconstitutional. Obviously, here was an important 
point of law which went to the very root of the litigation. 
If the contention should prove correct, it would nullify all 
action which might be taken. A trial of the question of 
the amount of damages to the other property in the neigh- 
borhood from an abolition of the restriction would take 
much time, involve heavy expense to the parties and to the 
county and would go for naught if ultimately the statute 
should be decided to be unconstitutional. Li addition, the 
petitioner would be required to raise the amount of money 
fixed by the verdict of the jury and pay it into court, 
losing the use thereof during the period of time until the 
question had been decided by the Supreme Court. 

Nevertheless, as the law now stands there seems no method 
of avoiding such an unfortunate situation. 

Accordingly I recommend that the Legislature enact a law 
specifically granting to the Land Court the power to report 
questions of law arising upon any interlocutory order or 
decree. This might be accomplished by amending the last 



1917.] PUBLIC DOCUMENT — No. 12. xxxv 

sentence of R. L., c. 128, § 13, as amended by St. 1902, 
c. 458, and St. 1910, e. 560, §1, by inserting after the word 
"any" and before the word "decision" the words "inter- 
locutory or final;" and by making the same amendment of 
St. 1904, c. 448, §8, as amended by St. 1910, c. 560, §6. 

Another recent decision of the Supreme Judicial Court 
raises the question of whether the jurisdiction of the Land 
Court might not well be extended. {Seder quist v. Brown, 
225 Mass. 217.) In that case it was. held that where there 
exists a special attachment of real estate standing in the 
name of the petitioner but claimed to be the property of 
another who is the defendant in a pending suit, the Land 
Court has no right to determine the justice of the attach- 
ment, and can only register the land subject thereto. Obvi- 
ously, in cases where there is no foundation for the claim 
that the petitioner for registration is not the real owner of 
the property, this may work an injustice. Accordingly I 
recommend consideration by the Legislature of the advis- 
ability of broadening the jurisdiction of the Land Court to 
establish an absolute title upon petition to register title to 
land. 

Insurance. 

R. L., c. 6, § 42, provides: "No board or officer shall 
insure any property of the commonwealth without special 
authority of law." 

The general policy thereby established is sound. The 
property of the Commonwealth is so extensive and so 
widely separated that it is better business for the Common- 
wealth, in ordinary cases, to act as its own insurer than to 
pay insurance pretniums, a substantial percentage of which 
is absorbed by the expenses of the company. 

It is, however, the practice in nearly all building contracts 
to require the contractor to agree to furnish to the Com- 
monwealth a building fully completed according to the plans 
and specifications. In other words, to throw the risk of 
loss during construction upon the contractor. As a prac- 
tical matter this results in the contractor effecting insurance 
upon the building during construction, and it is fair to as- 
sume that the cost of such insurance is figured by him in 



xxxvi ATTORNEY-GENERAL'S REPORT. [Jan. 

determining the amount of his bid. In view of this situa- 
tion it has frequently been specified in times past that the 
contractor should furnish such insurance and make the same 
payable to the Commonwealth. Inasmuch as nearly all 
contracts call for the payment monthly to the contractor 
of from 85 to 95 per cent, of the value of the work done, 
the Commonwealth stands a risk of loss in the event of 
fire, followed by insolvency of the contractor, unless there 
is such a provision making the insurance payable to the 
Commonwealth.' Practically, therefore, the Commonwealth 
generally pays for such insurance during construction as a 
part of the contract price of the work, and consequently it 
would seem to be desirable that it have the full benefit of 
the insurance obtained by making the policies payable to 
the Commonwealth in case of loss. If this is to be so, the 
law should be in such shape that no possible question could 
be raised as to the legality of such insurance or the propri- 
ety of having the policies payable to the Commonwealth. 
Accordingly I would recommend the amendment of said 
section by the insertion after the word "commonwealth" of 
the words "except buildings under construction, alteration 
or repair." 

Sentences to the Massachusetts Reformatory and 
Reformatory for Women. 

I renew my recommendation, made in the report of the 
Attorney-General for the year 1915, that legislation be 
enacted clearly defining what crimes and offences may be 
punished by imprisonment in the reformatory prisons, to- 
gether with the limitation of punishment. . 

Upon this recommendation a bill was reported last year by 
the committee on the judiciary, but failed to pass the House 
of Representatives by reason of what I believe to be a mis- 
understanding upon the part of the members. I have been 
informed that the members of the House were of the im- 
pression that the proposed bill added offences to those which 
already were punishable at the reformatories, and in some 
instances increased the penalty for such offences. The bill in 
fact had the opposite result, as it prohibited sentences to the 



1917.] PUBLIC DOCmiENT — No. 12. xxxvii 

reformatories in many cases now executed therein, and in no 
instance included offences that are not now punishable therein 
or increased the penalty that may now be imposed in re- 
lation to an offence but, on the other hand, restricted the 
length of sentence in many instances to a shorter period than 
now is imposed by the courts. 

Retirement op Veterans of the Civil War. 

St. 1907, c. 458, § 1, as amended by Gen. St. 1915, c. 95, 
provides that veterans of the Civil War in the service of the 
Commonwealth, if incapacitated for actual duty, shall be 
retired from active service, with the consent of the Governor, 
at one-half of the rate of compensation paid to them when 
in the active service, provided they have been in the service 
of the Commonwealth at least ten years. Instances have 
occurred where veterans have, by reason of an act of the 
Legislature or other reasons, and through no fault of their 
own, ceased to be in the service of the Commonwealth 
before they made application to be retired under the pro- 
visions of this act. The result has been that they could not 
be retired, for the reason that at the time of their applica- 
tion for retirement they were not in the service of the Com- 
monwealth. 

I recommend that said section be amended by providing 
that a veteran who shall be deemed to be incapacitated for 
active service, who has been in the service of the Common- 
wealth at least ten years, shall be entitled to the benefits of 
the act, notwithstanding the fact that at the time of his 
application he has ceased to be an employee of the Com- 
monwealth. 

Publication of the Opinions of the Attorney-General. 
I recommend that the sum of $3,800 be appropriated for 
the purpose of continuing the publication of the opinions of 
the Attorneys-General, there now being, in my judgment, a 
sufficient number of public interest to warrant the publication 
of Volume IV. 



xxxviii ATTORNEY-GENERAL'S REPORT. [Jan. 1917. 



Department of the Attorney-General. 

The number of official opinions rendered by the depart- 
ment during the year, up to Jan. 1, 1917, was 188. The 
number of cases tried in the Probate Court was 30. The 
number of cases tried in the Superior Court was 17, of which 
3 were before a jury. Twenty-eight hearings before a single 
justice of the Supreme Judicial Court have been attended, 
and there have been 16 cases argued before the Supreme 
Judicial Court. There has been 1 case argued before the 
United States Supreme Court and 1 case before the United 
States District Court for the District of Massachusetts. In 
addition, there has been 1 case argued before the Interstate 
Commerce Commission at Washington, and there have been 
7 hearings before the Industrial Accident Board of Massa- 
chusetts. 

The collections of the department amounted to $412,659.56. 

Annexed to this report are such of the opinions rendered 
during the current year as it is thought may be of interest to 
the public. 

Respectfully submitted, 

HENRY C. ATTWILL, 

Attorney-General. 



OPINIONS, 



Interest on Taxes. 

Under Gen. St. 1915, c. 237, § 21, interest may be collected at the rate of 
6 per cent, on all taxes unpaid after November 1, where no action 
has been taken upon the subject by the town. 

Jan. 3, 1916. 
Hon. William D. T. Trefry, Tax Commissioner. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether, under the provisions of section 21 of 
chapter 237 of the General Acts of 1915, interest may be 
charged upon taxes in cases where no action has been taken 
upon the subject by the town. 

Prior to 1913 the liability of taxpayers to pay interest upon 
taxes assessed upon them seems to have been conditioned upon 
a vote of the city, town or district to that effect. St. 1909, c. 
490, Part I., § 71. By St. 1913, c. 688, § 1, the section just 
referred to was amended by substituting the following provi- 
sion therefor: — 

Taxes shall be payable in every city and town and in every fire, 
water, watch or improvement district in which the same are assessed, 
not later than the fifteenth day of October of each year, and on all 
taxes so assessed remaining unpaid after the first day of November in- 
terest shall be paid at the rate of six per cent per annum from the 
fifteenth day of October until such taxes are paid; but a city, town, 
fire, water, watch or improvement district may by vote, ordinance or 
by-law charge interest from an earlier date, and such interest shall be 
added to and be a part of the taxes. 

It is plain that this section expressly provides that interest 
shall be paid at the rate of 6 per cent, per annum from October 
15 upon all taxes remaining unpaid after November 1. By St. 
1915, c. 237, § 21, the provision just quoted was amended so 
as to provide "on all taxes so assessed remaining unpaid after 
the first day of November interest shall be paid, at a specified 
rate of not less than six nor more than ten per cent per annum 



2 ATTORNEY-GENERAL'S REPORT. [Jan. 

as such city by its city council or such town or district may 
vote." In my opinion the only purpose of this amendment 
was to authorize cities and towns, by express vote, to increase 
the interest rate from 6 per cent, to any higher rate not in 
excess of 10 per cent., and in the event that no such action is 
taken, interest shall be paid at the rate of 6 per cent. 

My answer to your question is, therefore, that the town to 
which you refer may collect interest at the rate of 6 per cent, 
on all taxes unpaid after November 1. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Reservoirs — Right to take Water from. 

In the absence of special circumstances no person has a right to take for 
his own use water from a reservoir under the charge of the Metro- 
politan Water and Sewerage Board, without its consent. 

Jan. 13, 1916. 
Metropolitan Water and Sewerage Board. 

Gentlemen: — I beg to acknowledge your request for my 
opinion as to whether individual inhabitants of any city or 
town within the watershed of any water supply used by your 
Board are entitled as a matter of right to take water from the 
reservoirs under your charge for their individual use, under the 
provisions of sections 25 and 26 of chapter 488 of the Acts of 
1895. Those sections are as follows: — 

Section 25. No person shall take or divert any water of a water 
supply of any city or town in said water district from any water source, 
reservoir, conduit or pipe used for supplying such water to, or in any 
such city or town, or occupy, injure or interfere with any such water, 
or ^dth any land, building, aqueduct, pipe, drain, conduit, hydrant, 
machinery or other work or property so used, and no person shall 
corrupt, render impure, waste or improperly use, any such water. 

Section 26. The provisions of the preceding section shall not 
apply to any person in taking or diverting any such water or inter- 
fering with or occupying any water, land or works therein described, 
by permission of said metropolitan water board, or the water board, 
water commissioners or superintendent of any city or town having 
charge of the land, water or work; nor to the individual inhabitants 
of any city or town within the watershed of any water supply used by 
said metropoUtan water board, or by any city or town aforesaid, in 



1917.] PUBLIC DOCUMENT — No. 12. 3 

taking from the part cf the supply or from the tributaries of the supply 
mthin their respective city or town limits so much of the water thereof 
as they shall need for their ordinary domestic household purposes, for 
extinguishing fires, or for generating steam. 

It will be noted that neither of these sections purports to 
grant to any one any affirmative legal rights. Section 25 ex- 
pressly forbids the diverting of any water from any water 
source, reservoir or pipe. Section 26 is merely a limitation 
upon the prohibition contained in the previous section. That 
prohibition does not apply to persons coming within the classes 
mentioned in section 26. Those persons, however, are not 
granted any affirmative rights. They are merely permitted to 
exercise any rights that they already have or thereafter acquire. 
Thus riparian owners along any stream which is a part of a 
water supply may continue to exercise their rights to take 
water from the stream as riparian proprietors to the extent 
mentioned in section 26. Any other persons who have similar 
rights to take water from a stream may continue to do so. 

As I understand it the reservoirs in charge of your Board are 
largely or wholly artificial bodies of water, and all the land im- 
mediately bordering upon them is owned by the Common- 
wealth and controlled by your Board. Under such circum- 
stances, in my opinion no persons have any rights as riparian 
proprietors in these reservoirs, and, therefore, no persons have 
any legal rights to take water from such reservoirs which are 
preserved by section 26. It follows that in such cases no one 
may take water from such a reservoir except by the permission 
of your Board. 

Isolated cases may arise where, by reason of special cir- 
cumstances, a person owning land near or bordering upon a 
reservoir may have special rights in it or in streams or bodies 
of water which were flooded when it was constructed. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



ATTORNEY-GENERAL'S REPORT. [Jan. 



Property — Carcass of Deer. 

The carcass of a deer, killed under the provisions of St. 1913, c. 529, § 1, as 
amended by St. 1914, c. 435, by a farmer or other person upon land 
owTied by him, becomes the property of the person so killing, although 
it cannot be sold by him. 

Jan. 14, 1916. 

Commissioners on Fisheries and Game. 

Gentlemen: — You have requested my opinion as to 
whether the carcass of a deer killed by a farmer or other per- 
son upon land owned by him, in accordance with the provi- 
sions of St. 1910, c. 545, as amended by St. 1912, c. 388, St. 
1913, c. 529, and St. 1914, c. 453, is the property of the farmer 
killing the deer or the property of the Commonwealth. 

The first two statutes named are repealed by St. 1913, c. 
529, and are therefore immaterial except as preceding legisla- 
tion is helpful in the interpretation of that now in effect. 

The statute now applicable is St, 1913, c. 529, § 1, as 
amended by St. 1914, c. 453. It provides as follows: — 

It shall be unla^v^ul, except as hereinafter provided, to hunt, pursue, 
wound or kill a deer, or to sell or offer for sale, or to have in possession 
for the purpose of sale, a deer or the flesh of a deer captured or killed in 
this commonwealth: 'provided, that this act shall not apply to a tame 
deer belonging to any person and kept on his own premises; and pro- 
vided, further, that any farmer or other person ma}^ on land owned or 
occupied by him, or, with the consent of the owner, upon land adjacent 
thereto pursue, wound or kill any deer which he has reasonable cause to 
believe has damaged or is about to damage crops, fruit or ornamental 
trees, except grass growing on uncultivated land; and he may au- 
thorize any member of his family, or any person employed by him so 
to pursue, wound or kill a deer under the circumstances above specified. 
In the event of the wounding or killing of a deer as aforesaid, it shall be 
the duty of the person by whom or under whose direction the deer 
was wounded or killed to mail or other\\dse transmit within twenty- 
four hours thereafter to the commissioners on fisheries and game a re- 
port in writing signed by him of the facts relative to the said wounding 
or killing. The said report shall state the time and place of the wound- 
ing or killing, and the kind of tree or crop injured or destroyed, or 
about to be injured or destroyed, by the deer. It shall be unlawful to 
sell or offer for sale the whole or any part of a deer killed under the 
aforesaid provision. 

Apart from statutory provisions, deer and game become the 
property of the person taking them or reducing them to posses- 



1917.] PUBLIC DOCUMENT — No. 12. 5 

sion, and but for the statute in question there could be no 
doubt but that the farmer kilHng the deer would acquire title 
to the carcass. 

In my opinion there is nothing in the statutes mentioned 
which changes the law in this respect. The section quoted 
makes it unlawful to hunt, kill or sell deer "except as herein- 
after provided." One of these provisos is that a farmer, under 
certain conditions, may kill a deer. There is nothing in the act 
which provides for a different result following such killing as is 
permitted from what was prescribed by the law before the en- 
actment of the statute in question. The final sentence, which 
provides that "it shall be unlawful to sell or offer for sale the 
whole or any part of a deer killed under the aforesaid provi- 
sion," seems to imply that the farmer acquires title but is for- 
bidden to dispose of the meat. If title vested in the Common- 
wealth, inasmuch as the meat cannot be sold it would seem 
that it must be wasted, and it would require a definite statu- 
tory enactment to bring about such a result. 

Accordingly, I am of the opinion that under the proviso in 
said section the carcass of such a deer is the property of the 
farmer or other person authorized to kill. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Salaries — Unearned cannot be paid from Public Funds. 

The payment of a salary by the Massachusetts Agricultural College to the 
estate of a deceased employee for the period after his death would 
be an unauthorized expenditure of public funds contrary to R. L., 
c. 6, § 58. 

Jan. 20, 1916. 

Mr. Kenton L. Butterfield, President, Massachusetts Agricultural 

College. 

Dear Sir: — I am in receipt of your letter of the 17th inst. 
stating that one of the employees of your institution died on 
Dec. 1, 1915, and requesting my opinion as to the propriety of 
paying to his estate the amount of his salary for the entire 
month of December. 

Of course if the payment proposed to be made was of money 
belonging to the Massachusetts Agricultural College as a cor- 
poration distinct from the State, there could be no legal objec- 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

tion to this action, but by St. 1911, c. 311, all property, real or 
personal, belonging to the Massachusetts Agricultural College, 
not held by it upon special trusts, vested in the Common- 
wealth, so that moneys derived from other sources, as well as 
direct appropriations by the Legislature, are now held by your 
institution as trustee for the public. The real question, then, 
is whether public moneys can be expended for this purpose. 

There is an implied condition in every contract for personal 
services that the employee will be able to perform such serv- 
ices, and in case of his death during the contract of employ- 
ment the employer's liability to pay further compensation or 
salary is terminated. Johnson v. Walker, 155 Mass. 253. If 
such payment is made it would be in the nature of a gratuity. 

R. L., c. 6, § 58, dealing with salaries payable from the 
treasury of the Commonwealth, provides, in part, as follows: — 

... No salary shall be paid to any person for a longer period than 
that during which he has been actually employed in the duties of his 
office. . . . 

This provision was considered by the court in Lord v. County 
of Essex, 98 Mass. 484, where it says: — 

It is true that this, like all other statute provisions, may be repealed 
by the Legislature at any time or in any respect, and that it is not 
in terms extended to salaries payable out of the county treasury. But 
it tends to indicate a general policy in such matters; and an intention 
on the part of the Legislature to depart from so prudent and so just 
a rule is not to be inferred unless clearly expressed, nor to be more 
readily presumed when the payment is to be made out of the treasury 
of 9 county, than when it is to come directly out of the treasury of the 
Commonwealth. 

For the above reasons I feel compelled to advise that, in my 
opinion, such a payment as you propose would be an unau- 
thorized expenditure of public funds. 
Yours truly, 

Henry C. Attwill, Attorney -General. 



1917.] PUBLIC DOCUMENT — No. 12. 



Boston Finance Commission — Authority of. 

Under St. 1909, c. 486, § 18, the Boston Finance Commission may investi- 
gate expenditures, accounts, etc., of the office of clerk of the Superior 
Court for Civil Business in Suffolk County. 

Jan. 28, 1916. 
Boston Finance Commission. 

Gentlemen: — I beg to acknowledge your request for my 
opinion as to whether the Boston Finance Commission has 
the right to investigate any and all matters pertaining to the 
finances of the office of the clerk of the Superior Court for 
Civil Business in the County of Suffolk. 

St. 1909, c. 486, § 18, provides as follows: — 

it shall be the duty of the finance commission from time to time 
to investigate any and all matters relating to appropriations, loans, 
expenditures, accounts, and methods of administration affecting the 
city of Boston or the county of Suffolk, or any department thereof, that 
may appear to the commission to require investigation, and to report 
thereon from time to time to the mayor, the city council, the governor, 
or the general court. The commission shall make an annual report in 
January of each year to the general court. 

It seems to me that this section not only authorizes you but 
makes it your duty to investigate the expenditures, accounts 
and methods of administration of the office of the clerk of the 
Superior Court for Civil Business in the County of Suffolk to 
the extent that it may appear to your commission that such 
investigation is required. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Hawkers and Pedlers — Selling of Tags for Charitable Purposes. 

The' raising of money for charitable purposes by "selling" tags is not a 
sale of goods, wares and merchandise within the meaning of R. L., 
c. 65, §§ 13-29, relating to hawkers and pedlers. 

Feb. 9, 1916. 
Thure Hanson, Esq., Commissioner of Weights and Measures. 

Dear Sir: — You recently requested my opinion as to 
whether the soliciting of money for charitable or similar pur- 
poses by the "selling" of tags is a violation of the provisions 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

of sections 13 to 29 of chapter 65 of the Revised Laws, dealing 
with hawkers and pedlers. 

In my opinion this method of raising funds is not a sale of 
goods, wares or merchandise within the meaning of section 13 
of the chapter to which you refer. Transactions of this sort 
are not, in legal effect, sales of these tags. They are rather the 
soliciting of contributions, and the tags are a form of receipt or 
acknowledgment given to the contributor. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Constitutional Law — Eminent Domain — Salisbury Beach. 

The power of eminent domain can be exercised only for a public purpose 
and therefore Senate Document No. 184, entitled "An Act to make 
Salisbury Beach a public reservation," would be unconstitutional if 
enacted, since section 10 of this act authorizes the leasing or sale 
of parts of the land so taken "which are not needed as a public 
reservation." 

Feb. 18, 1916. 
Hon. Henry G. Wells, President of the Senate. 

Dear Sir: — I have the honor to acknowledge a copy of an 
order passed by the Honorable Senate on Feb. 9, 1916, which 
is as follows: — 

Ordered, That the opinion of the Attorney-General be requested by 
the Senate upon the constitutionality, if enacted, of the bill, known as 
Senate Document No. 184, entitled "An Act to make Salisbury Beach 
a pubUc reservation and to establish the Salisbury Beach Reservation 
Commission," now under consideration by a committee of the General 
Court, and that a copy of said biU be transmitted to the Attorney- 
General by the clerk of the Senate. 

Upon examination the proposed bill accompanying this order 
appears to be identical with chapter 715 of the Acts of 1912. 
On June 19, 1913, that statute was held to be unconstitutional 
by the Supreme Judicial Court, on the ground that it was an 
attempt to authorize the exercise of the right of eminent do- 
main in part for a private use. Salisbury Land & Im'provement 
Co. V. Commonwealth, 215 Mass. 371. This decision has not 
been overruled and, so far as I am aware, has never been 
questioned by the court. 



1917.] PUBLIC DOCUMENT — No. 12. 9 

An amendment to the Constitution was adopted by the peo- 
ple at the election in November, 1915, and is now in force in 
the following form: — 

The general court shall have power to authorize the commonwealth 
to take land and to hold, improve, sub-divide, build upon and sell the 
same, for the purpose cf relieving congestion of population and pro- 
viding homes for citizens; provided, however, that this amendment 
shall not be deemed to authorize the sale of such land or buildings at less 
than the cost thereof. 

No other change in the Constitution since the decision of the 
Supreme Judicial Court has been called to my attention which 
can, by an}^ possibility, have any bearing upon the question 
submitted by the order of the Senate. 

The article of amendment just referred to empowers the 
General Court to authorize the exercise of the right of eminent 
domain only "for the purpose of relieving congestion of popu- 
lation and providing homes for citizens." The bill submitted 
with the order appears to have no such purpose. It is entitled, 
" An Act to make Salisbury Beach a public reservation and to 
establish the Salisbury Beach Reservation Commission." Sec- 
tion 4 authorizes the commission created by the bill to acquire, 
by right of eminent domain, "and thereafter to maintain and 
make available for the inhabitants of the commonwealth as a 
public reservation for the use, exercise and recreation of the 
inhabitants of the commonwealth" certain land particularly 
described. The proposed bill, therefore, so far as its purpose is 
a public one, is a bill for the creation of a public reservation or 
park. No part of its avowed purpose is the relieving of con- 
gested population or the providing of homes for citizens. By 
section 10 the commission is authorized to sell or lease lands 
taken by it "which are not needed as a public reservation;" 
but there is no requirement that such sales or leases shall be 
made to effectuate the purpose stated in this amendment to 
the Constitution or any other specific purpose. 

No conditions have been called to my attention in any of the 
cities and towns specified in the third section of the proposed 
bill calling for legislation under this amendment. It is obvious 
that if such conditions exist it can only be in one or more of 
the cities mentioned, and not in the various small towns in- 
cluded in the so-called Salisbury Beach Reservation district. I 
am unable to find any connection between the provisions of the 
bill and the relief of congestion of population. 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

In my opinion the proposed bill does not come within the 
power granted to the General Court by this amendment to the 
Constitution, and, therefore, if enacted, would be unconstitu- 
tional upon the grounds stated by the Supreme Judicial Court 
in declaring unconstitutional the same bill enacted in 1912. 
Yours very truly, 

Henry C. Attwill, Attorney-General. , 



''Game Laics'' — Revocation of License for Violation of — Sale 

of Game. 

R. L., c. 92, § 14, is a "game law" within the meaning of St. 1911, c. 614, 
as amended, providing for the revocation of the hunting license of a 
person violating its provisions. 

Numbered tags furnished by the Commissioners on Fisheries and Game 
must be placed upon the bodies of Scotch grouse, European black 
game and European black plover before they can be sold by dealers 
under the provisions of St. 1912, c 567. 

Feb. 21, 1916. 
Commissioners on Fisheries and Game. 

Gentlemen: — I am in receipt of your letters of the 15th 
inst. in which you request my opinion upon the following 
questions: — 

1. Whether a violation of R. L., c. 92, § 14, operates as a forfeiture 
of the hunting license or certificate of the person so offending. 

2. Whether certain tags must be placed upon the bodies of Scotch 
grouse, European black game and European black plover before they 
can be sold by dealers under the provisions of St. 1912, c. 567. 

R. L., c. 92, § 14, provides as follows: — 

Whoever, for the purpose of shooting or trapping, enters upon land 
without permission of the owner thereof, after such owner has con- 
spicuously posted thereon notice that shooting or trapping thereon 
is prohibited, shall be punished by a fine of not more than twenty 
dollars. 

St. 1911, c. 614, as amended by St. 1912, c. 379, St. 1913, c. 
249 and c. 479, and Gen. St. 1915, c. 212, provides, in part, as 
follows: — 

The certificate of any person who shall be convicted of a violation of 
the game laws or of any provision of this act shall be void. . . . 



1917.] PUBLIC DOCUMENT — No. 12. 11 

' The answer to your first question thus depend^ upon whether 
R. L., c. 92, § 14, is to be considered a game law. This chapter 
of the Revised Laws is entitled " Of the preservation of certain 
birds and animals." The purpose of the section in question is 
the protection of game even though the protection is only par- 
tial, i.e., against trespassers, and I am of the opinion that it 
comes within the purview of the last-quoted statute. 

The answer to this question, therefore, must be in the 
affirmative. 

St. 1912, c. 567, § 1, prohibits in general terms the deal- 
ing in or sale of game. Section 3 of this act authorizes your 
commission to license the rearing for sale and killing of certain 
game and birds, and section 5 authorizes the sale by dealers of 
certain imported birds, but in each of these sections there is a 
positive provision that certain numbered tags shall be fixed to 
each body or carcass so sold. 

It seems to me that this provision is mandatory, and your 
second question must also be answered in the affirmative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Police Power — Regulation of Sale of 
Theatre Tickets. 

A bill seeking to regulate the prices at which and the places where theatre 
tickets may be sold is not a valid exercise of the poUce power, and 
therefore would be unconstitutional if enacted. 

A bill providing that no theatre tickets shall be sold unless a seat is avail- 
able at the time of the sale would be a constitutional exercise of the 
poUce power as protecting the pubUc against fraud. 

Fep. 25, 1916. 
Committee on Mercantile Affairs. 

Gentlemen: — I am in receipt of your letter of the 23d 
inst. in which you request my opinion upon the constitution- 
ality of House Bills Nos. 951, 952 and 953. The first two bills 
seek to regulate the prices of tickets to theatres and other 
places of amusement and to limit the places at which such 
tickets may be sold. All these bills involve the same ques- 
tions of law and will be considered together. 

Similar questions have frequently come before the courts, and 
the following decisions have almost uniformly been reached: — 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

First. — That a theatre is not a public enterprise but is a 
private business, and consequently not governed by the same 
rules which relate to common carriers and other public institu- 
tions of a like character. 38 Cyc. 264; People v. Flinn, 189 
N. Y. 180; Collister v. Hayman, 183 N. Y. 253; People v. Steele, 
231 111. 340; People v. Powers, 231 111. 560. 

Second. — That such a business is subject to regulation by 
the State only in the exercise of its police power for the pro- 
tection of the public health, safety, morals or general welfare. 

Third. — That the regulation here attempted is not a valid 
exercise of the police power. 

In the case of Ex parte Quarg, 149 Cal. 79, a statute of Cali- 
fornia made it a misdemeanor for any person to sell or offer for 
sale "any ticket or tickets to any theatre or other place of 
amusement at a price in excess of that charged originally by 
the managemeiit of such theatre or public place of amuse- 
ment." The court in holding this statute to be unconstitu- 
tional said : — 

The police power is broad in its scope, but it is subject to the just 
limitation that it extends only to such measures as are reasonable in 
their application and which tend in some appreciable degree to pro- 
mote, protect, or preserve the public health, morals, or safety, or the 
general welfare. The prohibition of an act which the court can clearly 
see has no tendency to affect, injure, or endanger the public in any of 
these particulars, and which is entirely innocent in character, is an 
act beyond the pale of this Hmitation, and it is therefore not a legitimate 
exercise of poUce power. The sale of a theatre ticket at an advance upon 
the original purchase price, or the business of reselling such tickets at 
a profit, is no more immoral, or injurious to public welfare or conven- 
ience, than is the sale of any ordinary article of merchandise at a profit. 

See also People v. Steele, 231 111. 340; III. Op. Atty.-Gen., 
491, 492. 

For the above reasons it would seem clear that these bills, 
if enacted, would be unconstitutional. 

In House Bill No. 953, which provides that it shall be un- 
lawful to sell tickets of admission to theatres, concert halls or 
other places of amusement purporting to entitle the holder to 
a seat, unless a seat is available at the time of the sale and at 
the time of the entrance of the purchaser into the theatre, a 
different question of law is involved. 

The protection of the public against fraud is a well-recog- 
nized branch of the police power, in the exercise of which the 



1917.] PUBLIC DOCUMENT — No. 12. 13 

State may abridge an individual's freedom to contract, even in 
private business. Instances of this are the laws regulating the 
sale of oleomargarine and merchandise in bulk, and the laws 
relating to weights, measures and packages. As was said by 
the court in Plumley v. Massachusetts, 155 U. S. 461, "The 
Constitution does not secure to any one the privilege of de- 
frauding the public." See also John P. Squire & Co. v. Tellier, 
185 Mass. 18, in which the constitutionaHty of St. 1903, c. 415, 
regulating the sale of goods in bulk, was upheld upon this 
ground. 

I am of the opinion, therefore, that House Bill No. 953, if 
enacted, would be constitutional. 
Yours truly, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Police Power — Deductions from Em- 
ployee's Pay. 

House Bill No. 1713, providing that no employer shall deduct from an 
employee's pay more than the amount of wages in actual time lost 
on account of the employee's coming late to work, is a valid exercise of 
the police power and would be constitutional if enacted. 

March 6, 1916. 
Hon. Channing H. Cox, Speaker of the House of Representatives. 

Dear Sir: — I have the honor to acknowledge an order 
passed by the House of Representatives on Feb. 18, 1916, in 
the following form: — 

Ordered, That the Attorney-General be requested to render an 
opinion to the House of Representatives as to the constitutionality of 
House Bill No. 1713, entitled "An Act relative to deductions from the 
pay of employees who are late in coming to work." 

The bill referred to in this order is entitled " An Act relative to 
deductions from the pay of employees who are late in coming 
to work." It provides as follows: — 

Section 1. No employer shall deduct from an employee's pay 
more than the amount of wages in actual time lost on account of the 
employee's coming late to work. 

Section 2. Whoever violates the provisions of this act shall be 
punished by a fine of not more than fifty dollars. 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

A difficulty of construction lies at the outset of the question 
propounded by the order. Literally construed, it appears that 
deductions for all causes are prohibited, as well as those on 
account of the coming late to work by the employee, as it would 
seem that the phrase "on account of the employee's coming 
late to work" does not refer to the reason for deductions but 
to the amount which may be deducted in any event. 

Again, it is open to the interpretation that it is not limited 
to employees receiving wages, but applies to all employees, 
however paid. If so construed, the bill, in my judgment, would 
be unconstitutional. 

I think, however, it is intended by the bill to forbid em- 
ployers deducting from the wages of an employee on account of 
his coming late to work more than an amount proportionate to 
the actual time the employee was late, on account of the dam- 
ages claimed to be suffered by the employer by reason of the 
employee's tardiness. Adopting that construction, I proceed to 
consider the bill. 

The "right of acquiring, possessing and protecting property" 
and the right to the enjoyment of "life, liberty and property" 
are secured to every citizen by the Constitution of Massachu- 
setts, as well as by the Constitution of the United States. 
These rights include the right to use one's powers and faculties 
in any reasonable way for the promotion of his interests, and 
the right to make contracts with others, and can be regulated 
by the Legislature in the exercise of the police power only in 
the interest of the public health, the public safety or the public 
morals, and, in a certain restricted sense, of the public welfare. 

The question presented, then, is whether this bill, if enacted, 
would be a reasonable exercise of this power in the interests of 
the public welfare. This matter is one in the first instance for 
the Legislature to determine, and its determination will not be 
revised by the court unless it is clearly unwarranted. 

That the public welfare is involved in the manner and time 
in which certain employees are paid, is evidenced by our weekly 
payment law, the constitutionality of which was upheld upon 
this ground by the Supreme Judicial Court in Opinion of the 
Justices, 163 Mass. 589, and our laws relating to the assign- 
ment of wages. Commonwealth v. Martel, 200 Mass. 482. 

The proposed act will deprive the employer of no right which 
he now has to discharge the employee. The act does not purport 
to preclude the employer from recovering in an action against 



1917.J PUBLIC DOCUMENT — No. 12. 15 

the employee damages which he has sustained, if any, on ac- 
count of the employee's tardiness, in addition to the amount 
which he is authorized to deduct from the employee. Nor, in 
my judgment, does it necessarily follow that, if the act should 
be construed to prohibit such an action, it would be unconsti- 
tutional. The contractual relations of substantially all whom 
it affects are at will, that is, terminable at the pleasure of 
either party. Thus, it is difficult to conceive of any claim for 
substantial damages for tardiness that an employer would ever 
have against any employee to which the act applies, in addi- 
tion to the deduction which the act permits him to make from 
such employee's wages. A contention, therefore, that the act 
requires an employer to pay for that which he has not received 
seems to me fanciful rather than substantial. 

I am not unmindful of the case of Commonwealth v. Perryj 
155 Mass. 117, in which our Supreme Judicial Court held un- 
constitutional a statute providing as follows: — 

No employer shall impose a fine upon or withhold the wages or any 
part of the wages of an employee engaged at weaving for imperfections 
that may arise during the process of weaving. 

That statute was interpreted by the court as requiring pay- 
ment in full of a price agreed upon for good work when only 
imperfect work had been done. This bill merely provides that 
if the employer does not elect to discharge his employee and 
permits him to work when he comes late, he shall be permitted 
to deduct from the employee's wages only an amount propor- 
tional to the actual time that he is late. He is permitted to 
deduct a pro rata amount, and thus he pays only a partial 
wage for partial time. He is forbidden to deduct any amount 
on account of more remote damages; in other words, he is per- 
mitted to deduct a pro rata amount on the ground that in 
most cases that will constitute the full amount of his damages, 
and in the exceptional cases, where more remote damages are 
suffered, he is left to his action at law. In my opinion this is a 
very different situation from that before the court in the case 
cited. 

Furthermore, in my judgment it cannot be said that this bill 
is too broad in its application, and that it is thus an unreason- 
able interference under the police power with the right of con- 
tract. As I construe it, the bill is limited in its scope to a class 
of employees who can fairly be said to need its protection. It 
does not apply to all employees, but only to those who earn 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

wages. Though the line between wages and salary is not a 
clearly defined one, in the main the term "wages" is used to 
describe compensation paid, usually at a daily or weekly rate, 
for the performance of labor, skilled or otherwise. To use a 
phrase frequently appearing in our statutes, wages is the com- 
pensation paid to "laborers, workmen or mechanics." In my 
view this bill applies only to laborers, workmen and mechanics, 
and perhaps to a few other employees who earn wages and yet 
do not come strictly within that description, and not to all 
persons standing in the relation of employer and employee. 
Thus construed, the classification adopted by it seems to me to 
be a reasonable one. 

I assume the purpose of the act is to prohibit an employer 
from arbitrarily deducting an amount determined by himself 
from the wages of an employee, and to prevent the imposition 
of fraud and oppression upon a class of persons not in a favor- 
able position to protect themselves. 

I am unable to say that no just ground exists for such legis- 
lative interference, if properly limited, and accordingly, if the 
General Court enacts the bill, I am of the opinion that it will 
be constitutional. If it is deemed expedient to enact the bill, 
I suggest it be amended to ehminate ambiguity. Without 
amendment, it might be construed otherwise than I have con- 
strued it, and, in that event, much more difl^cult questions as 
to its constitutionality would arise. 
Very truly yours, 

Henry C. Attwill, Attorney-Generah 



Tidewaters — Authority of Harbor and Land Commissioners to 
grant Licenses to build Structures in Tidewater. 

The authority of the Board of Harbor and Land Commissioners to license, 
with the approval of the Governor and Council, under R. L., c. 96, § 17, 
the building of structures in tide water is not strictly limited by § 22, 
but the last-mentioned section indicates only the legislative policy in 
regard to such Ucenses and the legislative intent as a guide to the 
courts in construing such licenses. 

March 14, 1916. 

To His Excellency the Governor, and the Honorable Council. 

Gentlemen: — In your communication of March 1, 1916, 
you request my opinion upon the legality of a license granted 
by the Board of Harbor and Land Commissioners to the Rock- 



1917.] PUBLIC DOCUMENT — No. 12. 17 

port Granite Company. I assume that your inquiry is as to 
how far the authority of the Board of Harbor and Land Com- 
missioners to grant licenses for the erection of structures in 
tidewater below high-water mark, under the provisions of sec- 
tion 17 of chapter 96 of the Revised Laws, is limited by the 
provisions of section 22 of said chapter. 

The title to all land below low-water mark is in the Com- 
monwealth unless the same has been alienated by it. From 
immemorial practice, licenses for the erection of structures 
both above and below low-water mark have been granted by 
the Legislature, or by some body delegated by it to grant such 
licenses, and I assume that there is now no question as to the 
authority under the Constitution to make such grants. 

That the upland owner has no rights in tidewater of which 
the public cannot deprive him in the accomplishment of a pub- 
lic purpose seems to be clear. Commonwealth v. Breed, 4 Pick. 
460; Blood v. Nashua & Lowell R,R. Co., 2 Gray, 137; Home for 
Aged Women v. Commonwealth, 202 Mass. 422. 

It would also seem that the right of access of an upland 
owner to channels and to the sea may be cut off even by indi- 
viduals engaged in private enterprises under a license by the 
Legislature. Nichols v. Boston, 98 Mass. 39; Attorney -General v. 
Revere Copper Co., 152 Mass. 444; Commomvealth v. Boston 
Terminal Co., 185 Mass. 281. 

It appears, therefore, that the exercise of the power conferred 
upon the Board of Harbor and Land Commissioners by section 
17 of chapter 96 of the Revised Laws to grant licenses, with 
the approval of the Governor and Council, for the erection of 
structures in tidewaters where no established harbor line inter- 
venes is subject to no other limitations than those specified in 
said chapter 96. 

It is to be noted in this regard that under section 24 of said 
chapter it is provided that the amount of compensation to be 
paid to the Commonwealth for the rights granted in any land, 
the title to which is in the Commonwealth, shall be determined 
by the Governor and Council. This contemplates, in my judg- 
ment, the payment of such compensation by the licensee as 
shall be determined just and equitable by the Governor and 
Council. I doubt, therefore, the legality of following the sug- 
gestion made by the Board of Harbor and Land Commissioners 
that no charge shall be made for the rights and privileges 
granted by the license. 

Objection is raised that the Board of Harbor and Land Com- 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

missioners exceeded their authority in issuing the license. It is 
urged that section 22 of chapter 96 of the Revised Laws re- 
stricts their power to issuing licenses for structures that will 
not "interfere with or impair the right of any person affected 
thereby to. equal proportional privileges of approaching low- 
water mark or one hundred rods from high-water mark, or har- 
bor lines established by law, or to impair the right to obtain a 
license or authority so to approach of persons having interests 
in lands or flats which may be affected thereby." 

I am of the opinion that this is not a fair construction of 
said section 22, and am fortified in that opinion by the fact 
that the statute was originally passed in 1869 (St. 1869, c. 
f 432), at a time when there was no authority to build structures 
upon or to fill up or enclose flats except by a license from the 
General Court. The provisions of the statute as originally 
passed were as follows : — 

All license or other authority that has heretofore been granted, or 
that may hereafter be granted, to build structures upon, or to fill up or 
inclose any such ground, shall be, as far as reasonably and justly may be 
practicable, so construed as not to interfere with or impair the right of 
any person affected thereby to equal proportional privileges of advanc- 
ing to or towards low-water mark, or one hundred rods from high- 
water mark, or harbor lines established by law, or so as to impair the 
opportunity of persons having interests in lands or flats that may be 
affected thereby to obtain Hcense or authority so to advance. Nothing 
in such license or authority shall be so construed as to impair the legal 
rights of any person. 

Prior to the passage of the statute of 1869 it was provided 
by section 4 of chapter 149 of the Acts of 1866 that — 

All persons that have been or may be authorized by the legislature 
to build over tide-waters any bridge, wharf, pier or dam, or to fiU any 
flats, or to drive any piles below high-water mark, who have not already 
' begun such work, shall, before beginning it, give written notice to 
the harbor commissioners of the work they intend to do, and submit 
plans of any proposed wharf or other structure, and of the flats to be 
filled, and of the mode in which the work is to be performed; and no 
such work shall be commenced until the plan and mode of performing 
the same shall be approved in writing by a majority of the said harbor 
commissioners. And the said commissioners shall have power to alter 
the said plans at their discretion, and to prescribe the direction, Hmits 
and mode of building of the wharves and other structures, to any 
extent that does not diminish or control the legislative grant. 



1917.] PUBLIC DOCUMENT — No. 12. 19 

The effect of the statute of 1869, taken in connection with the 
provisions of law then existing, was in effect a direction to the 
Harbor Commissioners that in the approval and supervision of 
the work authorized by a license from the General Court they 
should, so far as was reasonably and justly practicable, con- 
strue the legislative grant so as not to impair the rights of 
others, in so far as this could be done without diminishing 
or controlling the legislative grant. It also indicated the 
legislative intent as a guide to the courts in construing licenses 
granted. 

In 1872 (St. 1872, c. 236, § 1) power was given to the Har- 
bor Commissioners to license the filling of flats and the erection 
of structures in tidewaters within the line of riparian ownership 
and within whatever harbor Hues might be established. 

In 1874 (St. 1874, c. 347) the Harbor Commissioners were 
given the power to license the filling of flats and the erection of 
structures below the line of riparian ownership, where no har- 
bor line had been established, subject to the approval of the 
Governor and Council. 

It was not until the passage of the Public Statutes, in 1882, 
that the provisions of law contained in chapter 432 of the Acts 
of 1869 referred in terms to licenses granted by the Board of 
Harbor and Land Commissioners. 

I am of opinion, therefore, that the effect of section 22 of 
chapter 96 of the Revised Laws is the same as applied to a 
Hcense granted by the Board of Harbor and Land Commis- 
sioners and approved by the Governor and Council as to a 
license or grant by the Legislature itself. 

In so far as the statute applies to licenses granted by the 
Board of Harbor and Land Commissioners and approved by 
the Governor and Council, the terms for construction and ex- 
tension being prescribed therein, it can have little, if any, 
effect except to indicate to the Board of Harbor and Land 
Commissioners and the Governor and Council the policy that 
in the judgment of the General Court the Harbor and Land 
Commissioners and the Governor and Council should follow in 
exercising the power of authorizing the filling of flats and the 
erection of structures in tidewaters, delegated to them by the 
General Court. Exceptional cases in the administration of the 
powers given to the Board of Harbor and Land Commissioners 
and the Governor and Council necessarily will arise where it 
is impracticable to preserve unimpaired the right of persons 
affected to equal proportional privileges of approaching low- 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

water mark or one hundred rods from high-water mark, and to 
what extent these privileges shall be impaired is left to the 
Board of Harbor and Land Commissioners and the Governor 
and Council to determine. 

So far as the remonstrants to the approval of the license are 
concerned I am unable to see how their legal rights are im- 
paired by the extension of the pier in the manner proposed. In 
no substantial way will it impair access to their upland beyond 
the impairment by the present pier. 

A further objection is raised by the remonstrants that the 
proposed structure will affect the tidal currents in such a way 
as to cause a gradual filling of the cove and a shallowing of the 
water adjacent to their upland. Whether such a result would 
ensue is a question of fact which I am unable to determine, 
and is a matter, in my opinion, primarily for the Governor 
and Council to consider in determining the wisdom of approv- 
ing the proposed structure. However, if the construction of 
the pier should have that result, I am of the opinion that the 
persons affected thereby would have no claim for damages. 
Fitchburg R.R. v. Boston & Maine R.R., 3 Cush. 88. 

Accordingly, I am of the opinion that, if the Governor and 
Council deem it expedient in the public interest to approve the 
license granted by the Board of Harbor and Land Commis- 
sioners, there is no legal objection to such approval. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Corporations — Regulation of Sale of 
Theatre Tickets by. 

There is no constitutional objection to a law amending the charter of 
domestic corporations organized since 1831, engaged in the theatre 
business, by stipulating in what manner theatre tickets shall be sold 
by them, nor to making it a condition to the doing of such business in 
this Commonwealth by foreign corporations that such corporations 
shall sell their tickets in the manner so stipulated. 

Mabch 21, 1916. 
Committee on Mercantile Affairs. 

Gentlemen: — I beg to acknowledge receipt of your favor 
of the 13th inst. in which you request my opinion on the con- 
stitutionality of the enclosed redraft of House Bill No. 951, en- 
titled "An Act to regulate the sale of tickets by theatres and 
other places of amusement." 



1917.] PUBLIC DOCUMENT — No. 12. 21 

The operation of this bill is confined to corporations, and 
the question therefore involves considerations different from 
those discussed in my opinion as to the constitutionality of the 
original bill. 

It was early decided that the charter given to a corporation 
by the Legislature was a contract, within the meaning of the 
provision of the Federal Constitution which declares that no 
State shall pass any law impairing the obligation of a contract. 
Dartmouth College v. Woodward, 4 Wheat. 518. By St. 1831, 
c. 81, now R. L., c. 109, § 1, as affected by St. 1903, c. 437, 
§ 2, it is provided that all acts of incorporation passed since 
the eleventh day of March, 1831, shall be subject to amend- 
ment, alteration or repeal by the General Court, and that all 
corporations which are organized under general laws shall be 
subject to such laws as may be hereafter passed affecting or 
altering their corporate rights and duties, or dissolving them. 

Subject to the limitation that the power to amend "cannot 
be used to take away property already acquired under the 
operation of the charter, or to deprive the corporation of the 
fruits actually reduced to possession of contracts lawfully 
made" (Sinking-fund cases, 99 U. S. 700), any alteration or 
amendment may be made "that will not defeat or substan- 
tially 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 public or private rights." 
Commissioners v. Holyoke Water Power Co., 104 Mass. 446, 
451; Greenwood v. Freight Co., 105 U. S. 13; Spring Vale Water 
Works V. Schottler, 110 U. S. 347. 

A State has the absolute power to exclude foreign corpora- 
tions from doing business within its borders, subject to the 
qualification that in so doing it may not interfere with foreign 
or interstate commerce or agencies employed by the Federal 
government. This absolute power of exclusion includes the 
right to allow a conditional exercise of its corporate powers 
within the State. Pembina Mining Co. v. Pennsylvania, 125 
U. S. 181. 

I am of the opinion, therefore, that if the application of sec- 
tion 1 of the bill in question were limited to Massachusetts 
corporations incorporated since March 11, 1831, it would be 
constitutional. 

There is a difficulty of construction in sections 1 and 3 of 
the proposed act. The language of these sections is: "that the 
sale of tickets of admission to such theatre or other places of 



22 ATTORNEY-GENERAL\S REPORT. [Jan. 

amusement at any place at a price in excess of that charged 
originally by the management of such theatre or other place of 
amusement ... is prohibited." The first part of section 1 
purports to be only an amendment to charters of certain cor- 
porations, while the language above quoted would seem to 
prohibit a sale of such tickets by any one at an advanced 
price. I assume that the purpose of this bill is to prohibit 
these corporations from selling, either directly or through their 
agents, these tickets at advanced prices. If this is what is 
desired, I think the phraseology of the bill should be changed 
so as to make this intent clear. Furthermore, I doubt the 
power of the Legislature to impose a penalty upon a corpora- 
tion for acts committed by those over whom it has no control. 
The last sentence of section 3 provides for the punishment of 
foreign corporations "by fine or imprisonment." I know of no 
way to imprison a corporation. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Insane Asylum — Right to operate on Patient without Consent. 

Before a lumbar puncture can be made on an insane patient in an insane 
asylum, the consent of the patient's guardian must be secured, if the 
patient is incapable at the time of giving an intelligent consent; if the 
patient is capable of consenting, his own consent is first necessary. 

March 25, 1916. 
Dr. L. Vernon Briggs, Secretary, State Board of Insanity. 

Dear Sir: — I beg to acknowledge receipt of your letter in 
which you request my opinion upon the right of physicians 
under your Board to make lumbar punctures upon patients 
in insane asylums without their consent. 

Under date of Feb. 14, 1916, an opinion was rendered by 
this department to the effect that lumbar punctures could not 
be made on patients without their consent when such punc- 
tures were made for purposes of experimentation and research, 
and your present question is limited to cases where they are 
made for the benefit of the patient himself. 

Although a lumbar puncture may not, strictly speaking, con- 
stitute a surgical operation, I am of the opinion that the legal 
principles governing the right to perform either would be the 
same. The authorities upon the question of liability of a phy- 



1917.] PUBLIC DOCUMENT — No. 12. 23 

sician performing a surgical operation without the patient's 
consent are few. The general rule, as stated in 1 Kinkead on 
Torts, § 375, is as follows: — 

The patient must be the final arbiter as to whether he shall take his 
chances with the operation, or take his chances of living without it. 
Such is the natural right of the individual, which the law recognizes as 
a legal one. Consent, therefore, of an individual, must be either ex- 
pressly or impliedly given before a surgeon may have the right to 
operate. 

This rule, however, is subject to the qualification that — 

If a person should be injured to the extent of rendering him uncon- 
scious, and his injuries were of such a nature as to require prompt surgi- 
cal attention, a physician called to attend him would be justified in 
applying such medical or surgical treatment as might reasonably be 
necessary for the preservation of his life or limb, and consent on the 
part of the injured person would be impUed. And again, if, in the course 
of an operation to which the patient consented, the physician should 
discover conditions not anticipated before the operation was com- 
menced, and which, if not removed, would endanger the life or health 
of the patient, he would though no express consent was obtained or 
given, be justified in extending the operation to remove and overcome 
them. Mohr v. Williams, 95 Minn. 261. 

In Pratt v. Davis, 37 Chicago Legal Notes 213, Aff. 224 111. 
300, the question arose as to the right of a surgeon to operate 
upon the plaintiff, an insane woman, without her consent. 
The surgeon defended, on the ground that the plaintiff's hus- 
band had sent her to the defendant's sanatorium and had con- 
sented to the operation. After stating that the husband was to 
be considered the guardian of the plaintiff, the court said: — 

But it is obvious that to make good this defense, after it has been 
admitted, or has otherwise appeared that no consent of the patient 
herself can be shown, the defendant must show two things affirmatively : 
first, that the patient was not mentally in a condition to be in control 
of her body; and secondly, that her husband consented to the opera- 
tion. If the first of these propositions is not established by him, and it 
does not appear that the plaintiff was incompetent reasonably to give 
or \\dthhold her consent, proof of the second, that the husband did 
consent, would be futile. 

Accordingly, I am of the opinion that if the patient at the 
time of the proposed puncture is incapable of giving an intel- 
ligent consent, the consent of the patient's guardian must be 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

first secured; on the other hand, if the patient is capable of 
consenting, his own consent is necessary. While the State un- 
doubtedly has broad power over its insane wards, it is unnec- 
essary to consider whether the Legislature could provide for 
compulsory lumbar punctures, as, in my judgment, no act 
relating to the treatment of the insane indicates an intent upon 
the part of the Legislature to so provide. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Boards of Health — Regulation of Private Sanatoria for Con- 

sumptives. 

While local boards of health may not control or regulate the manner of 
treatment of consumptive patients in private sanatoria, they may, 
under the provisions of R. L., c. 75, § 42, as amended by St. 1906, 
0. 365, order all the patients therein removed to such other hospital 
or place of reception as they provide. 

March 29, 1916. 

State Department of Health. 

Gentlemen: — You have requested my opinion as to the 
authority of local boards of health to control and regulate the 
manner of treatment of consumptive patients in private sana- 
toria or boarding houses, and to prohibit the operation of such 
institutions as are not approved by them. 

A board of health may cause any person infected with a 
disease dangerous to the public health to be removed to such 
hospital or other place of reception as it has provided, except 
in cases where the removal would be dangerous to such person's 
health, in which case the house in which he remains is subject 
to the rules and regulations of said board. R. L., c. 75, § 42, 
as amended by St. 1906, c. 365. 

This section is a compilation of Pub. Sts., c. 80, §§ 40, 41 
and 75, which was held in Brown v. Murdoch, 140 Mass. 214, 
not to authorize an interference by the board of health with 
the possession or control of the house in which there is an in- 
fected person where he may be removed without danger to 
him. 

I am of the opinion, therefore, assuming that consumption is 
a disease dangerous to the public health, that these boards 
may not under existing statutes regulate the manner of treat- 
ment of consumptives in private sanatoria or boarding houses 



1917.J PUBLIC DOCUMENT — No. 12. 25 

where such patients may be removed safely, but that it would 
be within the power of local boards of health to prevent such 
places from operating by ordering all the patients therein re- 
moved to such other hospital or place of reception as it pro- 
vides. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Taxes — Municipal Corporations. 

Under Senate Bill No. 346, providing for the setting off of a part of the 
town of Blackstone and incorporating it as the town of Millville after 
the first day of April, taxes for the current year assessed to inhabitants 
of and upon property located within the area so set off are payable to 
the town of Blackstone. 

April 17, 1916. 

His Excellency Samuel W. McCall, Governor of the Commonwealth. 

Sir: — You have asked my opinion as to whether, in the 
event the provisions of Senate Bill No. 346 become law, taxes 
for the current year assessed to the inhabitants of, and upon 
property located in, that part of the town of Blackstone set off 
as the town of Millville will be payable to the town of Millville 
or to the town of Blackstone. 

Sections 14, 15 and 23 of Part I. of chapter 490 of the Acts 
of 1909, as amended by section 2 of chapter 198 of the Acts of 
1914, provide that poll taxes shall be assessed upon each person 
liable thereto in the city or town of which he is an inhabitant 
on the first day of April in each year; that personal estate shall 
be assessed to the owner in the city or town of which he is an 
inhabitant on the first day of April; and that taxes on real 
estate shall be assessed in the city or town in which the estate 
lies to the person who is the owner or in possession thereof on 
the first day of April. 

While in practice the taxes are assessed later, in contempla- 
tion of law they are assessed on the first day of April in each 
year. On that day the liability of the taxpayer to pay taxes to 
the town in which he is then an inhabitant or in which he then 
owns property becomes fixed. Harmon v. Inhabitants of New 
Marlborough, 9 Cush. 525. 

Accordingly, I am of the opinion that the taxes assessed as 
of the first day of April, 1916, in that part of the town of 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

Blackstone which it is proposed by Senate Bill No. 346 to in- 
corporate as the town of Millville, will be payable to the town 
of Blackstone, notwithstanding the provisions of said bill. 

The provisions of said bill are defective in a further respect, 
in that by section 7 it is provided that the registrars of voters 
of the town of Millville shall, before the first meeting of the 
town of Millville, prepare a list of voters in the town of Mill- 
ville qualified to vote at said meeting. It is obvious that until 
said meeting is held there can be no registrars of voters of the 
town of Millville. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Insurance — Purposes. 

An insurance company may not be incorporated under the laws of this 
Commonwealth for the three following purposes: (1) To examine, 
pass upon and guarantee titles to real estate; (2) To guarantee prin- 
cipal and interest of notes secured by first mortgages on real estate; 
(3) To act as agent in the collection of principal and interest of mort- 
gage notes. 

April 25, 1916. 
Hon. Frank H. Hardison, Insurance Commissioner. 

Dear Sir: — You have requested my opinion upon the 
question of whether or not the Insurance Commissioner has 
authority to issue a license to a corporation organized for the 
three following purposes: (1) To examine, pass upon and guar- 
antee titles to real estate; (2) To guarantee principal and in- 
terest of notes secured by first mortgages on real estate; (3) 
To act as agent in the collection of principal and interest of 
mortgage notes. 

St. 1907, c. 576, § 32, provides, in part, as follows: — 

Ten or more persons residents of this commonwealth may form an 
insurance company for any one of the following purposes: 

Ninth, To carry on the business commonly known as credit insur- 
ance or guaranty, either by agreeing to purchase uncollectible debts, or 
otherwise to insure against loss or damage from the failure of persons 
indebted to the assured to meet their liabilities. 

Tenth, To examine titles of real and personal property, furnish 
information relative thereto and insure owners and others interested 
therein against loss by reason of encumbrances and defective title. 



1917.] PUBLIC DOCUMENT — No. 12. 27 

The first purpose mentioned in your question comes within 
the tenth clause above quoted, but the second purpose is not 
limited to insurance against loss by reason of encumbrances 
and defective title, and would seem to constitute credit insur- 
ance, as defined in the ninth clause, rather than title insurance. 

As I construe the provisions of this section, they do not 
authorize the incorporation of an insurance compan}- to trans- 
act both these kinds of business. I am fortified in this con- 
struction by the provisions of section 34, which authorize the 
doing of more than one class of insurance in certain particular 
instances and do not include the proposed purposes. 

Accordingly, the answer to your question must be in the 
negative. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Militia — • Appoiniment of Adjutants. 

An adjutant of the commanding officer of a battalion in a regiment of field 
artillery is not an adjutant of the commanding officer of a regiment 
within. the meaning of article X. of section I. of chapter II. of the 
Constitution of Massachusetts, providing for their appointment by 
commanding officers of the regiment. 

May 2, 1916. 

Brig.-Gen. Charles H. Cole, Adjutant-General. 

Dear Sir: — You ask mj^ opinion as to whether that part of 
article X. of section I. of chapter II. of the Constitution of 
Massachusetts which provides that " the commanding officers 
of regiments shall appoint their adjutants and quartermasters; 
the brigadiers their brigade-majors; and the major-generals 
their aids; and the governor shall appoint the adjutant-gen- 
eral," requires that the adjutants of the commanding officers of 
battalions in the regiment of field artillery shall be appointed 
by the commander of the regiment. 

An adjutant is a regimental staff officer appointed to assist 
the commanding officer of a regiment in the discharge of the 
details of his military duty. The title "adjutant" has been 
given to officers performing a similar duty to subordinate offi- 
cers in regiments commanding subdivisions thereof. These 
officers, in my opinion, are not adjutants of the commanding 
officers of regiments, in the sense that the words are used in 
the provision of the Constitution, The purpose of this provi- 



2S ATTORNEY-GENERAL'S REPORT. [Jan. 

sion of the Constitution would seem to be that, as the adjutant 
of the commanding officer is an assistant to him, upon whom 
he must rely for the performance of important details of his 
military duty, he should be free to select as such assistant a 
person in whom he has absolute confidence. 

Whether a military officer is an adjutant to a commanding 
officer of a regiment, within the meaning of the Constitution, 
in my opinion, is to be determined by the duties he performs 
jather than by the name given to him by the provisions of 
statutes or by military regulations. As I understand it, these 
officers called adjutants, attached to the battalion staffs, per- 
form details of the military duty of majors and are confidential 
assistants of such majors. Accordingly, I am of the opinion 
that they are not, at the time they are assistants to the majors, 
assisting them in the performance of their military duty, at the 
same time adjutants to the commanding officer of the regiment, 
within the meaning of the provisions of the Constitution. 
Very truly yours, 

Henry C. Attwill, AUorncy-General. 



Armories — Municipal Corporations. 

A dance or exhibition drill to be held by a military company in an armory 
of the first class which it occupies is not within the provisions of R. L., 
c. 102, § 173, prohibiting the carrying on of a public exhibition, show or 
amusement without a license from the mayor and aldermen of the city 
in which it is carried on. 

May 2, 1916. 

Brig.-Gen. Charles H. Cole, Adjutant-General,. Chief oj Staff. 

Dear Sir: — I beg to acknowledge receipt of your communi- 
cation requesting the opinion of this department upon the 
question of whether or not it is necessary for the military com- 
panies who occupy armories to secure a license from the re- 
spective city authorities when these companies hold exhibition 
drills or dances in such armories and charge admission. 

Armories of the first class, to which I assume your inquiry 
refers, are constructed upon land acquired by the Common- 
wealth through the Armory Commissioners, under the provi- 
sions of St. 1908, c. 604. By section 132 of this act the quar- 
termaster-general is given full supervision and control of the 
care and maintenance of all armories belonging to the Com- 



1917.] PUBLIC DOCUMENT — Nc. 12. 29 

monwealtli. In my opinion this includes not only the armory 
building itself but the land belonging to the Commonwealth 
upon which the armory is erected. 

St. 1908, c. 604, as amended by St. 1914, c. 752, authorizes 
the use of armories not only for strictly military purposes, but 
also for such purposes incidental thereto as may be designated 
by the Commander-in-Chief and for public purposes. 

The holding of exhibition drills or dances would seem to 
come within the authorized purposes, for the proceeds derived 
therefrom must be devoted to military purposes. Under the 
authority of St. 1908, c. 604, § 191, as amended by St. 1915, 
c. 289, § 7, General Orders No. 24 was issued by the Adjutant- 
•General's office, which provided, in part, as follows: — 

The funds of an organization, company or detachment shall consist 
of the gross amount of all monies received from all sources for or in 
behalf of such organization, company or detachment or the members 
thereof, and such funds shall be considered military funds and shall 
be administered in the manner prescribed by these regulations. 

No expenditure shall be made other than for military purposes of the 
organization, company or detachment. 

R. L., c. 102, § 173, provides that it shall be unlawful to 
carry on a public exhibition, show or amusement without a 
license from the mayor and aldermen of the city in which it is 
held, and the question here presented is whether this section 
applies to agencies of the State. It is to be presumed as a 
matter of law that the Legislature, in delegating this power to 
the mayor and aldermen of cities, had primarily in view the 
regulation of the conduct of the citizen and not that of the 
State. 

Former Attorney-General Knowlton, in discussing a similar 
question, said: — 

The fountain of the police power of the Commonwealth is the Legis- 
lature acting under the authority of the Constitution. The Legislature 
has seen fit to delegate a portion of this police power to local boards of 
health. Although this delegation is absolute in terms, it is not to be 
construed as exclusive of the authority of the Commonwealth, or 
against its public policy. It would certainly be against public policy 
to hold that a local and transient board should have greater authority 
over the property of the Commonwealth, cared for and controlled by 
the officers of the Commonwealth, acting under direct authority of the 
Legislature, than those officers themselves. ... It follows, therefore, 
that, although the delegation of authority to local boards of health 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

is general in its terms and purports to embrace all persons and property 
\\dthin the limits of the towa, there is an implied exception of such 
property as is cared for and controlled by the Commonwealth itself, 
and under its special and peculiar jurisdiction. I. Op. Atty.-Gen. 290. 

In Teasdale v. Xeivell & Snoiding Construction Co., 192 Mass. 
440, which was a case arising upon petition of the board of 
health of the city of Quincx' to restrain the defendants from 
maintaining without a license a stable which they had on the 
land taken by the Commonwealth to accommodate a large 
number of horses, which the defendants were using in perform- 
ing a contract with the Metropolitan Park Commission, the 
court said: — 

Such an act must be regarded as needful in the proper execution of 
the powers which the State may exercise over its own property; and 
the general law made for the regulation of citizens must be held sub- 
ordinate to this special statute regulating the use of the property of 
the State unless there is express provision to the contrary. 

To summarize: I am of the opinion that the purposes for 
w^hich the armory is proposed to be used have been authorized 
by the Legislature, so that the carrying out of these purposes is 
to be considered the act of an agency of the State; and there- 
fore the general statute prohibiting the holding of public exhi- 
bitions or dances without a license from the mayor and alder- 
men of the city does not apply. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Taxes — Apjjroval of by Tax Commissioner — Bo7id of Collector 

for Cities. 

By Gen. St. 1916, c 131, the duty is imposed upon the Tax Commissioner 
to approve the form of bonds of collectors of taxes for cities unless 
inconsistent with some provision in the city charter. 

May 8, 1916. 

Hon. W. D. T. Trefry, Tax Commissioner. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether chapter 131 of the General Acts of 1916, 
imposing upon you the duty of approving the form of bonds 
required of tax collectors, applies to the bonds of collectors of 
cities as well as of towns. 



1917.J PUBLIC DOCUMENT — Xo. 12. 31 

Section 2 of chapter 26 of the Revised Laws is as follows: — 

Chapter twentj'-five and all other laws relative to towns shall apply 
to cities so far as consistent with the general or special laws relative 
thereto; and cities shall be subject to the liabilities, and city councils 
shall have the powers, of towns; the mayor and aldermen shall have 
the powers and be subject to the liabilities of selectmen, and the citj'' 
clerks, treasurers, and other city officers, those of corresponding town 
officers, if no other provisions are made relative to them. 

The act of 1916 under consideration is an express amend- 
ment of a section of chapter 25 of the Revised Laws. Accord- 
ingly, in my opinion the new statute imposes upon you the 
duty of approving the bonds of collectors of cities in all cases 
except where there is some provision of law in the charter of 
a particular city or otherwise w^hich is inconsistent with the 
performance of such duty by you. 
Yours very truly, 

Hexry C. Attwill, Attorney-General. 



Constitutional Late — Due Process of Law — Collateral Loan 

Company. 

It is within the constitutional power of the Legislature to amend the charter 
of the Collateral Loan Company by requiring it in the future to dis- 
tribute for charitable purposes the excess of its profits over 8 per cent, 
and the net proceeds of the sale of unredeemed pledges above the 
amount of the loan after holding the same one year. 

But an act requiring said corporation to turn over to charity the net pro- 
ceeds of all sales of unredeemed pledges since 1875 above the amount 
of the loan, unclaimed for more than a year, would be unconstitutional. 

May 8, 1916. * 
Hon. Wilton B. Fay, Chairman, Committee on Banks and Banking. 

Dear Sir: — In behalf of your committee you request m^^ 
opinion as to whether House Bill No. 1320, entitled "An Act 
relative to the Collateral Loan Company," would be constitu- 
tional if enacted. I understand from you that this bill, which 
was once reported by your committee, has been recommitted 
to it by the Senate and is now before the committee for further 
action. 

Section 1 of the proposed bill restores to the act incorporat- 
ing the Collateral Loan |Company (St. 1859, c. 173) certain 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

sections which were struck out of that act by chapter 65 of the 
Acts of 1875. The sections which it is thus proposed to restore 
are as follows: — 

Section 8. If the property pledged is not redeemed Tvithin the time 
limited, the same shall be sold at public auction, and the net surplus, 
after paying loan charges and expenses of all kinds, shall be held one 
year for the owner; if not then called for, the same shall go into a fund 
for the year, when the entire forfeiture takes place, called the ''Profit 
and Loss Fund." Section 9. All losses on loans from failure of title, 
or other cause, shall be satisfied from the said profit and loss fund. 
Section 10. The net balance of said fund, at the end of each year, 
shall be made up annually to the first day of January, and be doled in 
fuel to the needy, under the direction of the board, during the months of 
Januarj^, February and March. Section 12. The whole sum earned 
each year shall be duly disposed of at the end of the year, the earnings 
to be divided among the stockholders shall never exceed eight per cent 
per annum, and the balance, if any, shall go into said profit and loss 
fund, and be distributed in charity, as hereinbefore provided. 

From the time of the original incorporation of this company 
down to 1875 the provisions then struck out, and now proposed 
to be restored, limited the dividends of the company to eight 
per cent., and required it to distribute the excess of its profits 
over eight per cent, and the net proceeds of the* sale of unre- 
deemed pledges above the amount of the loan, with interest 
and expenses, after holding one year, to certain charitable pur- 
poses. Thus, this corporation was, during the first sixteen 
years of its existence, in part engaged in the administration of 
a public charity. 

Chapter 65 of the Acts of 1875 struck out from its charter 
all provisions requiring it to devote any funds however ac- 
quired to charitable purposes, and left it an ordinary business 
corporation. In my opinion, since the enactment of the last- 
mentioned statute, the Collateral Loan Company can be re- 
garded in no way as holding any of its funds for a charitable 
purpose. The first section of the proposed bill merely restores 
the obligation to devote funds to charitable purposes which 
was in its original charter. In my opinion it is plainly within 
the powder of the Legislature thus to amend the charter of 
this corporation. This amendment, if .enacted, would impose 
its obligation upon the corporation from the time when the 
amendment takes effect. Thus, in my opinion section 1 of the 
proposed bill would be constitutional if enacted. 



1917.] PUBLIC DOCroiENT — No. 12. 33 

The second section of the bill raises an entirely different 
question. It is as follows: — 

All surplus proceeds of the sales of unredeemed pledges by the Col- 
lateral Loan Company since March twenty-third, eighteen hundred 
and seventy-five, which have remained unclaimed for more than one 
3^ear, together with all accumulated interest thereon, shall be paid bj^ 
the Collateral Loan Companj^ to and shall be expended -bj^ the city of 
Boston for the relief of the poor and needy. 

When this corporation makes a sale of an unredeemed 
pledge for an amount in excess of what is due it from the 
pledgor, it is under an obligation to repay that amount to the 
pledgor upon demand at any time within one year after the 
date of the sale. This provision as to one year is apparently a 
special statute of limitations imposed in favor of this corpora- 
tion against claims of pledgors of this character. After the 
one-year period has run, the corporation is in precisely the 
same situation as any debtor against whom" a creditor cannot 
maintain an action by reason of a statute of limitations. It 
has a right to waive the statutory provision and pay its debt if 
it chooses, but it cannot be required by legal proceedings to do 
so. Though the Supreme Court of the United States has de- 
cided otherwise under the Federal Constitution {Camyhell v. 
Holt, 115 U. S. 620), there is grave doubt, in view of many 
intimations made by our Supreme Judicial Court, whether the 
General Court has, under the Constitution of the Common- 
wealth, any power to repeal or remove the bar of a statute of 
limitations after the statutory period has once run. Bigelow v. 
Bemis, 2 Allen, 496, 497; Prentice v. Dehon, 10 Allen, 353, 355; 
Ball V. Wijeth, 99 Mass. 338, 339; Danforth v. Groto7i Water 
Co., 178 Mass. 472, 476; Dunbar v. Boston & Providence R.R., 
181 Mass. 383, 386. If we assume that it cannot do so, the 
obligation of this corporation to return any surplus proceeds of 
sales of unredeemed pledges to pledgors has been discharged by 
the operation of the statute -of limitations, and any funds in its 
hands accruing from such a source have become its own abso- 
lute property free from a claim of any sort on the part of any 
pledgor. On this view it would be beyond the power of the 
General Court to deprive this corporation of such property 
without compensation. 

On the other hand, if the view of the Supreme Court of the 
United States be adopted, and it be held that the Legislature 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

may remove the statutory bar, in case of debts, even though 
the statutory period has already run, in that event the Legis- 
lature would have no power to do more than restore to the 
various pledgors their rights of action. To go farther, and to 
take such property and turn it over to the city of Boston to be 
distributed for charity, would be taking without due process of 
law the property of these pledgors. There is no analogy be- 
tween the provisions of the section under consideration and the 
existing law as to unclaimed savings bank deposits. Though 
such deposits are turned over to the Commonwealth, they are 
always held by it subject to an obligation to pay over the full 
amount at any time to any depositor who is able to prove his 
claim. Li my opinion, therefore, section 2 of the proposed bill 
would be unconstitutional if enacted. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Firemen's Relief Fund — Workmen's Compensation Act — 
''Laborers, Workmen and Mechanics.'" 

A regular fireman of the city of Boston who was impressed into service 
of the Peabody fire department by its chief at a serious fire in that 
town, and who was injured in performing that duty, is a fireman 
within the meaning of R. L., c. 32, § 73, as amended by St. 1906, 
c. 171, and is entitled to share in the benefit of the firemen's relief 
fund. 

A fireman is not a laborer, workman or mechanic within the meaning of 
St. 1913, c. 807, and one who is injured in the performance of his duty 
is not debarred by section 5 from sharing in the firemen's relief fund 
by reason of his having been erroneously paid some compensation on 
account of the same injury. 

May 11, 1916. 

Mr. D. Arthur Burt, Secretary, Commissioners of the Firemen^ s Relief Fund. 
Dear Sir: — Your letter of the 2d inst. requests my opinion 
upon the question of whether or no* your Board may pay from 
the firemen's relief fund a proper sum for benefits to a fireman 
who was injured in the following circumstances: you state that 
a regular fireman of the city of Boston happened to be in the 
town of Peabody at a time when a serious fire occurred, and 
that he was ordered by the chief of the Peabody fire depart- 
ment to assist that department in its work of extinguishing 
that fire, in obeying which order the Boston fireman was 



1917.] PUBLIC DOCUMENT — No. 12. 35 

severely injured. I assume that by "chief " is meant chief 
engineer. 

R. L., c. 32, § 73, as amended by St. 1906, c. 171, provides 
that this fund shall be used *'for the relief of firemen who may 
be injured in the performance of their duty at fires or in going 
to or returning from fires, and for the relief of widows and chil- 
dren of firemen killed in the performance of their duty. . . ." 

Section 74 of the same chapter provides that — 

Ofiicers and members in active service in all incorporated protective 
departments co-operating with fire departments, and any person per- 
forming the duties of a fireman in a town having no organized fire de- 
partment, shall be entitled to the benefits thereof. 

Sections 14 and 15 of this chapter give firewards the power 
to require assistance in extinguishing fires, and fix a penalty for 
the refusal to obey any such order. 

Section 65 of this chapter provides that — 

Engineers shall have and exercise within their dfstrict the powers and 
authorit.y of firewards of towns relative to the extinguishment of fires 
and the demolition of buildings. . . . 

It is to be noted that if these injuries occurred in a town in 
which no organized fire department existed, this man would, 
under the provisions of section 74, be entitled to the benefits of 
this fund. The statute does not in terms cover the case of an 
impressment into the service of a person in a town which has 
an organized fire department, but, in my opinion, the statute 
was not intended to exclude this class of persons. Where a 
man is impressed into the service of a fire department by order 
of the proper authorities, he becomes for the time being a fire- 
man, and it is his duty, as such, to aid in the extinguishment 
of the fire under the orders of the chief. 

In a town where no organized fire department exists, how- 
ever, the situation is clearly different, for a person who there 
aids in the extinguishment of a fire cannot become a member 
of any fire department, for there is none. It seems to me that 
section 74 was enacted with this difference in view, and was 
intended to remove, rather than create, any distinction be- 
tw^een persons performing the duties of a fireman in towns 
having no organized fire department and persons impressed 
into the service of a regular fire department. 



36 ATTORXEY-GEXERAL'S REPORT. [Jan. 

Accordingly, I am of the opinion that if you find that the 
Boston fireman was impressed into the service of the fire de- 
partment of the town of Peabody under the provisions of sec- 
tions 14, 15 and 65 of chapter 32 of the Revised Laws, and 
that he received his injury in the performance of his duty as 
such impressed fireman, he is entitled to the benefits of this 
fund. 

Your letter also requests my opinion upon the status of cer- 
tain injured firemen who have claimed compensation under the 
provisions of St. 1913, c. 807, and who have received some 
compensation from the cities or towns by which they were 
employed by virtue of a ruling of the Industrial Accident 
Board that such persons came within the class of ''laborers, 
workmen or mechanics," within the meaning of said statute. 

The Supreme Judicial Court in Dcrncy's Case, 223 Mass. 270, 
decided March 3, 1916, overruled these decisions of the Indus- 
trial Accident Board and decided that a fireman was not enti- 
tled to compensation under this act. 

St. 1913, c. 807,. § 5, provides as follows: — 

Any person entitled to receive from the commonwealth or from a 
county, citj^, town, or district the compensation provided by Part II. 
of said chapter seven hundred and fiftj'-one, who is also entitled to a 
pension by reason of the same injury, shall elect whether he will re- 
ceive such compensation or such pension, and shall not receive both. 
In case a person entitled to such compensation from the commonwealth 
or from a county, city, town or district receives by special act a pension 
for the same injury, he shall forfeit all claim for compensation, and 
any compensation received by him or paid by the commonwealth or 
by the county, city, town or district which emploj^s him for medical 
or hospital services rendered to him ma}^ be recovered back in an 
action at law. No further payment shall be awarded by vote or other- 
wise to any person who has claimed and received compensation under 
this act. 

While the prohibition in the last sentence of this section 
appears to be very broad, I am of the opinion that, taken in 
connection with the rest of the section, which requires that the 
person must be entitled to receive the compensation in order to 
have it apply to pensions, this sentence must be construed in a 
like manner as applying only to persons who rightfully receive 
compensation under this act, that is, to persons who have a 
right to participate in either of two funds, and elect to, and 
do, participate in one. 



1917.] PUBLIC DOCUMENT — No. 12. 37 

Accordingly, I am of the opinion that these firemen, whose 
compensation has now ceased, are not debarred from receiving 
the benefits of your fund by these facts. 
Very truly yours, 

Henry C. Attw^ill, Attorney-General. 



Mu7iicipal Liens — Repeal of Laws relating to. 

If House Bill No. 1943, providing for the repeal of Gen. St. 1915, c. 227, 
were allowed to become a law there would be no legislation in force, 
except as to the city of Boston, under which a municipality could 
establish a lien for the construction of streets, sewers and sidewalks. 

May 15, 1916. 
To His Excellency Samuel W. McCall, Governor of the Commonwealth. 

Sir: — Your letter of the 13th inst. requests my opinion 
upon the question of whether, if House Bill No. 1943, entitled 
"An Act relative to municipal liens for public improvements," 
were allowed to become a law^, there would remain any statutes 
under which a lien could be established in favor of municipali- 
ties for public improvements. 

This bill provides for the repeal of chapter 227 of the Gen- 
eral Acts of 1915, which reads as follows: — 

Section 1. No municipal lien shall attach to any real estate in 
consequence of any order of a municipal board or other authority for 
the construction of a street, sewer or sidewalk until the work shall have 
been completed and an assessment levied, witliin one year thereafter, 
for the benefits conferred upon the various parcels of land benefited by 
the improvement. The assessment shall be levied upon the parcels of 
land benefited by the improvement as thej^ existed on the first daj^ of 
April next preceding the completion of the work. The assessment shall 
describe by metes and bounds each parcel assessed and shall state the 
names of the 0T\Tiers of record at the time of the assessment, if the 
names can reasonably be ascertained; otherwise the assessment may be 
made to owners unknown. The order of assessment, together wdth a 
plan showing in detail the lots assessed, if recorded in the registry of 
deeds for the county and district wherein the land Hes within thirty 
days after the date of the assessment, shall create a lien on the land 
which shall remain until the assessment is paid or abated according to 
law. 

Section 2. All acts and parts of acts inconsistent herewith are 
hereby repealed. 

Section 3. This act shall not apply to the city of Boston. 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

R. h., c. 8, § 4, provides, in part, as follows: — 

In construing statutes the following rules shall be observed, unless 
their observance would involve a construction inconsistent with the 
manifest intent of the general court, or repugnant to the context of the 
same statute; that is to say: — 

First, The repeal of an act or resolve shall not revive any previous 
act or resolve. . . . 

The primary inquiry, then, is as to what inconsistencies 
exist between the provisions of the act of 1915 and the statutes 
relating to municipal liens in force at the time of the passage of 
that act. 

R. L., c. 49, § 23, provides that — 

All assessments and charges for main drains and common sewers, 
whether in the nature of assessments or charges for the use of such 
sewers or annual charges or other\\dse upon any land which abuts upon 
a street in which such sewer is laid or otherwise, shall constitute a lien 
upon said land. The lien shall continue for two years after the assess- 
ments or charges have been committed to the collector, or if they are 
to be paid by instalments, for two years after the last instalment has 
been committed to the collector unless paid sooner. . . . 

By section 45 of this chapter the provisions of section 23 are 
made to apply to sidewalk assessments. 

Section 33 of this chapter provides that assessments for con- 
necting private premises with public sewers "shall be a lien 
upon the land and shall be added to, and collected as a part of 
the annual tax for the ensuing year upon such land." There is 
no limitation upon the time within which a sewer or sidewalk 
assessment must be made in order to have a lien attach; the 
time for which the lien continues is limited; and there is no 
requirement of recording the order of assessment and plan of 
the lots assessed, except that as to cities section 23 of chapter 
50 requires that the original order be recorded within ten days 
after its passage. In all these respects the provisions of this 
chapter are inconsistent with the act of 1915. 

R. L., c. 50, § 10, provides that — 

Assessments for betterments and other pubUc improvements shall 
constitute a lien upon the land assessed and shall be enforced in the 
manner provided for the collection of taxes. 

R. L., c. 13, § 35, relating to the collection of taxes, provides 
as follows : — 



1917.] PUBLIC DOCUMExNT — No. 12. 39 

Taxes assessed upon land, including those assessed under the pro- 
visions of sections sixteen, seventeen and eighteen of chapter twelve 
shall with all incidental charges and fees be a lien thereon from the 
first day of May in the year of assessment. Such lien shall terminate 
at the expiration of two years from the first day of October in said year, 
if the estate has in the meantime been alienated; other\^ise it shall 
continue until an alienation thereof. 

By section 17 of said chapter 50, if the assessment is payable 
in instalments, the lien continues for two 3'ears after the last 
instalment was committed to the collector. 

The time during which an assessment may be made for the 
laying out of a street or way is limited by section 1 of chapter 
50 to two years after the passage of the order authorizing the 
laying out of such streets or ways. 

The provisions of chapter 50 are thus inconsistent with the 
act of 1915 in the same respects as the preceding chapter. 

The only particular, then, in which the provisions of these 
chapters can be said not to be inconsistent with the earlier part 
of the later act is in the bare creation of a Mefi. But it is to be 
noted that the latter part of section 1 of the act of 1915 does 
more than to limit or subject to conditions the operation of the 
prior statutes as to the enforcement of the lien. It supersedes 
rather than amends. It provides for the creation of municipal 
liens and purports to be complete in itself. 

For these reasons, I am of the opinion that the previous 
statutes in so far as they related to the creation of municipal 
liens for the construction of streets, sewers and sidew^alks were 
repealed by the act of 1915, except as to the city of Boston, 
and the only question remaining to be considered is whether a 
ruling that the previous enactments would not be revived by 
the repeal of the act of 1915 would be "inconsistent with the 
manifest intent of the General Court, or repugnant to the con- 
text of the same statute." Obviously, it could not be the lat- 
ter, for the bill in question contains only the repealing provi- 
sion. Whether such a ruling would be determined by the court 
to be inconsistent with the manifest intent of the Legislature, 
presents a difficult question. For many years provisions have 
existed for the establishment of municipal liens and proceedings 
for their collection, and special provisions have been enacted 
for the city of Boston. In view of the fact that the provisions 
for municipal liens in the city of Boston are left unimpaired, 
and that the laws pertaining to the establishment of liens in 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

cities and towns have existed for a long period of time, a strong 
argument might be made that it was manifestly not the intent 
of the Legislature to repeal all provisions for the establishment 
of such liens outside of Boston. On the other hand, applying 
the rules governing the construction of legislative enactments 
prescribed by R. L., c. 8, § 4, it would seem by the repeal of 
chapter 227 of the General Acts of 1915 that the provisions of 
law repealed by the latter statute were not revived upon its 
repeal. 

Consequently, although with some hesitation, I must advise 
you that I am of the opinion that if the bill in question were 
allowed to become a law, there would be no legislation in force, 
except as to Boston, under which a municipality could estab- 
lish a lien for the construction of streets, sewers and sidewalks. 
Yours truly, 

Henry C. Attwill, Attorney-General. 



Dentistry — Candidate for Registration in — Educational Re- 
quire merits of. 

A candidate for registration in dentistry is eligible for examination or re- 
examination after June 1, 1916, even though he has not the educational 
requirements prescribed by Gen. St. 1915, c. 301, § 5, provided that 
such candidate had applied for examination and paid his examination 
fee before this section took effect. 

May 17, 1916. 

Dr. Thomas J. Barrett, Chairman, Board of Registration in Dentistry. 

Dear Sir: — Your letter of the 13th inst. requests, on be- 
half of the Board of Dental Examiners, my opinion upon the 
following questions: — 

1. Has a candidate whose application and fee have been received by 
the secretary of the Board, and who has not appeared for examination 
and does not possess a college diploma, any rights as to taking the ex- 
amination after June 1, 1916? 

2. Has a candidate whose application and fee have been received and 
accepted by the secretary of the Board, and who has taken one exam- 
ination and failed, and who is not possessed of the educational require- 
ments, any right to a re- examination after June 1, 1916? 

3. If these candidates have rights, how far can the Board of Dental 
Examiners go in permitting re-examination of candidates who were 
eligible under the old law? 



1917.] PUBLIC DOCUMENT — Xo. 12. 41 

Gen. St. 1915, c. 301, § 5, now requires, among other things, 
that in order for a candidate to be ehgible for examination he 
must either be a graduate of a reputable dental college, or, hav- 
ing spent three years in such a college, successfully passed all 
examinations for the first and second years. 

Section 14 of this chapter provides for the repeal of the 
former laws on this subject, but goes on to say: — 

The provisions of tliis act . . . shall not affect . . . any right 
accrued or established . . . under the authority of the repealed laws. 

This act becomes effective, as to its educational requirements, 
June 1. 1916. 

R. L., c. 77, § 26, as amended by St. 1908, c. 294, which was 
the law in force at the time of the passage of the above statute, 
provided, in part, as follows: — 

Any person of twenty-one years of age or over, upon payment of a 
fee of twenty dollars, which shall not be returned to him, may be ex- 
amined by said board at a regular meeting with reference to his knowl- 
edge and skill in dentistry and dental surgery ; . . . An applicant who 
fails to pass a satisfactory examination shall be entitled to one re- 
examination at any future meeting of the board, free of charge, but for 
each subsequent examination, he shall pay five dollars. . . . 

The candidate having made application and paid the $20 
fee, it would seem that the right to be examined thereby ac- 
crued to him and was not affected by the act of 1915, above 
referred to. Accordingly, I am of the opinion that he is enti- 
tled to be examined after June 1, 1916. 

Your second question involves similar considerations and, 
for the reasons above stated, I am of the opinion that such a 
candidate as you mention is entitled to a re-examination after 
this date. 

In answer to your third question I beg to advise that, in my 
opinion, your Board should limit the right to examination or 
re-examination of candidates who are not possessed of the 
educational req,uirements prescribed by the later act, after 
June 1, 1916, to such as have applied for examination and paid 
their examination fees before that date. 
Very truly yours, 

Hexry C. Attwill, Attorney-General . 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 



Insurance — Cash Assets in Excess of Liabilities. 

Where a mutual fire insurance compan}^ has cash assets in excess of its 
liabilities to an amount greater than is permitted by St. 1907, c. 576, 
§ 47, this excess is not reduced by the establishment of a guaranty 
capital and the issuance to trustees of certificates of stock to the amount 
of such guaranty capital, which are not sold. 

May 17, 1916. 

Hon. Frank H. Harbison, Insurance Commissioner. 

Dear Sir: — You have called my attention to the fact that 
St. 1907, c. 576, § 47, limits the amount of cash assets which a. 
mutual fire insurance company may hold in excess of its lia- 
bilities to 2 per cent, of its insurance in force, and that a cer^ 
tain mutual company- has a very substantially larger amount of 
cash assets than is permitted by the foregoing section. It has, 
under the advice of counsel, sought to avoid the effect of this 
section and to reduce its cash assets by establishing a guaranty 
capital of $200,000, issuing to trustees certificates of stock to 
this amount, which are not being sold, and contends that 
thereby a liability of $200,000 is created which is to be de- 
ducted from its assets, and that accordingly it no longer has 
cash assets in excess of 2 per cent, of its insurance in force. 

You request my opinion as to whether the establishment of 
a guaranty capital in this manner lawfully accomplishes the 
result sought. 

Upon its face this at the best seems to be a colorable trans- 
action, and I should not be inclined to advise you, in your 
administrative capacity-, to admit its efficacy unless the law 
clearly required it. However, in the present case it seems to 
me manifest that the excess of cash assets of this company re- 
mains just the same as before. 

Without considering whether the statute requires payment 
for such stock at par in cash, such a company could not law- 
fully create a guaranty capital and give it away. Clearly, the 
stock could lawfully be issued in such a wa}" as to create a 
liability only by the receipt of its fair value. In a case like 
the present there could seem to be no question but what the 
stock is worth par, in view of the companj^'s" excess of cash 
assets over liabilities. Upon the receipt of $200,000 for the 
$200,000 of stock, the amounts would just cancel each other 
and the excess of cash assets would remain the same. If the 
stock after issuance were purchased by the company, such pay- 
ment would be made from the cash assets of the company. If 



1917.] PUBLIC DOCUMENT — No. 12. 43 

the company can lawfully invest a portion of its cash assets in 
the purchase of its own guaranty capital, the stock would 
become a part of its cash assets, and the net result would re- 
main unchanged; that is, the excess would still be the same. 

In other words, any issue of this stock in such a way as to 
be a lawful issue would leave the excess of cash assets the 
same as before. Any unlawful issue of this stock cannot 
properly be regarded as creating a liability. 

Accordingly, I am of the opinion that the means which have 
been employed in this case have not resulted in reducing the 
excess of cash assets held by the company. 
Very truly yours, 

Henry C. Attwill, Attorney-GeneraL 



Constitutional Law — Regulation of Streets — Solicitation of 
Business on. 

Senate Bill No. 482, making it an offense to solicit any one other than an 
acquaintance upon any public sidewalk in front of a retail store, other 
than one in which the solicitor is interested, to purchase at another 
store goods similar in kind to any kept or displayed in such store would 
be constitutional, if enacted, as being a reasonable regulation of the use 
of the highways. See St. 1916, c. 289. 

May 24, 1916. 

J. Weston Allen, Esq., Chairman, Committee on Bills in the Third 

Reading. 

Sir: — Your letter of the 20th inst. requests my opinion 
upon the constitutionality of Senate Bill No. 482, entitled " An 
Act to prohibit unfair and malicious solicitation of business on 
public ways and sidewalks," which reads as follows: — 

Whoever, upon any public sidewalk in front of any retail store other 
than his own, or one in which he is employed, accosts any person not 
acquainted with him, and there tries to induce such person to purchase 
at any other store or place, at retail, merchandise similar in kind to any 
kept or displayed for sale in such store, shall be punished by fine not ex- 
ceeding one hundred dollars. 

The title of this act would seem to be inappropriate, for the 
reason that by the terms of the bill the solicitation prohibited 
is not limited to unfair and malicious solicitation. I suggest, 
therefore, that the title be amended by striking out the 



44 ATTORNEY-GENERAL^S REPORT. [Jan. 

words "unfair and malicious," in order to indicate more 
accurately the scope of the bill and to obviate any ambiguity 
between its title and its text. 

If this is done, I am of the opinion that the constitution- 
ality of the bill could be sustained, if enacted, as a reasonable 
regulation of the use of the highways. 

A somewhat similar question arose in the case of Common- 
ivealth V. Ellis, 158 Mass. 555, where the constitutionality of a 
city ordinance which prohibited the selling of any goods in the 
streets without a permit from the superintendent of streets 
was assailed. The court, in upholding the constitutionality of 
this ordinance, said : — 

Any one who has observed the obstruction to travel and the general 
inconvenience which are caused by a stationary object in our crowded 
and narrow streets, would be slow to declare unreasonable a prohibition 
intended to prevent that inconvenience. We are of opinion, both on 
principle and on authority, that for this purpose the city council lawfully 
may forbid public selling in the streets. 

See also Commonwealth v. McCafferty, 145 Mass. 384. 

It is true that what is sought to be regulated by the bill is 
different from what was regulated by the ordinance above re- 
ferred to; the bill prohibits solicitations, while the ordinance 
applied only to sales. Furthermore, the bill deals with only a 
particular kind of solicitation. Whether there is more reason to 
regulate this particular class of solicitations than solicitations 
in general, primarily is for the Legislature to determine, and 
I am unable to say that solicitations of the kind included in 
the bill are not so much more likely to create disturbances 
and obstructions in the highway than solicitations generally, 
as to warrant such a classification by the Legislature. 

It might be urged with some force that the basing of the 
exception upon the fact of acquaintance with the solicitor 
rather than the acquaintance of the solicitor with the person 
accosted is unreasonable and arbitrary, in that it makes the 
test of a man's criminality the memory or state of mind of 
another. To obviate this objection I advise that the bill be 
amended by inserting the word "being" after the word "not" 
at the end of the second line. 
Yours truly, 

Henry C. Attwill, Attorney-General . 



PUBLIC DOCUMENT — No. 12. 45 



Taxation — Domestic Corporations — Deductions. 

Notes, bills receivable, cash on deposit in banks or trust companies and 
other intangible property of a like nature belonging to a domestic 
corporation are not deductable as property situated in another State 
and subject to taxation therein in the determination of its franchise 
tax under the provisions of St. 1909, c. 490, Pt. III., § 41. 

May 24, 1916. 
Hon. William D. T. Trefry, Tax Commissioner. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether, under St. 1909, c. 490, Pt. III., § 41, 
the deduction described as "the value of its property sit- 
uated in another State or country and subject to taxation 
therein," to be made in determining the taxable value of 
the franchise of a domestic corporation, should include notes, 
bills receivable, cash and other items of similar intangible 
property. 

Whatever doubt may have existed as to the interpretation to 
be given this provision of law in the past appears to have been 
entirely removed by the decision of the court in Bellows Falls 
Power Co. v. Commonwealth, 222 Mass. 51. In that case the 
petitioner, a Massachusetts corporation, owned stock in a Ver- 
mont corporation. Under the laws of Vermont all shares of 
stock in Vermont corporations are taxable in that State. The 
question arose whether, in determining the taxable value of the 
franchise of the corporation, such Vermont stock should be re- 
garded as subject to taxation in this Commonwealth if owned 
by a natural person, and also whether it was situated in an- 
other State and subject to taxation therein. The court held 
that notwithstanding the statutes of Vermont this Common- 
wealth had the right to tax shares in Vermont corporations 
when owned by residents of the Commonwealth, and thus held 
that these shares of stock were " securities which if owned by a 
natural person resident in this Commonwealth would be liable 
to taxation." 

The court also held that such shares of stock in a Vermont 
corporation were not "property situated in another State and 
subject to taxation therein," within the meaning of section 41 
of the tax act. The court says, at page 63: — 

It follows from what has been said that the shares of stock are not 
'property situated in another State and subject to taxation therein." 
The context in which these words occur in our tax law and its other 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

general provisions demonstrate that these words refer to the kind of 
property which, if owned by an individual and situated and taxed in 
another State, would be exempt from taxation here, such as real 
estate, and ''merchandise, machinery and animals." St. 1909, c. 516, 
§ 1; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. There 
are substantial, although intangible, elements of property in shares of 
stock in a corporation which attach to the owner resident in this 
Commonwealth. 

The paragraph just quoted is a plain statement that the provi- 
sion in the tax act under consideration, permitting a deduction 
of "property situated in another State and subject to taxation 
therein," applies only to tangible property vvhich, if situated 
and taxed in another State, is, by the decision of the Supreme 
Court of the United States cited, necessarily exempt from tax- 
ation in the State of the residence of the owner. This does not 
apply to items of intangible property of the character referred 
to by you. Whether taxable in another State or not, there are 
"substantial, although intangible, elements of property" in 
items of this character "which attach to the owner resident in 
this Commonwealth." 

Apparently, in the main, it is the purpose of the statute 
providing for the payment of a domestic corporation franchise 
tax that a corporation in the determination of its franchise tax 
should be treated upon substantially the same basis as an indi- 
vidual in the assessment of his property taxes. Accordingly, 
deductions are made from the fair cash value of all the shares 
of the corporation of the value of all property owned by it 
upon which it is taxable in the Commonw^ealth or which would 
be exempt from taxation if held by an individual. An indi- 
vidual resident in Massachusetts is taxable here upon all in- 
tangible personal property whether or not it has a situs for 
purposes of taxation outside the Commonwealth. An individ- 
ual, however, is, by the decision of the Supreme Court of the 
United States already referred to, exempt from taxation upon 
all tangible property permanently situated in other jurisdic- 
tions. The ruling of our Supreme Judicial Court, which I have 
quoted, seems to place individuals resident in Massachusetts 
and domestic corporations upon precisely the same basis. 

Accordingly, I must advise you that, in accordance with the 
ruling of our court above quoted, notes, bills receivable, cash 
on deposit in banks or trust companies and other intangible 
property of a like nature are not deductable as property situ- 



1917.] PUBLIC DOCUMENT — No. 12. 47 

ated in another State or country and subject to taxation 
therein, in the determination of the domestic corporation fran- 
chise tax. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Constitutional Laiv — Police Power — Power of State to prohibit 
the Use of Trading Stamps. 

Senate Document No. 438, which prohibits the selling or giving, in con- 
nection with the sale of any article of merchandise, of any trading 
stamps or similar devices entitUng the holder to either a cash or 
property premium, would be unconstitutional if enacted, inasmuch 
as the bill prohibits the giving of a cash premium to be paid by the 
seller independently of any arrangement by him with any other 
person, i.e., a discount. But it seems it would be 'within the constitu- 
tional power of the Legislature to prohibit the dealing in trading 
stamps or similar devices in which any person other than the vendor 
or vendee of the merchandise sold has an interest. 

May 27, 1916. 

J. Weston Allen, Esq., Chairman, Committee on Bills in the Third 

Reading. 

Dear Sir: — I beg to acknowledge the receipt of your letter 
of the 24th inst., in which the House committee on bills in the 
third reading requests my opinion upon the constitutionality 
of House bill printed as Senate No. 438. That bill is as fol- 
lows : — 

Section 1. No person, firm or corporation shall, in connection 
with the sale of any article or any merchandise whatsoever, sell, give 
or deliver any trading stamps, coupons or similar devices, whether such 
trading stamps, coupons or similar devices are or are not attached to 
or form a part of the article or package of merchandise sold. This act 
shall apply to any deface which entitles the holder thereof, v/hen such 
device is presented alone or in connection with others, to a cash pre- 
mium or property premium. 

Section 2. A violation of this act shall be a misdemeanor, and 
shall be punished by a fine of not less than ten nor more than one 
hundred dollars. 

Section 3. This act shall take effect on the first day of January, 
nineteen hundred and seventeen. 

Statutes the provisions of which were similar to those of the 
proposed act have been considered by the Supreme Judicial 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

Court on several occasions. In but two instances has the 
Supreme Court expressed any opinion as to the constitution- 
ality of acts similar in character; i.e., in the case of O'Keeffe 
V. Somerville, 190 Mass. 110, and in an opinion of the justices, 
rendered to the House of Representatives in 1911 and reported 
in 208 Mass. 607, in which the justices unanimously were of 
the opinion that statutes of this character* were unconstitu- 
tional as violating the provisions of the Fourteenth Amend- 
ment to the Constitution of the United States and the Declara- 
tion of Rights, Article I., of the Massachusetts Constitution. 

My immediate predecessor, Hon. Thomas J. Bo^nton, ex- 
pressed similar views in relation to a proposed act to impose a 
license fee of $6,000 upon persons engaged in the business of 
furnishing trading stamps. 

The Supreme Court of the United States, on March 6, 1916, 
in three cases, namely, Rast v. Van Deman (fc Lewis, Tanner v. 
Little and Pitney v. Washington, held that the regulation or 
prohibition of the giving of trading stamps or other devices in 
connection with the sale of goods, entitling the purchaser to 
anything other than cash in addition to the principal article of 
purchase, under the police power of a State was not in viola- 
tion of any rights guaranteed by the Fourteenth Amendment 
or other provisions of the' Constitution of the United States. 
The court expressly stated that in arriving at this decision it 
in no way intimated what its view would be in relation to the 
giving of trading stamps or other devices redeemable solely in 
cash. 

It is very plain, therefore, that up to March 6, 1916, it 
would have been the duty of the Attorney-General of this 
Commonwealth to advise your committee that the proposed 
act would be unconstitutional. It follows that the question 
presented for me to answer is an extremely delicate one in that 
it requires a speculation upon what effect these recent decisions 
of the United States Supreme Court may have upon the views 
heretofore expressed by the justices of our Supreme Judicial 
Court. It will be observed that in the opinion of the justices 
to the House of Representatives, above referred to, the justices 
based their opinion not only upon the Fourteenth Amendment 
to the United States Constitution but upon the Declaration of 
Rights, and; if our court is still of the opinion that the Decla- 
ration of Rights of the Constitution of Massachusetts prohibits 
the enactment of legislation of the character then in question, 
it follows that the decisions of the Supreme Court of the 



1917.] PUBLIC DOCUMENT — No. 12. 49 

United States are not controlling, and that Senate No. 43S 
would be unconstitutional. In so far as the opinion of the 
justices of the Supreme Judicial Court was based upon the 
Fourteenth Amendment to the Constitution of the United 
States, the decisions of the United States Supreme Court are 
controlling. 

Furthermore, it should be noted that opinions rendered to 
the Legislature, or either branch thereof, are not to receive the 
same weight as decisions in actual cases before the court, as 
was well stated in Opinion of the Justices, 214 Mass. 599, as 
follows : — 

It has been said repeatedly that answers given by the justices to 
questions propounded by the Legislature have not the binding force of 
decisions of the court, but are the opinions of the individual justices 
acting as constitutional advisers to a co-ordinate department of the 
government. The doctrine of stare decisis does not apply to themj. 
but they are open to reconsideration and revision. 

These decisions being brought to your attention, it would 
seem that the members of your committee are as competent as 
the Attorney-General to determine to what extent, if at all, 
the justices of the Supreme Judicial Court based their previous 
opinions upon the provisions of the Declaration of Rights in 
distinction from those of the Fourteenth Amendment, and to 
what extent they would be influenced in passing upon the 
constitutionality of a statute of this character by the reasons 
advanced by the Supreme Court of the United States. In this 
connection it should be borne in mind that the Supreme Judi- 
cial Court has said, in the case of Commonwealth v. Strauss, 
191 Mass. 545, at 550, that — 

Rights relied upon under the Fourteenth Amendment to the Con- 
stitution of the United States, and under the Declaration of Rights in 
the Constitution of Massachusetts, are substantially the same. 

Although I feel, as I have before stated, that my opinion in 
relation to the constitutionality of the proposed act can be of 
but little value to your committee, nevertheless, I deem it my 
duty, in view of the provisions of section 7 of chapter 7 of the 
Revised Laws, as you have required my opinion, to express my 
views in relation to the proposed act. As I interpret this bill 
absolutely to prohibit the giving of any stamp or other device 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

entitling the holder thereof to a cash premium to be paid by 
the seller, independently of any agreement or arrangement by 
him with any person other than the holder of such stamp or 
device, I am of the opinion, in the light of the decisions above 
referred to, that the bill would be unconstitutional if enacted. 
On the other hand, if the provisions of the act are limited to 
the giving of or dealing in stamps or other similar devices in 
which any person other than the vendor or vendee of the mer- 
chandise sold has an interest, by contract, arrangement or 
otherwise, I can see no sound reason why it should be declared 
unconstitutional. I have always felt that if, in the opinion of 
the Legislature, conditions have arisen in connection with the 
use of trading stamps, either by reason of the form of contract 
or the methods of distribution and sale employed, which tend 
to the creation of a monopoly or to the restraint of trade, it is 
well within the police power of the State to prohibit the use of 
stamps in such a way. 

It may be that the Legislature has ascertained that the con- 
trol of the business of the issuance of trading stamps in the 
State, or portions thereof, has, by the operation of methods 
adopted by trading stamp companies, become largely centered 
in one company. This was a condition found to exist in the 
city of Boston by the Supreme Judicial Court in the case of 
Merchants Legal Stamp Co. v. Murphy, 220 Mass. 28L It may 
be that the Legislature has found, as was expressed in that 
case, that trading stamps now have become "an essential ele- 
ment of a form of bargain and sale which a very appreciable 
portion of the public demands." It may be that in the judg- 
ment of the Legislature, in many communities in the State 
where trading stamps have become of general use, competitive 
stores cannot be successfully opened without the use of the 
same kind of trading stamps as are used by their competitors, 
and in this way the trading stamp companies have it largely 
in their power to restrain competition in those communities. 
That the Legislature has the power to deal with contracts 
tending to create monopolies or tending to restrain trade 
seems to be unquestionable. Commonwealth v. Strauss, supra. 
In my opinion the Legislature has an equal power to deal with 
methods and schemes of business which tend to create a like 
condition. As was said in the case of Louisville & Nashville 
R.R. V. Kentucky, 161 U. S. 677, at 701, cited with approval by 
our own court in the case of Commonwealth v. Strauss, supra: — 



1917.] PUBLIC DOCUMENT — No. 12. 51 

The general rule holds good that whatever is contrary to public 
policy or inimical to the public interests is subject to the police power 
of the State, and within legislative control, and in the exertion of such 
power the Legislature is vested with a large discretion, which, if exer- 
cised bona fide for the protection of the public, is beyond the reach 
of judicial inquirj-. 

These considerations induce me to believe that if the Legis- 
lature finds conditions to exist such as I have before observed, 
it has the power, notwithstanding any provisions of the Decla- 
ration of Rights of the Constitution of Massachusetts, to pass 
legislation fairly adapted to correct these conditons. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Pawnbrokers — Interest on Small Loans. 

The rate of interest which may be charged by pawnbrokers for small 
loans is not affected by St. 1911, c. 727, § 7, as amended by Gen. 
St. 1916, c. 224. 

June 3, 1916. 

Hon. Frank H. Pope, Supervisor of Loan Agencies. 

Dear Sir: — I beg to acknowledge your letter in which you 
request my opinion as to whether the rate of interest to be 
charged by pawnbrokers is limited by the provisions of sec- 
tion 7 of chapter 727 of the Acts of 1911, as amended by 
chapter 224 of the General Acts of 1916. Said section, as 
amended, reads as follows: — 

The supervisor shall establish 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 total amount to be paid on any loan for interest and expenses 
shall not in the aggregate exceed an amount equivalent to three per 
cent a month on the amount actually received by the borrower, com- 
puted on unpaid balances; and no Ucensee 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. No charge, bonus, 
fee, expense or demand of any nature whatsoever, except as above 
provided, shall be made upon loans to which this act relates. 

It is my view that said amendment of section 7 in no way 
enlarged the classes of persons or the classes of loans included 
within the provisions of St. 1911, c. 727, and amendments 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 

thereof. The answer to your inquiry, therefore, is dependent 
upon the interpretation of other provisions of said chapter 727. 
At the time of the passage of said chapter 727 there were in 
chapter 102 of the Revised Laws distinct provisions relating to 
pawnbrokers and to persons other than pawnbrokers engaged 
in making small loans. Section 3 of said chapter 727, as orig- 
inally passed, provided: — 

No person, partnership, corporation or association shall directly or 
indirectly engage in the business of making loans of three hundred 
dollars or less, if the amount to be paid on any such loan, for interest 
and expenses, exceeds in the aggregate an amount equivalent to 
twelve per cent per annum upon the sum loaned, without first obtain- 
ing from the supervisor of loan agencies a license to carry on the said 
business in the city or town in which the business is to be transacted. 

This section, standing alone, would necessarily include pawn- 
brokers where the amount of a loan made by pawnbrokers was 
not in excess of $300. But this section must be interpreted in 
the light of other provisions of the act in order to determine 
the intent of the Legislature. Section 21 of said chapter 
amended section 41 of chapter 102 of the Revised Laws so as 
to read as follows : — 

The board which grants licenses to pawnbrokers shall from time to 
time establish regulations to the satisfaction of the supervisor of loan 
agencies, relative to the business carried on and the rate of interest 
to be charged by them; and a pawnbroker shall not charge or receive 
upon any loan a greater rate of interest than that fixed by the licensing 
board. 

This section, taken in connection with the fact that, under 
the provisions of section 24 of said chapter 727, section 60 and 
sections 57, 58, 59, 61, 62, 63, 64, 65, 66, 67 and 68 of chapter 
102 of the Revised Laws were specifically repealed, indicates to 
my mind that it was the intention of the Legislature to leave 
the provisions of sections 33 to 45, inclusive, of chapter 102 of 
the Revised Laws unaffected except in so far as they were af- 
fected by the provisions of section 21 of said chapter 727. 

The result is that, in my judgment, pawnbrokers and the 
rates to be charged by them are in no way subject to the pro- 
visions of said chapter 727 and the amendments thereof, except 
that the rates established as to pawnbrokers by licensing 
boards, under the provisions of chapter 102 of the Revised 



1917.] PUBLIC DOCUMENT — No. 12. 53 

Laws, are subject to the approval of the Supervisor of Loan 
Agencies. 

Accordingly, I am of the opinion that the rates that may be 
charged by pawnbrokers are not subject to or controlled by the 
provisions of section 7, as amended by chapter 224 of the Gen- 
eral Acts of 1916. 

Very truly yours, 

Henry C. Attwill, Attorney-General. , 



Cold Storage — Reports to State Department of Health. 

The report required to be made to the State Department of Health by 

cold-storage companies by St. 1912, c. 652, § 2, should include a report 

of broken eggs as well as whole eggs. 
Under St. 1912, c^. 652, § 2, the State Department of Health may require 

cold-storage warehouses to report the number of pounds of articles 

of food placed in cold storage. 

June 8, 1916. 
Allan J. McLaughlin, M.D., Commissioner of Health. 

Dear Sir: — You ask in your letter of May 31, 1916, for 
the construction of St. 1912, c. 652, § 2, with reference to the 
cold storage of eggs and articles of food. This section refers 
to licenses issued by the State Department of Health for 
cold-storage and refrigerating warehouses, and reads, in part, 

as follows : — 

• 
. . . Every such licensee shall furthermore submit a quarterly 
report to the state board of health on a printed form to be provided 
by the board. The report shall be filed on or before the twenty-fifth 
day of January, April, July and October of each year, and it shall 
state the quantities of articles of food placed in cold storage during 
the three months preceding the first day of the said months, respec- 
tively, and also the quantities of butter and eggs held on the first day 
of the month in which the report is filed. 

You ask, "Does the word 'eggs,' as used in this connection, 
mean only eggs in the shell, or does it also include the broken- 
out eggs?" You also inquire if your department can insist 
upon such warehouses reporting to your department the num- 
ber of pounds of articles of food placed in cold storage, instead 
of reporting the number of packages of food without setting 
forth the weight of the same. 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 

This statute was intended to provide supervision by the 
health authorities of food products kept in cold-storage ware- 
houses, and is clearly a health measure. In order to secure 
proper inspection and regulation, reports must be filed with the 
State Department of Health, as provided in section 2. 

Section 8 provides that "broken eggs packed in cans, if not 
intended for use as food," shall be marked in a way to indicate 
that fact. There seems to be as much reason for requiring re- 
ports to be made of broken eggs as of whole eggs, and said 
provision of section 8 gives force to the construction that under 
the provisions of the act an egg is to be considered an egg, 
whether in the shell or broken and packed in a can. Accord- 
ingly, I am of the opinion that broken eggs are **eggs" within 
the provisions of said section 2. 

I am also of the opinion that the State Department of 
Health may insist upon statements of the exact quantities of 
food products contained in such warehouses, either by weight 
or bulk as it may determine, in order properly to supervise and 
regulate the cold storage of food products. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Witnesses — Power of State Board of Labor and Industries to 

Summon. 

Under an order passed by the House of Representatives requiring the 
State Board of Labor and Industries to inquire as to whether certain 
telegraph operators were discharged by a telegraph company because 
they were members of a union, this board does not have the power 
to summon witnesses and require the production of books and papers 
in relation thereto. 

June 19. 1916. 

State Board of Labor and Industries. 

Gentlemen: — I beg to acknowledge receipt of your letter 
of the 13th inst., requesting my opinion upon the question of 
whether your Board has the power to summon witnesses and 
require the production of papers in relation to the subject of 
the inquiry contained in an order passed by the House of 
Representatives. Said order is as follows: — 

Ordered, That the State Board of Labor and Industries be required 
to inquire as to whether the recent discharge of telegraph operators 
by the Western Union Telegraph Company in the city of Boston was 



1917.] PUBLIC DOCUMENT — No. 12. 55 

because of membership in the Commercial Telegraphers Union of 
America, an organization composed of commercial telegraphers in 
the employ of the various telegraph companies; and urge upon all 
parties at interest the necessity of taking such action as will prevent 
a strike, which would seriously handicap the commercial and in- 
dutsrial activities of the entire countrj^ 

Many of the boards and departments of the Commonwealth 
have been given express power to summon witnesses and re- 
quire the production of papers, instances of which are the 
State Board of Conciliation and Arbitration, the Industrial 
Accident Board, the Massachusetts Highway Commission, the 
Civil Service Commission and the Bureau of Statistics. That 
this powder cannot be implied as reasonably incidental to carry- 
ing out the duties of your Board would^ seem clear, for other- 
wise the express power given to the boards above mentioned 
would become meaningless and mere surplusage, so that, unless 
this power was conferred upon your Board by said order, your 
question must be answered in the negative. 

The House of Representatives undoubtedly has the power to 
summon witnesses and to compel the production of papers, at 
least where the inquiry is germane to proposed legislation, and 
this power may be exercised either directly or by means of 
committees. Burnham v. Morrissey, 14 Gray, 226. 

In that case the court said: — 

We therefore think it clear that it [the House of Representatives] 
has the constitutional right to take evidence, to summon witnesses, 
and to compel them to attend and to testify. This power to summon 
and examine witnesses it may exercise by means of committees. 

It is extremely doubtful whether this power could be dele- 
gated by the House to State departments, for it must be borne 
in mind that the House of Representatives is not the Legisla- 
ture, but only a part of it, and therefore an order of the House 
is not equivalent to an act of the Legislature. It is, however, 
unnecessary for the purposes of this opinion to decide this 
question, for the order does not purport, at least expressly, to 
convey this power; and I am of the opinion, for the reasons 
above indicated, that this power is not to be implied. 

The answer to your question, therefore, must be in the nega- 
tive. 

Very truly yours, 

Henry C. Attwill, Attorney -General. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 



Hawkers and Pedlers — Right of Minor to be licensed as. 

A boy fifteen years of age may be licensed as a hawker and pedler under 
the provisions of R. L., c. 65, as amended by Gen. St. 1916, c. 242, 
at least if an em^ployment certificate has been issued to him by the 
proper school authorities. 

June 22, 1916. 

Thure Hanson, Esq., Commissioner of Weights and Measures. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether you have authority to grant a hawker's 
and pedler's license for the town of Clarksburg to a boy fifteen 
years of age, residing in North Adams, whose application is 
accompanied by the certificates required by section 19 of chap- 
ter 65 of the Revised Laws, signed by a majority of the select- 
men of Clarksburg. 

Chapter 65 of the Revised Laws, as amended by chapter 242 
of the General Acts of 1916, does not appear to contain any 
provision regulating the issuance of such licenses by you to 
minors. Section 17, which provides for the regulation by cities 
and towns of sales by minors, applies only to the sale by 
hawkers and^ pedlers of the articles mentioned in section 15. 
These articles may be sold without a State license, and cities 
and towns are authorized to regulate only the sale of such arti- 
cles. They have no authority under either section 15 or sec- 
tion 17 to impose any restrictions upon or otherwise to regulate 
the sale of articles not mentioned in section 15. A license 
from you for the sale of such articles is plainly required by 
section 19, whether the hawker and pedler be a minor or an 
adult. 

Sections 11 to 15, inclusive, of chapter 831 of the Acts of 
1913 regulate the employment of minors in certain street 
trades, so called. Section 11 prohibits a boy under twelve 
years of age or a girl under eighteen years of age, in a city 
having a population of over 50,000, from selling any articles 
of merchandise of any description in any street or public place. 

Sections 12 to 14, inclusive, prohibit any boy under sixteen 
years of age, in any city having a population of over 50,000 
from selling any articles of merchandise in any street or public 
place unless there has been issued to him by the school author- 
ities both an employment certificate, as provided by law, and 
a special badge authorizing him to engage in such street trades. 

Section 15 forbids any boy under sixteen years of age to sell 
any articles of merchandise in any street or public place in any 



1917.] PUBLIC DOCUMENT — No. 12. 57 

city or town after 9 o'clock in the evening or before 5 o'clock 
in the morning, in any event, and during school hours, unless 
provided with an employment certificate. 

While these sections do not purport to be a limitation upon 
your authority to issue hawkers' and pedlers' licenses, in my 
opinion, in exercising the discretion granted to you, it is proper 
for you to decline to issue such licenses to minors who are 
subject to the requirements of these sections unless they have 
complied therewith. 

The result is that I advise you that you have authority to 
grant a hawker's and pedler's license for the town of Clarks- 
burg to a boy fifteen years of age, and that it is appropriate 
for you to do so if he submits to you with his application 
an employment certificate issued by the school authorities of 
North Adams permitting him to engage in such employment. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Poor — Aid to Dependent Mothers — Poiver of Overseers of 
Poor to remove to Place of Settlement. 

Neither the overseers of the poor of a city or town which renders aid under 
St. 1913, c. 763, to a mother with dependent children under the age 
of fourteen years who has no settlement in such city or town, nor the 
overseers of the poor of the city or town in which she may have a 
settlement, can cause the removal of such family to the city or town 
of settlement. 

June 23, 1916. 

Mr. Frank W. Goodhue, Superintendent, Division of State Adult Poor. 

Dear Sir: — You have requested my opinion upon the 
following questions with reference to families aided under the 
provisions of chapter 763 of the Acts of 1913: — 

1. Have overseers of the poor rendering the aid authority to cause 
the removal of families to the city or town of legal settlement? 

2. Have overseers of the poor of the city or town of legal settlement 
authority to remove the families from the city or town granting the 
aid? 

3. If overseers of the poor have authority of removal, and if the 
families are supported in a place in which they have no settlement, 
would the place liable for their support be required to pay more than 
at the rate of $2 a week if it causes the families to be removed within 
thirty days after receiving legal notice that such support has been 
furnished, as provided in section 19, chapter 81, Revised Laws? 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

St. 1913, c. 763, § 1, provides: — 

In every city and town the overseers of the poor shall, subject to 
the provisions of the subsequent sections of this act, aid all mothers 
with dependent children under fourteen years of age, if such mothers 
are fit to bring up their children. The aid furnished shall be sufficient 
to enable the mothers to bring up their children properly in their 
own homes; and such mothers and their children shall not be deemed 
to be paupers by reason of receiving aid as aforesaid. 

Section 6 provides : — 

In respect to all mothers in receipt of aid hereunder the city or 
town rendering the aid shall be reimbursed by the commonwealth, 
after approval of the bills by the state board of charity, for one third 
of the amount of the aid given. If the mother so aided has no settle- 
ment, the city or town shall be reimbursed for the total amount of 
the aid given, after approval of the bills by the state board of charity 
as aforesaid. If the mother so aided has a lawful settlement in another 
city or town, two thirds of the amount of such aid given may be re- 
covered in an action of contract against the city or town liable there- 
for in accordance with the provisions of chapter eighty-one of the 
Revised Laws and acts in amendment thereof and in addition thereto. 

R. L., c. 81, §§ 17, 18, 19, 32 and 33, are as follows: — 

Section 17. The overseers of the poor, in their respective places, 
shall provide for the immediate comfort and relief of all persons re- 
siding or found therein, having lawful settlements in other places, 
when they fall into distress and stand in need of immediate relief, 
and until they are removed to the places of their lawful settlements. 
The expense thereof and of their removal, or burial in case of their 
decease, may be recovered in an action of contract against the place 
liable therefor, if commenced within two years after the cause of 
action arises, but nothing shall be recovered for relief furnished more 
than three months prior to notice thereof given to the defendant. 

Section 18. A judgment for the plaintiff in such action shall be 
conclusive as to the settlement of such pauper in any future action 
between the same parties for his support. 

Section 19. If a pauper is supported in a place in which he has 
no settlement, the place liable for his support shall not be required 
to pay therefor more than at the rate of two dollars a week if it causes 
him to be removed within thirty days after receiving legal notice 
that such support has been furnished. 

Section 32. The overseers of a place to which a person has actually 
become chargeable may give written notice thereof to, and request 



1917.] PUBLIC DOCUMENT — No. 12. 59 

his removal bj^, one or more of the overseers of the place where his 
settlement is supposed to be, who msiy, by an order in writing, directed 
to a person therein designated, cause such removal to be made. 

Section 33. If within one month after receiving such notice, the 
overseers of the latter place do not cause such removal to be made 
or a statement in writing signed bj?- one or more of them of their ob- 
jections to the removal to be transmitted to the overseers requesting 
such removal, the overseers who requested the removal may, by a 
written order directed to a person therein designated, cause the pauper 
to be removed to the place of his supposed settlement; and the over- 
seers thereof shall receive and provide for him; and such place shall 
be liable in an action to the place incurring the same for the expenses 
of his support and removal, and shall be barred from contesting the 
question of settlement in such action unless the settlement is denied 
in said statement. 

Briefly stated, the question presented is as to the meaning 
of the Legislature in providing in the 1913 act that "two 
thirds of the amount of such aid given may be recovered in 
an action of contract against the city or town liable therefor 
in accordance with the provisions of chapter eighty-one of the 
Revised Laws. ..." 

While this language is far from clear, I am of the opinion 
that it was the intention of the Legislature, by the reference 
made to the Revised Laws, to refer merely to the manner and 
conditions in accordance with which suit might be maintained, 
and not thereby to incorporate all of the incidental provi- 
sions with reference to the treatment of paupers found in 
chapter 81. 

It is to be noted that the primary purpose of the 1913 act 
seems to be to provide for the care of young children by their 
mothers "in their own homes." There are minute provisions 
for the inspection of these homes and investigation as to the 
character of bringing up which the children would be likely to 
receive therein. 

If the overseers of the poor, either in the town aiding or in 
the town of settlement, have the right to remove the family, 
this purpose of the act would be defeated. 

Furthermore, it is to be noted that the act expressly pro- 
vides that "such mothers and their children shall not be 
deemed to be paupers by reason of receiving aid as aforesaid." 
The provision of R. L., c. 81, § 19, limiting the amount of 
recovery to $2 a week if the place of settlement "causes him 
to be removed within thirty days after receiving legal notice 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

that such support has been furnished," is expressly applied to 
"a pauper." Accordingly, I am of the opinion that the terms 
of this section are not applicable to the aid given under the 
1913 act, despite the reference therein to chapter 81 of the 
Revised Laws. 

The provisions of R. L., c. 81, §§32 and 33, are not neces- 
sary for the determination of the method of procedure in an 
action to recover against the city or town of settlement for 
aid furnished. Full provision for such action is found in sec- 
tions 17 and 18. 

While the matter is by no means free from doubt, I am of 
the opinion, for the reasons stated above, that your first two 
questions are to be answered in the negative. Such answer 
makes it unnecessary to consider the third question. 

Of course, the foregoing opinion would not prevent the 
overseers of the poor from advising or assisting the mother in 
voluntarily moving to her place of settlement. I have as- 
sumed that your questions related to causing a removal 
against the wishes of the mother. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Fire Prevention Commissioner — Fixtures — Automatic Sprin- 
kler System. 

Under the facts stated, an automatic sprinkler system upon being in- 
stalled in a building becomes a part of the real estate, so that an 
order by the Fire Prevention Commissioner under St. 1914, c. 795, 
to install such a system in a building would apply under section 22 
of this act to the owner of the premises and not to the occupant. 

June 24, 1916. 
John A. O'Keefe, Esq., Fire Prevention Commissioner. 

Dear Sir: — You have requested my opinion upon the 
question of whether an order made by you, requiring the 
installation of automatic sprinklers in a building which has. 
been leased by the owner, applies to the occupant of the 
premises or to the owner. 

St. 1914, c. 795, § 22, provides, in part, as follows: — 

In any case where buildings or other premises are owned by one 
person and occupied by another under lease or otherwise, the orders 
of the commissioner shall apply to the occupant alone, except where 



1917.] PUBLIC DOCUMENT — No. 12. 61 

such rules or orders require the making of additions to or changes in 
the premises themselves, such as would immediateh^ become real 
estate and be the property of the owner of the premises. In such 
cases the rules or orders shall affect the owner and not the occu- 
pant, ... 

Our courts have repeatedly said that the question of whether 
an article attached to a building becomes a part of the real 
estate is a mixed question of law and fact, and that, as bear- 
ing on this question, "the nature of the article and the object, 
the effect and the mode of annexation, are all to be consid- 
ered." You state that the sprinkler consists of a series of 
pipes extending up through the house between the walls, with 
pipes branching off at each ceiling and equipped every ten 
feet or so w^ith heads; also that in making an equipment it 
becomes necessary to cut holes in the walls and sometimes in 
the floors, and that in installing such a system it is necessary 
to fit it to the house so much in detail that it would be im- 
practicable, if not impossible, to remove the sprinkler system 
from a building where it had once been installed to use in 
another building. 

Although the law regards with greater favor the rights of 
a tenant as against his landlord to remove fixtures installed 
by him than is accorded to persons standing in a different 
relation to the landowner, I beg to advise that, upon the 
whole, I am of the opinion that, in the absence of any agree- 
ment to the contrary between the landlord and tenant, an 
automatic sprinkler such as you have described would, upon 
becoming installed in a building, become a part of the real 
estate even as between landlord and tenant, and consequently 
that your order to install such sprinklers would apply to the 
owner of the premises and not to the occupant. 
Yours truly, 

Henry C. Attw^ill, Attorney-General. 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 



Office, Tenure of — When ended by Abolition of Office — 
Commission on Mental Diseases — Commission on Water- 
ways and Public Lands — Bureau of Prisons — Super- 
visor of Administration. 

Under Gen. St. 1916, cc. 285, 288 and 296, providing for the creation of 
the Massachusetts Commission on Mental Diseases, the Commission 
on Waterways and Public Lands and the Bureau of Prisons, re- 
spectively, and the aboHtion of the boards by whom the powders con- 
ferred on the new commissioners w^ere formerly exercised, the members 
of the old boards continued in office until the appointment and quah- 
fication of their successors. 

Under Gen. St. 1916, c. 241, providing for the aboHtion of the Board of 
Prison Commissioners, the offices of chairman and secretary thereof, 
the office of deputy commissioner, the Board of Parole for the State 
Prison and the Massachusetts Reformatory, and the Board of Parole 
for the Reformatory for Women, and for the transfer of the duties 
formerly exercised by them to a new commission, the tenure of office 
of the members of the boards so abolished, by the terms of the act, 
was terminated on July 1, 1916. 

June 28, 1916. 

His Excellency Samuel W. McCall, Governor of the Commonwealth. 

Sik: — I beg to acknowledge the receipt of your communi- 
cation requesting my opinion in relation to the following: — 

Chapter 285 of the General Acts of the j^ar 1916, entitled *'An 
Act to abolish the State Board of Insanity and to establish the Mas- 
sachusetts Commission on Mental Diseases," provides that so much 
of this act as authorizes the appointment of a commission on mental 
diseases shall take effect upon its passage. This act received executive 
approval June 1, 1916. In your opinion do the present members of 
the Insanity Board continue in office until their successors are ap- 
pointed and qualified, or does the act compel the Governor to make 
appointments to take over the work at a specified date, and in the 
event of his not so doing, wdll it cause a discontinuance of the work 
of the Board? 

In connection with this act there was also passed an act creating 
a commission on waterways and abolishing two other boards, as set 
forth in chapter 288 of the General Acts of 1916. And in further 
connection with the matter a new Bureau of Prisons was established 
by chapter 241 of the General Acts of 1916, and further still, by chapter 
296 of the General Acts, a Supervisor of Administration was provided 
for. In these four new acts there is a provision that the boards doing 
like work shall be abolished, and your opinion is requested in regard 
to these last three, in substance the same as requested with reference 



1917.] PUBLIC DOCmiENT — No. 12. 63 

to the first heretofore mentioned, namely, do the old boards hold over 
until their successors are appointed and qualified, or is the Governor 
obliged to make appointments at or before a specific date? 

Section 9 of chapter 285 of the General Acts of 1916 pro- 
vides: — 

So much of this act as authorizes the appointment of a commission 
on mental diseases shall take effect upon its passage. The other pro- 
visions hereof shall take effect upon the appointment and qualification 
of the members thereof, but not before the first day of August, nine- 
teen hundred and sixteen. 

It follows that the provisions of the act, except in so far as 
they authorize the appointment of a Commission on Mental 
Diseases, do not take effect until the appointment and quali- 
fication of the members of said commission. Accordingly, I 
am of the opinion that the present members of the Board of 
Insanity continue in office until their successors are appointed 
and qualified, and until the first day of August, 1916, in any 
event. 

Section 5 of chapter 288 of the General Acts of 1916 pro- 
vides : — 

So much of this act as provides for the appointment of the com- 
mission hereby established shaU take effect upon its passage. All 
other provisions thereof shall take effect upon the qualification of the 
members of said commission, but not earlier than July one, nineteen 
hundred and sixteen. 

What I have said above in connection with chapter 285 of 
the General Acts of 1916 applies to this act, with the exception 
of the date. 

Section 10 of chapter 296 of the General Acts of 1916 pro- 
vides: — 

So much of this act as provides for the appointment of the super- 
visor shall take effect upon its passage. All other provisions hereof 
shall take effect upon the quaUfication of the said officer but not 
earUer than July first in the year nineteen hundred and sixteen. 

This provision is substantially the same 'as the provision in 
the acts above referred to, and therefore, in my opinion, the 
Commission on Economy and Efficiency continues in office in 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

any event until the first day of July, 1916, and until the 
appointment and qualification of the Supervisor. 

Section 10 of chapter 241 of the General Acts of 1916 pro- 
vides: — 

So much of this act as provides for the appointment of the advisory 
prison board, the board of parole and the director of prisons shall 
take effect upon its passage. All other provisions shall take effect 
on the first day of July, nineteen hundred and sixteen. 

This act was approved May 20, 1916. It evidently con- 
templated that the Governor should appoint between the time 
of its passage and the first day of July, 1916, officers to ad- 
minister the duties prescribed by the act. Section 1 of the 
act provides: — 

The board of prison commissioners existing under authority of 
chapter two hundred and twenty-two of the Revised Laws, the offices 
of chairman and secretary thereof, the office of deputy commissioner 
estabhshed under chapter eight hundred and twenty-nine of the acts 
of the j^ear nineteen hundred and thirteen, the board of parole for the 
state prison and the Massachusetts reformatory and the board of 
parole for the reformatory for women established by said chapter 
eight hundred and twenty-nine, are hereby abolished. All the rights, 
powers, duties and obligations conferred and imposed by law on said 
board of prison commissioners, or any member thereof, except as is 
hereinafter provided, are hereby transferred to and shaU hereafter be 
exercised and performed by the director of the Massachusetts bureau 
of prisons established by this act, who shall be the lawful successor of 
said board. All the rights, powers, duties and obligations conferred and 
imposed by law on said boards of parole are hereby transferred to and 
shall hereafter be exercised and performed by the board of parole of 
the Massachusetts bureau of prisons estabhshed by this act, which 
board shall be the lawful successor of said boards. 

In my opinion, upon the first day of July, 1916, the date 
upon which the act takes effect, the Board of Prison Com- 
missioners, the offices of chairman and secretary thereof, the 
office of deputy commissioner, the Board of Parole for the 
State Prison and the Massachusetts Reformatory, and the 
Board of Parole for the Reformatory for Women, are abolished 
and cease to have any power under the law. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



1917.] PUBLIC DOCUMENT — No. 12. 65 



Retirement — Probation Officer. 

Gen. St. 1916, c. 225, does not authorize the retirement of a probation 
officer who, although he has been in the service for twenty consecutive 
years or more, has devoted his entire time to the duties of his office 
for only a portion of the twenty-year period. 

July 6, 1916. 

Commission on Probation. 

Gentlemen: — I beg to acknowledge your request for my 
opinion as to whether chapter 225 of the General Acts of 1916 
applies to a probation officer who has faithfully performed his 
duties as such officer for at least twenty consecutive years, 
but whose whole time has not been given to his duties during 
the whole of the twenty-year period. 

Section 1 of chapter 225 of the General Acts of 1916 is as 
follows: — 

Any probation officer of any court who shall be eligible to a pension 
for twenty years' service under the provisions of section one of chapter 
seven hundred and twenty-three of the acts of the year nineteen 
hundred and twelve, shall hereafter be retired upon attaining the 
age of seventy years. 

Section 1 of chapter 723 of the Acts of 1912 is as follows: — 

Any probation officer or assistant probation officer whose whole 
time is given to the duties of his office shall, at his or her request, be 
retired from active service and placed upon a pension roll by the court 
upon which it is his duty to attend, with the approval of the county 
commissioners of the county in which the court is situated: ^provided, 
that he is certified in writing by a physician designated by such court 
to be permanently disabled, mentally or physically, for further service 
b}^ reason of injuries or illness sustained or incurred through no fault 
of his in the actual performance of his duty as such officer. Any 
probation or assistant probation officer whose whole time is given to 
his duties as such officer and who has f aithfullj'- performed his duties as 
such officer for not less than twenty consecutive years, and who is not 
less than sixty years of age, shall also be retired under the provisions 
of this act at his or her request without the aforesaid certification. 

Section 2 then provides that every person retired under the 
provisions of the act shall receive an annual pension of one- 
half the compensation received by him at the time of his 
retirement. 



66 ATTORNEY-GENERAL'S REPORT. [Jan." 

The last sentence of section 1 of chapter 723 of the Acts of 
1912 expressly authorizes the retirement at his or her request 
of "any probation or assistant probation officer whose whole 
time is given to his duties as such officer and who has faith- 
fully performed his duties as such officer for not less than 
twenty consecutive years, and who is not less than sixty years 
of age/' In my opinion this provision must be interpreted as 
authorizing retirement only in cases where the probation or 
assistant probation officer in question has devoted his entire 
time during regular working hours to the duties of his office 
during the whole period of not less than twenty consecutive 
years. In my opinion it does not authorize retirement in 
cases where a probation officer has been in the service twenty 
consecutive years or more and has devoted his entire time to 
the duties of his office only during a portion of the twenty- 
year period. 

The result is that, in my opinion, in the case stated by you 
the probation officer is not entitled to be retired at his re- 
quest, under the provisions of section 1 of chapter 723 of the 
Acts of 1912, and is not subject to compulsory retirement 
under the provisions of chapter 225 of the General Acts of 
1916. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Teachers — Duty of State Board of Education to assist in 
'procuring Positions. 

The duty imposed by St. 1911, c. 731, as amended by St. 1913, c. 368, 
upon the State Board of Education to assist teachers to secure positions 
is limited to positions within this Commonwealth. 

July 10, 1916. 

State Board of Education. 

Gentlemen : — You have requested my opinion as to whether, 
under the provisions of St. 1911, c. 731, as amended by St. 
1913, c. 368 — 

(a) Your Board is authorized, through its Teachers' Regis- 
tration Bureau, to assist teachers to secure positions outside 
the Commonwealth as opportunity offers. 

(6) In view of the fact that a larger number of teachers 
enroll every year in the Bureau than it can help to secure 



1917.] PUBLIC DOCUMENT — No. 12. 67 

positions in Massachusetts, does the phrase in section 1, "to 
procure positions for them so far as may be possible," make 
it incumbent upon the Board to help such teachers secure 
positions outside the Commonwealth if opportunity offers? 
St. 1911, c. 731, § 1, is as follows: — 

Any graduate of any high school or normal school in this common- 
wealth, or of any other school considered by the board of education 
to be of equal grade, or the graduate of any reputable college, pro- 
vided that such graduate is a person of good character and is a resident 
of the state, may file an application with the board of education for a 
position as school teacher upon the payment of a fee of two dollars. 
The application shall set forth the name, address, and, briefly, the 
experience and qualifications of the applicant. It shall be the duty of 
the board of education to communicate with the school committees 
in the cities and towns of the commonwealth, and with persons who 
have made application for a position as school teacher in accordance 
with the provisions of this section, and to procure positions for them 
so far as may be possible, free of expense to the applicant beyond the 
aforesaid fee, and without expense to the various school committees. 
The said board shall cause to be printed and sent to school committees 
of cities and towns a hst of the applicants for positions as aforesaid, 
with a brief statement of their qualifications and experience. 

The remaining sections of the act throw no light upon the 
questions presented. 

Under this act college graduates who are residents of the 
State, and graduates of any high school or normal school in 
this Commonwealth, or other school of equal grade, may file 
their applications. In general, therefore, the applicants would 
be residents of the Commonw^ealth. 

It is the duty of the Board of Education "to communicate 
with the school committees in the cities and towns of the 
commonwealth" and with persons who have filed applications, 
and "to procure positions for them so far as may be possible, 
free of expense to the applicant . . . and without expense to 
the various school committees." It would seem evident that 
the committees referred to in the last words quoted are the 
same school committees mentioned earlier in the sentence, to 
wit, committees in the cities and towns of the Commonwealth. 

While the question is not entirely free from doubt, I am of 
the opinion that the duty "to procure positions" was intended 
to be limited to procuring such positions through the school 
committees in the cities and towns of the Commonwealth, 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

with whom it is made the duty of the Board to communicate. 
Unless such is the correct interpretation, the provision with 
reference to communication with the "school committees in 
the cities and towns of the Commonwealth" becomes sur- 
plusage, because if the requirement of procuring positions 
meant positions anywhere, either within or without the Com- 
monwealth, communication with the various school commit- 
tees within the Commonwealth would follow as an incident. 

It remains to be considered how far the amendment of 1913 
affects this construction. 

By that act the section quoted above is amended by striking 
out the words "and is a resident of the state," in the seventh 
and eighth lines of the quotation above. The effect of this 
amendment is to permit college graduates to register with the 
Board, regardless of whether or not they be residents of the 
Commonwealth. This act was adopted upon the report of the 
Board of Education to the Legislature, which was printed in 
1913 as House Document No. 180, and was reported by the 
committee to which was referred the recommendations for 
legislation contained in said report. In this report appears 
the following: — 

Note to No. 8. — The purpose of this ,act is to increase the effi- 
ciency of the service of the Board in helping teachers who are seeking 
positions, and in aiding superintendents and school committees who 
are seeking teachers to fill vacancies. 

The Board gives such service only to school committees and super- 
intendents within the State, but wishes to secure as large a list as 
possible of available teachers from both within and without the State. 

In view of this history, I am of the opinion that the 1913 
amendment did not enlarge the powers of the State Board of 
Education with reference to the places in which positions were 
to be procured. 

Accordingly, I am of the opinion that both of your questions 
should be answered in the negative. 
Very truly yours, 

Henry C. Attwill, Attoniey-Gerieral. 



1917.1 PUBLIC DOCUMENT — No. 12. 69 



Fire Prereiition Commissioner — Regulation of Use of Gasoline 
in Power Boats — Federal Jurisdiction. 

While the Fire Prevention Commissioner is authorized by St. 1914, c. 
795, to make regulations relative to the use of gasoline on motor 
boats, this authority does not extend to boats used exclusively on 
the navigable waters of the United States, as the regulation of boats 
on such waters is within the power of Congress, and Congress has 
made regulations governing this subject. 

July 17, 1916. 

John A. O'Keefe, Esq., Fire Prevention Commissioner. 

Dear Sir: — I beg to acknowledge your letter in which you 

ask me the following question: — 

Does section 2 of chapter 370 of the Acts of 1904, as amended by 
chapter 280 of the Acts of 1905, vest in the Fire Prevention Com- 
missioner for the Metropolitan District, through chapter 795 of the 
Acts of 1914, the right to make regulations governing the use of gaso- 
line in power boats within the waters of the metropolitan fire pre- 
vention district? 

St. 1905, c. 280, § 1, provides, in part, as follows: — 

. . . Section 1. The powers and duties heretofore conferred and 
imposed upon cities and towns and the mayors and aldermen, city 
councils and selectmen thereof, by chapter one hundred and two of 
the Revised Laws, to regulate the keeping, storage, use, manufac- 
ture, sale, handling, transportation or other disposition of . . . crude 
petroleum or any of its products, or explosive or inflammable fluids 
or compounds, tablets, torpedoes or any explosives of a like nature, 
or any other explosives, ... are hereby conferred and imposed 
upon the detective and fire inspection department of the district 
police, except as to the transportation of said explosives by steam 
railroads. Section 2. The detective and fire inspection department 
of the district police may make regulations, except as hereinbefore 
provided, for the keeping, storage, use, manufacture, sale, handling, 
transportation or other disposition of . . . crude petroleum or any 
of its products, or explosive or inflammable fluids or compounds, 
. . . and may prescribe the materials and construction of buildings 
to be used for any of the said purposes. 

St. 1914, c. 795, §§ 2, 3 and 13, are, in part, as follows: — 

Section 2. The governor, with the advice and consent of the council, 
shall appoint a citizen of the commonwealth who shall have resided 
within the metropolitan district for at least three years, to be called the 
fire prevention commissioner for the metropolitan district. . . . 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 3. All existing powers, in whatever officers, councils, 
bodies, boards or persons, other than the general court and the ju- 
dicial courts of the commonwealth, they may be vested, to license 
persons or premises, or to grant permits for or to inspect or regulate 
or restrain the keeping, storage, use, manufacture, sale, handling, 
transportation or other disposition of . . . camphine or any similar 
fluids or compounds, crude petroleum or any of its products, or any 
explosive or inflammable fluids or compounds, . . . are hereby trans- 
ferred to and vested in the commissioner. 

Section 13. In addition to the powers given by sections one to 
twelve, inclusive, the commissioner shall have power to make orders 
and rules relating to fires, fire protection and fire hazard binding 
throughout the metropolitan district, or any part of it, or binding 
upon any person or class of persons within said district, limited, how- 
ever to the following subjects: — 

E. Ordering the remedying of any condition found to exist in or 
about any building or other premises, or any ship or vessel in viola- 
tion of any law, ordinance, by-law, rule or order in respect to fires 
and the prevention of fire. 

I am inclined to the opinion that these provisions of law 
vest in the Fire Prevention Commissioner authority to make 
reasonable regulations governing the use of gasoline within the 
metropolitan fire prevention district, whether the use of the 
gasoline is upon land or upon water. It should be observed, 
however, that the Congress of the United States has provided 
that — 

Every motor boat and also every vessel propelled by machinery 
other than by steam, more than sixty-five feet in length, shall carry 
ready for immediate use the means of promptly and effectually ex- 
tinguishing burning gasoline (§ 8283) — 

and that the Secretary of Commerce and Labor shall make such 
regulations as may be necessary to secure the proper execution 
of this provision. See U. S. Comp. Sts., 1913, §§ 8283 to 8285, 
inclusive. Again, by section 8281 of the Compiled Statutes it 
is provided that — 

Every motor boat subject to any of the provisions of this act, and 
also all vessels propelled by machinery other than b}^ steam more 
than sixty-five feet in length, shall carry either life-preservers or life 
belts, or buoyant cushions, or ring buoys or other device, to be pre- 
scribed by the Secretary of Commerce and Labor, sufficient to sustain 
afloat every person on board and so placed as to be readily accessible. 



1917.] PUBLIC DOCUMENT — No. 12. 71 

All motor boats carrying passengers for hire shall carry one life-pre- 
server of the sort prescribed by the regulations of the board of super- 
vising inspectors for everj^ passenger carried, and no such boat while 
so carrying passengers for hire shall be operated or navigated except 
in charge of a person duly licensed for such service by the local board 
of inspectors. 

Where Congress, in the exercise of its power to regulate 
interstate commerce, has dealt with a subject, it excludes the 
power of a State to make regulations in relation to that sub- 
ject. Southern Ry. Co. v. Railroad Commissioners of Indiana, 
236 U. S. 439; Commonwealth v. Breakwater Co., 214 Mass. 10. 

Furthermore, it seems that Congress has the power under 
the commerce clause to make regulations relative to the safety 
of boats and passengers thereon while such boats are using 
the navigable waters of the United States, although not en- 
gaged in interstate commerce. The Scow No. 1, 169 Fed. 
Rep. 717. 

While I am of the opinion that you are authorized, under 
the provisions of section 2 of chapter 370 of the Acts of 1904, 
as amended by chapter 280 of the Acts of 1905, to make reg- 
ulations relative to the use of gasoline upon motor boats, yet, 
so far as such boats are used exclusively upon the navigable 
waters of the United States, regulations upon any subject as 
to which regulations have been made by or under authority of 
Congress may be held of no effect, as in conflict with Federal 
authority. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Militia — Salaries of Employees of Commonwealth when mus- 
tered into Federal Service. 

Under Gen. St. 1916, c. 126, State employees serving in the militia may 
be paid their ordinary salaries only while performing duty under 
St. 1908, c. 604, and when mustered into the service of the United 
States and sent out of the Commonwealth the payment of salaries 
to them as employees of the Commonwealth must cease by virtue of 
R. L., c. 6, § 58. 

July 20, 1916. 

Board of Trustees of the State Infirmary and State Farm. 

Gentlemen: — You have requested my opinion as to 
whether your board has authority to pay the salaries of men 
in your employ w^ho were members of the Massachusetts Vol- 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

unteer Militia and who are now in the service of the United 
States on the Mexican border. 

R. L., c. 6, § 58, provides, in part, as follows: — 

... No salar}^ shall be paid to any person for a longer period than 
that during which he has been actually employed in the duties of his 
office. . . . 

It is plain that in the absence of express statutory authority 
your board has no authority to pay salaries to its employees 
under the conditions mentioned by you. The only statute 
of which I am aware which deals with this subject-matter is 
Gen. St. 1916, c. 126, which is as follows: — 

Any person in the service of the commonwealth shall be entitled, 
during the time of his service in the organized militia under the pro- 
visions of sections one hundred and forty-one, one hundred and forty- 
two, one hundred and fifty-one, one hundred and fifty-two and one 
hundred and sixty of chapter six hundred and four of the acts of the 
year nineteen hundred and eight, and acts in amendment thereof and 
m addition thereto, to receive pay therefor, without loss of his ordinary 
remuneration as an employee or ofl&cial of the commonwealth, and 
shall also be entitled to the same leaves of absence or vacation with 
pay given to other like employees or officials. 

This statute authorizes the payment of salaries to State 
employees who are members of the militia only when they are 
on duty under the above-mentioned sections of St. 1908, c. 604. 

Section 141 of that statute provides for the calling out of 
the militia to repel an invasion or to suppress an insurrection. 
Obviously, this applies to invasions or insurrections in the 
Commonwealth. Section 142 covers strike and riot duty; 
section 151 provides for an annual parade; and section 152, 
for annual camp duty. Section 160 is as follows: — 

The commander-in-chief may order out any part of the militia for 
escort and other duties, and may authorize the use of mounted bands. 

I am informed that when the militia was first ordered to 
Framingham they were ordered there for a period of eight 
days under the last-mentioned section. Some individuals may 
have been ordered there for longer than that period. Accord- 
ingly, while militiamen, employees of the Commonwealth, 
were serving in camp in Framingham, or elsewhere, under an 
order given by virtue of section 160, thev would be entitled 



1917.] PUBLIC DOCUMENT — No. 12. 73 

to receive their salaries from the Commonwealth under Gen. 
St. 1916, c. 126. When, however, their duty under that order 
ceased, and they were mustered into the service of the United 
States and sent out of the Commonwealth in connection with 
that service, it can no longer be said that they are performing 
duties under section 160, or any other of the sections men- 
tioned in chapter 126. Accordingly, from the time their duty 
under section 160 ceased, or, as I am informed, in most in- 
stances at the end of a period of eight days from the time 
when they were called into service, there is, in my opinion, 
no authority for the payment to them of salaries as employees 
of the Commonwealth. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Fire Prevention Commissioner — Automatic Sprinklers — 
Authority to order Installation of. 

Buildings in the metropolitan district used as stores which deal in and 
sell certain commodities mentioned in St. 1914, c. 795, § 10, are used 
"for the business of keeping" such commodities, and if four or more 
persons live above the second story of such buildings the Fire Pre- 
vention Commissioner has authority to order automatic sprinklers 
installed therein. 

Aug. 3, 1916. 

Mr. John A. O'Keefe, Fire Prevention Commissioner. 

Dear Sir: — Your letter of the 1st inst. requests my opin- 
ion upon the question of whether you have the power to order 
automatic sprinklers installed in buildings in the metropolitan 
district used in whole or in part as stores, which deal in and 
sell certain commodities mentioned in St. 1914, c. 795, § 10, 
and in which buildings four or more persons live above the 
second story. 

That section reads as follows: — 

Any building within the metropolitan district used in whole or in 
part for the business of woodworking, or for the business of manu- 
facturing or working upon wooden, basket, rattan or cane goods or 
articles, or tow, shavings, excelsior, oakum, rope, twine, string, thread, 
bagging, paper, paper stock, cardboard, rags, cotton or linen, or cotton 
or linen garments or goods, or rubber, feathers, paint, grease, soap, 
oil, varnish, petroleum, gasoline, kerosene, benzine, naphtha, or other 
inflammable fluids, and any building in the metropolitan district used 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

in whole or in part for the business of keeping or storing any of such 
goods or articles, except in such small quantities as are usual for 
domestic use, or for use in connection with and as incident to some 
business other than such keeping or storing, shall, upon the order of 
the commissioner, be equipped with automatic sprinklers; provided, 
however, that no such order shall apply to any building unless four or 
more persons live or are usually employed therein above the second 
floor. 

In my opinion the word "keeping," as used in this section, 
is broader than ''storing," and includes keeping for sale. It is 
not less a "keeping" because the keeper intends to sell. Indeed, 
under the word "keep" in the Century Dictionary is found 
this definition, "to have habitually in stock or for sale." 

It follows from this that such a case does not fall within the 
exception contained in the latter part of this section, namely, 
"except . . . for use in connection with or as incident to 
some business other than such keeping or storing." This ex- 
ception w^ould seem to be intended to cover such cases as 
where oil, for example, is kept to lubricate machinery in a 
factory manufacturing articles not specified in this section, or 
paper or twine which is kept to wrap merchandise in a store 
not dealing in said articles. 

I am fortified in this opinion by the fact that the law in 
question would be practically emasculated by a different in- 
terpretation, as its operation would be restricted to storage 
warehouses in which rarely, if ever, four or more persons are 
employed above the second story. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Insane Hospitals — Power to discharge from — Support of 
Inmates of Feeble-minded Schools. 

Under St. 1909, c. 504, § 76, the superintendent of a State hospital for 
the insane, when authorized by the trustees of such hospital or of 
the State Board of Insanity, may discharge any person committed 
to such hospital for observation under section 43 unless some limita- 
tion to the contrary has been placed on the commitment by the 
judge. 

The trustees of such an institution may receive into its schools feeble- 
minded persons without certification, as provided by St. 1909, c. 
504, § 64, as amended by Gen. St. 1916, c. 22, § 2, and without lia- 
bility for their support, as provided by St. 1909, c. 504, § 82. 



1917.] PUBLIC DOCUMENT — No. 12. 75 

Sept. 12, 1916. 
Commission on Mental Diseases. 

Gentlemen: — The State Board of Insanity requested my 
opinion on the following questions, as to which I am informed 
answers are desired by the present commission. 

1. Has the superintendent of a State hospital for the insane or the 
Commission on Mental Diseases ordinary powers of discharge with 
reference to persons committed for observation under the provisions 
of St. 1909, c. 504, § 43? 

That section is as follows : — 

If a person is found by two physicians, qualified as provided in 
section thirty-two, to be in such mental condition that his commit- 
ment to a hospital for the insane is necessary for his proper care or 
observation, he may be committed by any of the judges mentioned in 
section twenty-nine to a state hospital for the insane or to the McLean 
Hospital, under such Hmitations as the judge may direct, pending 
the determination of his insanity. 

Section 76 of said chapter provides: — 

The superintendent or manager of a private institution or receptacle 
described in section seven, the superintendent of such a state institu- 
tion and of the McLean Hospital, when authorized thereto by the 
board of trustees of such institution, or the trustees, or the state board 
of insanity, or on an application in writing, a judge of probate for the 
county in which the institution is situated, or in which the inmate 
had his residence at the time of his commitment or admission, or a 
justice of the supreme judicial court in any county, after such notice 
as the said superintendent, manager, trustees, state board, judge or 
justice may consider reasonable and proper, may discharge any inmate 
if it appears that he will be sufficiently provided for by himself, his 
guardian, relatives or friends, or that his detention therein is no longer 
necessary for his own welfare or the safety of the public. If the legal 
or natural guardian or any relative of an inmate opposes such dis- 
charge, it shall not be made by a superintendent, manager or board 
of trustees without written notice having been given to the person 
opposing such discharge. The provisions of this section shall not 
applj^ to persons committed by a court. 

The provisions of section 76 are unlimited, in terms except 
for the last sentence, — " The provisions of this section shall 
not apply to persons committed by a court." It is to be 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

noted that ordinary commitments provided for in section 29 
of said chapter are made by certain specified judges rather 
than by the court. Persons under indictment or acquitted of 
murder by reason of insanity are committed under the pro- 
visions of sections 103 and 104 by ''the court." While in 
most cases the action by a judge would be action by the 
court, in view of the language of these sections I am of the 
opinion that the last sentence of section 76, quoted above, does 
not relate to ordinary commitments made under section 29. 

This being so, there seems to be no more reason for ex- 
cluding from the operation of section 76 commitments made 
for the purpose of observation, under section 43, than for 
more permanent commitments made under section 29. It is to 
be observed that the commitments under section 43 may be 
made "under such limitations as the judge may direct," and 
that if the committing judge should in his order place some 
limitation upon the time within which discharge was to be 
granted, in my opinion such limitation should be complied 
with; but apart from any such limitation, I am of the opinion 
that the powers of the superintendent and of the Commission 
on Mental Diseases, under section 76, apply to commitments 
made under section 43. 

2. Have the trustees of the Massachusetts School for the Feeble- 
Minded and the Wrentham State School authority to receive persons 
into the schools without certification as feeble-minded persons, as 
provided in section 64 of chapter 504 of the Acts of 1909, and may 
such persons be received without liability for support, as provided 
by section 82 of said chapter? 

Section 64, as amended by section 2 of chapter 122 of the 
General Acts of 1916, is as follows: — 

The trustees of said institutions may at their discretion receive, 
maintain and educate in the school department, any feeble-minded 
person from this commonwealth, gratuitously or otherwise, upon 
application being made therefor by the parent or guardian of such 
person, which application shall be accompanied by the certificate of 
a physician, qualified as provided in section thirty-two, that such 
person is deficient in mental ability, and that in the opinion of the 
physician he is a fit subject for said school. A physician who makes 
the said certificate shall have examined the alleged feeble-minded 
person within five days of his signing and making oath to the cer- 
tificate, and such medical certificate shall be void if the person certified 
to be feeble-minded shall not be received at the school to which he 



1917.] PUBLIC DOCUMENT — No. 12. 77 

is committed within thirty days after the date thereof. Special pupils 
may be received from any other state or province at a charge of not 
less than three hundred dollars a year. The trustees may also at their 
discretion receive, maintain and educate in the school department 
other feeble-minded persons, gratuitously or upon such terms as they 
may determine. 

Said section 82 provides: — 

The price for the support of inmates, other than state charges, of 
the institutions mentioned in section fourteen, and of the Massa- 
chusetts School for the Feeble-Minded, shall be determined by the 
trustees of the respective institutions. The price for the support of 
state charges shall be determined by the state board of insanity at a 
sum not exceeding five dollars per week for each person, and may be 
recovered by the treasurer and receiver general from such persons if 
of sufficient ability, or from any person or kindred bound by law 
to maintain them. The attorney-general shall upon request of the said 
board bring action therefor in the name of the treasurer and receiver 
general. 

It is to be noted that until the codification of the laws 
relating to insane persons, made by St. 1909, c. 504, the right 
of recovery for the support of inmates of the Massachusetts 
School for the Feeble-Minded was limited to inmates "in the 
custodial department" (R. L., c. 87, § 120), while the pro- 
vision as to admission of inmates (§ 117) contained the same 
sentence as the present law, — '' The trustees may also at their 
discretion receive, maintain and educate in the school depart- 
ment other feeble-minded persons, gratuitously or upon such 
terms as they may determine." 

Although the provisions of section 82 are quite general in 
their nature, it is obvious that if the State is to recover pay- 
ment for all persons supported at its expense the maintenance 
and education of any person will not be gratuitous, and yet it 
is expressly provided that the trustees may at their discretion 
maintain and educate other feeble-minded persons gratuitously 
or upon such terms as they may determine. Inasmuch as this 
provision was allowed to remain in the statute, I am of the 
opinion that it was the intention of the Legislature to permit 
such action by the trustees to continue without subjecting 
persons to the liability prescribed by section 82, if they should 
see fit to do so. The trustees, in my opinion, may determine 
to admit such persons gratuitously or as State charges or upon 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

agreement with certain persons for payment of certain amounts, 
or any other terms they may determine upon. 

Accordingly, I am of opinion that this question is to be 
answered in the affirmative. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Inspection of Boilers — Collection of Fee for. 

The fee imposed by St. 1907, c. 465, § 14, as amended by St. 1912, c. 531, 
§ 5, for the inspection of boilers, may be recovered in an action of 
contract brought by the inspector against the owner or user of such 
boiler. 

Sept. 15, 1916. 
John H. Plunkett, Esq., Chief of the District Police. 

Dear Sir: — You request my opinion upon the question of 
what process, if any, may be used to collect the fee provided 
by law for inspection of boilers. St. 1907, c. 465, § 14, as 
amended by St. 1912, c. 531, § 5, provides as follows: — 

The owner or user of a boiler inspected by the boiler inspection de- 
partment shall pay to the inspector five dollars for each boiler in- 
ternally and externally inspected, and two dollars for each visit for 
external inspection under steam, and two dollars for each cast-iron 
sectional boiler inspected. . . . 

Section 28 of said act provides for prosecution of persons 
violating any of the provisions of this act and for punishment 
by fine or imprisonment, but no provision is made in the act 
for the recovery of the fee itself. 

The law is well settled that when a duty is imposed upon 
a person by statute there is an implied promise on the part of 
such person to perform that duty. Bath v. Freeport, 5 Mass. 
325. I am of the opinion, therefore, that since the statute 
does not point out any particular remedy to be pursued for 
the recovery of this fee, it may be recovered in an action of 
contract brought by the inspector against the owner or user of 
the boiler or boilers inspected. 

Very truly yours, 

Henry C. Attwill, Attorney -General. 



1917.1 PUBLIC DOCUMENT — No. 12. 79 



Workmen* s Compensation Act — Applicability to Common- 
wealth. 

Laborers, workmen and mechanics in the employ of the Commonwealth 
are not deprived of the benefits of the workmen's compensation act 
by Gen. St. 1916, c. 307. 

Sept. 15, 1916. 
Metropolitan Water and Sewerage Board. 

Gentlemen: — You request my opinion upon the question 
of whether or not laborers, workmen and mechanics in the 
employ of the Commonwealth are deprived of the benefits of 
the workmen's compensation act by Gen. St. 1916, c. 307. 
Chapter 307 is as follows: — 

Section 1. Section seven of chapter eight hundred and seven of 
the acts of the year nineteen hundred and thirteen is hereby amended 
by inserting after the word ''persons", in the fourth line, the words: 
— in public employments, — so as to read as follows : — Section 7. 
The provisions of chapter seven hundred and fifty-one of the acts of 
the year nineteen hundred and eleven, and acts in amendment thereof 
and in addition thereto, shall not apply to any persons in public em- 
ployments other than laborers, workmen and mechanics employed by 
counties, cities, towns, or districts having the power of taxation. 

Section 2. This act shall take effect upon its passage. 

It is significant to note that the omission of the Common- 
wealth was not a variation of St. 1913, c. 807, as the original 
act, in section 7, made the same omission, so that the answer 
to your question depends upon the interpretation of St. 1913, 
c. 807, § 7. 

Our courts have laid down the rule that if the general 
meaning and object of a statute should be inconsistent with 
the literal import of any particular clause or section, such 
clause or section must, if possible, be construed according to 
the spirit of the act, and that it is proper to consider the whole 
of a statute and the probable intention of the Legislature in 
order to ascertain the meaning of any particular section; and 
this mode of interpretation is justifiable even where the words 
of the section itself are unambiguous. Holbrook v. Holbrook, 
1 Pick. 248. 

St. 1913, c. 807, § 1, provides that the Commonwealth shall, 
and any county, city, town or district having the power of 
taxation may, pay to laborers, workmen and mechanics the 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

compensation which had theretofore been provided as to 
private employments. Sections 2 and 5 of this act also pro- 
vide for procedure as to the Commonwealth. Section 6 pro- 
vides that this act shall apply to all laborers, workmen and 
mechanics in the service of the Commonwealth, or of a county, 
city, town or district having the power of taxation. To hold 
that the provisions of section 7 of this act exclude the Com- 
monwealth from the operation of this chapter would create 
a repugnancy in the act itself which the Legislature could 
not have intended. 

The amendment of this section by Gen. St. 1916, c. 307, 
above quoted, does not, in my opinion, change the meaning of 
the act as applied to the Commonwealth. The amendment 
consisted merely in the insertion of the words "in public 
employments," and was undoubtedly intended only to remove 
any possible question as to whether the general compensation 
act had been repealed by section 7 of said chapter 307. 

Accordingly, I am of the opinion that the answer to your 
question must be in the negative. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Cape Cod Canal — Jurisdiction of Joint Board — Jurisdiction 
of Public Service Commission — Safety Appliarices — Com- 
pletion of Canal. 

The jurisdiction of the Joint Board created by St. 1899, c. 448, § 6, to 
order the erection or installation of structures and appliances for the 
protection and use of the Cape Cod Canal, whatever its extent, was 
not a continuing one, but ended upon the original approval by it, as 
provided in that section, of the plans for the construction of the canal. 
St. 1910, c. 519, gave no additional authority in that regard. 

The Public Service Commission, under the provisions of St. 1913, c. 784, 
now has exclusive jurisdiction of the regulation of the operation of 
the canal, and it alone is authorized to determine the equipment 
and appliances required for its safe operation. 

Under the clause of the contract for the construction of the Cape Cod 
Canal, providing for the construction of tidal gates by the contractor 
"if at the expiration of one year after the canal is opened to the 
public use" the Joint Board is satisfied that such gates should be 
constructed for the safe and suitable use of the canal, the Joint Board 
is authorized to make its determination within a reasonable time 
after the canal has been constructed to its full size and opened to 
public use for one year. 



1917.] PUBLIC DOCUMENT — No. 12. 81 

The Joint Board may issue its final certificate of the completion of the 
canal imder St. 1900, c. 476, § 1, in the event that variations have 
been made in its construction from the plans originally approved 
by the Harbor and Land Commissioners under St. 1899, c. 448, § 4, 
only in case that it finds as a matter of fact that such changes are 
merely incidental and not matters of substance, or are required by 
the establishment of points of crossing under the provisions of section 
6 of that statute, and that they do not change the general scheme or 
character of the canal approved by the Harbor and Land Commis- 
sioners. 

The regulation of the use of the draw in the railroad bridge over the canal 
is now entirely within the jurisdiction of the Public Service Com- 
mission, and that of the draw in the highway bridges is within the 
jurisdiction of the county commissioners of the county of Barnstable. 

Sept. 19, 1916. 

Hon. William S. McNary, Chairman, Joint Board consisting of the Public 
Service Commissioners and the Harbor and Land Commissioners. 

Dear Sir: — I beg to acknowledge the request of the 
Joint Board for my opinion concerning certain questions 
which have arisen in regard to the construction and the oper- 
ation of the Cape Cod Canal. Since the date of your request 
the Board of Harbor and Land Commissioners has been 
abolished by chapter 288 of the General Acts of 1916, and 
its duties and powers transferred to the Commission on Water- 
ways and Public Lands. Consequently, references made in 
this opinion to the Harbor and Land Commissioners must be 
interpreted as references to the new commission so far as 
future action is concerned. 

In an opinion which I addressed to your Board on July 
22, 1915, I stated with some fullness certain important pro- 
visions of the statutes under which this canal is being con- 
structed, and certain important provisions in the contract 
between the Boston, Cape Cod & New York Canal Company, 
hereafter referred to as the "Canal Company," and the Cape 
Cod Construction Company, hereafter referred to as the 
"Construction Company." I refer you to this discussion 
without now repeating it. Your questions, however, require 
that certain provisions of the statutes with reference to the 
jurisdiction of your Board and that of other boards concerned 
with the canal should be stated more fully. 

Chapter 448 of the Acts of 1899, as amended by chapter 
476 of the Acts of 1900, committed to the determination of 
the Joint Board tw^o general questions. The first of those 
questions was purely a financial one. At the time of the en- 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

actment of the statute of 1899 there appears to have been no 
board or other tribunal in the Commonwealth which had 
jurisdiction over canal companies similar to that then exer- 
cised by the Railroad Commissioners over railroads and rail- 
ways. Accordingly, by section 2 of that statute the Joint 
Board created by section 6 of the statute was given a similar 
control over the issue of stock and bonds by the Canal Com- 
pany as the Railroad Commissioners then exercised over the 
issue of stock and bonds by railroads and railways. The ob- 
vious purpose of this provision was to prevent the issue of 
securities by the Canal Company to an unreasonable or ex- 
cessive amount or without adequate property behind them. 
By the amendment to this section, made by section 1 of chap- 
ter 476 of the Acts of 1900, the supervision over the issue of 
stock and bonds by the Canal Company given to the Joint 
Board was extended, and it was provided that, if the Canal 
Company entered into a contract to pay for the construction 
of the canal by the issue of its stock and bonds, such a con- 
tract should be subject to the approval of the Joint Board, 
and that the company should issue stock and bonds from time 
to time under such contract only upon the certification of the 
Joint Board that the work and materials for which such securi- 
ties were being issued had actually been done or furnished in 
accordance with the contract. 

These provisions of the statute give to the Joint Board no 
authority whatever over the manner in which the canal is to 
be constructed or equipped. The Canal Company is author- 
ized by the statute, as pointed out in the previous opinion, 
to construct the canal in accordance with plans approved by 
the Harbor and Land Commissioners. The only authority of 
the Joint Board, under the provisions of section 2, is, first, to 
approve the form of contract in case a contract is made by 
which stock and bonds are to be issued in payment for the 
construction of the canal, and then to determine from time to 
time, as the work progresses, whether the Canal Company 
may issue stock and bonds in payment for a given pro rata 
amount of the work provided for in the contract. 

Section 6 of the act of 1899 is as follows: — 

The canal company, within one month after the approval of its 
plans by the board of harbor and land commissioners, may apply to 
the boards of railroad commissioners and of harbor and land com- 
missioners, who for the purposes hereinafter stated are constituted a 



1917.] PUBLIC DOCUMENT — No. 12. 83 

joint board, to determine at what point or points the raiboad of the 
Old Colony Railroad Company shall cross said canal by a drawbridge 
or bridges, or by a tunnel or tunnels constructed under said canal. 
Said joint board thereupon, after notice to the Old Colony Railroad 
Company and to all other parties interested, which notice shall be 
given in such form as said joint board shall direct, shall determine 
said questions, and the decision of a majority of said joint board shall 
be final. Said canal company shall construct its canal with such 
structures and appliances for its protection and use as said joint board 
may order, together with such bridge or bridges, tunnel or tunnels, 
ferries, and changes of highways, under the supervision of said joint 
board, as shall be in accordance with plans approved by them and 
in conformity with such orders as they may make; and the supreme 
judicial court shall have jurisdiction in equity to enforce such orders. 

Plainly, the first part of this section commits to the deter- 
mination of the Joint Board but one question, namely, at 
what point or points shall the railroad of the Old Colony 
Railroad Company cross the canal, and what shall be the 
form of crossing. Before making this determination the Joint 
Board, on March 14, 1901, requested the opinion of Attorney- 
General Knowlton as to whether, in view of the fact that the 
Harbor and Land Commissioners had approved plans for the 
construction of a canal without requiring locks or tidal gates, 
the Joint Board then had authority to require the erection of 
such locks or tidal gates for the protection and use of the 
canal. On April 6, 1901 (II. Op. Atty.-Gen. 257), he in sub- 
stance advised the Joint Board that the only question re- 
ferred to that Board by section 6 concerned the points at 
which and the manner in which the railroad should cross the 
canal, and that it had no jurisdiction over matters of the 
construction of the canal, such as the question of locks, except 
so far as such matters should be incidental to the protection 
and maintenance of the crossings which came within the 
jurisdiction of the Board. 

In Bourne v. Joint Board of Commissioners, 221 Mass. 293, 
the Supreme Judicial Court held that the general provisions 
of section 6 must be read into and in connection with section 
14 of the same statute, and that therefore after the county 
commissioners for the county of Barnstable, under section 14, 
had designated the points at which public highways should 
cross the canal, the Joint Board was authorized to determine 
in each instance whether such crossing should be by bridge, 
tunnel or ferry. It was expressly decided that the establish- 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

. ment of a temporary ferry was within the power of the Joint 
Board. 

Section 1 of chapter 519 of the Acts of 1910 is as follows: — 

The joint board mentioned in chapter four hundred and forty-eight 
of the acts of the year eighteen hundred and nmety-nine, entitled 
"An Act to mcorporate the Boston, Cape Cod and New York Canal 
Company," shall have power from time to time, upon such terms as 
shall seem proper, to change the point or points, as previously de- 
termined by the joint board, at which the railroad of the Old Colony 
Railroad Company shall cross the said canal as provided in section 
six of the said act, and to vary any previous order of the joint board 
determining the said point or points; and when said joint board has 
considered and determined a method of crossing the canal suitable for 
railroad or highway traffic at certain designated points as provided 
in said act, the power and authority of said joint board shall not 
thereby be limited or exhausted, and it may thereafter under the 
provisions of said act consider and determine the method of crossing 
at other points of crossing for highway traffic, in the method provided 
in said act. 

It is to be noted that this section applies only to the deter- 
mination of the point or points at which the railroad shall 
cross the canal, and to the determination of the method of the 
crossing of the canal by highways. It in no way refers to any 
authority in the Joint Board to require structures or appli- 
ances for the protection or use of the canal. 

I do not deem it necessary for me now to review the opin- 
ion given by Attorney-General Knowlton, or to determine 
whether, in connection with its original action under section 
6, the Joint Board would have had authority to require the 
erection of locks or tidal gates or any other appliances for the 
protection and use of the canal aside from the protection of 
the crossings. In my opinion, until the enactment of the stat- 
ute of 1910 just quoted, the authority given the Joint Board 
by section 6 was not a continuing one, and its duty under 
that section was entirely completed when it first approved 
the plans in accordance with the provisions of that section. 
With that approval, and until the enactment of the statute 
of 1910 extending its jurisdiction, in my opinion the Joint 
Board had no further authority under section 6. As already 
stated, the statute of 1910 gave to the Board no authority to 
order structures and appliances for the protection and use of 
the canal. 



1917.] PUBLIC DOCUMENT — No. 12. 85 

Any uncertainty that may exist as to the extent of the 
jurisdiction of the Joint Board to order structures and appli- 
ances under section 6 are made immaterial, so far as present 
conditions are concerned, by the provisions of chapter 784 of 
the Acts of 1913 establishing the Public Service Commission 
and creating its jurisdiction. Section 2 of that statute gave 
to this commission "general supervision and regulation of, 
and jurisdiction and control over, the following services, when 
furnished or rendered for public use within the common- 
wealth, and all persons, firms, corporations, associations and 
joint stock associations or companies, hereinafter in this act 
collectively called common carriers and severally called a 
common carrier, furnishing or rendering any such service or 
services. . . ." Among the services specified was the follow- 
ing:— 

The operation of all conveniences, appliances, facilities or equip- 
ment utilized in connection with, or appertaining to, such transporta- 
tion or carriage of persons or property or such express service or car 
service, by whomsoever o\^Tled or by whomsoever provided, whether 
the service be common carriage or merely in facilitation of common 
carriage. 

Section 23 provides, in part, as follows: — 

Whenever the commission shall be of opinion, after a hearing had 
upon its own motion or upon complaint, that the regulations, prac- 
tices, equipment, appliances or service of any common carrier, now 
or hereafter subject to its jurisdiction, are unjust, unreasonable, un- 
safe, improper or inadequate, the commission shall determine the 
just, reasonable, safe, adequate and proper regulations and practices, 
thereafter to be in force and to be observed, and the equipment, ap- 
pliances and service thereafter to be used and shall fix and prescribe 
the same by order to be served upon every common carrier to be 
bound thereby. 

Section 29, with certain exceptions not now material, repealed 
"all acts and parts of acts inconsistent with any provision of 
this act, and all acts and parts of acts which would in any 
way limit or prevent the exercise to the fullest extent of any 
of the jurisdiction, powers, authority or discretion delegated 
herein to the commission." In my opinion these provisions 
of the Public Service Commission act give to that commission 
exclusive jurisdiction over the operation of the canal, and 
authorize it alone to determine the nature and character of 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

the equipment and appliances now required for the safe oper- 
ation of the canal. 

In the foregoing discussion I have stated all the matters 
which have been committed to the jurisdiction of the Joint 
Board by the statutes of the Commonwealth. One further 
matter must be noted. The specifications of the contract 
between the Construction Company and the Canal Company 
approved by the Joint Board contained the following pro- 
vision: — 

If at the expiration of one year after the canal is opened to public 
use it shall have been proved to the satisfaction of the Joint Board 
that a lock, tidal gates or some other device for controlling the current 
in the canal should be constructed in order to provide for the safe 
and suitable use of the canal by the public, then the contractor shall 
construct such lock, tidal gates or other device satisfactory to the 
Joint Board, and the same shall be considered as additional work and 
be subject to the provisions of the fifth paragraph of the contract as 
regards payment therefor. 

As I stated in my previous opinion to your Board, doubt- 
less by approving a contract containing this provision the 
Board accepted the duty thereby imposed upon it, or, in any 
event, it is proper for the Board, in the public interest, to 
undertake the performance of such duty. It is to be noted, 
however, that in performing this duty the Board is not acting 
under any statute, and has no authority by law to enforce its 
decision. It is merely appointed by the contract an arbitrator 
between the parties, and stands in reference to the parties in 
much the same relation as does an engineer or an architect 
in the ordinary construction contract. If, acting under this 
provision, the Board determines tidal gates or similar devices 
to be necessary, the Construction Company has the right to 
erect them, under the provisions of the contract, and then will 
be entitled to receive pay therefor from the Canal Company 
as additional work. If the Construction Company declines 
to erect them, the Canal Company will have a right of action 
against it for breach of contract. In the event, however, that 
the Construction Company and the Canal Company by mutual 
agreement should determine that this provision of the con- 
tract need not be performed, I know of no provision of law 
by which the Joint Board could compel its performance. 

With this discussion I proceed to deal with your specific 
questions. 



1917.] PUBLIC DOCUMENT — No. 12. 87 

1. Your first question in substance requests me to interpret 
that portion of the language of the specifications with refer- 
ence to locks or tidal gates which reads as follows: "If at the 
expiration of one year after the canal is opened to public 
use." 

In my opinion this provision contemplates that after the 
canal has been constructed to the depth and width required 
by the contract and by section 3 of the act of 1899, and as 
thus constructed has been opened to public use for a period 
of one year, the Joint Board is then authorized to undertake 
the investigation and determination of the question of the 
advisability of tidal gates. In my opinion it is not necessary 
that every part of the work covered by the contract for the 
construction of the canal must be completed before the year 
begins to run. It is merely required that the canal be con- 
structed to its full size, and that it be given a trial by public 
use for one year before this question shall be determined. 
Accordingly, in my opinion the Joint Board cannot determine 
that the canal was legally "opened to public use," within the 
meaning of this provision, before it had been constructed to 
the depth and width required by the statute, but it may 
determine, and on the facts stated to me should determine, 
that the canal was thus opened to public use before the Board 
has certified to its entire completion. In my opinion the 
words "at the expiration of one year" are used to postpone 
this determination until after the expiration of a year of use. 
To limit the time of action by the Joint Board under this 
provision of the specifications to precisely the last day of the 
year, as is suggested by your question as a possibility, is, in 
my opinion, to give to this provision of the specifications an 
absurd construction which would practically nullify it. A 
failure to make a determination within a reasonable time 
after the expiration of the year would be tantamount to a 
determination that a lock or other device was unnecessary. 
2. Your second question is as follows: — 

Can the Joint Board under the statutes relating to the Cape Cod 
Canal, and under the contract between the Canal Company and the 
Construction Company, require the building of a lock in the canal, 
if determined by the Joint Board to be necessary for the "safe and 
suitable use of the canal by the public," or for the "protection and 
use" of the canal or of the railroad and highway bridges crossing it? 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

As I have already pointed out, the Joint Board no longer 
has, if it ever did have, any jurisdiction to require the Canal 
Company to erect structures or appliances for the safe and 
suitable use of the canal by the public or for the protection 
and use of the canal. Jurisdiction over this matter, in my 
opinion, now rests with the Public Service Commission. I 
interpret your question, so far as it refers to railway and 
highway bridges crossing the canal, to refer only to bridges 
now existing. In my opinion your Board fully exercised all 
jurisdiction committed to it by section 6 of the act of 1899, 
with reference to these bridges, when it approved the plans 
for the construction of the canal and the location and char- 
acter of these crossings under the provisions of that section. 
Accordingly, as I interpret your question I answer it in the 
negative. 

3. Your third question is as follows: — 

Can either the Joint Board or the Board of Harbor and Land Com- 
missioners, under the statutes relating to the Cape Cod Canal, and 
under the contract between the Canal Company and the Construction 
Company, either with or without the consent of the Canal Com- 
pany— 

(a) Allow or require the elimination of passing places in the canal, 
called for by the plans of the construction thereof approved by the 
Board of Harbor and Land Commissioners and accepted by the Canal 
Company and called for by the contract and specifications between 
the Canal Company and the Construction Company approved by the 
Joint Board? 

(6) Or allow or require the relocation and construction of such 
passing places? 

(c) Or accept or require in lieu of a strict conformity with the 
plans for such passing places an enlargement by the Canal Company 
and Construction Company of the cross-section of the canal repre- 
senting an equivalent amount of dredging and material excavated? 

If so, what action in either case by either or both boards is neces- 
sary or advisable for that purpose? 

The statutes under consideration contain no provisions for 
the changing of the contract or the plans for the construction 
of a canal after they have once been approved. The contract 
itself contains the provisions for the performance of work in 
addition to that expressly specified, but makes no provision 
for the omission of any of the work described by the plans 
and specifications. These plans and specifications were ap- 



1917.] PUBLIC DOCUMENT — No. 12. 89 

proved by the Harbor and Land Commissioners and accepted 
by the Canal Company. It thereupon was authorized to con- 
struct a canal in accordance therewith. It entered upon that 
work, and therefore it became its duty to construct the canal 
in substantial compliance with those plans and specifications. 
The only duty imposed upon the Joint Board by the statutes 
and by the contract is to determine upon requisitions ap- 
proved by the engineer whether the work covered by such 
requisitions "has been done, and such materials furnished in 
accordance with the contract," and to so certify. (Contract, 
paragraph 3.) 

Paragraph 13 of the contract recognizes that "in a work of 
this magnitude it is impossible either to show in advance all 
details or to forecast precisely all exigencies." Accordingly, it 
is declared that "the said specifications and plans are to be 
taken, therefore, as indicating the kind of work, its nature and 
method of construction, so far as the same are now distinctly 
apprehended." It was then provided, in substance, that the 
obligation of the contractor was to complete the construction 
and equipment of the canal according to best rules and usages 
of canal construction, even though not expressly specified. 
These provisions seem to me to contemplate that there may 
arise from time to time, during the work of constructing the 
canal, occasion to make various incidental changes in the 
details of the work to be performed. These changes, however, 
are not to be substantial changes in the general plan of the 
canal as approved by the Harbor and Land Commissioners, 
and are not to change the general scheme which that Board 
has approved. Such incidental changes are matters of per- 
fecting the canal as planned and approved, and do not con- 
template the reducing of the amount of work covered by the 
contract or the elimination of any substantial features of the 
work. 

Furthermore, certain changes in the original plans as ap- 
proved by the Harbor and Land Commissioners may be 
incidental to or may be required by the location and the 
form of the crossings of the canal by the railroad and the 
highways. The determination of these matters is committed 
by the statute to the Joint Board in the case of the railroad 
crossings, and to the county commissioners as to location, 
and to the Joint Board as to form in the case of the highway 
crossings. In my opinion the statute contemplates such 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

changes in the approved plans as are required by or are 
reasonably incidental to a compliance with orders made by 
these Boards in this connection. 

I find no provision in the statutes authorizing the Harbor 
and Land Commissioners to approve any changes in the plans 
for the construction of the canal after they have once ap- 
proved the plans. In my opinion, after they have once 
approved the plans under section 4 of the act of 1899, they 
have no further jurisdiction over the matter. 

The Joint Board has no jurisdiction over the matter raised 
by your question except so far as it is involved in the certifi- 
cation by it that work covered by various requisitions has 
been completed in accordance with the contract. Its sole 
duty in this respect is to determine whether the work which 
it is asked to certify has been done in accordance with the 
contract. In making this determination it is the duty of the 
Board to determine whether any variations which it finds from 
the plans and specifications are merely incidental changes or 
are changes of the character which I have outlined, and are 
thus contemplated by the statutes and the contract. If such 
changes are purely incidental, not matters of substance, or if 
they are incidental to or required by duly established points 
of crossing, the Joint Board may disregard them in certifying 
the work, but not otherwise. 

Thus your inquiry may involve various questions of fact. 
I am informed that the omission of one of the passing places 
shown upon the plans approved by the Harbor and Land 
Commissioners was made necessary by the construction of 
the Sagamore bridge, in pursuance of the direction of the 
county commissioners and of the Joint Board, at the point 
where the passing place was originally planned. I am further 
informed that in the opinion of the chief engineer of the Con- 
struction Company and other engineering authorities this 
omission made it necessary as a practical matter to rearrange 
the location of all the passing places and, because of the 
shortness and character of the canal, to adopt an entirely new 
scheme of passing places. Thereupon, I am told, it was deter- 
mined, with the approval of the engineer of the Joint Board, 
to construct passing places or enlargements of the canal at 
each end of it. I understand that this was in fact done, and 
that it involved at least as much excavation as the passing 
places originally planned. 



1917.] PUBLIC DOCUMENT — No. 12. 91 

I do not attempt to pass upon the questions of fact thus 
raised. They come within the province of your Board. If, 
upon consideration of the facts and the opinions of the engi- 
neers, you conclude that the adoption of a new scheme of 
passing places was made a practical necessity by the location 
and construction of the Sagamore bridge under the orders of 
the county commissioners and your Board, and that the 
scheme of passing places adopted was a fair and reasonable 
substitute for those originally planned, in my opinion you 
may in that event certify that the canal has been completed 
in accordance with the contract, notwithstanding the failure 
to construct the passing places shown on the plans approved 
by the Harbor and Land Commissioners. Unless you reach 
such a conclusion, in my opinion you are not now warranted 
in issuing your final certificate. 

4. Your fourth question is as follows : — 

Can the Joint Board, under the statutes relating to the Cape Cod 
Canal, and under the contract between the Canal Company and the 
Construction Company, either with or without the consent of the 
Canal Company, require the construction of a similar passing place 
at another point in the canal in substitution for the passing place not 
constructed as called for by the plans of construction approved by 
the Board of Harbor and Land Commissioners and by the contract 
and specifications between the Canal Company and the Construction 
Company approved by the Joint Board which was to be at the point 
since designated by the county commissioners of Barnstable County 
for and now occupied by the Sagamore bridge, built in accordance 
with plans approved by the Joint Board? 

My answer to the preceding question fully answers this 
question. 

5. Your fifth question is as follows : — 

Can the Joint Board, under the statutes relating to the Cape Cod 
Canal, and under the contract between the Canal Company and the 
Construction Company, either with or without the consent of the 
Canal Company, in lieu of a -strict conformity with the contract be- 
tween the Canal Company and the Construction Company requiring 
the Construction Company to turn over to the Canal Company a 
dredging plant with a view to its maintenance by the latter company 
for the operation of its canal, accept an agreement on the part of the 
Canal Company to contract for doing the necessary dredging, or 
allow, in certifying requisitions for payments under the contract and 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

approving stock and bond issues by the Canal Company, a claim of 
the Construction Company for extra labor and materials furnished 
for the construction of the canal to be offset against the obligation of 
the Construction Company to turn over such dredging plant? 

In my opinion the turning over to the Canal Company by 
the Construction Company of a dredging plant is a mere in- 
cidental matter in connection with the performance of the 
contract between these corporations. If the Joint Board is 
satisfied that the Canal Company has made suitable arrange- 
ments for dredging the canal from time to time during the 
course of its maintenance and operation, I see no reason why 
it should not certify the completion of the work covered by 
the contract, even though this dredging plant is not thus 
turned over. If, as a result of this or other similar incidental 
omissions in the work specified by the contract, stock or bonds 
of the Canal Company remain unissued after all work covered 
by the contract has been paid for, I see no reason why the 
Joint Board, under paragraph 5 of the contract, should not 
certify additional work to be paid for by the use of such 
unissued stock and bonds. 

6. Your sixth question is as follows: — 

Can the Joint Board, under the statutes relating to the Cape Cod 
Canal, and under the contract between the Canal Company and the 
Construction Company, require the building of a basin or enlarge- 
ment of the width of the canal with bulkheading between the Bourne 
highway bridge and the New York, New Haven & Hartford railroad 
bridge, if determined by the Joint Board to be necessary for the pro- 
tection and use of the canal- or of the railroad and highway bridges 
crossing it? 

In view of the principles which I have already laid down, 
I must answer this question in the negative. Jurisdiction 
over such matters, if it exists anywhere, is now in the Public 
Service Commission. 

7. Your seventh question in substance asks my opinion as 
to what board or boards, if any, have authority to regulate 
the draw in the railroad bridge crossing the canal, and also 
the draws in any highway bridges crossing the canal. 

In my opinion the regulation of the use of the draw in the 
railroad bridge is now entirely a matter within the jurisdiction 
of the PubHc Service Commission. 



1917.] PUBLIC DOCUMENT — No. 12. 93 

Section 14 of the act of 1899 provides, in part, as follows: — 

Said canal company shall provide and maintain in the towns of 
Bourne and Sandwich, at such points as may be designated by the 
county commissioners, suitable ferries or bridges across the canal, or 
a suitable tunnel or tunnels under the same, for passengers and vehieles, 
to be operated free from tolls, under reasonable rules to be established 
by the county commissioners, except that the canal company shall 
not be required to maintain a ferry if a highway, bridge or tunnel 
shall be built at or near any of said points. . . . 



In my opinion, under the authority to establish reasonable 
rules granted to the county commissioners by the foregoing 
provision, they have the right to regulate the use of draws 
in any of the highway bridges crossing the canal. So far as 
this canal is concerned, this provision, in my opinion, super- 
sedes the general authority granted by R. L., c. 52, § 26, to 
cities and towns to make ordinances or by-laws regulating the 
passage of vessels through drawbridges. 

8. Your eighth question refers to the fact that the Canal 
Company, in pursuance with an order of your Board, has 
established a temporary ferry at a point in the village of 
Bournedale designated by the county commissioners; that 
on May 11, last, your Board determined that a passenger and 
vehicular ferry should be the permanent means of crossing 
the canal at this point, and that the time for the completion 
of this ferry has been extended by your Board to July 1, 1917. 
You then inquire: — 

Can the canal be regarded as completed, or can the Joint Board 
certify that 100 per cent, of the total amount of labor to be performed 
and material to be furnished under the contract and specifications 
between the Canal Company and the Construction Company ap- 
proved by the Joint Board June 3, 1907, has been performed and 
furnished — 

(a) Before the vehicular and passenger ferry described in the last 
two mentioned votes has been installed by the Canal Company? 

(6) Before the passing places in the canal, called for by the plans 
of the construction thereof approved by the Board of Harbor and 
Land Commissioners and called for by the contract and specifications 
between the Canal Company and the Construction Company, have 
been constructed or before the dredging plant called for by said con- 
tract has been turned over to the Canal Company by the Construction 
Company? 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

(c) Prior to the installation of a lock or basin or the enlargement of 
the width of the canal, should these or any of them be subsequently- 
ordered by the Joint Board? 

The specifications of the contract for the construction of 
the canal (p. 27), after referring to certain contemplated 
highway crossings of the canal, provide: — 

The contractor shall allow the sum of $75,000 for such crossings 
and in case the cost thereof shall be more or less than the said sum, 
after allowing 10 per cent, for the contractor's profits, a proper allow- 
ance shall be made for the same bj^ or to the contractor. 

Accordingly, in my opinion the canal can be regarded as 
completed in accordance with the contract, for the purpose of 
full certification by the Joint Board of all the stock and bonds 
to be issued under the contract in payment for the perform- 
ance of the contract, before the ferry described in your ques- 
tion has been installed, only in the event that the sum of 
$75,000 has already been expended by the Canal Company 
for highway crossings. In that event, the expense of installing 
the ferry becomes additional work under the contract, but not 
otherwise. Subdivision (b) of your question is answered by 
my answer to your third question. In answer to subdivision 
(c) of your question, it is plain from my previous opinion to 
your Board that the installation of a lock or tidal gate would 
be additional work not covered by the contract, and therefore 
is not to be considered in certifying the performance of the 
contract. The matter of the installation of the basin or en- 
largement of the canal, to which you refer, has already been 
fully discussed in answering your third question. 

9. Your ninth question is as follows: — 

Upon the completion of the canal does the jurisdiction or authority 
of the Joint Board in relation to said canal expire by limitation? 

Section 1 of chapter 519 of the Acts of 1910, already re- 
ferred to, plainly requires a negative answer to this question. 

10. Your tenth question is as follows: — 

Section 3 of chapter 448 of the Acts of 1899 provides that said 
canal when completed shall be under the jurisdiction of the Harbor 
and Land Commissioners. What is the nature and extent of the 
authority and jurisdiction of said commissioners in regard to the 
canal under this provision? 



1917.] PUBLIC DOCUMENT — No. 12. 95 

In view of the provisions of the Public Service Commission 
act already quoted it is a grave question whether the Harbor 
and Land Commissioners any longer have any jurisdiction 
in regard to the canal, under the section to which you refer. 
Your question is too broad a one to deal with at the present 
time. I prefer to leave its consideration until some case has 
arisen in connection with which the successor of that Board 
desires my advice as to its jurisdiction. 

11. Your eleventh question is as follows: — 

Section 1 of chapter 448 of the Acts of 1899 provides that the Boston, 
Cape Cod & New York Canal Company is incorporated ''with all the 
privileges and subject to all the duties, restrictions and Habihties set 
forth in all general laws which now are or may hereafter be in force 
relating to railroad corporations, so far as they are apphcable, except 
as hereinafter provided." Under this provision of the statute, what 
is the nature and extent of the authority and jurisdiction of the Public 
Service Commission in regard to the canal? 

Since the enactment of the Public Service Commission act, 
particularly those provisions to which I have referred, the 
effect of the language of section 1 of the act of 1899, which 
you quote, has become unimportant. The PubHc Service 
Commission, in my opinion, has exclusive jurisdiction over the 
Canal Company to the extent granted by the Public Service 
Commission act. The extent and limitations of this jurisdic- 
tion must be left to be determined from time to time as 
specific questions arise under it requiring a determination by 
the Public Service Commission. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Automobiles — Registration — " Owner." 

Where an automobile has been sold under a conditional sale agreement 
whereby the vendor retains title for the purpose of security, the condi- 
tional vendee who has rightful possession is the owner within the mean- 
ing of St. 1909, c. 534, § 2, providing for the registration of motor vehi- 
cles by the owners thereof. 

Sept. 20, 1916. 

Massachusetts Highway Commission. 

Gentlemen: — You request my opinion upon the question 
of whether an automobile which has been sold under a con- 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

ditional sale agreement whereby the vendor retains title for 
the purpose of security should be registered in the name of 
the conditional vendor or the conditional vendee. 
St. 1909, c. 534, § 2, provides that — 

Application for the registration of motor vehicles may be made 
by the owner thereof. . . . 

Section 9 of this chapter provides, in part, as follows: — 

No motor vehicles shall be operated after midnight on the thirty- 
first day of December in the year nineteen hundred and nine unless 
registered in accordance with the provisions of this act. . . . 

The answer to your question depends upon what interpre- 
tation should be given to the word "owner," as used in this 
statute. 

I beg to advise that I am of the opinion that the conditional 
vendee of an automobile is to be regarded as coming within 
the term "owner" so long as he is in rightful possession of such 
vehicle. In arriving at this conclusion I am influenced by the 
following considerations: — 

1. The conditional vendee under such a sale, while not the 
holder of the legal title, is, nevertheless, the owner of a certain 
property in the article sold. As was said by the court in the 
case of Keith v. Maguire, 170 Mass. 210: — 

The word "owner" is not a technical term. It is not confined to 
the person who has the absolute right in a chattel, but also applies 
to the person who has the possession and control of it. Thus it has 
been said in this Commonwealth, in Hartford v. Br(idy, 114 Mass. 
466, 470, a case under the Gen. Sts., c. 25, § 25 (Pub. Sts., c. 36, § 27), 
by which the owner of cattle is made liable for injury done b}^ them: 
"The word 'owner' is intended to include the person in whom is the 
general property in the animals, while it embraces also those who 
are in possession of them under a special title, or by virtue of any 
hen." See also Wisconsin River Log Driving Association v. Comstock 
Lumber Co., 72 Wis. 464; Hughes v. Sutherland, 7 Q. B. D. 160; The 
Queen v. St. Marylehone, 20 Q. B. D. 415; Lewis v. Arnold, L. R. 
10 Q. B. 245; Dawson v. Midland Railway, L. R. 8 Ex. 8. 

There are other cases where the word "owner" has been held to 
mean the person in possession and control, and not to include the 
absolute owner. Camp v. Rogers, 44 Conn. 291; Caudwell v. Hanson, 
L. R. 7 Q. B. 55; Meiklereid v. West, 1 Q. B. D. 428. 



1917.] PUBLIC DOCUMENT — No. 12. 97 

2. It is a primary rule of statutory construction ^that an act 
must be construed as a whole so as to make the part in ques- 
tion consistent, if possible, with the rest of the chapter. Sec- 
tion 2 of this act provides, in part, as follows: — 

A person who before the first day of August in any year transfers 
the ownership or loses possession of an automobile registered in his 
name and who appHes for the registration of another motor vehicle 
of less horse power than that of the vehicle so transferred, shall be 
entitled, upon payment of the proper fees set forth in section twenty- 
nine, to a rebate equivalent to one-half the difference between the 
respective fees for the higher and the lower horse powers, and a person 
under like conditions who does not apply for the registration of another 
automobile but who on or before the first day of September in the 
same calendar year files in the office of the commission a written 
apphcation for a rebate, shall be entitled to a rebate of one-half the 
fee paid for the registration of such vehicle. 

To hold that the word "owner" meant only the owner of 
the legal title would necessarily involve a result which it can- 
not be presumed was intended by the Legislature. Under this 
theory the owner of an automobile, having sold the same under 
a conditional sale agreement whereby he retained title for the 
purpose of security, would thereby necessarily lose possession 
of it, at least until the condition was broken by the vendee, 
and would seem to be, under the language of the statute last 
above quoted, entitled to a rebate of one-half the fee of regis- 
tration if he applied therefor before the first? day of September, 
notwithstanding that he still remained the owner. 

For the foregoing reasons I am of the opinion, as above in- 
dicated, that in the hypothesis given an automobile may be 
properly registered in the name of the conditional vendee who 
has rightful possession thereof. 
Yours truly, 

Henry C. Attwill, Attorney-General. 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 



Militia — National Guard — United States Service — Ability of 
Officers to act in Dual Capacity. 

The militia of the Commonwealth having complied with the provisions of 
the act of Congress of June 3, 1916, its officers, upon being called into 
the service of the United States, are subject to the orders and control 
of the President of the United States while in such service, and in so 
far as their duties in such service are inconsistent with their duties as 
officers of that part of the National Guard not called into the service 
of the United States, the Governor, as Commander-in-Chief of the 
militia, may appoint others to temporarily serve in their places. UntU 

/ this is done, however, the acts of such officers are vaUd when acting in 
the capacity of State officers. 

Sept. 20, 1916. 

His Excellency Samuel W. IMcCall, Governor of the Commonwealth. 

Sir: — I beg to acknowledge your communication in which 
you ask my opinion on the following: — 

The chief surgeon, Lieut.-Col. Frank P. Williams, the chief ordnance 
officer, Maj. Kingsley A. Burnham, Col. W. E. Sweetser, commanding 
Sixth Regiment Infantry, and a large number of other State officers 
are now, although in the Commonwealth, on United States duty, 
subject to the orders of the President under the acts of Congress of 
Jan. 21, 1903, June 3, 1916, and other acts. 

To some extent they are still exercising their duties as State officers, 
but there is a question as to what authority, if any, I would have 
over them in case of an emergency arising in the State where their 
services were required. 

Moreover, there may be a question of whether or not various acts, 
such as issuing orders, acting on State boards, approving bills, etc., 
are legal. 

I therefore request that you furnish me your opinion upon, the 
status of these officers, mj^ authority over them and their right to act 
as State officers. 

Sections 57, 58, 101 and 118 of the act of June 3, 1916, pro- 
vide as follows : — 

Sec. 57. Composition of the Militia. — The mihtia of the United 
States shall consist of all able-bodied male citizens of the United 
States and all other able-bodied males who have or shall have de- 
clared their intention to become citizens of the United States, who 
shall be more than eighteen years of age and, except as hereinafter 
provided, not more than forty-five years of age, and said militia shall 
be divided into three classes, the National Guard, the Naval Mihtia, 
and the Unorganized Militia. 



1917.] PUBLIC DOCUMENT — No. 12. 99 

Sec. 58. Composition of the National Guard. — The National 
Guard shall consist of the regularly enhsted mihtia between the ages 
of eighteen and forty-five years organized, armed, and equipped as 
hereinafter provided, and of commissioned officers between the ages 
of twentj^-one and sixty-four years. 

Sec. 101. National Guard, when subject to Laws governing Regular 
Army. — The National Guard when called as such into the service of 
the United States shall, from the time they are required by the terms 
of the call to respond thereto, be subject to the laws and regulations 
governing the Regular Army, so far as such laws and regulations are 
appUcable to officers and enUsted men whose permanent retention in 
the miUtary service, either on the active Hst or on the retired Hst, is 
not contemplated by existing law. 

Sec. 118. Necessary Rules and Regulations. — The President shall 
make all necessary rules and regulations and issue such orders as may 
be necessary for the thorough organization, discipUne, and govern- 
ment of the militia provided for in this act. 

It is apparent that the act of June 3, 1916, entitled "An Act 
for making further and more effectual provision for the na- 
tional defense, and for other purposes," was passed by Con- 
gress partly for the purpose of centralizing the control over 
the militia of the various states and territories. Prior to the 
enactment of this legislation more freedom was given to the 
states and territories in dealing with their militia, and up to 
this time the militia was inclined to be considered a state 
rather than a national organization. 

Since the militia of this Commonwealth has complied with 
the provisions of the act and become a part of the National 
Guard, as provided by section 58, so much thereof as is at the 
present time in the service of the United States is subject to 
the rules and regulations governing the regular army, as provi- 
ded by section 101. By section 118 the President is given 
authority "to make all necessary rules and regulations and 
issue such orders as may be necessary for the thorough organ- 
ization, discipline, and government of the mihtia provided for 
in this act." Subject to such rules, regulations and orders 
that pajrt of the National Guard not in the service of the 
United States is subject to the control of the several States. 

I am therefore of the opinion that the officers mentioned in 
your communication who are on United States duty in this 
Commonwealth are subject to the orders and control of the 
President of the United States. 

In so far as service in the United States is inconsistent with 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

the performance of their duties as officers of that part of the 
National Guard not called into the service of the United 
States, I am of the opinion that such officers cannot properly 
act as officers of that part of the National Guard. Whenever 
in your opinion as Commander-in-Chief such officers cannot 
properly perform their duties as State officers, it is my opinion 
that you can detail others to serve in their places while they 
are temporarily in the service of the United States. Until 
others are detailed in their places, I am of the opinion that 
acts of officers of the National Guard called into the service of 
the United States in issuing orders, acting on State boards and 
approving bills, so long as such acts comply with the laws of 
the Commonwealth, are legal. 

Very respectfully yours, 

Henry C. Attwill, Attorney-General. 



Veterans — Relief of — Liability of Children for Support of. 

The relief provided for veterans and their families by R. L., c. 78, § 18, as 
amended by Gen. St. 1916, c. 116, § 1, is available independently of 
Gen. St. 1915, c. 163, § 1, imposing a liability upon children of suffi- 
cient means to provide for their destitute parents. 

Sept. 26, 1916. 
Mr. Richard R. Flynn, Commissioner of State Aid and Pensions. 

Dear Sir : — I beg to acknowledge your letter in which 
you ask my opinion on the following: Whether the provisions 
of Gen. Sts. 1915, c. 163, relative to the support of destitute 
parents, extend to cases of parents drawing soldiers' relief 
under R. L., c. 79, §§18 and 19, from cities and towns in this 
Commonwealth, or has the soldier or widow an independent 
status or right to receive soldiers' relief, although the children 
may be able to provide for him or her. 

R. L., c. 79, § 18, as amended by Gen. Sts. 1916, c. 116, § 1, 
provides, in part, as follows: — 

If a person who served in the army or navy of the United States in 
the war of the rebellion and received an honorable discharge from all 
enlistments therein, and who has a legal settlement in a city or town 
in the commonwealth, becomes, from any cause except his own criminal 
or wilful misconduct, poor and entirely or partially unable to provide 
maintenance for himself, his wife or minor children under the age of 
sixteen years, or for a dependent father or mother; or if such person 
dies leaving a widow or such minor children or a dependent father or 



1917.] PUBLIC DOCUMENT — No. 12. 101 

mother without proper means of support, such support shall be ac- 
corded him or his said dependents as maj^ be necessary by the city or 
town in which they or any of them have a legal settlement. . . . 

R. L., c. 79, § 19, is as follows: — 

The mayor and aldermen of a city or the selectmen of a town shall 
furnish such reUef without a vote of the city council or of the town 
authorizing them thereto. Such relief shall be furnished only by, 
through or under the agency or direction of city or town officers who 
are authorized to disburse state or military aid. If the mayor and 
aldermen or the selectmen fail to furnish it, any person who is aggrieved 
may apply to the commissioners of state aid, who shall forthwith 
make a thorough investigation of the qualifications and circumstances 
of the applicant and shall determine the amount of relief, if any, to 
be given to him. Their decision shall be final, but may at any time 
be amended or reversed by them. 

Gen. Sts. 1915, c. 163, § 1, provides: — 

Any person, above the age of twenty-one years, who, being possessed 
of sufficient means, unreasonably neglects or refuses to provide for 
the support and maintenance of his parent, whether father or mother, 
residing in this commonwealth, when such parent through misfortune 
and without fault of his own is destitute of means of sustenance and 
unable by reason of old age, infirmity or illness to support and main- 
tain himself or herself, shall be punished by a fine not exceeding two 
hundred dollars, or by imprisonment for not more than one year, or 
by both such fine and imprisonment. No such neglect or refusal shall 
be deemed unreasonable as to a child who shall not during his or her 
minority have been reasonably supported by such parent, if the parent 
was charged with the duty so to do, nor as to any child who, being 
one of two or more children, has made proper and reasonable con- 
tribution toward the support of such destitute parent. 

When the Legislature made the provisions for soldiers* relief 
it is apparent that it intended to provide for the support of the 
Civil War veteran and his dependents as a reward for the serv- 
ice rendered by him to the Nation in its time of need. 

R. L., c. 79, § 18, as amended, and § 19 made it obligatory 
upon the authorities of cities and towns to furnish relief to a 
veteran who has a legal settlement in a city or town in this 
Commonwealth who is unable, through no fault of his own, to 
support himself; and in case he died leaving a dependent father 
or mother without proper means of support, they were entitled 
to such support as was necessary from the authorities of the 
city or town in which either of them had a legal settlement. 



102 ATTORNEY-GENERAL'S REPORT. [Jan. 

In my judgment, Gen. St. 1915, c. 163, was intended to 
make children who were in comfortable circumstances and 
negligent in the care of their destitute parents fulfil their duty 
towards them. It is clearly evident that this Commonwealth 
did not intend that its veteran soldiers or their dependents 
should be compelled to resort to its courts before becoming 
eligible to secure the aid which the Commonwealth is in duty 
bound to furnish. Accordingly, I am of the opinion that the 
soldier or widow has an independent status, or right to receive 
soldiers' relief, irrespective of the provisions of Gen. St. 1915, 
c. 163. 

Very truly yours, 

Henry C. Attwill, Attorney-General, 



Militia — Compensation — Termination of Service. 

A furlough temporary in character or for a short period of time granted to 
one who has been mustered into the military service of the United 
States is not a termination of such service within the meaning of Gen. 
St. 1916, c. 310, § 1, but a furlough for an indefinite period would be. 
Non-commissioned officers and men who were mustered into the military 
service of the United States, as described in the act abovementioned, 
who are ordered to remain in Massachusetts to instruct recruits for 
service on the Mexican border, or other work incidental to such in- 
struction, are entitled to the benefits of this act. 

Oct. 4, 1916. 
Hon. Chaeles L. Burrill, Treasurer and Receiver-General. 

Dear Sir: — You have asked my opinion as to certain 
questions which have arisen with reference to the proper con- 
struction of section 1 of chapter 310 of the General Acts of 
1916. That section is as follows: — 

There shall be allowed and paid out of the treasury of the common- 
wealth to each non-commissioned officer and soldier who has been, or 
who is hereafter, mustered into the military service of the United 
States as a part of the quota of this commonwealth for service on the 
Mexican Border, the sum of ten dollars per month. Said amount 
shaU be payable monthly at the office of the treasurer and receiver 
general, and shall date from the muster-in to the United States service 
of said non-commissioned officer or soldier, and shall continue until 
January fifteen, nineteen hundred and seventeen, unless the service 
is sooner terminated. In case of the death of any enlisted man, his 
widow, minor children, parents or dependents shall receive the said 
monthly compensation for the period to January fifteen, nineteen 
hundred and seventeen. 



1917.] PUBLIC DOCUMENT — No. 12. 103 

Your first inquiry is whether the service specified in this sec- 
tion is to be regarded as terminated within the meaning of the 
statute when a furlough has been granted. This, in my opin- 
ion, depends upon the character of the furlough. If it is for a 
short period of time, and thus merely temporary in its char- 
acter, and the soldier is still receiving pay from the United 
States, such a furlough is, in my opinion, to be regarded merely 
as a temporary excuse from duty and not as a termination of 
the service within the meaning of the statute. In that event, 
you should make payment under the statute without reference 
to the furlough. If, on the other hand, a furlough is granted 
for an indefinite period, and by it the soldier or non-commis- 
sioned ofiicer is entirely relieved from his duties "as a part of 
the quota of this commonwealth for service on the Mexican 
Border" until he is again summoned for such duty, in my 
opinion in such a case the furlough is to be regarded as a 
termination of the service, and the payment provided for by 
the statute is to cease with the beginning of the furlough. 

You also inquire whether non-commissioned officers and sol- 
diers who were mustered into the military service of the United 
States as described in this act, but who were ordered to remain 
in Massachusetts to instruct recruits for service on the Mexican 
Border or for other work in Massachusetts incidental to such 
instruction, come within the provisions of the statute. 

By its express terms the statute applies to all non-commis- 
sioned ofl&cers and soldiers mustered into the military service 
of the United States as a part of the quota of this Common- 
wealth for service on the Mexican Border. In my opinion this 
provision does not require that a non-commissioned officer or 
soldier shall actually be sent to the Mexican Border and per- 
form his duty there. If such an officer or soldier was in fact 
mustered into the military service of the United States as a 
part of the quota of the Commonwealth, and still remains a 
part of that quota, performing duties incidental to the service 
of the quota on the Mexican Border, in my opinion he comes 
within the provisions of the statute, whether those duties are 
performed on the Mexican Border, in the Commonwealth of 
Massachusetts or anywhere else. In my opinion the non-com- 
missioned officers and the soldiers to whom you refer are en- 
titled to the payments specified in the statute. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 



Game — Open Season — Suspension of. 

Under St. 1909, c^ 422, § 1, the Governor is not authorized to issue a 
proclamation suspending the open season until such season begins. 

Oct. 11, 1916. 
His Excellency Samuel W. McCall, Governor of the Commonwealth. 

Sir: — I 'beg to acknowledge your communication request- 
ing my interpretation of the words "during an open season" 
as used in section 1 of chapter 422 of the Acts of 1909. 

This section provides that "whenever, during an open season 
for the hunting of any kind of game in this state, it shall ap- 
pear to the governor that by reason of extreme drouth the use 
of firearms in the forest is liable to cause forest fires, he may, 
by proclamation, suspend the open season." 

It is my view that you are not authorized to issue such a 
proclamation until it shall appear to you, during an open sea- 
son, that by reason of drouth the use of firearms in the forest 
is liable to cause forest fires. In other words, I do not think 
you are authorized to anticipate a condition which may not 
arise. 

Accordingly, I am of the opinion that until the open season 
begins you are not authorized to issue your proclamation under 
the provisions of said section. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Weights and Measures — Prosecutions for Violations of Law — 

Procedure. 

A prosecution may be instituted by the Commissioner of Weights and 
Measures for a violation of St. 1907, c. 394, without giving the parties 
concerned notice and an opportunity to be heard. 

Oct. 21, 1916. 

Thure Hanson, Esq., Commissioner of Weights and Measures. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether a prosecution may be begun under the 
provisions of chapter 394 of the Acts of 1907 without giving 
the party concerned an opportunity to be heard by you under 
the provisions of section 8 of chapter 653 of the Acts of 1914. 



1917.] ' PUBLIC DOCUMENT — No. 12. 105 

Chapter 394 of the Acts of 1907, as amended by chapter 163 
of the Acts of 1911, provides: "Whoever, himself or by his ser- 
vant or agent or as the servant or agent of another person, 
gives or attempts to give false or insufficient weight or measure 
shall for a first offence be punished" as therein provided. This 
obviously applies to vendors of goods or merchandise sold by 
weight or measure. There is no limitation in this statute as to 
the manner in which prosecutions under it should be begun. 

Chapter 653 of the Acts of 1914 makes it a criminal offence 
to "sell or offer for sale an article of food in package form, 
unless the net quantity of the contents be plainly and con- 
spicuously marked on the outside of the package in terms of 
weight, measure or numerical count." Obviously this provi- 
sion applies only to persons engaged in selling articles of food 
put up in package form. It cannot apply to articles sold from 
bulk by weight or measure. The offence is not giving false 
weight or measure, but selling a package which is not marked 
as required by statute. This last-mentioned statute contains 
the following provisions: — 

Section 7. It shall be the duty of the commissioner of weights 
and measures to enforce the provisions of this act. 

Section 8. Before prosecution is begun hereunder, the parties 
concerned shall be notified and given an opportunity to be heard 
before the commissioner of weights and measures. 

In my opinion these statutes create and punish two separate 
and distinct offences. The last-mentioned statute in no way 
affects or modifies the statute of 1907. Accordingly, in my 
opinion sections 7 and 8 of the statute of 1914 have no applica- 
tion to violations of the statute of 1907, and I must advise you 
that prosecutions may be begun for violation of the statute of 
1907 without first giving the party interested an opportunity 
to be heard before you in accordance with the provisions of 
section 8 of chapter 653 of the Acts of 1914. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 



Civil Service — Superintendents of Engineering and of Commerce. 

Appointments to the positions of superintendent of engineering and super- 
intendent of commerce, created by Gen. ^t. 1916, c. 288, are not subject 
to the rules and regulations of the Civil Service Commission. 

Oct. 24, 1916. 
Commission on Waterways and Public Lands. 

Gentlemen: — You have requested my opinion as to 
whether any appointments that may be made to the positions 
of superintendent of engineering and superintendent of com- 
merce, created under Gen. St. 1916, c. 288, are to be filled 
under the regulations of the Civil Service Commission. 

At the time of the passage of said act the Civil Service 
Commission, under the provisions of R. L., c. 19, was author- 
ized from time to time to prepare rules regulating the selection 
of persons to fill appointive positions in the government of the 
Commonwealth. Ordinarily, the passage of an act creating 
new appointive positions in the government of the Common- 
wealth would be subject to the provisions of chapter 19 of the 
Revised Laws, for the reason that it is not to be presumed that 
the Legislature intends to repeal or affect general laws passed 
by its predecessors unless there is something in the act, either 
by reason of its inconsistency with the general law or other- 
wise, which indicates an intention that the provisions of the 
general law are not to apply to the positions created. 

It follows that if nothing had been said in chapter 288 of the 
General Acts of 1916 in relation to the civil service, the posi- 
tions thereby created would be subject to the provisions of law 
relating to the civil service, unless there was some inconsist- 
ency in their application. Section 3 of said chapter 288 pro- 
vides : — 

The commission shall appoint a superintendent of commerce and 
a superintendent of engineering who shall each receive such salary as 
the commission may determine, with the approval of the governor arid 
council. They shall, under the control of the commission, perform 
such duties as may from time to time be assigned to them respectively 
by the commission. The commission may also employ such clerical 
and other assistance as may be necessary for the performance of its 
duties, subject to all general laws, now or hereafter in force, relating 
to appointments and emplojTnent in the civil service of the common- 
wealth. 



1917.] PUBLIC DOCUMENT — No. 12. 107 

It is to be noted that under said section the Legislature has 
provided specifically that all clerical and other assistance other 
than the superintendent of commerce and the superintendent 
of engineering shall be subject to all general laws now or here- 
after in force relating to appointments and employment in the 
civil service of the Commonwealth. The Legislature, having 
thus specifically provided that the rules shall apply to all posi- 
tions other than the superintendent of commerce and superin- 
tendent of engineering, indicated, it would seem, an intention 
that the positions of superintendent of commerce and superin- 
tendent of engineering should be excluded from the operation 
of the civil service law. 

I am fortified in this opinion by the fact that section 9 of 
chapter 19 of the Revised Laws provides that — 

Judicial officers and officers elected by the people or by a city council, 
or whose appointment is subject to confirmation by the executive 
council, . . . shall not be affected as to their selection or appoint- 
ment by any rules made as aforesaid. 

While it is not entirely clear that the appointment of these 
ofl&cials is subject to the confirmation of the Governor and 
Council, yet the compensation to be paid them is unquestion- 
ably subject to such confirmation and approval, and the salary, 
apparently appljdng to the persons appointed rather than to 
the positions, necessarily, in a large measure, determines the 
appointment. 

Accordingly, for the foregoing reasons, I am of the opinion 
that your question is to be answered in the negative. 
Very truly yours, 

Henry C. Attwill, Attorney-General 



Fire Prevention Commissioner — Automatic Sprinkler — Stables. 

Under Gen. St. 1916, c. 158, § 2, providing that stables equipped with an 
automatic sprinkler system shall not be subject to certain other require- 
ments, the word "stable" means the entire building, so that where the 
second floor of a building is used for stabling horses, this conditon is 
not fulfilled by equipping that floor alone with an automatic sprinkler 
system. 

Oct. 25, 1916. 

John A. O'Keefe, Esq., Fire Prevention Commissioner. 

Dear Sir: — With reference to chapter 158 of the General 
Acts of 1916 you have requested my opinion as to whether, in 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

a three-story building where horses are kept on the second 
floor, and only on the second floor, the word "equipped," in 
section 2, would be construed to relate to all floors, or only to 
the floor where the horses are stabled, or to the floor or place 
where the horses are stabled plus the dangerous part or parts 
of other floors. 

The statute mentioned is entitled "An Act to require fire 
protection in stables for horses and mules." The first two sec- 
tions are as follows : — 

Section 1. No horse or mule shall be stabled on the second or 
any higher floor of any building unless there are two means of exit 
therefrom, at opposite ends of the building, to the main or street 
floor. 

Section 2. This act shall not apply to stables equipped with an 
automatic sprinkler system. 

Your question first raises the inquiry as to whether the word 
" stables," in section 2, includes the whole building in which the 
animals in question are stabled, or merely that floor or part of 
the building which is used for that purpose. 

Our Supreme Court has used the following language in the 
case of Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 
at 221: — 

In "Worcester's Dictionary, edition of 1900, a stable is defined as 
"a house or building for horses or other beasts;" in Webster's edition 
of 1903, as "a house, shed, or building, for beasts to lodge and feed 
in; especially, a building or apartment with stalls, for horses; as, a 
horse stable; a cow stable;" and in the edition of 1910 in practically 
the same language; in the Century Dictionary, as "a building or an 
inclosure in which horses, cattle, and other domestic animals are 
lodged, and which is furnished with stalls, troughs, racks, and bins 
to contain their food and necessary equipments; in a restricted sense, 
such a building for horses and cows only; in a still narrower and now 
the most usual sense, such a building for horses only;" in the Standard 
Dictionary, edition of 1895, as a "building or part of a building set 
apart for lodging and feeding horses or cattle, especially one fitted 
with stalls, fastenings, etc., also often for storing hay or putting up 
vehicles: sometimes specifically carriage-stable, cow-stable, etc." In 
36 Cyc. 812, and in 26 Am. & Eng. Encyc. of Law (2d ed.), 154, it is 
defined as "a house, shed, or building for beasts to lodge and feed in." 
See also Dugle v. State, 100 Ind. 259. 

No other decision which has come to my attention throws 
any light upon this question, and it is to be observed that in 



1917.] PUBLIC DOCUMENT — No. 12. 109 

the case cited the point decided did not relate to a situation 
such as is here presented. The apparent purpose of the pres- 
ent statute seems to be to provide protection for the animals 
named, in the event of fire, by providing ready means of exit 
or providing means for extinguishing any fire which may start. 
Obviously, the lives of the animals are endangered as much, if 
not more, by fires which have started on the first or third 
floors of a three-story building as by fires which may start on 
the second floor, and the purpose of the act would not be ac- 
complished if it were held to require merely the equipment 
with a sprinkler system on the second floor of such a building 
as you describe. 

Taking these considerations into account I am of the opin- 
ion that in using the word "stables," in section 2, the Legisla- 
ture intended to describe the entire building used for that pur- 
pose rather than any particular floor or portion of the same. 

Accordingly, I am of the opinion that, in order to obtain the 
benefit of the exemption provided in section 2, it is necessary 
that all floors of a building such as is described in your request 
should be so equipped. 

How extensive an installment of automatic sprinklers is 
necessary in order to comply with the provisions of this section 
is largely a question of fact. It probably is undesirable to 
attempt to lay down any hard and fast rule, such as saying 
that the "dangerous part or parts of other floors" are to be 
provided with sprinklers. The language of the statute is, 
"equip with an automatic sprinkler system." In my opinion, 
this requires a sprinkler system reasonably adequate for the 
premises in question, taking into account the character of the 
building and its parts with regard to the danger to be antici- 
pated from fire. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Sentence — Permit to be at Liberty — Effect of. 

Where a permit to be at liberty has been issued to a prisoner under R. L., 
c. 225, § 117, as amended by St. 1906, c. 244, if the permit is subse- 
quently revoked, the prisoner is treated as not having served any por- 
tion of his sentence beyond the time he was held in prison, and there- 
fore, if the revocation was made before the expiration of his original 
sentence, it is immaterial that the order of arrest issuing on such revo- 
cation is not served until after the expiration of such time. 



no ATTORNEY-GENERAL'S REPORT. [Jan. 

Nov. 1, 1916. 
Mr. Cykus B. Adams, Director, Bureau of Prisons. 

Dear Sir: — I beg to acknowledge receipt of your commu- 
nication, requesting my opinion as to whether the fact that a 
warrant issued before the expiration of the sentence of a 
prisoner released from the Massachusetts Reformatory under 
a permit to be at liberty, and served after the time when the 
sentence would have expired if the prisoner had not been 
released under a permit to be at liberty, makes his return and 
commitment to the Massachusetts Reformatory improper. 

R. L., c. 225, § 117, as amended by St. 1906, c. 244, pro- 
vides as follows: — 

If it appears to the prison commissioners that a prisoner in the 
Massachusetts reformatory, or a prisoner who has been removed 
therefrom to a jail or house of correction, has reformed, they may issue 
to him a permit to be at liberty during the remainder of his term of 
sentence, upon such terms and conditions as they shall prescribe; 
but a prisoner who has been removed thereto from the state prison 
shall not be given a permit to be at liberty before the expiration of 
the minimum term of his sentence without the consent of the governor 
and council. They may delegate to a committee of their board or 
to their secretary, until their next meeting, the authority to decide 
when such permit shall be issued. 

I assume that the prisoner was released under the provisions 
of this section. 

R. L., c. 225, § 128, as amended by St. 1908, c. 251, provides 
for a revocation of such permit at any time previous to its ex- 
piration. 

Section 129 of said chapter 225, as amended by St. 1903, c. 
452, provides that upon such revocation the board having au- 
thority to revoke may issue an order authorizing the arrest of 
the holder of such permit and the return of such holder to the 
prison from which he was released; and further provides that — 

A prisoner who has been so returned to liis place of confinement 
shall be detained therein according to the terms of his original sentence. 
In computing the period of his confinement the time between his 
release upon a permit, or on probation, and his return to prison, shall 
not be considered as any part of the term of his original sentence. 
If at the time of the order to return to prison or of the revocation of 
his permit he is confined in any prison, service of such order shall 
not be made until his release therefrom. 



1917.] PUBLIC DOCUMENT — No. 12. Ill 

These statutes in effect provide that a prisoner who in the 
judgment of the Board of Parole has reformed may be released 
upon a permit to be at liberty, but that in the event circum- 
stances arise justifying the Board in revoking the permit prior 
to the expiration of the permit, then the prisoner shall be 
treated as if he had not served any portion of his sentence 
beyond the time he was held in prison. In other words, his 
status is the same as if he had escaped from prison at the 
time he was so released. This seems to be clear from the last 
part of said section 129, which provides that if at the time of 
the order to return to the prison or of the revocation of the 
permit he is confined in any prison, service of such order shall 
not be made until his release therefrom. The status of the 
prisoner seems to be determined by the revocation. If the 
revocation takes place before the expiration of the time of his 
original sentence, then he may be rearrested and returned to 
prison. 

Accordingly, I am of the opinion that it is immaterial 
whether the order of arrest issued upon the revocation was 
served before or after the expiration of the time of his original 
sentence. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Vaccination — Certificates of Exemption from — Requisites of. 

Under R. L., c. 44, § 6, as amended by St. 1907, c. 215, providing for ex- 
emption from vaccination of children attending public schools upon a 
certificate signed by a regular practicing physician that the child "is 
not a fit subject for vaccination," with the "cause stated therein," it 
is not necessary for the physician to further emphasize in his certifi- 
cate that this is his opinion or that the cause stated is, in his opinion, 
sufficient to justify his statement; nor is it necessary that the physician 
signing such a certificate make a personal examination of the child. 

Nov. 6, 1916. 
Dr. Eugene R. Kelley, Director, Division of Communicable Diseases. 

Dear Sir: — You have submitted the following questions 
with reference to the validity of certain certificates for exemp- 
tion from vaccination, namely: — 

1. Must the physician make a personal examination? 

2. Must the physician who signs the certificate be the one who 
makes this examination? 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

3. Must the certificate be so worded that it shows that it is the 
opinion of the examining and signing physician that the cause stated 
is sufficient? 

4. Must not the certificate be so worded that it gives it as the 
opinion of the physician who signs the certificate that the child is not a 
fit subject for vaccination? 

The Legislature has established at least three different regu- 
lations affecting children with reference to examinations by 
physicians on account of illness, or for the prevention of small- 
pox by vaccination. 

St. 1906, c. 502, entitled "An Act relative to the appoint- 
ment of school physicians," provides that a school physician 
shall make an examination of every child returning to school 
without a certificate from the board of health after absence on 
account of illness or from unknown cause, and in case such 
child shows symptoms of a contagious disease, he is to be pro- 
hibited from attending school by order of the school board. 
This statute, however, makes no reference to the subject of 
vaccination, nor does it give any authority to the school physi- 
cian other than that of examination. 

R. L., c. 44, § 6, as amended by St. 1907, c. 215, provides 
for certificates of exemption from vaccination of children at- 
tending pubHc schools, and is as follows: — 

A child who has not been vaccinated shall not be admitted to a 
pubUc school except upon presentation of a certificate granted for 
cause stated therein, signed by a regular practising physician that 
he is not a fit subject for vaccination. A child who is a member of a 
household in which a person is ill with smallpox, diphtheria, scarlet 
fever, measles, or any other infectious or contagious disease, or of a 
household exposed to such contagion from another household as afore- 
said, shall not attend any pubHc school during such illness until the 
teacher of the school has been furnished with a certificate from the 
board of health of the city or town, or from the attending physician 
of such person, stating that danger of conveying such disease by such 
child has passed. 

R. L., c. 75, §§ 136 to 139, inclusive, deal generally with the 
subject of vaccination. Section 139, as amended by St. 1902, 
c. 190, § 2, provides as follows: — 

Any person over twenty-one years of age who presents a certificate 
signed by the register of a probate court that he is under guardianship 
shall not be subject to the provisions of section one hundred and 



1917.] PUBLIC DOCUMENT — No. 12. 113 

thirty-seven; and any child who presents a certificate, signed by a 
registered physician designated by the parent or guardian, that the 
physician has at the time of giving the certificate personally examined 
the child and that he is of the opinion that the physical condition of 
the child is such that his health wiU be endangered by vaccination 
shall not, while such condition continues, be subject to the provisions 
of section six of chapter fortj^-four of the Revised Laws or of the three 
preceding sections of this chapter; and the parent or guardian of 
such child shall not be liable to the penalties imposed by section one 
hundred and thirty-six of this chapter. 

It will be seen, therefore, that chapter 44 of the Revised 
Laws refers alone to vaccination for the purpose of attending 
school, and the sections of chapter 75 of the Revised Laws 
apply to both children and adults, irrespective of school at- 
tendance. It will also be observed that said section 137 of 
chapter 75 gives the boards of health in cities and towns the 
right to enforce vaccination of all inhabitants, except as pro- 
vided in section 139. 

In answer to the questions submitted by you, assuming they 
relate to school attendance, it is evident that only R. L., c. 44, 
applies. If a child desiring admission to a public school pre- 
sents a certificate, signed by a regular practicing physician, 
that "he is not a fit subject for vaccination,'* with the "cause 
stated therein," the statute is complied with. Under this chap- 
ter a personal examination by a physician is not necessary, and 
hence your second question does not require an answer. 

Your third question is to be answered in the negative, and 
your fourth question in the affirmative. The statute expressly 
provides that the exemption certificate shall state that the 
child "is not a fit subject for vaccination." That necessarily 
is a matter of opinion, and, as such, is the opinion of the physi- 
cian signing the certificate. It would not seem necessary to 
require such physician to further emphasize his opinion by 
asserting that it is also his opinion that the cause stated is 
sufficient to justify his statement. The cause stated, in my 
judgment, must be an adequate and lawful one in order to 
give the certificate validity. A cause absurd on its face, show- 
ing a deliberate intent to evade the statute, would not be, in 
my opinion, a compliance with it. 

R. L., c. 75, § 139, which is enforceable only by boards of 
health of cities and towns, compels a personal examination by 
a physician, and a statement that in his opinion the physical 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

condition of a person is such that his health would be endan- 
gered by vaccination, in order to avoid the requirements of the 
chapter. Under this section no cause need be assigned by the 
physician for his statement. 

It is to be noted that the provision for a certificate under the 
provisions of section 6 of chapter 44 of the Revised Laws, as 
amended by St. 1907, c. 215, is not to be construed as taking 
away from the school committee the power to make proper 
regulations for the protection of all the pupils, if the preva- 
lence of smallpox seems to require special precautions. When 
such a prevalence exists, under proper regulations the school 
committee can exclude all pupils who have not been vacci- 
nated. Hammond v. Hyde Park, 195 Mass. 29. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Industrial School for Girls — Revocation of Suspended Sentence — 
Age of Person committed — Whether Trustees can inquire into. 

Where a girl has been sentenced to confinement in the Industrial School for 
Girls while she was under the age of seventeen years, and the sentence 
then suspended, the suspension may be revoked and the girl committed 
to this institution, under St. 1913, c. 471, § 2, even after she has attained 
that age. 

Where the order of commitment to this institution recites the age of the girl 
conmiitted, the recital amounts to an adjudication by the court upon 
this question, and it is not the duty of the trustees of the institution to 
inquire into the correctness of this finding. 

Nov. 7, 1916. 
Trustees of the Massachusetts Training Schools. 

Gentlemen: — You have requested my opinion upon the 
following questions: — 

1. Have the trustees in charge of the Industrial School for Girls a 
right to retain custody of a person committed to the said institution 
who has in fact passed her seventeenth birthday at the time of com- 
mitment? 

2. If, after commitment, it becomes a question of fact whether the 
person was not over seventeen j^ears of age at the time of commit- 
ment, but the mittimus transmitted by the court of commitment 
recites the age as under seventeen years, what are the duties of the 
trustees in charge of the Industrial School for Girls under such circum- 
stances, as regards the custody of the person committed? 



1917.] PUBLIC DOCUMENT — No. 12. 115 

3. Is the right of the trustees in charge of the Industrial School for 
Girls to retain custody of a girl who had passed her seventeenth birth- 
day when she was committed to the said school affected by the fact 
that she had been sentenced to this institution prior to her seventeenth 
birthday, but the sentence had been suspended, and commitment 
then made after the seventeenth birthday by revocation of the sus- 
pension of sentence? 

Taking up these questions in inverse order, the statute per- 
taining to the third question seems to be the following: — 

Boys under fifteen years of age may be committed to the Lyman 
school by police, district and municipal courts and trial justices, and, 
except in the county of Suffolk, by judges of probate. Girls under 
seventeen years of age may be committed to the industrial school by 
said courts, judges and justices, except as aforesaid, and, except in 
the county of Suffolk, by commissioners, as hereinafter provided in 
this chapter. (R. L., c. 86, § 10.) 

The provisions of law with reference to suspended sentences 
are: — 

When a person convicted before a municipal, police or district court 
is sentenced to imprisonment, the court may direct that the execution 
of the sentence be suspended, and that he be placed on probation for 
such time and on such terms and conditions as it shall fix. (R. L., 
c. 220, § 1, as amended by St. 1913, c. 653.) 

At any time before the final disposition of the case of a person who 
has been placed on probation in the custody of a probation officer, the 
probation officer may arrest him without a warrant and take him 
before the court, or the court may issue a warrant for his arrest. When 
he is taken before the court, it may, if he has not been sentenced, 
sentence him or make any other lawful disposition of the case, and if 
he has been sentenced, it may continue or revoke the suspension of 
the execution of his sentence. If such suspension is revoked, the 
sentence shall be in full force and effect. (R. L., c. 220, § 2.) 

In all cases the execution of orders of commitment to the Massa- 
chusetts reformatory, the reformatory for women, the Suffolk school 
for boys, the Plummer farm school of reform for boys, any truant 
school, however named, any house of reformation for juvenile offenders, 
the Lyman school, the industrial school for girls, the industrial school 
for boys, and the state board of charity, may be suspended, and such 
suspension continued or revoked, in the same manner and with the 
same effect as the execution of sentences in criminal cases. (St. 1913, 
c. 471, § 2.) 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 

Accordingly, it seems that your question is directly answered 
by the enactment last quoted. The sentence in such case is 
imposed at a time when the defendant is less than seventeen 
years of age, and accordingly authorized by the statute. The 
provisions quoted above are to the effect that if suspension is 
revoked "the sentence shall be in full force and effect," and 
under St. 1913, c. 471, these provisions are made applicable to 
sentences to the Industrial School for Girls. 

Accordingly, in my opinion your third question is to be 
answered in the negative. 

The two remaining questions raise the issue as to the duty 
of your Board to investigate and act upon claims presented that 
particular inmates have been improperly sentenced. R. L., 
c. 86, § 22, provides for the form of the warrant of commit- 
ment which is to be issued in the cases of girls sent to the In- 
dustrial School. This form contains the statement: — 

You are hereby commanded to take charge of C. D., a boy (or girl) 
between the ages of seven and fifteen (or seventeen, if a girl) years. 

I assume that warrants issued by the various courts of the 
Commonwealth in these cases comply with this requirement 
of the statute, and that being so, it would seem to furnish a 
complete warrant for your holding the particular person trans- 
mitted under it. It implies an adjudication upon the part of 
the court that that particular person, at the time of commit- 
ment, is less than seventeen years of age, and it can hardly 
be your duty to inquire into the correctness of such finding. 

I am of opinion that such warrant is a complete authoriza- 
tion to you for holding such defendant. 

In general, the officers of the Commonwealth to whom is 
intrusted the execution of the orders of the criminal courts 
cannot be required or supposed to question the correctness of 
those orders, and in general the orders furnish entire protection 
to such officials for acts done in executing them. 

The cases of Jones v. Robbins, 8 Gray, 329, 330, and Martin 
V. Collins, 165 Mass. 256, which have been previously brought 
to your attention, are authority for these propositions. It is 
true that there may be some doubt as to the state of the law 
in protecting an officer serving a civil process of arrest beyond 
the jurisdiction of the court issuing it, but such cases do not 
seem to question the right of an officer to execute a criminal 
process valid upon its face. 



1917.] PUBLIC DOCUMENT— No. 12. 117 

Your questions, however, do not throw doubt upon the 
jurisdiction of the court, but only raise a question of doubt as 
to the vaHdity of the sentence imposed, because of the age of 
the defendant. 

Even in a civil case it has been held that an officer was pro- 
tected in the execution of a warrant, although as a matter of 
fact the defendant was of such an age as to be exempt from 
arrest. Cassier v. Fates, 139 Mass. 461. 

Accordingly, I am of the opinion that it is not your duty to 
attempt to try the question of fact as to whether a particular 
person has been properly sentenced or not. Such person can 
raise the question and have her rights adjudicated by proper 
proceedings in court. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Electrician — Master's Certificate — Who must take Examination. 

A "master electrician's certificate" cannot be granted to a person, firm or 
corporation upon the examination of one who is merely an employee 
of such person, firm or corporation. But if the applicant for such a 
certificate is a person, the examination must be taken by him person- 
ally; if a firm, by a member of the firm; or if a corporation, by an officer 
of the corporation. 

Nov. 10, 1916. 
State Examiners of Electricians. 

Gentlemen: — You have requested my opinion as to 
whether a master's certificate to do business under the provi- 
sions of Gen. St. 1915, c. 296, § 3, can be granted to a person, 
firm or corporation engaged in, or about to engage in, the busi- 
ness of installing electrical wires, conduits, apparatus, fixtures 
and other electrical appliances, assuming that the person so ap- 
plying, or a member of the firm, or an officer of the corpora- 
tion so applying, does not submit to take the examination 
required, but such examination is taken by a person who is 
an employee of the person, firm or corjroration applying for 
the license. 

The provisions of the act mentioned are far from clear upon 
this point. The act provides that your Board shall hold fre- 
quent examinations in the city of Boston, and twice each year 
in five other convenient places within the Commonwealth. 
Section 2 also provides that "said examinations shall be suffi- 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 

ciently frequent to give ample opportunity for all applicants to 
be thoroughly and carefully examined. . . ." 
Section 3 provides, in part: — 

(1) Two forms of licenses shall be issued: — The first, hereinafter 
referred to as ''certificate A", shall be known as "imaster electrician's 
certificate." . . . 

A ''master's certificate" shall be issued to any person, firm or cor- 
poration engaged in or about to engage in the business of installing 
electrical wires, conduits, apparatus, fixtures and other electrical 
appliances, that shall have qualified under the provisions of this act. 
A certificate of registration shall be issued specifying the name of the 
person, firm or corporation so applying, and the name of the person 
passing said examination, by which he or it shall be authorized to 
enter upon or engage in business as set forth therein: . . . 

(3) All certificates "A" described in paragraph (1) of this section 
shall expire on the thirty-first day of July in each year, but may be 
renewed by the same person, firm or corporation, as represented 
by one or more of its members or officers, without further examina- 
tion. . . . 

The provision that the certificate of registration "shall be 
issued specifying the name of the person, firm or corporation so 
applying, and the name of the person passing said examination," 
on its face might seem to indicate that the examination might 
be taken by some other person than the appHcant. However, 
it is to be observed that in case the applicant is a corporation 
the examination must be taken by some individual, and in the 
case of a partnership might be taken by one member of the 
firm, so that a reason for the Legislature inserting this require- 
ment is apparent, even if in the case of individuals it was in- 
tended that the appHcant for the certificate should be obliged 
to take the examination in person. 

There is no definite categorical provision for the manner of 
examination in the case of a partnership or corporation. 

In the case of an individual it would seem to be a most un- 
practical arrangement if an examination which would satisfy 
the provisions of the law might be taken by an employee. As 
a practical matter the requirement of the examination might be 
rendered entirely nugatory, as a person could be employed for 
a day or two, while the examination was being taken, and then 
his services dispensed with after the certificate had been ob- 
tained. 



1917.] PUBLIC DOCUMENT — No. 12. 119 

The provision of section 2, that "said examinations shall be 
sufficiently frequent to give ample opportunity for all appli- 
cants to be thoroughly and carefully examined," shows a slight 
indication that it is the applicants for licenses that are to take 
the examinations. The further provision of section 3, para- 
graph (3), for renewal by "the same person, firm or corpora- 
tion as represented by one or more of its members or officers/' 
further indicates the intention of the Legislature as to the 
manner of issuance of certificates to firms and corporations. 

I see no reason for thinking that the Legislature intended 
that the firm or corporation should be represented by different 
classes of persons in the application for renewal from those 
authorized to do so upon the original application for license, 
and from this section quoted it would appear that in such ap- 
plication and examination a firm is to be represented by one or 
more of its members, and a corporation by one or more of its 
officers. 

Accordingly, although the matter is not entirely clear, I am 
of the opinion that a master's certificate, under the provisions 
of Gen. St. 1915, c. 296, is not to be granted when the person 
applying, or a member of the firm or officer of the corporation 
so applying, has not passed the examination prescribed, and 
that taking and passing such an examination by a person who 
is merely an employee of the applicant does not satisfy the 
terms of the statute. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Hawker and Pedler — Whether . a Person licensed as a Junk 
Collector who collects Junk solely by Barter is — " Sale." 

A barter or exchange of goods, wares or merchandise is not strictly a sale, 
and consequently a person who is licensed as a junk collector under St. 
1902, c. 187, who collects junk solely by barter of articles of merchan- 
dise not mentioned in R. L., c. 65, § 15, is not required to be licensed 
under the hawkers and pedlers statute. 

Nov. 15, 1916. 

Thure Hanson, Esq., Commissioner of Weights and Measures. 

Dear Sir: — I beg to acknowledge your request for my 
opinion as to whether a person licensed as a junk collector, and 
authorized "to collect, by purchase or otherwise, junk, old 
metals and secondhand articles from place to place" in a city 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

or town under the provisions of chapter 187 of the Acts of 
1902, is required to be Hcensed as a hawker or pedler in case he 
exchanges for such junk goods, wares or merchandise not men- 
tioned in section 15 of chapter 65 of the Revised Laws, as 
amended. 

At the time of the enactment of chapter 187 of the Acts of 
1902 a hawker or pedler was defined by Revised Laws, chapter 
65, section 13, as a person who "goes from town to town or 
from place to place in the same town carrying for sale or ex- 
posing for sale goods, wares or merchandise." By section 14 of 
this chapter, as then in force, "the sale by hawkers or pedlers" 
of certain articles was prohibited. By section 15 "hawkers and 
pedlers may sell without a license" certain specified articles. 
Section 16 was as follows: — 

Articles other than those mentioned in the preceding section and 
not prohibited by section fourteen, including those of the growth or 
production of foreign countries, shall not be sold by hawkers or pedlers 
unless duly Ucensed as hereinafter provided. 

Section 19 established a method for the licensing of hawkers 
and pedlers, and authorized such licensees within the territory 
specified in the license to "sell any goods, wares or merchan- 
dise, not prohibited in section fourteen." 

It is to be noted that a barter or exchange of goods, wares or 
merchandise is in no way referred to in any of these sections. 

The word "sale," both in common usage and in legal phrase- 
ology, is ordinarily used to indicate the disposition of property 
for a price payable in money in distinction from barter or ex- 
change, where the consideration for the disposition of the goods 
is other goods received in return. See Century Dictionary, 
definition of '' sale." In view of this ordinary meaning of the 
word **sale," and bearing in mind that the hawkers and pedlers 
statute is essentially penal and must be construed strictly, I 
am of the opinion that in the form in which it appears in the 
Revised Laws this statute did not apply to or in any way 
prohibit the barter or exchange of goods, wares and merchan- 
dise for other articles. This seems to be the construction 
which the Legislature itself has placed upon this section, for, 
by chapter 242 of the General Acts of 1916, the words "or 
barter" and "bartering" were added by amendment to section 
13 of chapter 65 of the Revised Laws, and also section 19 of 
that chapter. 



1917.1 PUBLIC DOCUMENT — No. 12. 121 

Accordingly, it follows that at the time of the enactment of 
chapter 187 of the Acts of 1902 a person who collected junk 
solely by barter was not a hawker or pedler nor subject to the 
statutes regulating hawkers and pedlers. It is plain, therefore, 
that until the enactment of chapter 242 of the General Acts of 
1916 a duly licensed junk collector was not required to have a 
hawker's and pedler's license in order to collect junk by barter- 
ing for it goods not mentioned in section 15 of chapter 65 of 
the Revised Laws. 

The amendments made by chapter 242 of the General Acts 
of 1916, so far as material to the question under discussion, 
related only to the definition of a hawker or pedler, as set 
forth in section 13 of chapter 65 of the Revised Laws, and to 
the form of the license, as set forth in section 19. Section 14, 
prohibiting merely the sale of certain articles, section 15, 
authorizing merely the sale without a license of certyain articles, 
and section 16, prohibiting the sale by hawkers and pedlers of 
all other articles unless duly licensed, were left unchanged. 

It appears to be this last-mentioned section only which 
makes it possible to prosecute criminally unlicensed hawkers 
and pedlers. In view of the fact that section 16 prohibits only 
sales by unlicensed hawkers and pedlers, and in no way refers 
to barter, it is a grave question whether any person may not 
go from town to town or from place to place in the same town 
carrying merely for barter or exposing for barter goods, wares or 
merchandise, whether they are mentioned in section 15 or not. 

In view of its penal nature it seems probable that the courts 
will construe section 16 strictly as applying only to sales by 
hawkers and pedlers and as not prohibiting bartering. How- 
ever that may be, in my opinion it was not the intention of the 
Legislature, by the amendments made by chapter 242 of the 
General Acts of 1916, to bring within the scope of the hawkers 
and pedlers statute activities which were already fully regu- 
lated with ample Hcense requirements by chapter 187 of the 
Acts of 1902. Such reduplication of regulation and license 
requirements would impose an undue and apparently unneces- 
sary burden upon junk collectors, and the statute ought not to 
be construed to bring about such a result unless its terms 
plainly so require. 

Accordingly, I advise you that a person licensed as a junk 
collector, under the provisions of chapter 187 of the Acts of 
1902, who collects junk by barter of articles of merchandise 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

not mentioned in section 15 of chapter 65 of the Revised Laws, 
and who makes no sales of such articles, is not required to be 
licensed under the hawkers and pedlers statute. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Forest Land — Limit of Price to be paid — Incidental Expenses. 

Whether it would be advisable for the State Forest Commission to take a 
parcel of land by eminent domain rather than by purchase is not a 
question of law but one of poHcy for the commission itself to decide. 

The restriction placed by St. 1914, c. 720, § 2, upon the price which may be 
paid per acre for land acquired under that act, refers only to the pur- 
chase price, and does not include incidental expenses such as for sur- 
veying and examining the title. 

Nov. 17, 1916. 

Mr. Charles O. Bailey, Secretary, State Forest Commission. 

Dear Sir: — I acknowledge your letter of the 14th inst., in 
which you request my opinion in relation to two questions, 
one as to the advisability of purchasing the interests of certain 
owners in tracts of land owned in common by these owners 
and the Commonwealth, rather than to take the interests of 
the owners by eminent domain; and the other as to whether 
the average cost of land purchased by the commission, re- 
stricted to $5 an acre under the provisions of section 2 of 
chapter 720 of the Acts of 1914, includes the necessary ex- 
penses of engineering, conveyancing and investigation of title 
and other incidental charges necessary to the purchase. 

You state in relation to your first inquiry that the parcels of 
land involved are included in a large tract of land acquired in 
the name of the Commonwealth in the towns of Carver and 
Plymouth, and that the owners h^ave asked a sum per acre in 
excess of other land purchased by the commission in this tract. 

The question is necessarily one for your commission itself to 
determine, as there is no question of law involved. 

My own view is that if the price at which you can secure the 
interest is not unreasonably large, and the excess over the fair 
value to be paid would be less than the cost of the trial of the 
cases, in this particular instance you would be justified in pay- 
ing the amount demanded by the owners. 

As to your second question, your commission, under the pro- 
visions of St. 1914, c. 720, § 2, has the power to acquire by 
purchase or otherwise land suitable for timber cultivation. The 



1917.] PUBLIC DOCUMENT — No. 12. 123 

statute provides that the average cost of the land purchased by 
the commission shall not exceed $5 an acre. This permits a 
higher price for some parcels and a lower price in other in- 
stances, provided the average cost does not exceed the amount 
specified. The language of the statute would indicate that this 
clause has reference only to the purchase price, and does not 
include incidental expenses, such as surveying, examination of 
title and other necessary charges. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Boards of Health, Local — Oleomargarine — Authority fo limit 
Number of Licenses for Sale of. 

Under R. L., c. 56, § 70, authorizing boards of health of cities and towns to 
make reasonable rules and regulations as to the conditions under which 
all articles of food may be kept for sale, they may not limit the number 
of places where oleomargarine may be sold. 

Nov. 17, 1916. 

Mr. Wilfred Wheeler, Secretary, State Board of Agriculture. 

Dear Sir: — You desire to be informed as to whether there 
is any statute which authorizes local boards of health to make 
regulations limiting the number of licenses for the sale of 
oleomargarine in any particular town. In my opinion there is 
no such authority granted to the local boards of health. 

R. L., c. 56, § 40, requires that every person, before selling 
or offering for sale oleomargarine, shall register his name and 
proposed place of sale with the inspector of milk, or with 
the town clerk if there is no inspector of milk, and provides 
a penalty for neglecting to so register. By this statute the 
duties of the inspector of milk or of the town clerk are 
merely clerical. R. L., c. 56, § 70, as amended, authorizes 
boards of health of cities and towns to make and enforce rea- 
sonable rules and regulations, subject to the approval of the 
State Department of Health, as to the conditions under which 
all articles of food may be kept for sale, in order to prevent 
contamination thereof and injury to the public health. In my 
opinion, however, these provisions do not authorize boards of 
health to limit the number of places where such food may be 
sold. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 



Tenure of Office — Whether Appointment to fill Vacancy is for 
Unexpired Portion of Term of Predecessor or for a Full 
New Term. 

Where a clerk of a district court resigned before the expiration of his term 
of oflace, and an appointment was made thereto by the Governor under 
R. L., c. 160, § 9, the appointee holds for a term of five years from the 
date of his appointment. 

Dec. 5, 1916. 

His Excellency Samuel W. McCall, Governor of the Commonwealth. 

Sir: — I acknowledge your request for my opinion as to 
whether an appointment on July 26, 1916, to the office of 
clerk of the central district court of northern Essex was for a 
term of five years from July 26, 1916, or for the balance of 
the time his predecessor would have continued in office but 
for his resignation. 

Section 9 of chapter 160 of the Revised Laws is as follows: — 

Clerks of police, district and municipal courts shall, except as pro- 
vided in the three following sections, be appointed by the governor, 
with the advice and consent of the council, for the term of five years. 

The provisions for the appointment of clerks in the three 
following sections relate to the appointment of a clerk by a 
justice of a police or district court for which no clerk is re- 
quired by law, and the appointment of assistant clerks by the 
clerks of police, district or municipal courts, and the appoint- 
ment of temporary clerks by the court. There appears to be 
no provision for the appointment of clerks of police, district or 
municipal courts by the Governor except for the term of five 
years. I find that it has been the invariable practice of the 
office of the Secretary of the Commonwealth to issue the com- 
missions in all cases for five years. 

In view of the language of the statute and the practice 
that has heretofore obtained, I am of the opinion that the 
appointment referred to was for a term of five years from 
July 26, 1916. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1917.1 PUBLIC DOCUMENT — No. 12. 125 



Great Ponds — Right of Access to — Liability for Trespass. 

In general, the public has a right to pass and repass, for the purpose of 
hunting or fishing, and possibly other purposes, over uncultivated and 
unenclosed land belonging to private proprietors and bordering on a 
great pond, provided there is no other reasonable means of access there- 
to, without being liable for trespass. But no right of access exists, for 
the purpose of fishing, to great ponds of twenty acres or less where 
such pond is entirely surrounded by land of private proprietors. There 
is no right of access, in any event, over cultivated land where access 
may be obtained over uncultivated and unenclosed land. 

Dec. 11, 1916. 

Commissioners on Fisheries and Game. 

Gentlemen: — I acknowledge your letter in which you ask 
my opinion on the following question: — 

In case all the land around a great pond of the Commonwealth is 
bought up, and is posted against trespass by the landowners, is there 
any provision of law whereby a right of way to this pond can be es- 
tablished for the benefit of the public? 

The earliest reference to great ponds is found in the Body of 
Liberties, adopted in 1641 by the Massachusetts Bay Colony, 
and is as follows : — 

Every inhabitant that is an howse holder shall have free fishing 
and fowhng in any great ponds . . . within the presincts of the towne 
where they dwell, unlesse the free men of the same towne or the Generall 
Court have otherwise appropriated them, provided that this shall 
not be extended to give leave to any man to come upon others proprietie 
without there leave. Body of Liberties, § 16. 

This, it will be observed, gave no right to cross the land of 
others except by their leave. 

The amendments which concerned the sixteenth section, as 
they appear in the edition of the colony laws of 1660 and in 
the Ancient Charters, 148, were quite material and were 
adopted in 1649. Great ponds are defined to be those contain- 
ing more than ten acres of land, and it is provided that no 
town shall appropriate any great pond to any particular per- 
son or persons. Section 4 is as follows : — 

And for great ponds lying in common, though within the bounds of 
some town, it shall be free for any man to fish and fowl there, and 
may pass and repass on foot through any man's propriety for that 
end, so they trespass not upon any man's corn or meadow. 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

The effect of the provision which has been referred to in the 
Body of Liberties and its amendments was to reserve the great 
ponds for the pubHc use. West Roxhury v. Stoddard, 7 Allen, 
158; Commonwealth v. Roxhury, 9 Gray, 451. 

It is apparent that the Legislature has not deemed it neces- 
sary to change the definition of great ponds in this Common- 
wealth, since they were defined in the Body of Liberties, as 
amended in 1649, as ponds containing more than ten acres of 
land. This is evident from R. L., c. 96, § 27, which pro- 
vides: — 

The provisions of this chapter relative to great ponds shall apply 
onlj^ to ponds which contain in their natural state more than ten 
acres of land, and shall be subject to anj^ rights in such ponds which 
have been granted by the commonwealth. 

This right of persons to have access to great ponds is further 
emphasized by the provisions of chapter 91 of the Revised 
Laws, which provides in section 15 that — 

The fishery of a pond, the area of which is more than twenty acres, 
shall be public, except as hereinafter provided; and all persons shall, for 
the purpose of fishing, be allowed reasonable means of access thereto. 

R. L., c. 91, §§ 23, 24 and 25, provide as follows: — 

Section 23. The riparian proprietors of any pond, the area of 
which is not more than twenty acres, and the proprietors of any pond 
or parts of a pond created by artificial flowing shall have exclusive 
control of the fisheries therein. 

Section 24. A pond which is not more than twenty acres in area 
and is bounded in part by land belonging to a town or county shall 
become the exclusive property of the individual proprietors as to the 
fisheries therein only upon payment to the town treasurer, county 
commissioners or treasurer and receiver general of a just compensation 
for their respective rights therein, to be determined by three persons, 
one of whom shall be a riparian proprietor of said pond, one the chair- 
man of the board of selectmen, if the rights of a town are in question, 
or of the county commissioners, if the rights of a county or of the com- 
monwealth are in question, and one to be appointed by the com- 
missioners on fisheries and game. 

Section 25. Whoever, without the written consent of the pro- 
prietor or lessee of a natural pond, the area of which is not more than 
twenty acres, or of an artificial pond of any size, in which fish are 
lawfully cultivated or maintained, takes any fish therefrom, shall 
forfeit not more than twenty-five dollars for each offence. 



1917.] PUBLIC DOCUMENT — No. 12. 127 

The effect of the foregoing sections is to cut off the right of 
the pubhc to fish in great ponds twenty acres or less in area, 
where the pond is entirely surrounded by land of private ripa- 
rian proprietors, and also in such ponds where the pond is en- 
tirely surrounded by private riparian owners and land belong- 
ing to towns or counties, when compensation has been paid in 
accordance with the provisions of section 24. These provisions 
in no way affect the rights of the public in relation to ponds in 
excess of twenty acres in area. 

Thus it is evident that, in the absence of some common land 
or public way, the public would in many cases be deprived of 
the benefit of the public reservation unless persons were en- 
abled to gain access to the pond over land of private individ- 
uals without being deemed guilty of trespass. 

In Slater v. Gunn, 170 Mass. 509, at p. 514, the court seems 
to construe that part of the colonial ordinance of 1649, provid- 
ing that any man should be free to "pass and repass on foot 
through any man's propriety for that end, so they trespass not 
upon any man's corn or meadow," as limiting the right to 
passing and repassing to unimproved and unenclosed lands 
lying on the ponds. 

It is to be obeserved, however, that the Legislature, by the 
provisions of sections 14 and 15 of chapter 91 of the Revised 
Laws, has provided that the Commissioners on Fisheries and 
Game, in the discharge of their duties, may enter upon and 
pass through or over private property, and that all persons 
shall be allowed reasonable means of access to great ponds of 
more than twenty acres for the purpose of fishing, without 
rendering themselves liable as trespassers. 

Accordingly, I am of the opinion that no permanent right of 
way can be established to a great pond for the benefit of the 
public except by prescription or action on the part of public 
authorities. However, in my judgment fishermen, hunters and 
possibly others may pass over uncultivated and unenclosed 
land bordering on a great pond, which is posted against tres- 
pass, provided there is no other reasonable means of access 
thereto, without being deemed guilty of trespass. 

It is to be noted that where the ponds are of less than 
twenty acres in area and are entirely surrounded by land of 
private proprietors bordering thereon, the right to pass and 
repass over land of these proprietors for the purpose of fishing 
does not exist, for the reason that the right to fish in the ponds 
is exclusively in the proprietors. 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 

I am also of the opinion that, under the provisions of sec- 
tions 14 and 15 of chapter 91 of the Revised Laws, where there- 
is no other reasonable means of access to great ponds of more 
than twenty acres, persons may in a reasonable manner pass 
over the land of proprietors bordering on such ponds, for the 
purpose of gaining access thereto for fishing, without rendering 
themselves liable as trespassers. It is my view that under the 
provisions of these sections passing over cultivated land is not 
reasonable when access can be obtained over uncultivated or 
unenclosed land. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Constitutional Convention — Candidates for Delegates to — 
Arrangement of Names of on Ballot. 

The names of candidates for the office of delegate to the Constitutional 
Convention to be held under Gen. St. 1916, c. 98, § 9, should be ar- 
ranged upon the ballot to be used at the election of such delegates, and 
at any primaries for the nomination of candidates to this office, alpha- 
betically according to their surnames, and not in groups in the manner 
provided by St. 1913, c. 835, § 107, for the election of delegates to con- 
ventions at the primaries. 

Dec. 29, 1916. 
Hon. Albert P. Langtry, Secretary of the Commonwealth. 

Dear Sir: — Your letter requests my opinion upon the 
question of whether the names of candidates for the office of 
delegate to the Constitutional Convention, to be held under 
the provisions of Gen. St. 1916, c. 98, should be arranged upon 
the ballot to be used at the election of such delegates, or at 
any primary which may be held under said act for the nomi- 
nation of candidates for this office, alphabetically according to 
their surnames, in accordance with the provisions of St. 1913, 
c. 835, § 259, or whether such names should be arranged in 
groups in such order as may be determined by lot, in the 
manner provided by section 107 of said chapter 835 for the 
election of delegates to conventions at the primaries. 

Gen. St. 1916, c. 98, § 9, provides that — 

All laws relating to nominations and nomination papers, and to 
primaries, elections and corrupt practices therein, shall, so far as is 
consistent herewith, apply to the nomination of candidates for dele- 
gate to the convention, and to the primaries and special election 
provided for by this act. 



1917.] PUBLIC DOCUMENT — No. 12. 129 

St. 1913, c. 835, § 259, is as follows: — 

The names of candidates for every state, city and town office, 
except the names of candidates for presidential electors, shall be 
arranged under the designation of the office in alphabetical order 
according to the surnames. . . . 

Section 107 of said act, relating to the arrangement of names 
on the ballots to be used at the primaries, provides that — 

Names of candidates for each elective office shall be arranged 
alphabetically according to their surnames. 

Names of candidates for ward or town committees, and for dele- 
gates to conventions shall be arranged in groups in such order as 
may be determined by lot, under the direction of the secretary of the 
conomonwealth. . . . 

It is plain that the provision contained in the paragraph last 
quoted for the arrangement of the names of delegates to con- 
ventions in groups does not apply to primaries held for the 
nomination of delegates to the Constitutional Convention, for 
the reason that the primaries held under the general law are 
for the purpose of electing delegates to conventions, while 
under said chapter 98 of the General Acts of 1916 the primary 
is not for the purpose of electing the delegates but only for 
nominating them. 

Furthermore, a grouping of the names of candidates for dele- 
gate to the Constitutional Convention would seem neither to 
be contemplated by the act nor to be consistent therewith, for 
section 5 of that act provides that no party or political desig- 
nation shall appear on said ballot. 

Accordingly, I beg to advise that I am of the opinion that 
the names of delegates for the Constitutional Convention 
should be arranged alphabetically according to their surnames, 
both on the ballot to be used at the election and at such pri- 
maries, if any, as may be held for the nomination of such 
delegates. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



130 ATTORNEY-GENERAL'S REPORT. [Jan. 



INDEX TO OPINIONS. 



PAGE 
28 

60 

73 

107 

95 



Armories; dance or exhibition drill; license, .... 

Automatic sprinklers; fixtures, ....... 

Right of Fire Prevention Commissioner to order installation, . 

Stables, .......... 

Automobiles, registration of; conditional sale; owner, . 

Boilers, inspector of ; collection; offer for inspection, .... 78 

Boston Finance Commission, investigation of fiAances of clerk of the 

Superior Court for Civil Business, Suffolk County, . * . . 7 

Cape Cod Canal, jurisdiction of Joint Board ; safety appliances, . . 80 

Civil serv-ice rules; superintendents of engineering and of commerce, . 106 
Cold storage, reports to State Department of Health, .... 53. 

Collateral Loan Company, amendment to charter of, . . . .31 

Constitutional Convention; candidates for delegates; names on ballot, . 128 
Deer, carcass of; property, ........ 4 

Dentistry, educational requirements of candidate for registration, . . 40 

Education, State Board of; teachers' positions, ..... 66 

Electrician; master's certificate; who to take examination, . . . 117 

Eminent domain ; public purpose ; Salisbury Beach, .... 8 

Employees, deductions from pay of, on account of coming late to work, . 13 
Feeble-minded, schools for the; admission; support of inmates, . . 74 

Fire Prevention Commissioner; automatic sprinklers; fixtures, . . 60 

Automatic sprinklers; right to order installation, .... 73 

Gasoline in power boats; jurisdiction, ...... 69 

Firemen's Relief Fund, right of fireman impressed into service to participate 

in; workmen's compensation act, ...... 34 

Forest land, taking by eminent domain or purchase, . . . .122 

"Game laws," revocation of license for violation of, . . . .10 

Game, sale of; numbered tags, ........ 10 

Game; suspension of open season, ....... 104 

Gasoline in power boats, regulation of storage, ..... 69 

Girl; sentences to industrial schools; revocation; age, . . . .114 

Governor; tenure of office of commissioners; abolition of office, . . 62 

Great ponds, right of access to; trespass, . .. . . . .125 

Harbor and Land Commissioners, Board of; licenses; structures in tide- 
water, ........... 16 

Hawker and pedler; jvmk collector; sales; license, .... 119 

Right of minor to be licensed as, . . . . . . .56 

"Selling" of tags, ......... 7 

Health, local boards of; regulation of private sanatoria for consumptives, . 24 

State Department of; reports by cold-storage warehouse companies, 53 
Industrial School for Girls; revocation of sentence; inquirj- of trustees 

as to age, . . . . . . . .114 

Insane hospital, power to discharge from, ...... 74 

Right to operate on patient therein without his consent, ... 22 



1917.] PUBLIC DOCUMENT — No. 12. 131 

PAGE 

Insurance; cash assets in excess of liabilities to an amount greater than 

permitted by law; reduction, ...... 

Companies may not be incorporated for certain purposes, 
Interest on taxes, authority of town to charge, .... 

Junk collectors; exchange of goods; license as hawker and pedler, . 
Labor and Industries, State Board of, authority to summon witnesses 
Militia, appointment of adjutants, ...... 

Furlough; termination of service, ...... 

National Guard; United States ser\-ice; officers; dual capacity. 
Salaries of employees in Federal service, .... 

Mothers, dependent; removal to place of settlement, 

Municipal liens, repeal of laws relating to, . 

Office, tenure of; when ended by abolition, ..... 

Officers of militia in United States service; right to act in dual capacity, 
Oleomargarine, authority of boards of health to limit number of licenses to 

sell, 

Pawnbrokers, rate of interest which may be charged by. 

Poor; dependent mothers; removal to place of settlement, 

Prisoner; permit to be at liberty; revocation; arrest. 

Probation officer, retirement of; period of service. 

Public funds; salary of deceased employee for period after death, . 

Public ways and sidewalks, regulation of solicitation of business on 

Reservoirs, right of certain persons to take water from. 

Salaries of employees of Commonwealth in Federal service, 

Soldiers; furlough; termination of service ; compensation. 

Stable; automatic sprinklers; requirements, .... 

State employees; salary of deceased employee for period after death 

public funds, ......... 

Suffolk County; authority of Boston Finance Commission to investigate 

finances of clerk of Superior Court for Civil Business, . 
Tags, "selling" of, when soliciting contributions for charitable purposes 

hawker and pedler, ........ 

Taxation of domestic corporations; deductions to be allowed in determina 

tion of franchise tax, ....... 

Taxes, assessment of, to inhabitants of portion of a town set off as another 

town subsequent to April 1, . 
Collectors of, approval of form of bonds by Tax Commissioner, 
Interest on, authority of town to charge, .... 

Teachers' positions, State Board of Education to assist in procuring 
Tenure of office of clerk of district court appointed to fill vacancy, . 
Theatre tickets, regulation of sale of, . 

Sale of, by corporations, ....... 

Tidewater; licenses to build structures; Board of Harbor and Land 

Commissioners, ......•• 

Trading stamps, power of Legislature to prohibit use of. 

Trespass; right of access to great ponds, ..... 

Tuberculosis hospitals, private; regulation by local boards of health 
Vacanc5% appointment to fill; tenure of office, .... 

Vaccination; certificate of exemption; examination. 

Veterans; soldiers' relief; liability of children to support, 

Water, right of certain persons to take from reservoirs, . 

"Weights and Measures, Commissioner of; authority to grant hawker's and 

pedler's license to minor, ...... 

Prosecutions for violations of law; notice. 
Workmen's compensation act; application to Commonwealth, 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 



GRADE CROSSINGS. 



Notices have been served upon this department of the filing 
of the following petitions for the appointment of special com- 
missioners for the abolition of grade crossings: — 

Berkshire County. 

Lanesborough, Selectmen of, petitioners. Petition for abolition 
of Valley Road and Glen Road crossings. Railroad Com- 
missioners appointed commissioners. Commissioners* re- 
port filed. Frank H. Cande appointed auditor. Auditor's 
third report 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. 

Pittsfield, Mayor and. Aldermen of, petitioners. Petition for 
abolition of Merrill crossing in Pittsfield. Thomas W. 
Kennefick, Frederick L. Green and Edmund K. Turner 
appointed commissioners. Pending. 

Stockbridge, Selectmen of, petitioners. Petition for abolition 
of South Street crossing. Railroad Commissioners ap- 
pointed commissioners. Commissioners' report filed. 
A. W. DeGoosh appointed auditor. Auditor's first report 
filed. Disposed of. 

Stockbridge. Berkshire Railroad, petitioner. Petition for 
abolition of Glendale station crossing. Pending. 

West Stockbridge, Selectmen of, petitioners. Petition for 
abolition of grade crossing at Albany Street. James D. 
Colt, Charles W. Bosworth and James L. Tighe appointed 
commissioners. Pending. 



1917.] PUBLIC DOCUMENT — No. 12. 135 



Bristol County. 

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. Agreement to dismiss filed. 
Pending. 

Somerset. New York, New Haven & Hartford Railroad 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. 
Auditor's first report filed. Disposed of. 

Swansea. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Petition for abolition of grade crossing 
at River Road. James D. Colt, Henry H. Baker and 
Louis Perry appointed commissioners. Commissioners' 
report filed. Edward A. Thurston appointed auditor. 
Auditor's first report filed. Disposed of. 

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 Railroad, petitioner. Petition 
for abolition of crossings at Magnolia Avenue and Brays 
crossing. Arthur Lord, Moody Kimball and P. H. Cooney 
appointed commissioners. Commissioners' report filed. 
A. W. DeGoosh appointed auditor. Auditor's third re- 
port filed. Pending. 

Gloucester. Directors of Boston & Maine Railroad, peti- 
tioners. Petition for abolition of grade crossing between 
Washington Street and tracks of Boston & Maine Rail- 
road. Pending. 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 

Haverhill, Mayor and Aldermen of, petitioners. Petition for 
abolition of Washington Street and other crossings in 
Haverhill. George W. Wiggin, William B. French and 
Edmund K. Turner appointed commissioners. • Commis- 
sioners' report filed. Fred E. Jones appointed auditor. 
E. A. McLaughlin appointed auditor in place of Fred E. 
Jones, deceased. Auditor's seventeenth report filed. Pend- 
ing. 

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 
appointed auditor. E. A. McLaughlin appointed auditor 
in place of Fred E. Jones, deceased. Auditor's fourth re- 
port filed. Disposed of. 

Lawrence, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossing at Merrimac and other streets in 
Lawrence. Robert O. Harris, Edmund K. Turner and 
Henry V. Cunningham appointed commissioners. Pend- 
ing. 

Lynn, Mayor and Aldermen of, petitioners. Petition for aboli- 
tion of Summer Street and other crossings on Saugus 
branch of Boston & Maine Railroad and Market Street 
and other crossings on main line. George W. Wiggin, 
Edgar R. Champlin and Edmund K. Turner appointed 
commissioners. Commissioners' report filed. Edward A. 
McLaughlin appointed auditor. Auditor's seventh report 
filed. Pending. 

Lynn, Mayor and Aldermen of, petitioners. Petition for aboli- 
tion of grade crossings at Pleasant and Shepard streets. 
Gas Wharf Road and Commercial Street, on the Boston, 
Revere Beach & Lynn Railroad. Pending. 

Salem. Directors of Boston & Maine Railroad, petitioners. 
Petition for the abolition of grade crossings at Bridge, 
Washington, 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 
abolition of Lafayette Street crossing in Salem. Pending. 



1917.] PUBLIC DOCUMENT — No. 12. 135 

Franklin County. 

Deerfield, Selectmen of, petitioners. Petition for abolition of 
"Upper Wisdom Road" crossing. Edmund K. Turner, 
Calvin Coolidge and Hugh P. Drj^sdale appointed com- 
missioners. Commissioners' report filed. Lyman W. 
Griswold appointed auditor. Auditor's first report filed. 
Disposed of. 

Erving, Selectmen of, petitioners. Petition for abolition of 
grade crossing on the road leading from Millers Falls to 
Northfield. Samuel D. Conant, Arthur H. Beers and 
Charles C. Dyer appointed commissioners. Commissioners' 
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 commis- 
sioners. Commissioners' report filed and recommitted. 
Stephen S. Taft, Jr., appointed commissioner in place of 
Stephen S. Taft resigned. 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 
commissioners. Commissioners' report filed. James J. 
Irwin appointed auditor. Auditor's first report filed. 
Disposed of. 

Hampden County. 

Palmer, Selectmen of, petitioners. Petition for abolition of 
Burley's crossing in Palmer. Pending. 

Russell, Selectmen of, petitioners. Petition for abolition of 
Montgomery Road crossing. Railroad Commissioners 
appointed commissioners. Commissioners' report filed. 
Thomas W. Kennefick appointed auditor. Auditor's 
third report filed. Disposed of. 

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. Hib- 
bard appointed commissioner in place of Richard W. 
Irwin, resigned. Commissioners' report filed. Walter F. 
Frederick appointed auditor. Auditor's third report filed. 
Pending. 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 



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. Disposed 
of. 

Middlesex County. 

ActoQ, Selectmen of, petitioners. Petition for abolition of 
Great Road crossing in Acton. Benj. W. Wells, George 
D. Burrage and William B. Sullivan appointed commis- 
sioners. Commissioners' report filed. Fred Joy ap- 
pointed 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 
abolition of Middlesex and Thorndike streets crossings. 
George F. Swain, Patrick H. Cooney and Nelson P. Brown 
appointed commissioners. Pending. 



1917.J PUBLIC DOCOJENT — No. 12. 137 

Lowell, Mayor and Aldermen of, petitioners. Petition for 
abolition of Boston Road 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. Auditor's tenth report filed. Pending. 

Lowell, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossing at Western Avenue and Fletcher 
Street. Pending. 

Maiden, Mayor and Aldermen of, petitioners. Petition for 
abolition of Pleasant and Winter streets crossing in 
Maiden. George W. Wiggin, Edmund K. Turner and 
Fred Joy appointed commissioners. Commissioners' re- 
port filed. Winfield S. Slocum appointed auditor. Au- 
ditor's seventh report filed. Disposed of. 

Marlborough, Mayor and Aldermen of, petitioners. Petition 
for abolition of Hudson Street crossing in Marlborough. 
Walter Adams, Charles A. Allen and Alpheus Sanford ap- 
pointed commissioners. Commissioners' report filed. 
Pending. 

Newton, Mayor and Aldermen of, petitioners. Petition for 
the abolition of Concord Street and Pine Grove Avenue 
crossings in Newton. George W. Wiggin, T. C. Menden- 
hall and Edmund K. Turner appointed commissioners. 
Pending. 

North Reading, Selectmen of, petitioners. Petition for aboli- 
tion of Main Street crossing in North Reading. Alpheus 
Sanford, George N. Poor and Louis M. Clark appointed 
commissioners. Report of commissioners filed. Thomas 
W. Proctor appointed auditor. Auditor's first report 
filed. Disposed of. 

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. 
Commissioners' report filed. James D. Colt appointed 
auditor in place of Patrick H. Cooney deceased. Auditor's 
eleventh 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. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

James D. Colt appointed auditor in place of Patrick H. 
Cooney deceased. 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, River 
Street, Pine Street, Newton Street and Calvary Street 
crossings in Waltham. Arthur Lord, Patrick H. Cooney 
and George F. Swain appointed commissioners. Pending. 

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 Road. George F. Swain, Harvey 
N. Shepard and Arthur W. DeGoosh appointed commis- 
sioners. Pending. 

Weston, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Central Avenue, Conant Road, Church 
and Viles streets. P. H. Cooney, Louis A. Frothing- 
ham and Andrew M. Lovis appointed commissioners. 
Pending. 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W. 
Wlggin, George F. Swain and Arthur Lord appointed com- 
missioners. Commissioners' report filed and recommitted. 
Pending. 

Norfolk County. 

Braintree, Selectmen of, petitioners. Petition for the abolition 
of the Pearl Street crossing at South Braintree. Patrick 
H. Cooney, Frank N. Nay and George F. Swain ap- 
pointed commissioners. Pending. 

Braintree. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
grade crossing at School, Elm, River and Union streets in 
Braintree. John L. Bates, Winfield S. Slocum and Arthur 
H. Wellman appointed commissioners. Commissioners' 
report filed. Pending. 



1917.J PUBLIC DOCUMENT — No. 12. 139 

Canton. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Dedham Road crossing in Canton. Samuel L. Powers, 
Stephen S. Taft and Wm. Jackson appointed commis- 
sioners. Commissioners report filed. Recommitted. 
Agreement to dismiss filed. Pending. 

Dedham, Selectmen of, petitioners. Petition for the abolition 
of Eastern Avenue and Dwight Street crossings in Ded- 
ham. Alpheus Sanford, Charles Mills and J. Henry Reed 
appointed 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 
commissioners. 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. Agreement to dismiss filed. 
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 
report filed. Disposed of. 

Needham, Selectmen of, petitioners. Petition for abolition of 
Charles River Street crossing in Needham. Pending. 

Quincy. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Saville and Water streets crossings in Quincy. John L. 
Bates, Winfield S. Slocum and Arthur H. Wellman ap- 
pointed commissioners. Commissioners' report filed. 
Pending. 

Sharon. Directors of New York, New Haven & Hartford 
Railroad 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 appointed commissioners. Commissioners' 
report filed. Recommitted. Agreement to dismiss filed. 
Pending. 



140 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 
commissioners. Commissioners' report filed. Recom- 
mitted. Pending. 

Plymouth County. 
Rockland, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Union and other streets in Rockland. 
Pending. 

Suffolk County, 

Boston, Mayor and Aldermen of, petitioners. Petition for abo- 
lition of Dudley Street crossing in Dorchester. Thomas 
Post, Fred Joy and Edmund K. Turner appointed com- 
missioners. Commissioners' report filed. James D. Colt 
appointed auditor. Auditor's tenth report filed. Pending. 

Boston. New York, New Haven & Hartford Railroad Com- 
pany, petitioners. Petition for abolition of Neponset and 
Granite avenues crossings in Dorchester. Disposed of. 

Boston, Mayor and Aldermen of, petitioners. Petition for 
abolition of Freeport, Adams, Park, Mill and Walnut 
streets and Dorchester Avenue crossings. James R. 
Dunbar, Samuel L. Powers and Thomas W. Proctor ap- 
pointed commissioners. Commissioners' report filed. 
Arthur H. Wellman appointed auditor. Auditor's twenty- 
second report filed. Pending. 

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. Disposed of. 

Boston, Mayor and Aldermen of, petitioners. Petition for 
abolition of Blue Hill Avenue and Oakland Street cross- 
ings in Boston. William B. French, Arthur H. Wellman 
and George A. Kimball appointed commissioners. Com- 
missioners' report filed. Fred E. Jones appointed auditor. 
Auditor's twenty-first report filed. Disposed of. 

Boston, Mayor and Aldermen of, petitioners. Petition for 
abolition of all crossings in East Boston. George W. 
Wiggin, William B. French and Edward B. Bishop ap- 
pointed commissioners. Commissioners' report filed. 
Winfield S. Slocum appointed auditor. Auditor's seven- 
teenth report filed. Disposed of. 



1917.] PUBLIC DOCUMENT — No. 12. 141 

Boston, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossings at Saratoga, Maverick and Marginal 
streets in East Boston. Railroad Commissioners ap- 
pointed commissioners. Commissioners' report filed. 
Robert O. Harris appointed auditor. Auditor's second 
report filed. Pending. 

Revere, Selectmen of, petitioners. Petition for abolition of 
Winthrop Avenue crossing in Revere of the Boston, 
Revere Beach & Lynn Railroad. 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 twelfth report filed. Pending. 

Harvard. Boston & Maine Railroad, petitioner. Petition for 
abolition of a grade crossing near Harvard station. Pending. 

Hubbardston, Selectmen of, petitioners. Petition for abolition 
of Depot Road crossing in Hubbardston. Pending. 

Leominster, Selectmen of, petitioners. Petition for abolition of 
Water, Summer, Mechanic and Main streets crossings. 
George W. Wiggin, George F. Swain and Charles D. 
Barnes appointed commissioners. Commissioners' report 
filed. Recommitted. Pending. 

Southborough, Selectmen of, petitioners. Petition for aboli- 
tion of crossing on road from Southborough to Framing- 
ham. Samuel W. McCall, Louis A. Frothingham and 
Eugene C. Hultman appointed commissioners. Com- 
missioners' report filed and recommitted. Pending. 

Southborough, Selectmen of, petitioners. Petition for aboli- 
tion of Main Street crossing at Fayville in Southborough. 
Pending. 

Southbridge, 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. 



142 ATTORNEY-GENERAL'S REPORT. . [Jan. 

West Bpylston. Boston & Maine Railroad Company, peti- 
tioners. Petition for abolition of Prescott Street cross- 
ing. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossings at Exchange, Central and Thomas 
and other streets. Arthur Lord, George F. Swain and 
Fred Joy appointed commissioners. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of Grafton Street crossing and eight other cross- 
ings, including alterations of Union Station. James R. 
Dunbar, James H. Flint and George F. Swain appointed 
commissioners. Commissioners' report filed. James A. 
Stiles appointed auditor. Auditor's seventy-first report 
filed. Pending. 



1917.1 PUBLIC DOCUMENT — No. 12. 143 



EULES OF PRACTICE 

In Interstate Rendition. 



Every application to the Governor for a requisition upon the 
executive authority of any other State or Territory, for the de- 
livery up and return of any offender who has fled from the 
justice of this Commonwealth, must be made by the district or 
prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original 
papers, or certified copies thereof. 

The following must appear by the certificate of the district 
or prosecuting attorney : — 

(a) The full name of the person for whom extradition is 
asked, together with the name of the agent proposed, to be 
properly spelled. 

(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 requisi- 
tion 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 
whatever; and that, if the requisition applied for be granted, 
the criminal proceedings shall not be used for any of said 
objects. 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

(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 ap- 
plication. 

1. In all cases of fraud, false pretences, embezzlement or 
forgery, when made a crime by the common law, or any penal 
code or statute, the affidavit of the principal complaining wit- 
ness or informant that the application is made in good faith, 
for the sole purpose of punishing the accused, and that he does 
not desire or expect to use the prosecution for the purpose of 
collecting a debt, or for any private purpose, and will not di- 
rectly or indirectly use the same for any of said purposes, shall 
be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 
the Executive that the alleged criminal has fled from the jus- 
tice of the State, and is in the State on whose Executive the 
demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged 
crime was committed at the time of the commission thereof, 
and is found in the State upon which the requisition was 
made, shall be sufficient evidence, in the absence of other 
proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in dupli- 
cate, must accompany the application. 

4. If an indictment has not been found by a grand jury, the 
facts and circumstances showing the commission of the crime 
charged, and that the accused perpetrated the same, must be 
shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) 
It must also be shown that a complaint has been made, copies 
of which must accompany the requisition, such complaint to 
be accompanied by affidavits to the facts constituting the 
offence charged by persons having actual knowledge thereof, 
and that a warrant has been issued, and duplicate certified 
copies of the same, together with the returns thereto, if any, 
must be furnished 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. 



1917.J PUBLIC DOCUMENT — No. 12. 145 

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 certified copies of the indictment or information, record of 
conviction and sentence upon which the person is held, with 
the affidavit of such person having him in custody, showing 
such escape, with the circumstances attending the same. 

8. No requisition will be made for the extradition of any 
fugitive except in compliance with these rules.