Public Document
No. 12
Ei[t Ql0mmnttuiFaItI| nf fMaajaarliuBFtta.
REPORT
ATTORNEY- GENERAL
Year ending January 16, 1918.
BOSTON:
WRIGHT & POTTER PRINTING CO., STATE PRINTERS,
32 DERNE STREET.
1918.
®l)e (Hommonrocaltl) of itta00ocl)U0ctt0.
Department of the Attorney-General,
Boston, Jan. 16, 1918.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith my report for
the year ending this day.
Very respectfully,
HENRY C. ATTWILL,
Attorney-General.
®I)e CommontDealtb of Mi(iBBat\)iiBtllB.
DEPARTMENT OF THE ATTORNEY-GENERAL,
State House.
Attorney-General.
HENRY C. ATTWILL.
Assistants.
Nelson P. Brown.
H. Ware Barnum.
\Vm. Harold Hitchcock.
Arthur E. Seagrave.
John W. Corcoran.
Charles W. Mulcahy.
Chief Clerk.
Louis H. Freese.
Statement of Appropriation and Expenditures.
Appropriation for 1917, $49,000 00
Expenditures.
For law library, $1,344 44
For salaries of assistants, 18,066 66
For clerks, 6,038 34
For office stenographers, 4,583 33
For telephone operator, 677 66
For legal and special services and expenses, . . . 8,526 48
For office expenses, 3,794 77
For court expenses, 5,550 90
Total expenditures, $48,582 58
Costs collected, 2,388 02
Net expenditures, $46,194 56
tillj^ Qlnmmnnm^altlj nf MuBBulinBtttB.
Department of the Attorney-General,
Boston, Jan. 16, 1918.
To the Honorable Senate and House of Representatives.
Pursuant to the provisions of section 8 of chapter 7 of the
Revised Laws, as amended, I herewith submit my report for
the year ending this day.
The cases requiring the attention of this department dur-
ing the year, to the number of 8,713, are tabulated below: —
Corporate franchise tax cases, 1,030
Extradition and interstate rendition, 146
Grade crossings, petitions for abolition of, 72
Indictments for murder, 56
Inventories and appraisals, 17
Land Court petitions, 77
Land-damage cases arising from the taking of land by the Har-
bor 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 Mas-
sachusetts Highway Commission, 34
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, 9
Land-damage cases arising from the taking of land by the Met-
ropolitan Park Commission, , 37
Land-damage cases arising from the taking of land by the
Commission on Waterways and PubHc Lands, ... 3
Land-damage cases arising from the taking of land by the State
House Building Conunission, 9
Miscellaneous cases arising from the work of the above-named
commissions, 49
Miscellaneous cases, 689
Petitions for instructions under inheritance tax laws, . . 96
Public charitable trusts, 107
Settlement cases for support of persons in State Hospitals, . 34
All other cases not enumerated above, which include suits to
require the filing of returns by corporations and individuals
and the collection of money due the Commonwealth, . . 6,218
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: —
Ralph V. Baker, indicted in Plymouth County, October,
1916, for the murder of William W. Cushing, at Marshfield,
on Oct. 3, 1916. He was arraigned Oct. 25, 1916, and
pleaded not guilty. R. M. Walsh, Esq., appeared as counsel
for the defendant. In March, 1917, the defendant was tried
by a jury before Raymond, J. The result was a verdict of
not guilty, by reason of insanity. The defendant was there-
upon committed to the Bridgewater State Hospital for life.
The case was 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. Later
the defendant retracted his former plea, and pleaded guilty
to murder in the second degree. This plea was accepted by
the Commonw^ealth, and the defendant was sentenced to
State Prison for life. The case was in charge of District At-
torney Joseph B. Ely.
Edwin D. Carter, 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., and E. J. Stapleton,
Esq., appeared as counsel for the defendant. Later the de-
fendant retracted his former plea, 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
Joseph B. Ely.
Frank Coletti, indicted in Norfolk County, April, 1916,
for the murder of Josephine M. Coletti, at Quincy, on Jan.
20, 1916. J. J. McAnarney, Esq., appeared as counsel for
1918.] PUBLIC DOCraiENT — No. 12. ix
the defendant. In September, 1917, the defendant was tried
by a jury before O'Connell, J. The result was a verdict of
not guilty, by reason of insanity. The defendant was there-
upon committed to the Bridge water State Hospital for life.
The case was in charge of District Attorney Frederick G.
Katzmann.
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. May 24, 1916, the defendant was released on bail.
The case was in charge of District Attorney Joseph C. Pel-
letier.
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.,
and Michael G. Luddy, Esq., appeared as counsel for the
defendant. In February, 1917, the defendant was tried by a
jury before Quinn, J. The result was a verdict of not guilty.
The case was in charge of District Attorney John H. Schoon-
maker.
Richard Dad ah, 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 coun-
sel for the defendant. Later 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 nine years
nor less than six years. The case was in charge of District
Attorney Joseph B. Ely.
Francis Ducharme, indicted in Hampden County, De-
cember, 1916, for the murder of Ellen Kaczor, at Chicopee,
on Oct. 21, 1916. He was arraigned Dec. 29, 1916, and
pleaded not guilty. N. Seelye Hitchcock, Esq., appeared as
X ATTORNEY-GENERAL'S REPORT. [Jan.
counsel for the defendant. In May, 1917, the defendant was
tried by a jury before Hamilton, J. The result was a verdict
of guilty of murder in the first degree. The defendant was
thereupon sentenced to death by electrocution during the
week beginning Sept. 9, 1917, which sentence was executed
Sept. 11, 1917. The case was in charge of District Attorney
Joseph B. Ely.
Hassan Durpast, alias, indicted in Hampden County,
December, 1916, for the murder of Sarkus Dadah, at Spring-
field, on Oct. 14, 1916. He was arraigned Dec. 29, 1916,
and pleaded not guilty. William G. McKechnie, Esq.,
appeared as counsel for the defendant. Later 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 ex-
ceeding nine years nor less than six years. The case was 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. 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 State Prison for a term
not exceeding fifteen years nor less than ten years. The case
was 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. Later
the defendant retracted her former plea, and pleaded guilty
to manslaughter. This plea was accepted by the Common-
wealth, and the defendant was sentenced to the Reformatory
for Women. The case was in charge of District Attorney
Joseph B. Ely.
1918.] PUBLIC DOCUMENT — No. 12. xi
John Gilstrap, indicted in Suffolk County, October, 1916,
for the murder of Albert Newton, at Boston, on Sept. 11,
1916. The defendant was arraigned April 25, 1917, and
pleaded not guilty. F. J. W. Ford, Esq., and WilHam H.
Lewis, Esq., appeared as counsel for the defendant. On
May 15, 1917, 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 five years nor less than
three years. The case was 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.
July 23, 1917, 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.
John J. Herrick, indicted in Essex County, September,
1916, for the murder of Mabel Leary, ^at Gloucester, on
Sept. 2, 1916. He was arraigned Sept. 27, 1916, and pleaded
not guilty. M. Francis Buckley, Esq., appeared as counsel
for the defendant. On June 11, 1917, the defendant re-
tracted his former plea, and pleaded guilty to manslaughter.
This plea was accepted by the Commonwealth, and the de-
fendant was sentenced to the House of Correction for a term
of two and one-half years. The case was in charge of Dis-
trict 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 coun-
xii ATTORNEY-GENERAL'S REPORT. [Jan.
sel for the defendant. In November, 1915, the defendant
was tried by a jury before Raymond, J. The result was a
verdict of guilty of murder in the first degree. The defend-
ant's motions for a new trial were overruled. On Dec. 11,
1917, a part of the indictment was nol prossed, leaving the
defendant charged with assault with intent to murder. He
was thereupon sentenced to State Prison for a term not ex-
ceeding five years nor less than three years. The case was
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. Gilbert A. A. Pevey, Esq.,
and Edwin P. Fitzgerald, Esq., appeared as counsel for the
defendant. On Nov. 23, 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 Nathan A. Tufts.
Michael Lopio, indicted in Essex County, September,
1916, for the murder of James Germono, at Salem, on Aug.
15, 1916. He w^as arraigned Sept. 28, 1916, and pleaded
not guilty. On Jan. 23, 1917, the defendant retracted his
former plea, and pleaded guilty to manslaughter. This plea
was accepted by the Commonwealth, and the defendant was
sentenced to State Prison for a term not exceeding eight
years nor less than six years. The case was 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. On Feb. 7, 1917, the defendant retracted his
former plea, and pleaded guilty to manslaughter. This plea
1918.] PUBLIC DOCUMENT — No. 12. xiii
was accepted by the Commonwealth, and the defendant was
sentenced to State Prison for a term not exceeding eleven
years nor less than nine years. The case was 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. Fran-
cis F. Harrington, Esq., appeared as counsel for the defend-
ant. On March 19, 1917, 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 sixteen
years nor less than fifteen years. The case was in charge of
District Attorney Joseph C. Pelletier.
Antonio Ogrecci, alias, indicted in Hampden County,
May, 1913, for the murder of Dominic Forti, at Springfield,
on April 25, 1913. He was arraigned Sept. 20, 1917, and
pleaded not guilty. William G. McKechnie, Esq., appeared
as counsel for the defendant. Dec. 28, 1917, the Common-
wealth filed a disclaimer as to the charge of murder in the
first and second degrees, and in January, 1918, the defendant
was tried by a jury before Hamilton, J., on so much of the
indictment as charged manslaughter. The result was a
verdict of not guilty. The case was in charge of District
Attorney Joseph B. Ely.
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 for the defendant. On May 18,
1917, the defendant retracted his former plea, and pleaded
guilty to murder in the second degree. This plea was ac-
cepted by the Commonwealth, and the defendant was sen-
tenced to State Prison for life. The case was in charge of
District Attorney Joseph C. Pelletier.
xiv ATTORNEY-GENERAL'S REPORT. [Jan.
Oscar F. Russ, indicted in Suffolk County, September,
1915, for the murder of Emily Russ, at Boston, Aug. 23,
1915. He was arraigned Oct. 8, 1915, and pleaded not
guilty. Wendell P. Murray, Esq., and Morris Katzeff, 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, and
the defendant was sentenced to State Prison for life. The
case was 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. He was arraigned Jan. 15, 1917, and pleaded
not guilty. William J. Miller, Esq., and David Mancovitz,
Esq., appeared as counsel for the defendant. In January,
1917, the defendant was tried by a jury before Aiken, C.J.
The result was a verdict of not guilty. The case was 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. He was arraigned Jan. 25, 1917, and
pleaded not guilty. John W. Connolly, Esq., appeared as
counsel for the defendant. On March 5, 1917, the defendant
retracted his former plea, and pleaded guilty to murder in
the second degree. This plea was accepted by the Common-
wealth, and the defendant was sentenced to State Prison for
life. The case was in charge of District Attorney Joseph C.
Pelletier.
Indictments for murder found since the date of the last
annual report have been disposed of as follows: —
Gaetano Barbato, indicted in Worcester County, August,
1917, for the murder of Stephano Cherquo, at Worcester, on
May 20, 1917. He was arraigned Aug. 27, 1917, and pleaded
not guilty. John H. Meagher, Esq., appeared as counsel for
the defendant. Nov. 9, 1917, so much of the indictment as
charged murder in the first degree was nol prossed, leaving
1918.] PUBLIC DOCUMENT — No. 12. xv
the indictment to stand for murder in the second degree.
In November, 1917, the defendant was tried by a jury before
Thayer, J. The result was a verdict of guilty, and the de-
fendant was sentenced to State Prison for Hfe. The case was
in charge of District Attorney Edward T. Esty,
Manoog Barberian, indicted in Suffolk County, August,
1917, for the murder of Sererkior Moorodian, on June 15,
1917. He was arraigned Oct. 26, 1917, and pleaded not
guilty. Martin Hays, Esq., appeared as counsel for the
defendant. On Nov. 8, 1917, 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.
Antonio Colandro, indicted in Essex County, January,
1917, for the murder of Rosario Gaudino, at Lynn, on Oct.
14, 1916. He was arraigned Feb. 2, 1917, and pleaded not
guilty. Richard L. Sisk, Esq., appeared as counsel for the
defendant. On June 11, 1917, the defendant retracted his
former plea, and pleaded guilty to manslaughter. This plea
was accepted by the Commonwealth, and the defendant was
sentenced to the House of Correction for a term of three
years. The case was in charge of District Attorney Louis
S. Cox.
Carmine Coshignano and Dominick Toscano, indicted in
Worcester County, August, 1917, for the murder of Michael
Aiello, at Worcester, on Feb. 20, 1917. The defendants were
arraigned Sept. 18, 1917, and pleaded not guilty. Thomas L.
Walsh, Esq., Holton Davenport, Esq., and A. B. Cenedella,
Esq., appeared as counsel for the defendants. Later the
defendants retracted their former plea, and each pleaded
guilty to murder in the second degree. This plea was ac-
cepted by the Commonwealth, and the defendants were sen-
tenced to State Prison for life. The cases were in charge of
District Attorney Edward T. Esty.
xvi ATTORNEY-GENERAL'S REPORT. [Jan.
ViNCENzo Graceffa, indicted in Middlesex County, March,
1917, for the murder of Salvatore Parisi, at Waltham,
on Jan. 30, 1917. He was arraigned March 20, 1917, and
pleaded not guilty. Frank M. Zottoli, Esq., appeared as
counsel for the defendant. On March 27, 1917, the defend-
ant 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 twenty years nor less than fifteen years. The
case was in charge of District Attorney Nathan A. Tufts.
Sabino Iannacone, indicted in Suffolk County, January,
1917, for the murder of Carmellio Repucci, at Boston, on
Dec. 3, 1916. The defendant committed suicide in jail on
Jan. 6, 1917. The case was in charge of District Attorney
Joseph C. Pelletier.
Alexandros Manaris, indicted in Worcester County,
August, 1917, for the murder of Fotios Roumbis, at Worces-
ter, on July 5, 1917. He was arraigned Oct. 24, 1917, and
pleaded not guilty. John H. Meagher, 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 Edward T. Esty.
Sadie McIntyre, indicted in Plymouth County, June,
1917, for the murder of David H. McIntyre, at Duxbury,
on May 14, 1917. She was arraigned June 25, 1917, and
pleaded not guilty. John P. Vahey, Esq., appeared as coun-
sel for the defendant. On June 27, 1917, the defendant re-
tracted her former plea, and pleaded guilty to manslaughter.
This plea was accepted by the Commonwealth, and the
defendant was sentenced to the Reformatory for Women.
The case was in charge of District Attorney Frederick G.
Katzmann.
George O. Messier, indicted in Essex County, April,
1917, for the murder of William J. Pratt, at Gloucester, on
March 31, 1917. He was arraigned April 12, 1917, and
1918.] PUBLIC DOCUMENT — No. 12. xvii
pleaded not guilty. Richard L. Sisk, Esq., appeared as
counsel for the defendant. On June 11, 1917, the defend-
ant retracted his former plea, and pleaded guilty to man-
slaughter. This plea was accepted by the Commonwealth,
and the defendant was sentenced to the House of Correction
for a term of three years. The case was in charge of District
Attorney Louis S. Cox.
Antonio Mignano, indicted in Hampden County, Sep-
tember, 1917, for the murder of Fiore Cava, at Springfield,
on June 11, 1917. He was arraigned Sept. 21, 1917, and
pleaded not guilty. William G. McKechnie, Esq., and Silvio
Martinelli, Esq., appeared as counsel for the defendant.
Later 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 seven years nor less than
five years. The case was in charge of District Attorney
Joseph B. Ely.
Tadeucz Olczak, indicted in Franklin County, July, 1917,
for the murder of Sophie Olczak, at Greenfield, on June 29,
1917. He was arraigned July 11, 1917, and pleaded not
guilty. Frank J. Lawler, 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.
Minor U. Peterson, Earl A. Brown, Edw^ard E. Wash-
ington, alias, and Clarence Baker, alias, indicted in Bris-
tol County, February, 1917, for the murder of Joseph Cos-
mos. The defendant Clarence Baker has never been appre-
hended. The defendants Minor U. Peterson, Earl A. Brown
and Edward E. Washington were arraigned Feb. 26, 1917,
and each pleaded not guilty. John B. Tracy, Esq., appeared
as counsel for the defendants. Later the defendants retracted
their former plea, and each pleaded guilty to manslaughter.
This plea was accepted by the Commonwealth, and each of
xviii ATTORNEY-GENERAL'S REPORT. [Jan.
the defendants was sentenced to State Prison for a term not
exceeding ten years nor less than eight years. The cases
were in charge of District Attorney Joseph T. Kenney.
Harriet A. Varney, indicted in Norfolk County, July,
1917, for the murder of Pauline C. Keyes, at Brookline, on
June 19, 1917. She was arraigned July 12, 1917, and
pleaded not guilty. David F. O'Connell, Esq., and Daniel
P. Callahan, Esq., appeared as counsel for the defendant.
In December, 1917, the defendant was tried by a jury before
O'Connell, J. The result was a verdict of not guilty. The
case was in charge of District Attorney Frederick G. Katz-
mann.
Joseph Wakelin and Sarah Ann Wakelin, indicted in
Middlesex County, June, 1917, for the murder of Lauretta
W. Wakelin, at Melrose, on June 1, 1916. They were ar-
raigned June 21, 1917, and pleaded not guilty. William R.
Scharton, Esq., John G. Walsh, Esq., and Henry J. Barry,
Esq., appeared as counsel for the defendants. In October,
1917, the defendants were tried by a jury before Keating, J.
The result was a verdict of guilty of manslaughter in the
case of Joseph Wakelin, and a verdict of not guilty in the
case of Sarah Ann Wakelin. The defendant Joseph Wakelin
was thereupon sentenced to State Prison for a term not
exceeding five years nor less than three years. The case was
in charge of District Attorney Nathan A. Tufts.
Speros Zourides, indicted in Worcester County, August,
1917, for the murder of George Darakes, at Barre, on July
6, 1917. He was arraigned Nov. 14, 1917, and pleaded not
guilty. Scott Adams, Esq., and Louis E. Feingold, Esq.,
appeared as counsel for the defendant. Later the defendant
retracted his former plea, and pleaded guilty to manslaughter.
This plea was accepted by the Commonwealth, and the de-
fendant was sentenced to State Prison for a term not exceed-
ing eighteen years nor less than fifteen years. The case was
in charge of District Attorney Edward T. Esty.
1918.] PUBLIC DOCUMENT — No. 12. xix
The following indictments for murder are now pending : —
Pasquale Angotti, indicted in Hampshire County, Octo-
ber, 1917, for the murder of Antonio Angotti, at Northamp-
ton, on Aug. 26, 1917. He was arraigned Oct. 18, 1917, and
pleaded not guilty. David H. Keedy, Esq., and Thomas R.
Hickey, 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.
Fred Gallerani, indicted in Hampden County, December,
1917, for the murder of Delerosa Gallerani and Clemente
Martoni, at West Springfield, on Oct. 11, 1917, and Emelie
Gallerani, at Agawam, on Oct. 13, l0l7. He was arraigned
Dec. 28, 1917, and pleaded not guilty. Frank M. ZottoU,
Esq., and Silvio Martinelli, 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.
Lincoln M. Grant, indicted in Berkshire County, July,
1917, for the murder of Miles Hewitt, at Pittsfield, on
Feb. 26, 1917, and Margaret Hewitt, indicted for being
accessory before the fact to the murder of Miles Hewitt.
The defendants were arraigned July 26, 1917, and each
pleaded not guilty, Robert M. Stevens, Esq., appeared as
counsel for the defendant Lincoln M. Grant, and Patrick
J. Moore, Esq., appeared as counsel for the defendant Mar-
garet Hewitt. No further action has been taken in this case.
The case is in charge of District Attorney Joseph B. Ely.
Michael Hennigan, indicted in Suffolk County, April,
1917, for the murder of Mary Hennigan, on March 10, 1917.
He was arraigned April 25, 1917, and pleaded not guilty. On
May 31, 1917, the defendant was committed to the Bridge-
water State Hospital for observation. The case is in charge
of District Attorney Joseph C. Pelletier.
Paul Karpuck, indicted in Hampden County, September,
1917, for the murder of Michael Karpuck, at Russell, on
Aug. 27, 1917. He was arraigned Sept. 21, 1917, and pleaded
XX ATTORNEY-GENERAL'S REPORT. [Jan.
not guilty. Thomas J. Collins, 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.
Antonio LaValle, indicted in Suffolk County, October,
1917, for the murder of Frank Rappello and Marie Sarni, at
Boston, on Aug. 27, 1917. The defendant has not yet been
arraigned. T. J. Grady, Esq., appeared as counsel for the
defendant. The case is in charge of District Attorney Joseph
C. Pelletier.
Daniel Manzeiu, indicted in Essex County, September,
1916, for the murder of Yousefka Manzeiu, at Peabody, on
Aug. 28, 1916. Sept. 16, 1916, the defendant was committed
to the Dan vers State Hospital for observation. The case
is in charge of District Attorney Louis S. Cox.
George L. Rollins, alias, indicted in Suffolk County,
March, 1917, for the murder of Ordway R. Hall, at Boston,
on Feb. 21, 1917. He was arraigned April 20, 1917, and
pleaded not guilty. Herbert L. Baker, 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. Pelletier.
George L. Rollins, alias, and Charles Rollins, in-
dicted in Suffolk County, March, 1917, for the murder of
Edward T. Foley, at Boston, on Feb. 17, 1917. They were
arraigned April 20, 1917, and pleaded not guilty. Herbert L.
Baker, Esq., appeared as counsel for the defendants. No
further action has been taken in this case. The case is in
charge of District Attorney Joseph C. Pelletier.
Nathan Schwartz, indicted in Suffolk County, December,
1917, for the murder of Emil Knab, at Boston, on Nov. 10,
1917. The defendant has not yet been arraigned. The case
is in charge of District Attorney Joseph C. Pelletier.
1918.] PUBLIC DOCUMENT — No. 12. xxi
Stavrous Zaroulas, indicted in Essex County, January,
1917, for the murder of Theodore Mandragouras, at Peabody,
on Dec. 9, 1916. He was arraigned Feb. 2, 1917, and pleaded
not guilty. Patrick F. Shanahan, 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.
Grade Crossings.
The following is the report of the work done in connec-
tion with the elimination of grade crossings during the year
1917: —
Four hearings before commissions and auditors have been
attended.
No construction work has been done during the year.
Statements of expenditures, numbering 3, amounting to
$10,865.13, have been examined, and objection to items
amounting to $146.51 has been made.
The principal work has been done in connection with the
expenditures for the elimination of the grade crossings at
Lynn. The engineers of the parties in interest have held
many conferences, 37 of which have been attended by the
engineer having in charge grade crossings matters for this
department. The entire charges have been examined in
detail, and an agreement has been reached as to the amount
properly apportionable.
Boston & Maine Railroad.
In my report for the year 1916 I brought to the attention
of the Legislature the situation in which the Commonwealth
was placed by the appointment of a receiver of the Boston
& Maine Railroad.
On Aug. 29, 1916, a temporary receiver of the railroad
was appointed, and has continued to act as such temporary
receiver since that time. On Feb. 26, 1917, a decree on a
petition previously filed by the Commonwealth was entered,
admitting the Commonwealth as a party to the proceedings.
On the same day a memorandum of decision was filed by the
court, on the application for the appointment of a perma-
xxii ATTORNEY-GENERAL'S REPORT. [Jan.
nent receiver, that a receiver ought to be appointed. The
decision provided that the complainant might present a
decree to that end on due notice to other parties. No
decree has ever been entered in accordance with this de-
cision, and the road has continued to be operated by the
temporary receiver. The Commonwealth has taken no
action toward compelling compliance with this decision and
the appointment of a permanent receiver, for the reason
that it was represented to me that there was strong prob-
ability that an agreement might be arrived at between the
Boston & Maine Railroad and its various leased lines for a
reorganization of the road properly safeguarding the rights
of the Commonwealth. It seemed to both the counsel for
the receiver and myself that if a reorganization could be
effected within a reasonable time it was better that the tem-
porary receiver should continue to operate the road without
the entry of a decree making the receivership permanent, as
in the event of a satisfactory reorganization there w^ould be
less difficulty in arranging for the discharge of the receiver-
ship proceedings, and many other embarrassing complications
would be avoided, while at the same time the interests of all
parties would be safeguarded.
This position was justified so long as the operation of
the railroad resulted in the return of a net income after
due allowance for depreciation. The experience of the rail-
road, however, during the last few months has caused appre-
hension that this could not be achieved. On the other
hand, conditions arising out of the war are such as to make
it very improbable that a reorganization on the lines orig-
inally proposed can be effected. The situation, therefore, at
the time the road was taken possession of by the United
States government, on Dec. 28, 1917, by proclamation of the
President, was such as to indicate that it would be necessary
to make the receivership permanent, and that a liquidation
of the railroad would result. Under such liquidation the
Commonwealth, without further legislation, would not be in
a position to protect its interest in the proceedings. It holds
$5,000,000 of bonds of the railroad, acquired in 1900 at the
time of the lease of the Fitchburg Railroad to the Boston &
1918.] PUBLIC DOCUMENT — No. 12. xxiii
Maine Railroad in exchange for 50,000 shares of the com-
mon stock of the Fitchburg Railroad. Upon these bonds
there is now due accrued interest amounting to about
$225,000. These bonds are unsecured. In order to insure
that these bonds and interest will be paid upon any sale of
the road, a price necessarily must be realized sufficient to
pay at least all outstanding bonds with accrued interest,
together with the floating indebtedness.
There are at present outstanding bonds of the Boston &
Maine Railroad amounting to $43,338,000. All of these
bonds are unsecured, with the exception of $1,000,000 of
the Portsmouth, Great Falls & Conway Railroad Company
and $1,265,000 of the Worcester, Nashua & Rochester
Railroad Company, which are secured by mortgages of the
property acquired by the Boston & Maine Railroad from
these railroad companies, and $1,919,000 worth of bonds of
the Boston & Maine Railroad which are partially secured
by a sinking fund. The floating indebtedness amounts to
$13,306,060. That a sale of the road might not realize
an amount sufficient to pay these obligations in full, under
the present financial conditions of the country, is by no
means improbable. There is no assurance of the payment
of the Commonwealth's claim in full unless some method
is provided by which the Commonwealth can appear as a
competitor for the purchase of the property of the railroad
in the event of a proposed sale by the receiver.
I recommend, therefore, that provision be made authoriz-
ing representatives of the Commonwealth to take such steps
as may become necessary to protect the interests of the Com-
monwealth in the disposition of the road and its leased lines.
Of course this would include authority to purchase the road
and leased lines, with provision for financing the same, and
would of necessity impose the obligation of operation until
such time as it might be deemed expedient to sell the
road to others. I realize that there may be some objec-
tions suggested as to the Commonwealth's putting itself in a
position that may result in its owning and operating a rail-
road. On the other hand, I know of no other way that the
Commonwealth may be sure of protecting its interests, and
xxiv ATTORNEY-GENERAL'S REPORT. [Jan.
for the Commonwealth to take such a position is not novel.
By authority of the following statutes the Commonwealth
made loans to the following railroads, and in each instance
took a mortgage to secure the loan: St. 1854, c. 266, to the
Troy & Greenfield Railroad; St. 1867, c. 321, to the Wil-
liamsburg & North Adams Railroad; St. 1868, c. 313, to the
Lee & New Haven Railroad.
By St. 1860, c. 202, the terms of the loan to the Troy &
Greenfield Railroad were modified and the railroad was re-
quired to purchase the Southern Vermont Railroad and to
transfer the same to the Commonwealth as security for a
loan then made and as additional security for the previous
loan. The Southern Vermont Railroad was a railroad lying
in Vermont,' connecting the Troy & Boston Railroad with
the Troy & Greenfield Railroad. On Sept. 4, 1862, the Com-
monwealth took possession of the Troy & Greenfield Railroad
and acquired title to the Southern Vermont Railroad by virtue
of the provisions of St. 1862, c. 156, and the Commonwealth
completed the Hoosac Tunnel and the Troy & Greenfield Rail-
road at a total expense of about $17,000,000, and opened
them for use about June 30, 1876. From 1876 to 1880 the
railroad and tunnel were under the management of a man-
ager appointed by the Governor and Council, the road being
used by all connecting railroads upon the payment of tolls
prescribed by the Governor and Council. In 1880, by St.
1880, c. 261, contracts were made with the Fitchburg Rail-
road Company and the New Haven & Northampton Rail-
road Company for the operation of that portion of the road
east of North Adams, and with the Troy & Boston Railroad
Company and the Boston, Hoosac Tunnel & Western Rail-
road Company for the operation of that portion west of
North Adams. This continued until 1885, when by an act
of the Legislature (St. 1885, c. 297) a consolidation of the
Troy & Greenfield Railroad and the Hoosac Tunnel with
the Fitchburg Railroad was effected. Under the terms of
the consolidation the Commonwealth received 50,000 shares
of the common stock of the consolidated company and
S5,000,000 worth of bonds, payable in fifty years, and pro-
vision was made for the appointment by the Commonwealth
1918.] PUBLIC DOCUMENT — No. 12. xxv
of three of the directors. In 1890 (St. 1890, c. 101) the
Governor and Council were authorized to sell and convey
the Southern Vermont Railroad to the Fitchburg Railroad
Company. Thus from 1876 to 1885 the Commonwealth
owned the Troy & Greenfield Railroad and the Hoosac
Tunnel, and until 1890, the Southern Vermont Railroad.
By St. 1836, c. 131, the Commonwealth subscribed to the
stock of the Western Railroad, and by the same act provided
for the election by the Commonwealth of three of the nine
directors of the corporation. Furthermore, municipal aid has
been authorized by the Legislature to railroad companies by
the following statutes: St. 1852, c. 156; St. 1855, cc. 394
and 395; St. 1860, cc. 34 and 184; St. 1861, c. 98; St.
1862, cc. 56 and 78; St. 1863, cc. 96, 104 and 105; St. 1864,
cc. 11, 242, 245, 246, 249 and 260; R. L. c. Ill, § 49.
Nor does there seem to be any constitutional objection to
the acquisition of the Boston & Maine Railroad by the Com-
monwealth, notwithstanding the fact that certain portions of
it lie outside of the boundaries of the Commonwealth.
Railroad Co. v. County of Otoe, 16 Wall. 667. In fact, as
appears above, the Commonwealth has in the past owned a
railroad outside the Commonwealth.
On the other hand, there are some advantages which can
be suggested as to the ownership of the Boston & Maine
Railroad, together with the lease of the Fitchburg Railroad
to the Boston & Maine Railroad, which in a measure, at
least, offset objections to public ownership. The acquisition
of the Fitchburg Railroad line would be a concomitant to
the development of the port of Boston, undertaken by the
Commonwealth, in that it provides a direct connection
with transportation lines from the west with the port of
Boston, and would probably place a means in the hands of
the Commonwealth of insuring the same freight rates
between points in the west and Boston as will obtain between
the same points and New York. It may be of interest in
this connection to note that the principal argument ad-
vanced for the construction of the Hoosac Tunnel and the
Troy & Greenfield Railroad was that their construction
would tend to develop the port of Boston by providing direct
xxvi ATTORNEY-GENERAL'S REPORT. [Jan.
connection with the west. It may be suggested that the
action of the United States government in taking possession
of the Boston & Maine system removes any difficulties in
relation to the Commonwealth being protected. This, in
my opinion, is by no means clear. It depends upon many
contingencies, the most important of which is the length
of the war.
Taxation of Public Service Corporations.
A serious situation has arisen in relation to taxes assessed
upon street railways which has brought to my attention the
weakness of the provisions of law relative to the collection
of taxes assessed upon public-service corporations.
This year a number of street railway companies have
failed to pay their State taxes when due. Among these was
the Bay State Street Railway Company, from which there
was due to the Commonwealth at the time its property was
placed in the hands of a receiver, Dec. 12, 1917, by the
District Court of the United States for the District of
Massachusetts, a corporate franchise tax of $81,467.54, wdth
interest from Oct. 20, 1917. There was also due $225,698.51
to various cities and towns on account of commutation taxes,
and taxes amounting to $151,807.10 oh property assessed
in various cities and towns of the Commonwealth. At the
same time there would shortly become due from the com-
pany amounts for interest on bonds and rental on leases
assumed by the Bay State Street Railway Company upon
the consolidation of the Old Colony Street Railway Company
and the Boston & Northern Street Railway Company,
amounting to $164,542.50, a default in payment of which
might result in a disintegration, in part, of the system. In
addition to the above there fell due on Jan. 1, 1918, $161,760
for interest upon bonds secured by a mortgage of the Boston
& Northern Street Railway Company, and $135,760 for
interest due upon bonds secured by a mortgage of the Old
Colony Street Railway Company.
It appears from a petition filed by the receiver on Dec. 27,
1917, that the company, prior to the receivership, had taken
from its current earnings and applied to the reconstruction
1918.] PUBLIC DOCUMENT — No. 12. xxvii
and betterment of its several properties and to the payment
of other capital charges an aggregate amount in excess of
the amount due on taxes and mortgage interest above
referred to, and that, because of the inability of the Bay
State Street Railway Company to sell its securities, this
amount had never been capitalized or returned to income.
I have felt it my duty to insist, in so far as it lay in my
power, that the corporate franchise tax should be paid, or
adequate security given for its payment, at the same time,
or before, the payment of interest upon the bonds of the
Boston & Northern Street Railway Company and of the Old
Colony Street Railway Company. The payment of this tax
has been resisted by the bondholders. But for the danger of
interruption of the service, which would necessarily incon-
venience the traveHng pubHc, I should have felt it my duty
to insist that the tax should be paid by the receiver before
any money should be disbursed by him for the payment of
any interest or rentals. In my judgment the various cities
and towns are justified in taking the same attitude as the
Commonwealth in relation to the commutation taxes due to
them. If successful this attitude upon the part of the
Commonwealth and the cities and towns may result in
affecting injuriously, if not altogether wiping out, the equity
of the Bay State Street Railway Company.
The means provided for the enforcement of the payment of
corporate franchise taxes against public-service corporations
is by information brought in the Supreme Judicial Court by
the Attorney-General at the relation of the Treasurer and
Receiver-General. The court is authorized to issue an
injunction upon such information, restraining the further
prosecution of the business of the company until the tax is
paid. The Treasurer and Receiver-General may also bring
an action of contract to recover the same in the name of the
Commonwealth or may issue a warrant of distress. The
means of collecting the commutation tax assessed on street
railways is by suit and execution or distress; and the pro-
visions for collecting local taxes assessed upon public-service
corporations are the same as apply to the collection of local
taxes generally.
xxviii ATTORNEY-GENERAL'S REPORT. [Jan.
Therefore it is obvious that if a pubHc-service corporation
diverts income which should be appHed to taxes, and it has
no money, and can borrow none to pay the same, the
officials charged with the duty of collecting the taxes have no
means of collecting them except by taking steps to prevent
the corporation from further transacting its business, or by
seizing and selling property necessary for the purposes of
the business. In other words, the public must go without
the taxes or without the public service upon which it depends
for its business and comfort.
Sound business judgment would seem to dictate that debts
other than those required by law or public safety should not
be incurred before the capital is available to meet the debts,
and that income required to meet taxes or other obligations
due the government should not be diverted to other purposes.
I presume it may be claimed that in many instances the
income is not sufficient under the present rates to pay
operating and other expenses required by law and public
safety, and at the same time reserve sufficient income to
meet taxes. If this is so, it is obvious that if the public
utility is to be maintained by private capital relief must be
obtained in one of two ways, or possibly both, namely, by
an increase in the rates or by public aid through the elimina-
tion of taxes or some other method. If to pay operating
expenses, fixed charges and taxes it is necessary to raise the
rates to any very material extent, it seems to me wise to
abandon some of the present forms of taxation. This is all
the more so because there is a limit to the extent that fares
may be raised without causing a reduction instead of an
increase in income. In the main there is no more reason
for taxing a public utility operated by private capital than
if owned and operated by the public, except that it yields
a gain to the private capital invested. Nor is it sound,
in my opinion, to take the attitude that those who travel
upon a street railway are the only members of the public
benefited by it, and that therefore the entire burden of its
maintenance should be assessed upon them. The life and
welfare of the Commonwealth are so interwoven and depend-
ent upon adequate facilities for transportation and travel
1918.] PUBLIC DOCOIEXT — Xo. 12. xxix
that it may well be argued that the general public is so
vitally concerned in street railways that they may properly
be relieved from substantially all taxation except such as is
necessary to equitably distribute the burden upon the com-
munities served.
I am strongly of the opinion, however, that if any action
is taken relieving street railways of tax burdens or giving to
them other State aid, then the surplus earnings over and
above what is necessary to insure a fair return to private
capital invested should be turned into the treasury of the
Commonwealth, there to be distributed for public purposes
as may be deemed expedient.
To prevent the diversion by public-service corporations
of income that should be applied to the payment of taxes
and other public charges, I recommend that provision be
made requiring the setting apart by the corporation of a
sufficient reserve to meet said taxes and charges when due.
I also recommend that provision be made for a closer
supervision of the operation of such corporations and their
expenditures. In my judgment there should be limitations
placed upon the application of income to purposes that
should be provided for by capital, supplementing laws
already existing limiting the application of capital to pur-
poses that should be provided for by income. In the larger
corporations I believe these results can best be secured by
providing for representatives of the Commonwealth, with
adequate powers, upon the boards of directors of the cor-
porations. State directors would insure a closer harmony
between the corporations and the commissions regulating
them, and a more frank disclosure of their conditions and
methods of operation. Further, such a provision would
tend to assure the public that all the money of the corpora-
tions would be devoted exclusively to their legitimate busi-
ness. Xor do I see how this can be objectionable to the
investing public. Such action, in my opinion, would tend to
stabilize the value of their securities.
Representation of the Commonwealth upon boards of
directors of public-service corporations is not without prec-
edent in this Commonwealth. Such action was taken by the
XXX ATTORNEY-GENERAL'S REPORT. [Jan.
Commonwealth when it possessed 50,000 shares of the com-
mon stock of the Fitchburg Railroad Company, and in the
instance of the Western Railroad, where provision was made
for the election by the Commonwealth of three of the nine
directors of that corporation.
Insurance Receiverships.
During the past year it has become my duty, at the
relation of the Insurance Commissioner, to institute pro-
ceedings to wind up several insurance companies by applica-
tion to the Supreme Judicial Court for an injunction against
the further prosecution of business, and for the appointment
of a receiver to collect the assets and distribute the same to
those entitled thereto.
Most of these corporations have been small fraternal
benefit societies, having but a few thousand dollars of assets.
The almost invariable practice is to appoint some disin-
terested attorney as receiver. Such a person must spend
time in making the investigation invariably necessary for a
stranger to familiarize himself with a new business, decide
how best to close the affairs of the corporation, and then
proceed to do so. The expense for all of this is paid out of
the assets. Thus it may frequently happen, in cases where
the assets are small, that they are entirely exhausted by the
expenses of administration.
In all of these cases the Insurance Commissioner, or his
deputies, must have become quite familiar with the affairs of
the society in order to reach the conclusion that it should be
wound up, and therefore are in a position to do the remain-
ing work of closing up the affairs of the corporation with
very little additional exertion. The commissioner is also
required at present to audit the accounts of all receivers.
In several States at the present time, notably in New
York, the Insurance Commissioner acts as official liquidator
in all cases where a receiver is needed.
While I am not prepared at the present time to advise the
adoption of the New York practice, I am of the opinion that
in small cases, w^hich could be attended to with practically
no interference with the regular work of the insurance
1918.] PUBLIC DOCUMENT — No. 12. xxxi
department, the court should be free to appoint the In-
surance Commissioner, or some deputy, as receiver, without
any compensation therefor in addition to his regular salary.
There can be little question but that the business of such
companies and societies would be more speedily disposed of,
and with the elimination of receivers' fees the creditors and
members would receive more out of the assets.
Accordingly, I recommend the passage of an act to effect
this end.
Tax Collectors.
The efforts made by this department to enforce the provi-
sions of St. 1912, c. 272, relative to actions against tax
collectors of cities and towns for failure to make collections
and returns within the three-year period have indicated the
desirability of more efficient supervision of tax collectors.
This statute provides that whenever it shall appear to the
Tax Commissioner that at the end of three years taxes
remain uncollected, or, if collected, have not been turned
over to the treasurer of the city or town, the commissioner
shall, unless further delay is deemed expedient, bring suit
against such collector on his bond, said action to be pros-
ecuted by the Attorney-General. Each year these reports
have been so numerous as to require a large part of the
time of one assistant, during the past year more than one
hundred cases being reported by the Tax Commissioner.
Upon investigation it appears that in some cases the assessors
of the cities and towns have refused to abate taxes where
abatement was proper, while in others the collectors have
failed to issue their warrants for arrest, or to sell real estate
as required by law. In, many instances it is claimed that
the collectors have failed to do their full duty because of
their belief that to do so would mean the loss of their office.
A collector of taxes ought not to be influenced in the dis-
charge of his duties by fear or favor. His duties are specifi-
cally defined by law, and there is room for very little dis-
cretion in the performance of those duties.
So long as the Tax Commissioner has been given the
responsibility of enforcing the hability of tax collectors upon
their bonds, it seems desirable, and I so recommend, that
xxxii ATTORNEY-GENERAL'S REPORT. [Jan.
provision be made authorizing towns at town meetings, and
cities by vote of the city council or board exercising the
powers of a city council, to provide for the appointment and
removal of collectors in their municipalities by " the Tax
Commissioner. I am of the opinion that such a pro\asion
cannot be seriously objected to as an interference with local
self-government.
College of Physicians and Surgeons.
This college was given the power to confer the degree of
doctor of medicine by St. 1883, c. 153. Complaints have
been made at this office that this college is no longer main-
tained at such a standard as to warrant its being further
allowed to grant such degree. Investigation made by the
District Police seems to justify the complaints. I therefore
recommend that the power to grant degrees of doctor of
medicine be taken away from the college. I understand the
Board of Registration in Medicine concurs in this view.
Retirement of Veterans of the Civil War.
I renew the recommendation made by me last year, that
the provisions of St. 1907, c. 458, § 1, as amended by Gen.
St. 1915, c. 95, providing for the retirement from active
service of veterans of the Civil War, be amended so as to
provide that a veteran who shall be deemed to be incapaci-
tated for active service, and who has been in the service of
the Commonwealth 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 Commonwealth.
District Police.
A petition has been presented to the General Court by the
district attorneys of several districts requesting legislation
for the separation of the detective department of the District
Police from the boiler and inspection department. I under-
stand they feel that better service would be rendered to them
in the investigation and preparation of criminal cases by
such action. Men trained in the work required should be
1918.] PUBLIC DOCUMENT — No. 12. xxxiii
available at all times for the needs of the district attorneys.
This cannot be accomplished unless they are free to devote
their entire time to the work.
I recommend that careful consideration be given to the
desires of the district attorneys, and that such legislation be
enacted as is necessary to insure a trained force of men who
are at all times available for their purposes.
Foreign Corporations.
My attention has been called to the fact that apparently
a foreign corporation may maintain a place of business in this
Commonwealth without complying with the provisions of our
statutes requiring the appointment, in writing, of the Com-
missioner of Corporations its attorney upon whom all lawful
process may be served, and the filing of a popy of its charter
and by-laws with the Commissioner, without the officials of
such corporation incurring any personal liability. It is true
that under the provisions of our statutes the officers of the
corporation and agents who transact the business are subject
to a criminal penalty, but where the officers are not in the
State while the business is being transacted they are probably
not subject to this penalty.
I recommend that provision be made making the officers
of a foreign corporation which fails to comply with said
provisions of law, and its agents transacting its business in
this Commonwealth, liable for all the debts and contracts
of the corporation contracted or entered into by it while
transacting business in violation of our law.
Department of the Attorney-General.
The number of official opinions rendered by the depart-
ment during the year, up to Jan. 1, 1918, was 183. The
number of cases tried in the Probate Court was 13, and 2
cases were tried in the Land Court. The number of cases
tried in the Superior Court was 12. Twenty-seven hearings
before a single justice of the Supreme Judicial Court have
been attended, and there have been 19 cases argued before
the Supreme Judicial Court. 'There have been 4 cases argued
before the United States Supreme Court, 1 case before the
xxxiv ATTORNEY-GENERAL'S REPORT. [Jan. 1918.
Court of Claims, and 4 cases before the United States Dis-
trict Court for the District of Massachusetts. In addition
there have been 9 hearings before the Industrial Accident
Board of Massachusetts.
The collections of the department amounted to $549,-
289.90.
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,
A tiorney-General .
OPINIONS.
Public Warehouseman — Definition of.
A department store which has a cold-storage department for the storage
of fm-s of its customers is required to file a bond and procure a license
as a public warehouseman, under the provisions of Gen. St. 1915,
c. 98, if it makes a charge for such storage or if such storage was not
part of the arrangement entered into when the furs were purchased
by the customer; otherwise it is not required to do so.
Jan. 25, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — I acknowledge your request for my opinion as to
whether or not a department store which has a cold-storage
department for the storage of the furs of its customers is
required to file a bond and procure a license as a public ware-
houseman under the provisions of Gen, St. 1915, c. 98.
That act defines a public warehouse and a public ware-
houseman in the following terms: —
The words ''public warehouse," as used in this chapter, shall mean
any building, or part of a building, kept and maintained for the storage
of goods, wares and merchandise as a business; and the words "public
w^arehouseman " shall mean any person, corporation, partnership,
association or trustees keeping and maintaining a public warehouse as
defined in this section.
The warehouse receipts act (St. 1907, c. 582) contains the
following definition: —
"Warehouseman" means a person la-w^ully engaged in the business
of storing goods for profit.
The foregoing definitions are very broad, and, in my opin-
ion, include all persons or corporations engaged in storing any
goods, wares or merchandise for profit.
Accordingly, if a department store makes a charge to its
customers for the storage of furs, it comes within the provi-
2 ATTORNEY-GENERAL'S REPORT. [Jan.
sions of Gen. St. 1915, c. 98, and is required to file a bond
and procure a license as a public warehouseman. If such
department store is storing furs for its customers without
making a charge therefor, or as part of an arrangement en-
tered into when the furs were purchased by the customer, in
my opinion it does not come within the provisions of the
statute.
Yours very truly,
Henry C. Attwill, Attorney-General.
Insurance — Form of Policy — Duty of Insurance Commissioner
in approvi?ig.
Whether the issuance by an insurance company of a poL'cy of accident
insurance containing no provision for cancellation by the company
is a violation of St. 1910, c. 493, quaere.
The fact that the Insurance Commissioner approved the form of such a
policy does not constitute evidence either of incompetency or failure
to act honestly or in good faith.
Jan. 26, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You have requested my opinion upon the matters
of law raised by reason of objection made to the action of the
Insurance Commissioner in approving a certain policy form of
accident insurance.
Apparently this form was filed with the commissioner and
approved by him under the provisions of St. 1910, c. 493, § 1.
It was to be known as a non-cancelable policy, and contained
neither in form nor substance the provisions of the clause
numbered 8 in said section.
The statute mentioned provides that no policy of accident
insurance shall be issued in this Commonwealth until a copy
has been filed with the Insurance Commissioner at least thirty
days, unless before the expiration of that time he approves
it in writing, nor if the Insurance Commissioner notifies the
company that in his opinion the form does not comply with
the law, nor unless it is in certain form and contains certain
provisions. These provisions are set forth in subsections 1 to
9, inclusive.
Section 2 of the act provides that no policy shall be issued
if it contains, in substance, certain specified provisions.
1918.] PUBLIC DOCUMENT — No. 12. 3
Section 7 provides that any company or officer thereof
"which issues or delivers in this commonwealth any accident
or health policy or contract in wilful violation of the provi-
sions of this act, shall be punished by a fine of not more than
five hundred dollars for each offence, ..."
This statute in substance and form is analogous to pro-
visions of law applicable to life insurance companies and
policies which had been in effect for some years. Those
provisions have been interpreted by the Supreme Judicial
Court, and so far as the enactments are the same, by a familiar
rule of construction, the interpretation under the present act
would also be the same. In jEUia Life Ins. Co. v. Hardison,
199 Mass. 181, at 187, Knowlton, C.J., says: —
Another question is whether the provisions which, in substance, must
be inserted in the policy, must appear in a form substantially identical
with that given in the statute, or whether it is enough if they contain
everything, in meaning and legal effect, that the statute prescribes,
and at the same time include other things relating to the same subject,
no one of which impairs the force of that which is prescribed for the
benefit of the insured. Inasmuch as the ten provisions referred to and
the other prescribed parts of the policy were intended for the protec-
tion of the policy holder, we are of opinion that, if they are contained
in substance in the policy, their form may be varied, and additional
provisions beneficial to the insured may be inserted, provided the
requirements of the statute are satisfied, and are left undiminished by
that which is added.
In Neiv York Life Ins. Co. v. Hardison, 199 Mass. 190, it
was held that a variation from the provisions required by the
statute, by inserting terms more favorable to the insured than
those prescribed, was permissible, and the action of the Insur-
ance Commissioner in disapproving a policy under those
circumstances was held to be erroneous.
The court says, at page 194: —
No departure from the exact provisions required by the statute
should be permitted, unless it is too plain for doubt that the substitu-
tion is in every way as advantageous to the insured and as desirable
as the prescribed provision.
Other language in the opinion indicates that the examina-
tion of the commissioner is to make sure that "everything
secured to the insured by the statute is secured by" the
language of the policy.
4 ATTORNEY-GENERAL'S REPORT. [Jan.
So far as the provisions of this statute were enacted for the
sole purpose of protecting the assured, the principles of the
foregoing cases would seem to govern.
A decision as to the correctness of the commissioner's ruling,
therefore, would depend on a determination of the intent and
purpose of the Legislature in the enactment of St. 1910, c.
493. Many of the requirements of this act appear clearly to
be in the interest of the policyholder, and to constitute pro-
tection against imposition on the assured.
Some of the required terms, however, do not, on their face,
indicate such an intention, and no doubt arguments entitled
to careful consideration could be made that the clause relating
to cancellation is in the interest and for the protection of the
company. The language of the statute is as follows: —
8. A provision that the policy may be cancelled at any time by the
company by written notice delivered to the insured or mailed to him at
his last address as shown by the records of the company and the tender
of the company's check for the unearned portion of the premium, but
that such cancellation shall be without prejudice to any claim arising
on account of disability commencing prior to the date on which the
cancellation takes effect.
Nevertheless, under this requirement certain protection to
the assured is created, in that cancellation can be made only
by (1) a tvritten notice to the assured, (2) tender of check for
the unearned portion of the premium, and (3) without preju-
dice to any claim on account of disability commencing prior
to the date on which cancellation takes effect.
Insurance policies might conceivably contain, and un-
doubtedly in times past frequently have contained, cancella-
tion clauses containing no such safeguards, and it may be that
the Legislature intended, by the enactment of this provision,
only to require cancellation clauses, when inserted, to contain
at least this much protection to the assured.
A knowledge of the forms of policies issued prior to the
enactment of the statute, of the history of the accident and
health insurance business, and the conditions surrounding and
affecting the same, such as the Insurance Commissioner is
especially qualified to possess, would aid in determining the
probable intention of the Legislature, and I am not prepared
to say that his opinion was erroneous.
It hardly seems to me that a decision of that question is
necessary for disposition of the present complaint.
1918.] PUBLIC DOCUMENT — No. 12. 5
The Insurance Commissioner, by his approval under this
statute, confers no substantive rights upon the insurance
company. The only effect of the approval is to permit the
company to begin issuing policies, if they in fact conform to
the law, without awaiting the expiration of the period of thirty
days after filing with the commissioner.
If thirty days expire and the commissioner does nothing,
the company may then proceed to issue policies, provided
they actually do comply with the law. If the commissioner
notifies the company that in his opinion the policy does not
comply with the requirements of the statute, the company
may have the commissioner's opinion reviewed by the Supreme
Judicial Court. But even though the commissioner were pal-
pably wrong in his opinion, the company is forbidden to issue
the policy until his action shall have been reversed by the
court. In other words, the Legislature has placed in the hands
of an administrative officer the power of suspending business
which seems to him improper, pending a decision by the
court. Obviously, this is an important restriction of an
important business, to be exercised with discretion and not
upon mere suspicion. The court has said: *' His duty was to
approve of every form of policy that seemed to him correct."
(199 Mass. at 197.)
If the approval of the commissioner were a grant of some
right, he might well be overcautious in the matter of approval,
compelling the companies to take an appeal in all doubtful
cases. In the present case, however, the prohibition of the
statute remains absolute, regardless of his action, and if the
policy is contrary to the terms of the statute, the company,
and its agent issuing the same, may be prosecuted in the
criminal courts. Any person who feels that the law is being
violated can present a complaint to the proper court or dis-
trict attorney.
In view of the language quoted above, it would not seem
that the Insurance Commissioner had acted improperly, even
though he were mistaken in his opinion, but that so long as
he honestly held the opinion that the policy was lawful he
ought not to interfere with the business of a company by dis-
approving the form.
The issues presented to Your Excellency by such a com-
plaint as this must be based on a charge of incompetency or
failure to act honestly or in good faith.
The fact that the commissioner has acted in the manner in-
6 ATTORNEY-GENERAL'S REPORT. [Jan.
dicated and approved the form of policy stated does not, in
my opinion, constitute evidence of either. Certainly the tend-
ency of the decisions of the Supreme Judicial Court is along
the line of this decision rather than contrary to it. His letter
to the protestant shows a knowledge of the important cases
upon the point, and an intention to make his action comply
with those cases and the law, as understood by him. There is
no suggestion of improper or corrupt motives.
Accordingly, I do not see that the papers and facts sub-
mitted to me call for any action on the part of Your Excel-
lency.
Very truly yours,
Henry C. Attwill, Attorney-General.
Tax Returns — Board of Assessors of Everett — Power of Mayor.
While two members of the board of three assessors of the city of Everett
remain in office, they are qualified to act as such board, and the
mayor of Everett has no power under the city charter to act as an
assessor, and consequently has no authority to inspect, under St.
1909, c. 490, pt. I, § 44, so much of the returns of taxpayers filed with
the Tax Commissioner as shows the details of the personal estate,
except by order of a court.
Feb. 3, 1917.
Hon. William D. T. Trefry, Tax Commissioner.
Dear Sir: — In your letter of Jan. 31, 1917, you ask my
opinion as to whether the mayor of Everett may lawfully
inspect the returns made to the board of assessors by tax-
payers, under the provisions of St. 1909, c. 490, pt. I, § 44.
You state that the question arises because one of the members
of the board of assessors of Everett has been appointed and
has qualified as a deputy to the income tax assessor for the
Middlesex district. I assume that the member referred to has
resigned from the board of assessors of Everett, as otherwise
I do not see how the question would arise.
Said section 44 provides that the lists returned by tax-
payers and filed with the Tax Commissioner "shall be open to
the inspection of the assessors, their assistants and clerks and
to the tax commissioner and his deputy, but so much of the
lists as shows the details of the personal estate to that of no
other person except by the order of a court."
1918.] PUBLIC DOCUMENT — No. 12. 7
Section 26 of the charter of the city of Everett (St. 1892,
c. 355) is as follows: —
The mayor shall be the chief executive officer of the city, and the
executive powers of the city shall be vested in him and be exercised by
him either personally or through the several officers and boards in their
respective departments, under his general supervision and control.
This section gives the mayor of the city broad powers. It
vests in him the executive power of the city, to be exercised
by him either personally or through the several officers and
boards in their respective departments, under his general
supervision and control. Read literally, this section would
seem to give him the power to perform any of the duties
imposed upon the several officers and boards in their respec-
tive departments at any time, irrespective of the question of
whether there were such officers or boards qualified to act.
The section, however, must be interpreted reasonably and
read in connection with the other provisions of the charter,
and with consideration to general statutes applicable to the
duties such officers and boards are appointed to perform.
Under section 35 of the charter it is the duty of the mayor
to appoint a board of assessors consisting of three persons.
The duties of assessors are particularly prescribed by the
statutes of the Commonwealth. These statutes, together with
the provisions of section 35, negative the idea that the duties
of the board of assessors are to be performed by the mayor,
if ever, when there is a board of assessors in existence, duly
qualified to act.
St. 1913, c. 835, § 408, provides that "there shall be three,
five, seven or nine assessors in each city and town, and as
nearly one third as may be of the number shall be elected or
appointed annually."
The only question that arises, therefore, in my judgment, is
whether there is a board of assessors duly qualified to act
when one member of three has resigned.
This question seems to be answered by the case of Cooke
v. Inhabitants of Scituate, 201 Mass. 107, in which it was
decided by the Supreme Judicial Court that, under a similar
statute relating to towns, two members of a board of three
assessors were qualified to act as such board after the third
member had died.
8 ATTORNEY-GENERAL'S REPORT. [Jan.
Accordingly, I am of the opinion that, upon the facts stated
by you, the mayor of Everett has no power to act as an as-
sessor, and consequently has no authority to inspect so much
of the returns made by taxpayers and filed with the Tax Com-
missioner as shows the details of the personal estate, except
by the order of a court.
Very truly yours,
Henry C. Attwill, Attorney-General.
Vacancy in Office of County Commissioner — Effect of Death of
Person elected before he qualifies.
Where a person who has been elected county commissioner dies before
quaLif}ing as required by R. L., c. 20, § 13, such death does not create
a vacancy in the board of county commissioners, as the member of
the board whose place the deceased was to have taken holds over,
under the provisions of St. 1913, c. 835, § 391, until his successor is
qualified.
Feb. 5, 1917.
Irving H. Gamwell, Esq., Clerk, County Commissioners for Berkshire
County.
Dear Sir: — I am in receipt of your letter in which you
state that the person who was chosen county commissioner
by the voters of Berkshire County at the last annual election
died without having taken the oath of office, the member of
the board of county commissioners whose place the deceased
was to have taken being still alive. You also state that
there are two county commissioners other than the persons
above referred to, and two associate commissioners, all duly
elected and qualified, whose terms of office have not yet ex-
pired, and my opinion is requested as to whether there is a
vacancy in the board of county commissioners; and if not, of
what three persons the membership of the board consists.
St. 1913, c. 835, § 391, provides that county commissioners
shall hold office for a term of three years, beginning with the
first Wednesday of January in the year succeeding their re-
spective elections, "and until their successors are chosen and
qualified." R. L., c. 20, § 13, provides that "county commis-
sioners before entering upon their duties shall be sworn, . . ."
If there had been a failure to elect a county commissioner
at the last annual election, a special election under the pro-
visions of St. 1913, c. 835, § 341, would have been necessary.
1918.] PUBLIC DOCOIENT — No. 12. 9
This section also provides that upon a vacancy in the office of
county commissioner a special election shall be had in like
manner, and that until such election, in the case of a vacancy,
the remaining county commissioners may appoint some person
to fill the office until a person is duly elected and qualified.
R. L., c. 20, § 20, relating to associate commissioners, pro-
vides that if a commissioner is interested in a question before
the board, if he is unable to attend or if there is a vacancy in
the board, the other member or members shall give notice to
one or both of the associate commissioners, as the case re-
quires, who shall then act as a member or members of the
board. I assume that there is in this case no question raised
as to the ineligibility of the commissioner on account of inter-
est or his inability to attend.
It is apparent that in this case there was no failure to elect,
so that it is necessary that a vacanc\' exist before a special
election can be held or before an associate commissioner may
be authorized to act as a member of the board.
Although no case has been decided in this Commonwealth
which passes upon the question of whether in the situation
here described a vacancy exists, the question has frequently
arisen in other jurisdictions, and it has almost uniformly been
held that there was no vacancy under provisions of law sub-
stantially the same as ours.
In Commoniccalth v. Hanlcy, 9 Penn. St. 513, Hanley was
elected clerk of court in October, 1845, and duly qualified.
The Constitution of Pennsylvania provided that such officers
should "hold their offices for three years, if they shall so long
behave themselves well, and until their successors shall be
duly qualified. Vacancies in any of said offices shall be filled
by appointments to be made by the governor." On the
second Tuesday of October, 1848, one Brooks was duly elected
as his successor, but died before qualifying. The Governor,
assuming that Hanley's office became vacant at the expiration
of the three years, appointed a successor. It was held by the
court that the appointment by the Governor was unauthor-
ized and invalid, since there was no vacancy, and that Hanley
continued to hold a valid title to the office.
To the same effect are the cases of State v. Metcalfe, 80
Ohio St. 244; State v. Hayes, 91 Miss. 755; and Kimherlim
V. State, 130 Ind. 120. In the last case one Tow was duly
elected township trustee in 1888 and duly qualified. At the
10 ATTORNEY-GENERAL'S REPORT. [Jan.
April election in 1890 Brown and Murray were the opposing
candidates for the office. On the day of the election, after
the polls were closed but before the result was announced,
Brow^n died. On the completion of the count it was found
that Brown was elected. Under the theory that there was a
vacancy in the office, an election was held in November,
1890, at which Tow and Kimberlim were the opposing candi-
dates. Kimberlim received a majority of the votes. It was
held by the court in this case, which was a proceeding to try
the title to the office, that Tow nevertheless continued to hold
title to it, since the Constitution provided that whenever the
term of any officer was fixed by law "the same shall be con-
strued to mean that such officer shall hold his office for such
term and until his successor shall have been elected and
qualified;" that there was, therefore, no vacancy to be filled
at the November election; and that the election of Kimberlim
was invalid. In this case the court says, at page 125: —
The weight of authority is that, where there exists a constitutional
provision such as we are now considering, a term of office fixed by
statute runs, not only for the period fixed, but for an additional period
between the date fixed for its termination and the date at which a suc-
cessor shall be qualified to take office. The period between the expira-
tion of the term fixed by statute and the time at which a successor shall
be qualified to take office is as much a part of the incumbent's term as
the fixed statutory period.
In discussing a similar question the court, in State ex rel. v.
Wright, 56 Ohio St. 540, speaking of the office of mayor,
said: —
His right to serve after the expiration of the designated period, until
the qualification of his successor, being conferred by statute at the
time of his election, is no less a part of his statutory term of office than
is the fixed period itself; and while he is so serving there can be no
vacancy in the office in any proper sense of the term, for there is an
actual incumbent of the office legally entitled to hold the same.
I beg to advise, therefore, that I am of the opinion that the
member of the board of county commissioners of your county
who was elected in November, 1913, still remains a legal
member of that board, and, accordingly, that there is no
vacancy in that office. It follows that an associate commis-
sioner would not be authorized to fill this office on the theory
1918.] PUBLIC DOCUMENT — No. 12. 11
that a vacancy existed, and that the board of county com-
missioners of your county now consists of the member elected
in 1913, the member elected in 1914 and the member elected
in 1915.
I have felt some hesitancy in advising your board upon
this question, as there is serious doubt as to whether I am
authorized by law to do so. Since, however, in the event that
your board should call a special election it would be my duty
to advise the Secretary of the Commonwealth as to his duty
to prepare ballots therefor, and in view of the importance
of the question, I have considered it appropriate in this in-
stance to advise you upon the questions propounded.
Yours truly,
Henry C. Attwill, Attorney-General,
Health, Local Board of — Authority of Mayor of Everett to
exercise the Powers of.
While there is in the city of Everett no board of health qualified to act,
the mayor may, under the charter of that city (St, 1892, c. 355),
exercise such powers of the board of health as have been delegated to
it by the city, but not such powers as have been conferred by law
directly upon that board.
Feb. 7, 1917.
Allan J. McLaughlin, M.D., Commissioner of Health.
Dear Sir: — My opinion is requested upon certain ques-
tions propounded to you by the agent of the board of health
of Everett. As all these questions are answered by a deter-
mination of whether there is at present in the city of Everett
a board of health duly qualified to perform the duties imposed
upon boards of health, and if not, whether the mayor can act
in its place, I think it sufficient to confine my opinion to such
determination.
R. L., c. 75, § 9, provides that "in each city except Boston
the board of health shall consist of three persons, one of whom
shall be a doctor of medicine and no one of whom shall be a
member of the city council."
You state in your communication that the mayor of Everett
has removed two members of the present board of health,
leaving only one member in office. Assuming these removals
were legal, I am of the opinion that there is now no board of
health in the city of Everett qualified to act as such.
12 ATTORNEY-GENERAL'S REPORT. [Jan.
The question arises, therefore, as to whether the mayor of
Everett is authorized to perform the duties of the board of
health, at least until such time as there is a board of health
duly qualified to act.
Section 26 of the charter of the city of Everett (St. 1892, c.
355) is as follows: —
The mayor shall be the chief executive officer of the city, and the
executive powers of the city shall be vested in him and be exercised by
him either personally or through the several officers and boards in their
respective departments, under his general supervision and control.
This section, together with other provisions of the charter,
gives the mayor very broad powers. In my judgment, he has
the power to exercise all executive powers of the city dele-
gated to the board of health, at least where there is no such
board duly qualified to exercise them.
A distinction should be made in this connection between
powers which have been conferred upon the city itself and
delegated by it to the officers by whom such powers are to be
exercised, and powers which are conferred by law, not upon
the city itself but directly upon certain officers. In the latter
case the powers exercised by such officers are in no sense de-
rived from the city.
With this distinction in mind it is clear that the powers
given to the mayor by the section above quoted include only
powers of the first class. While it is true that under another
section of the charter the mayor has the power to appoint,
with the approval of the board of aldermen, members of the
board of health, and to remove them at his pleasure, it by no
means follows that the powers which have been conferred
upon this board are powers belonging to the city.
As was said by the court in Johnson v. Somerville, 195 Mass.
370, at page 377, in speaking of a highway surveyor: —
The highway surveyor is elected by the inhabitants of the town
in town meeting. But that does not make him the agent or servant of
the town. The election of the highway surveyor no more makes him
the servant of the town than does the appointment of the police com-
missioner of the city of Boston by the Governor by and with the con-
sent of the Council make the police commissioner the agent or servant
of the Governor and Council. The way in which the highway surveyor
is made highwaj^ surveyor, namely, by election in town meeting, is not
material. When he is made highway surveyor he is an independent
public officer, whose duties and powers are prescribed by statute.
1918.] PUBLIC DOCOIEXT — No. 12. 13
To a large extent the powers of local boards of health are
conferred by general statutes of the Commonwealth, and the
duties of such boards of health are therein prescribed. When
acting under such powers and performing such duties, the
members of the board of health act as public officers, that is,
as agents of the State and not of the city. Attorney-General v.
Stratton, 194 Mass. 51; Hathaumy v. Everett, 205 Mass. 246;
Haley v. Boston, 191 Mass. 291.
So far as the board of health of the city of Everett acts as a
public board, performing duties imposed upon it directly by
the State, I am of the opinion that it does not exercise any
powers belonging to the city, and that the mayor has no
power to perform such duties in its place, whether they are
judicial, legislative or executive in their nature. In so far,
however, as the execution of powers belonging to the city
itself has been delegated by it to the local board of health, I
am of the opinion that they may be exercised by the mayor,
acting under the charter, at least where there is existing no
board of 'health qualified to act.
Very truly yours,
Henry C. Attwill, Attorney-General.
Insurance — Reinsurance of "Full Coverage'' Antomohile Policy
— Fire Insurance on Automobile wherever located.
Each of the particular hazards included in a ''full coverage" automobile
policy may be reinsured in a company authorized to insure against
that particular hazard, even though such company is not itself au-
thorized to issue a ''full coverage" automobile pohcy under St. 1907,
c. 576, § 32, cl. 2.
Insurance against fire upon movable risks of the sort specified in St. 1907,
c. 576, § 32, cl. 2, may be written either by a fire insurance company
or by a marine insurance company. If such a policy is written by a
fire or fire and marine insurance company it must be in the standard
form prescribed by section 60 of this statute, so far as that form is
applicable, but if such a policy is written by a marine insurance com-
pany it need not be in the standard form prescribed by section 60.
Feb. 19, 1917.
Hon. Frank H. Harbison, Insurance Commissioner.
Dear Sir: — I acknowledge your request for my opinion
as to whether, under the provisions of St. 1907, c. 576, § 20,
an insurance company authorized to transact in this Com-
monwealth the kinds of business specified in clause 2 of sec-
14 ATTORNEY-GENERAL'S REPORT. [Jan.
tion 32 of this statute, which issues a "full coverage" auto-
mobile policy, must, in case of reinsurance of any of the risks
covered by the policy, reinsure only in a company also au-
thorized to do business under clause 2.
Section 20 provides, in part, as follows: —
If a company authorized to transact the business of insurance in this
commonwealth directly or indirectly contracts for or effects any rein-
surance of any risk or part thereof taken by it, it shall make a sworn
report thereof to the insurance commissioner at the time of filing its
annual statement or at such other time as he may request; and such
reinsurance unless effected in companies authorized to transact in this
commonwealth the class of business reinsured shall not reduce the taxes
to be paid by it nor the reserve to be charged to it.
This section must be read in connection with the provision
of St. 1909, c. 490, pt. Ill, § 33, permitting a deduction in
determining the premium tax on such a company of "all
sums actually paid either to other domestic insurance com-
panies or to the agents of foreign companies for reinsurance on
risks, the premium on which, but for such reinsurance, would
be liable to taxation."
In my opinion, the words of section 20, "the class of busi-
ness reinsured," when read together with the above provision
of the tax act must be interpreted to refer to the particular
subordinate risk or hazard which is being reinsured, and as
merely one of the items of the general coverage policy. This
language was not intended to be used in the broader sense as
referring to the class of business authorized by clause 2,
treating that class as an indivisible whole. Thus, in my
opinion, when a marine company reinsures the fire or the
theft hazard included in a general coverage policy, that action
constitutes the reinsurance of fire or theft business within the
meaning of this provision. Consequently, such a company
may reinsure the fire hazard of such a policj^ with a company
authorized to do business under clause 1 of section 32, and
may reinsure the theft hazard of such a policy with a com-
pany authorized to do business under clause 11 of that sec-
tion, and nevertheless be entitled to credit for the premiums
paid on such reinsurance under the provisions of section 20
of the insurance law or section 33 of the tax act.
You also ask my opinion as to whether a policy insuring
an automobile or other movable personal property, wherever
located, against fire only comes within the provisions of clause
1918.] PUBLIC DOCUMENT — No. 12. 15
1 or clause 2 of section 32 of the insurance statute, and also
whether it must be issued upon the Massachusetts standard
form under the provisions of section GO.
The clauses of section 32 to which you refer are as fol-
lows: —
First, To insure upon the stock or mutual plan against loss or damage
to property and loss of use and occupancy by fire; explosion, fire
ensuing; explosion, no fire ensuing, except explosion of steam boilers
and fly wheels; lightning, hail, or tempest on land; bombardment; a
rising of the waters of the ocean or its tributaries, or by any two or
more of said causes.
Second, To insure upon the stock or mutual plan vessels, freights,
goods, money, effects, and money lent on bottomry or respondentia,
against the perils of the sea and other perils usually insured against by
marine insurance, including risks of inland navigation and transporta-
tion; also to insure against loss or damage to and loss of use of motor
vehicles, their fittings and contents, whether such vehicles are being
operated or not, and wherever the same may be, resulting from acci-
dent, collision or Siuy of the perils usuall}'' insured against by marine
insurance, including inland navigation and transportation.
Section 60 provides: —
No fire insurance company shall issue fire insurance policies on
property in this commonwealth, other than those of the standard form
herein set forth, except as follows: [The exceptions are not material.]
In my opinion, a polic\' of the character to which you refer
constitutes insurance " against loss or damage to property. . .
by fire." Accordingly, it ma}" be issued by a company au-
thorized to do business onl}" under clause 1, namely, by a
fire insurance company. ^Yhen so issued it clearly comes
within the provisions of section 60, and must, accordingly, be
issued upon the standard form thus required, with, of course,
a waiver of the provisions of the policy requiring the property
insured to be located at a specified place.
As I understand it, the peril of loss by fire has always
been one of the perils " usually insured against by marine
insurance," within the meaning of clause 2. Accordingly, a
company authorized to do business only under the provisions
of clause 2, since it may insure against loss by fire to the
limited extent thus authorized as a part of a general marine
policy, may likewise insure to the same limited extent against
loss by fire only. It thus may also insure motor vehicles
against loss by fire only. Such insurance, however, may only
16 ATTORNEY-GENERAL'S REPORT. [Jan.
be written by such companies upon movable risks of the sort
specified in clause 2. A company authorized to do business
only under the provisions of clause 2 is obviously a marine
insurance company and not in any sense a fire insurance com-
pany. Therefore, if it issues a policy of the limited sort to
which I have referred, insuring against fire only, there is no
requirement that such a policy shall be written upon the
standard form prescribed by section 60. The requirement of
that section applies to fire insurance companies only.
Section 34 of the insurance statute contains the following
provision: —
Any domestic insurance company now or hereafter authorized to
transact the business specified in either the first or second clauses of
section thirty-two of chapter five hundred and seventy-six of the acts
of the j^ear nineteen hundred and seven is hereby authorized to transact
the kinds of business specified in both of said clauses: provided, that
the capital stock of such company is not less than four hundred thou-
sand dollars.
An insurance company authorized under this provision to
transact business under either clause 1 or clause 2 is called by
various provisions of the statutes a fire and marine company.
It is thus subject to the limitations imposed upon both such
companies. In my opinion, if such a company issues a policy
insuring an automobile or other movable personal property,
wherever located, against fire only, it must issue that policy
upon the standard form in accordance with the requirements
of section 60. Such company, being both a fire and a marine
company, is subject to the limitations imposed by law upon
both such companies.
Yours very truly,
Henry C. Attwill, Atiorncy-Gcneral.
Taxation — Property devoted to a Public Use.
A town may not legally assess taxes upon a water district on account of
water mains extended outside the territorial limits of that district
and into the limits of such town.
Feb. 19, 1917.
Hon. William D. T. The fry, Tax Commissioner.
Dear Sir: — I acknowledge your request for my opinion
as to whether the assessors of the town of Oxford may legally
1918.] PUBLIC DOCUMENT — No. 12. 17
assess taxes upon the Cherry Valley and Rochdale water dis-
trict on account of water mains extended outside the ter-
ritorial limits of that district and into the town of Oxford.
By St. 1910, c. 381, the inhabitants of this district, a cer-
tain specified portion of the territory of the town of Leicester,
were created a municipal corporation for the purpose of sup-
plying themselves w^th water, and were given the power to
raise money by taxation and other similar powers usually
granted to such corporations. By section 7 of this statute the
district was authorized to extend its pipes into the town of
Oxford for a distance not exceeding 500 feet from the bound-
ar}^ lines between the towns of Leicester and Oxford, and by
St. 1911, c. 152, this distance was increased to 4,000 feet.
It is well settled that property devoted to a public use is
exempt from taxation, in the absence of any express provision
of law authorizing its taxation. Accordingly, it is held that
property owned by one town for the purposes of a water
supply and located within the territorial limits of another is
exempt from taxation. WayJand v. Middlesex County Com-
missioners, 4 Gray, 500. It is also held that, in the absence
of any provision of law to the contrary, the property of a
private water company is exempt from taxation. Mil ford
Water Cornpany v. Hopkinton, 192 Mass. 491. It is now pro-
vided by St. 1909, c. 490, pt. I, § 11, that the real estate and
machinery of every private water company shall be subject to
taxation. By section 8 of this statute it is also provided that
a city or town owning property in another city or town for the
purpose of a water supply shall annually pay to the city or
town in which the property lies "an amount equal to^that
which such place would receive for taxes upon the average of
the assessed values of such land, without |buildings] or other
structures, for the three years last preceding the acquisition
thereof."
So far as I am aware, there is no provision of law for the
taxation of property, real or personal, owned by a water dis-
trict and located within the limits of another city or town
from that in which the district is situated. Such a district is
not a private water company, and therefore section 11 does
not apply to it. Such a district is not a cit}^ or town, and
thus section 8 does not apply to it. Furthermore, the pay-
ment provided for by section 8 is based only upon the as-
sessed values of land located in the other citv or town. The
18 ATTORNEY-GENERAL'S REPORT. [Jan.
payment there provided for is based in nowise upon personal
property.
The pipes laid by this water district within the limits of the
town of Oxford are plainly personal property. I find no pro-
vision of law authorizing the town of Oxford to tax them, and,
accordingly, I am of opinion that they are not subject to
taxation by that town. In my opinion, it is proper for you to
advise the assessors of the town of Oxford that they should
abate any such taxes heretofore assessed which remain uncol-
lected, and that they should omit to assess such taxes in the
future.
Yours very truly,
Hekry C. Attavill, Attorney-General .
Constiiutional Law — Constitutional Convention — Incom-
patihility of Offices.
The position of delegate to the Constitutional Convention provided for by
Gen. St. 1916, c. 98, is a "place under the authoritj^ of the common-
wealth" which the Governor, Lieutenant-Governor and justices of the
Supreme Judicial Court are precluded from holding by Mass. Const.,
pt. 2d, c. VI, art. II.
The position of delegate to the Constitutional Convention is not an "office
under the government of this commonwealth" within the meaning of
article XIII of the Amendments to our Constitution, and the holding of
the office of justice of any court of the Commonwealth, other than the
Supreme Judicial Court, is not incompatible with the holding by the
same person of the position of such delegate.
Members of the General Court, councillors, officers of the Commonwealth,
other than Governor and Lieutenant-Governor, elected by vote of all
the people, and senators and representatives from this Commonwealth
in the Congress of the United States are eligible under our Constitu-
tion to hold the position of delegate to the Constitutional Conven-
tion provided for by Gen. St. 1916, c. 98.
Feb. 19, 1917.
Joint Committee on Constitutional Amendments.
Gentlemen: — You request my opinion upon the following
questions: —
1. Are anj' or all of the officers mentioned in House Bill No. 795 now
ineligible to membership in the Constitutional Convention provided
for by chapter 98 of the General Acts of the year 1916?
2. If any or all of said officers are ineligible, is it within the power
of the Legislature to make such officers eligible to membership in the
convention?
1918.] PUBLIC DOCUMENT — No. 12. 19
The officers mentioned in this bill are the members of the
General Court, the Governor, Lieutenant-Governor, council-
lors, the justices of the Supreme Judicial and the Superior
Courts, the justices of all other courts in this Commonwealth,
any officer of the Commonwealth elected by vote of all the
people, and senators and representatives from this Common-
wealth in the Congress of the L'nited States.
Mass. Const., pt. 2d, c. VL art. II, provides that —
No governor, lieutenant-governor, or judge of the supreme judicial
court, shall hold anj^ other office or place, under the authority of this
commonwealth, except such as by this constitution they are admitted
to hold, saving that the judges of the said court may hold the offices
of justices of the peace through the state; nor shall they hold any
other place or office, or receive anj^ pension or salary from smy other
state or government or power whatever.
If the convention called to revise, alter or amend the Con-
stitution pursuant to the vote of the people at the last annual
election, under Gen. St. 1916, c. 98, is authorized by the pro-
visions of our present Constitution, the position of a delegate
to the convention is a "place under the authorit}' of the
commonwealth," and it follows that the Governor, Lieutenant-
Governor and justices of the Supreme Judicial Court would be
violating the provisions of the Constitution by sitting in said
convention.
It has been asserted b}^ many, and seems to have been the
opinion of the justices of the Supreme Judicial Court in an
opinion to the Legislature (reported in 6 Cush. 573), that
article IX of the Amendments to the Constitution, providing a
method for the adoption of specific and particular amendments
to our Constitution, excluded by implication any authoriza-
tion to the people to revise or change it by the convention
method, and this view is not unsupported by other authority.
Opinion of the Justices, 14 R. I. 619,
The Preamble to our Constitution recites that —
The end of the institution, maintenance, and administration of gov-
ernment, is to secure the existence of the body politic, to protect it,
and to furnish the individuals who compose it with the power of en-
joying in safety and tranquillity their natural rights, and the blessings
of life: and whenever these great objects are not obtained the people
have a right to alter the government, and to take measures necessary
for their safety, prosperitj^, and happiness.
20 ATTORNEY-GENERAL'S REPORT. [Jan.
Article VII of the Bill of Rights of our Constitution is as
follows: —
Government is instituted for the common good; for the protection,
safety, prosperity, and happiness of the people; and not for the profit,
honor, or private mterest of any one man, family, or class of men:
Therefore the people alone have an incontestable, unalienable, and in-
defeasible right to institute government; and to reform, alter, or
totall}^ change the same, when their protection, safety, prosperity, and
happiness require it.
This incontestable, unalienable and indefeasible right,
which indeed is the essence of a republican form of govern-
ment, cannot, in my judgment, be taken away except by
plain and unmistakable language. That the people of one
generation can deprive the people of a succeeding generation
of their unalienable right to reform, alter or totally change
their form of government, except in a restricted manner, when
their protection, safety, prosperity and happiness require it, is
repugnant to our theory of government, that the right to
govern depends upon the consent of the governed. It seems
to me a much more reasonable if not a necessary construction
of the Constitution to hold that article IX of the Amendments
provides only a manner of amending the Constitution in addi-
tion to other methods that may be adopted by the people of
changing their form of government, under the fundamental
right guaranteed by the Bill of Rights, whenever "their pro-
tection, safety, prosperity, and happiness" require it.
This view is strengthened by an examination of the debates
in the convention of 1821, which framed this article of amend-
ment for submission to the people. Mr. Webster, in dis-
cussing this article at that time, said that he knew of no
principle that could prevent a majority, even a bare majority,
of the people from altering the Constitution, and that the
object of the mode proposed for making amendments in it
was to prevent the people from being called upon to make
trivial amendments or any amendments except when a real
evil existed. Debates in Convention of 1820 (ed. 1853), 407;
Jameson, Const. Conventions, §§ 571-575.
Accordingly, I am of the opinion that the convention will
be held under the authority of the Commonwealth, that the
position of a delegate to said convention is a place under the
authoritv of the Commonwealth, and that therefore the
1918.] PUBLIC DOCUMENT — No. 12. 21
Governor, Lieutenant-Governor and justices of the Supreme
Judicial Court cannot sit therein as delegates without violat-
ing the provisions of Mass. Const., pt. 2d, c. VL art. 11. It is
unnecessary, however, to determine w^hether the position of a
delegate is a place under the authority of the Commonwealth,
as it will be noted that the prohibition contained in Mass.
Const., pt. 2d, c. VI, art. II, is not limited to places under the
authority of the Commonwealth, but includes all places, at
least of a public nature; and thus I am of the opinion that
whatever view is adopted as to the nature of the convention,
the Governor, Lieutenant-Governor and justices of the Su-
preme Judicial Court, while occupying their respective offices,
cannot properly sit as delegates therein.
Your specific question is as to their eligibilit3\ Doubtless
they are eligible to be candidates, and may hold the position
of delegate subject to the provision of Gen. St. 1916, c. 98,
§ 6, that the delegates "shall be the judges of the returns
and elections of their own members."
It w^as held by the Supreme Judicial Court in the case of
Commonwealth v. Hawlccs, 123 Mass. 525, that a person hold-
ing the office of judge might lawfully hold a seat in the Legis-
lature, the acceptance of such seat, however, being a resigna-
tion of his office as judge.
Accordingly, it would seem that while the Governor, Lieu-
tenant-Governor and justices of the Supreme Judicial Court
might lawfully hold a seat in the convention if elected thereto,
the acceptance of such seat would operate as a resignation of
their office or would render them liable to impeachment. In
arriving at this conclusion I have not overlooked the fact that
His Honor William Phillips, then Lieutenant-Governor, and
Hon. Isaac Parker, then chief justice, and Hon. Samuel S.
Wilde, a justice, of the Supreme Judicial Court, sat as dele-
gates in the Constitutional Convention of 1820. Their right
to do so does not appear to have been questioned at that time.
The only provision in the Constitution that can be con-
strued as a prohibition to the judges of the Superior Court and
the other courts of the Commonwealth sitting as delegates in the
convention is contained in article VIII of the Amendments,
which provides that —
Judges of the courts of common pleas shall hold no other office
under the government of this commonwealth, the office of justice of
the peace and militia offices excepted.
22 ATTORNEY-GENERAL'S REPORT. [Jan.
There is some question whether the phrase "courts of
common pleas" refers to the courts which were estabhshed at
the time of the adoption of this amendment under that name,
or whether it has a much broader meaning, inckiding all courts
having jurisdiction of common pleas.
Bouvier defines "common pleas" as —
The name of a court having jurisdiction generally of civil actions.
Such pleas or actions are brought b}^ private persons against private
persons, or by the government when the cause of action is of a civil
nature. In England, whence we derived this phrase, common pleas are
so called to distinguish them from pleas of the Crown.
I think it unnecessary to consider this question, as I have
come to the conclusion, with some hesitation, that the posi-
tion of delegate in the convention is not an office of the Com-
monwealth, within the meaning of this amendment. It is to
be observed that the phrase here is "office under the govern-
ment of this commonwealth," whereas the phrase contained
in the provision relative to the justices of the Supreme Judicial
Court is "office or place under the authority of this common-
wealth." The language used in connection with the justices
of the Supreme Judicial Court is much more comprehensive
than that used in relation to the judges of the courts of
common pleas.
In some jurisdictions a clear distinction has been made
between "office" and "place" under the government. Worthy
V. Barrett, 63 N. C. 199. In that case it was said that a
member of the Legislature was not an officer although he held
a place of trust and profit. On the other hand, in Morrill v.
Haines, 2 N. H. 246, it was held that a member of the Legisla-
ture was an officer of the State. No case has occurred in this
Commonwealth where this question has been decided. In the
case of Fitchburg R.R. Co. v. Grand Junction R.R. etc. Co., 1
Allen, 552, the question was raised, but the court, in arriving
at its conclusions, found it unnecessary to determine the
point and expressly left it open.
Whatever may be said in relation to a member of the
Legislature, he at least takes part in the execution of one of
the powers of government, whereas a delegate in the conven-
tion acts substantially as one of a committee of the people,
whose power is restricted to making a report to the people.
The whole purpose of the convention is to take under con-
1918.] PUBLIC DOCUMENT — No. 12. 23
sideration the propriety of revising or altering the present
Constitution, and to report back to the people such revision,
alteration or amendment as it m^ay propose. Its powers are
similar to that of a committee, its work is entirely preliminary,
and it has no power to do any act which of itself has any
final effect.
It is my view that the word "office," as used in article
VIII of the Amendments, refers to a position the incumbent
of which exercises some power of government, and not to the
position of a person selected to act in an advisory capacity in
framing a scheme or change of government to be submitted
to the people for adoption or rejection. See in this connection
Attorney-General v. Tillinghast, 203 Mass. 539, 543.
Accordingly, I am of the opinion that there is nothing in
our Constitution which renders the office of justice of any
court of the Commonwealth, other than the Supreme Judicial
Court, incompatible with the position of delegate to the con-
stitutional convention, or w^hich in any way affects his eligibil-
ity to such position.
As to the other officers referred to in your inquir^^ the
only provision of the Constitution which might be said to
apply thereto is clause 2 of article II of chapter VI of part the
second, which reads as follows: —
. . . and never more than an}^ two offices, which are to be held bj^
appointment of the governor, or the governor and council, or the sen-
ate, or the house of representatives, or bj^ the election of the people of
the state at large, or of the people of any county, military offices, and
the offices of justices of the peace excepted, shall be held by one person.
This would apply, if at all, only to such delegates as were
elected at large. Even then I am of the opinion that this
clause would have no application, since what I have before
said in relation to an "office" as distinguished from a "place"
applies with equal force to this provision of the Constitution.
The only statutory provision that in any way applies to
the questions propounded by you is R. L., c. 18, § 11, which
prohibits any person from receiving more than one salary at
the same time from the treasury of the Commonwealth.
I am informed that House Bill No. 2G, which provides that
♦ this section shall not apply to the position of delegate to the
convention, has been favorably reported by your committee.
There is, of course, no constitutional objection to the enact-
24 ATTORNEY-GENERAL'S REPORT. [Jan.
ment of this bill, and if enacted into law I am of the opinion
that there is nothing in the Constitution or laws of the Com-
monwealth w^hich in any way interferes with such officers
sitting as delegates in the Constitutional Convention.
As to your second question, since the offices of Governor,
Lieutenant-Governor and justice of the Supreme Judicial
Court are incompatible with the position of delegate in the
convention, bj- reason of the provisions of the Constitution
itself, it is obvious that the Legislature has no power to re-
move the incompatibility. The other officers mentioned in
your bill are, in my opinion, already eligible to seats as dele-
gates in the convention, at least if House Bill No. 26 is en-
acted into law, so there seems to be no occasion for the enact-
ment into law of any of the provisions of House Bill No. 795.
Ver^^ truly yours,
Henry C. Attwill, Attorney -Gen era!.
Constitutional Law — Office of District Attorney — Power of
General Court to provide for Investigation of.
Under Mass. Const., pt. 2d, c. I, § I, art. IV, the General Court has the
power to prescribe and determine the methods and basis for the entry
of nolle prosequi and filing of criminal cases by a district attorney,
and for that purpose it may provide for the appointment of a com-
mission to investigate as to what has been done in the past in this
regard in a particular district, this power being in no way limited
by article XIX of the Amendments to the Constitution.
March 8, 1917.
Hon. James F. Cavanagh, Chairman, Joint Committee on the Judiciary.
Dear Sir: — I acknowledge receipt of your letter request-
ing my opinion as to the right of the Legislature to enact
legislation substantially in accordance with Senate Bill No.
136, entitled "A Resolve providing for an investigation of
the office of the district attorney of Suffolk County." I
assume the office referred to is that of district attorney for the
Suffolk district, as there is no office of district attorney of
Suffolk County in this Commonwealth.
The resolve provides for the appointment by the Governor
of a commission of three persons for the purpose of investigat-
ing the office of the district attorney of Suffolk County, "to
determine the methods and the basis for the nol-prossing and
191S.] PUBLIC DOCUMENT — No. 12. 25
filing" of criminal cases. The commission is given power to
summon witnesses and is required to report to the General
Court.
By Mass. Const., pt. 2d, c. I, § I, art. IV, the General
Court is given —
Full power and authority ... to make, ordain, and establish, all
manner of wholesome and reasonable orders, laws, statutes, and or-
dinances, directions and instructions, either with penalties or without;
so as the same be not repugnant or contrary to this constitution, as
they shall judge to be for the good and welfare of this commonwealth,
and for the government and ordering thereof, and of the subjects of
the same, and for the necessary support and defence of the govern-
ment thereof; and to name and settle annually, or provide by fixed
laws for the naming and settling, all civil officers within the said com-
monwealth, the election and constitution of whom are not hereafter
in this form of government otherwise provided for; and to set forth
the several duties, powers, and limits, of the several civil and military
officers of this commonwealth, and the forms of such oaths or affirma-
tions as shall be respectively administered unto them for the execu-
tion of their several offices and places, so as the same be not repugnant
or contrary to this'constitution. . . .
Under this authority the Legislature has undoubted power
to change or regulate the powers and duties of the office in
question, or even to abolish it, unless limited in this respect
by some other provision of the Constitution. The only other
provision of the Constitution touching this particular ques-
tion is article XIX of the Amendments, which provides as
follows: —
The legislature shall prescribe, by general law, for the election of
sheriffs, registers of probate, and clerks of the courts, by the people of
the several counties, and that district-attorneys shall be chosen by the
people of the several districts, for such term of office as the legislature
shall prescribe.
In pursuance of this amendment, which was ratified by the
people in 1855, St. 1856, c. 173, was enacted, providing for
the election and the term of office of the officers specified in
the article of amendment.
The effect of this article was considered by the justices of
the Supreme Judicial Court in an opinion given to the House
of Representatives under date of April 20, 1875, reported in
117 Mass. at page 603, in which the question of whether the
26 ATTORNEY-GENERAL'S REPORT. [Jan.
office of register of probate and insolvency could lawfully be
abolished by the Legislature was answered in the affirmative.
Referring to the amendment in question, the justices say: —
The Constitution does not secure the tenure of office of registers of
probate, nor confer any right in the offi-ce beyond the control of the
Legislature, but merelj^ ordains how such officers shall be elected. It
is within the constitutional authority of the Legislature, by general
law, to change the term of office, or to abolish the office itself, and
transfer the powers and duties thereof to another. . . .
The original statute of 1856, chapter 173 (now R. L., c. 156,
§ 4), provides for the removal of these officers by a majority
of the justices of the Supreme Judicial Court. This provision
for removal apparently was assumed to be constitutional in
the case of Bullock v. Aldrich, 11 Gray, 206, and a removal
from the office of district attorney for the Suffolk district was
made thereunder in the case of Commoniccalth v. Coolcy, 1
Allen, 358.
It is my opinion, therefore, that the power of the Legisla-
ture over the office in question is not impaired or diminished
by the nineteenth article of amendment, except as to the
manner in which it shall be filled. It follows that it is within
the proper sphere of the Legislature to prescribe and deter-
mine, if it deems it desirable, the methods and basis for the
entry of nolle 'prosequi and filing of criminal cases by a district
attorney.
It may be that the Legislature believes that it can ob-
tain assistance in determining the wisdom of the passage of
laws to regulate or restrict the disposition of criminal cases by
filing or the entry of nolle prosequi by ascertaining the nature,
number and cause of the disposition of such cases in this
manner in the past. Nor does the fact that the investigation
is limited to one district alone affect the constitutionality of
the resolve. Whether the wisdom of limiting the power long
exercised by prosecuting attorneys can as well be determined
by the investigation of the disposition of cases in only one
district as by an investigation of this subject throughout the
Commonwealth, is a matter for the Legislature itself to deter-
mine.
It is my opinion that the Legislature is not restricted in
obtaining this information to committees made up of its own
members, but that it may provide for the appointment of such
1918.] PUBLIC DOCUMENT— >^o. 12. 27
a commission as is proposed for the purpose of investigating
this matter and reporting to the LegisLature.
As to how far the commission may go in requiring the
district attorney, or his assistants, to disclose confidential
communications or other matter which may be privileged, it is
unnecessary for the purpose of your question to determine.
Accordingly, the answer to your question must be in the
affirmative.
Yours truly,
Henry C. Attwill, Attorney -General.
Registrars of Voters — Power of Assistant City Clerk to act as
Member of in Place of City Clerk.
Where a city has not adopted the provisions of St. 1913, c. 835, § 24, the
city council is not authorized, under R. L., c. 26, § 16, to provide by
ordinance that the assistant city clerk shall perform the duties of
registrar of voters in place of the city clerk when the clerk is unable
personally to perform such duties.
March 21, 1917.
Hon. Albert P. Langtry, Secretary of the CommonweaWi.
Dear Sir: — Aou have requested my opinion upon the fol-
lowing question: —
The city clerk of the city of Gloucester is a member of the board of
registrars, under the provisions of St. 1913, c. 835, § 25. The city is
about to adopt or has adopted an ordinance which will impose upon
the assistant city clerk the performance of all duties pertaining to the
office of cit}' clerk when the Q\iy clerk is absent.
Would this, in youi opinion, give the assistant citj' clerk the power
to register voters in the absence of the Q\iy clerk?
St. 1913, c. 835, §§ 24 to 33, inclusive, relate to registrars of
voters, their appointment, terms of office, etc. In cities which
have adopted the provisions of section 24 the board of regis-
trars shall consist of four persons appointed by the mayor and
aldermen, whose terms of office shall be for four years. In
such cities the city clerk ceases to be a member of the board
of registrars. Under section 25 cities which have not adopted
the provisions of this section shall have an appointive board
of three members, who shall act with the city clerk, and the
terms of office of the appointive members shall be for three
28 ATTORNEY-GENERAL'S REPORT. [Jan.
years. By both these sections provision is made for equal
poHtical representation.
The following sections provide for the filling of vacancies
and appointment of assistant registrars, and define their
duties: —
Section 29. If a member of the board of registrars shall be dis-
abled by illness or other cause from performing the duties of his ofhce,
or shall, at the time of any meeting of said board, be absent from the
city or town, the mayor or selectmen may, upon the request in writing
of a majority of the remaining members of the board, appoint in writing
some person to fill such temporary vacancy, who shall be of the same
political party as the member whose position he is appointed to fill.
Such temporary registrar shall perform the duties and be subject to
the requirements and penalties provided by law for a registrar of voters.
Section 32. A city council, except in the cit}^ of Boston, may
authorize the registrars to appoint assistant registrars for the term of
one year, beginning with the first day of October, unless sooner re-
moved by the registrars, and they shall, as nearly as may be, equally
represent the different political parties.
Section 33. The registrars in a city authorizing the appointment
of assistant registrars may cause the duties devolving upon a single
registrar to be performed by one or two assistant registrars, and they
may designate two assistant registrars, so far as praetica]:)le of different
political parties, for the sessions required by law to be held outside of
their principal office. The registrars shall make suitable regulations
for the government of the assistant registrars, whose doings shall be
subject to their revision and acceptance. ^Assistant registrars shall be
subject to the same obligations and penalties as registrars. Registrars
may remove an assistant registrar, and msiy fill any vacancy in the
number of assistant registrars for the remainder of the term.
R. L., c. 26, § 16, provides for the appointment of assistant
city clerks, and is as follows: —
A city may by ordinance establish the office of assistant citj'' clerk,
and prescribe the manner of his appointment and his powers and duties.
His certificate or attestation shall have the same effect as that of the
city clerk.
If I am correct in the assumption that the city of Glouces-
ter has not adopted the provisions of section 24, above quoted,
then the city clerk is a member of the board of registrars of
voters. The statute makes him a member of the board.
No special provision is made as to who shall act in his
1918.] PUBLIC DOCUMENT — No. 12. 29
absence, and it seems clear that the provisions of section 29
apply to a temporary vacancy caused by his disability to serve.
The question is, therefore. Do the provisions of R. L., c.
26, § 16, authorize the city council by ordinance to provide
that the assistant clerk shall act in the place of the clerk
when he is unable to perform the duties of registrar? In my
opinion they do not. The provisions of said section 16 were
originally passed in 1869, and, as then passed, provided that
the assistant city clerk "shall be appointed in such manner
and for such duties and powers now belonging to the office of
city clerk as such ordinance shall prescribe and determine."
The office of registrar of voters was not established until the
passage of St. 1881, c. 210. Prior to that time the powers
now exercised by registrars of voters were exercised in cities
by the mayor and aldermen and in towns by the selectmen.
It seems plain that at the time of the original passage of the
statute authorizing the establishment of the office of assistant
city clerk the duties and powers now exercised by the board
of registrars were in no sense duties and powers belonging to
the office of city clerk.
It is my view that the statutes establishing boards of
registrars created a distinct office from that of city clerk, and
imposed upon the city clerk, in certain instances, the duty of
exercising the powers of said office, and in no way enlarged
the authority given a city in prescribing the powers and
duties of an assistant city clerk under the provisions of R. L.,
c. 26, § 16. Furthermore, the statutes provide methods for
the filling of vacancies and the appointment of assistant
registrars. (§§ 29, 32 and 33.) Ordinarily, when a specific
method of appointment to office is provided by statute it
excludes other methods of appointment, unless they are specifi-
cally provided for by statute.
It should also be noted that the statute provides for equal
political representation, as near as may be, on the board of
registrars of voters. As it is possible for the clerk and assist-
ant clerk to be of different political parties, an ordinance of the
city which provides that the assistant clerk shall act as regis-
trar of voters in the absence of the clerk might nullify the
provision for equal political representation.
Accordingly, I am of the opinion that your question is to be
answered in the negative.
Very truly yours,
Henry C. Attwill, Attorney-General.
30 ATTORNEY-GENERAL'S REPORT. [Jan.
Cities and Towns — Hospitals for Consuinptives — State Sub-
sidy — County Tuberculosis Hospitals.
Since the passage of Gen. St. 1916, c. 286, the city of Everett, being of less
than 50,000 population, is no longer required to make hospital pro-
vision for consumptive persons, but until the completion of the county-
hospitals provided for by that statute, that city is entitled to receive
from the Commonwealth S5 per week for each patient who is unable,
or whose kindred are unable, to pay for his support, and who is main-
tained by that city under the conditions specified in St. 1912, c. 637,
in the Cambridge Tuberculosis Hospital.
March 28, 1917.
Trustees of Hosjntals for Consmnptives.
Gentlemen: : — I acknowledge receipt of your letter re-
questing my opinion upon the question of whether the city of
Everett was acting within its rights in closing the hospital
which it had heretofore erected for its tuberculosis patients,
as bearing upon the further question of whether the city of
Everett is entitled to a subsidy from the Commonw^ealth for
its consumptive patients cared for at the Cambridge Tuber-
culosis Hospital under an arrangement with that city.
R. L., c. 75, § 35, as amended by St. 1906, c. 365, and by
St. 1911, c. 613, provides that each city and town shall estab-
lish and constantly maintain within its limits one or more
isolation hospitals for the reception of persons having certain
diseases, including tuberculosis.
St. 1911, c. 597, provided that every city or town which
establishes and maintains a tuberculosis hospital shall be en-
titled to receive from the Commonwealth a subsidy of $5 per
w^eek for each patient who is unable, or whose kindred are
unable, to pay for his support.
St. 1912, c. 151, exempted from the obligation to establish
and maintain tuberculosis hospitals such cities and towns
as make an arrangement satisfactory to the State Depart-
ment of Health with a neighboring city or tow^n for the care of
persons having such disease.
By St. 1912, c. 637, the right to the State subsidy w^as ex-
tended to cities and towns which placed their patients suffer-
ing from tuberculosis in a municipal or incorporated tuber-
culosis hospital in this Commonwealth, or in a building or
ward set apart by such hospital for patients suffering from
this disease. This act has been amended in other respects by
Gen. St. 1916, cc. 57 and 197, but these later amendments
have no bearing upon the present question.
1918.] PUBLIC DOCUIMENT — No. 12. 31
Until the enactment of Gen. St. 1916, c. 286, the city of
Everett was bound by law to make hospital provision for its
tuberculosis patients, either by maintaining a hospital of its
own for that purpose or by making an arrangement satis-
factory to the State Department of Health with a neighboring
city or town for their care. This act, however, providing for
the establishment of county tuberculosis hospitals, expressly
repeals so much of R. L., c. 75, § 35, and the amendments
thereof, as required cities and towns having less than 50,000
population to make hospital provision for tuberculosis patients.
Since the city of Everett has a population of less than 50,000,
it is obvious that it is no longer under any obligation to make
hospital provision for its consumptive patients, and, accord-
ingly, the answer to your question must be in the affirmative.
The question of whether the city of Everett is entitled to
receive a subsidy from the Commonwealth for its patients
maintained in the Cambridge Tuberculosis Hospital under
contract with that city depends upon whether said chapter
286 had the effect of repealing prior laws in relation to such
subsidy. I am informed that no county tuberculosis hospital
has as yet been erected in Middlesex County under the pro-
visions of this act. Section 4 of this chapter provides that
cities having more than 50,000 inhabitants, and also cities and
towns having less than 50,000 inhabitants but already possess-
ing and continuing to furnish adequate tuberculosis hospital
provision, shall be exempt from the provisions of the act, and
shall not be required to pay any part of the county tax which
is assessed in order to comply with its provisions.
If the city of Everett, having already established a tuber-
culosis hospital, had continued to maintain it, it is clear that
no question could be raised but that the city would be en-
titled to receive the subsidy provided for by the statutes of
1911 and 1912. It is also clear that after the completion of
the county hospitals provided for by this act the city of
Everett will not be entitled to receive any subsidy, except
under the provisions of Gen. St. 1916, c. 286, § 12, for its
patients which are supported in the county hospital. The
difficulty is whether the city of Everett, being released by this
later act from its obligation to make any provision for tuber-
culosis patients other than in the county hospitals provided
for therein, is entitled to receive from the State a subsidy for
such patients maintained by it in the manner described.
The act of 1916 contains no express repeal of the laws then
32 ATTORXEY-GEXERAL'S REPORT. [Jan.
existing relating to State subsidies. It does, however, contain
a provision for the payment of subsidies under certain con-
ditions to cities and towns for the support of their patients in
hospitals p^o^-ided for under that act, and, in so far as this
provision is inconsistent with former acts, they are, under the
general rule of statutory construction, thereby repealed. This
subsidy is of necessity not available until the completion
of the hospitals contemplated by the act, and I am of opinion
that it was not the intention of the Legislature to repeal the
former laws relating to subsidies to cities and towns coming
within the act until the time therein fixed for the completion
of said hospitals, or their actual completion before that time.
Accordingly, I am of the opinion that the city of Everett
is entitled to a subsidy from the Commonwealth for the tuber-
culosis patients maintained by it in the Cambridge Tuber-
culosis Hospital under the conditions specified in St. 1912, c.
637, as amended, provided this arrangement between the city
of Everett and the city of Cambridge is satisfactory to the
State Department of Health.
Very truly yours,
Henry C. Attwill, Aitorncy-GcncraL
Infoxicatitig Liquors — Sale io Minor — Sixth-class Licenses
— Certificates of Fitness.
The sale of intoxicating liquor upon a phj-sician's prescription to a minor by
a druggist operating under a sixth-class license would be a violation
of the conditions of such license. Such a sale by a druggist operating
under a certificate of fitness, as provided by St. 1913, c. 413, would
subject him to the penalties prescribed by R. L., c. 100, § 62. and
would constitute sufficient cause for the revocation of the certificate
of fitness by the Board of Registration in Pharmacy.
March 2S, 1917.
Board of Registration in Pharmacy.
Gentlemen: — I acknowledge the receipt of your communi-
cation in which you request my opinion as to whether
intoxicating liquor or alcohol may be sold on a physician's
prescription to a minor by a druggist operating under a sixth-
class license, or by a druggist operating under a certificate of
fitness issued under the provisions of St. 1913, c. 413.
By R. L., c. 100, § 17, par. 4, it is made a condition of every
license —
1918.] PUBLIC DOCUMENT — No. 12. 33
That liquor shall not be sold or delivered on the licensed premises to
a person who is known to be a drunkard, to an intoxicated person, or
to a person who is known to have been intoxicated within the six months
last preceding, or to a minor.
These provisions apply alike to all classes of licenses, and
therefore a druggist operating under a sixth-class license can-
not sell intoxicating liquor to a minor upon a physician's pre-
scription without violating the conditions of his license.
As to a druggist operating under a certificate of fitness
issued under the provisions of St. 1913, c. 413, there appears
to be no law which prohibits his making such sale to a minor.
It is to be noted, however, that a druggist who makes such
sale will subject himself to liability under the provisions of
R. L., c. 100, § 62, while a druggist operating under a sixth-
class license who makes such sale is not subject to the pro-
visions of this section. I am of the opinion, however, that the
making of such sale by a druggist operating under a certificate
of fitness would be sufficient cause for the revocation of his
certificate of fitness by your Board, under the provisions of
St. 1913, c. 413, § 2.
Very truly yours,
Henry C. Attwill, Attorney-General.
Credit Unions — Powers of — Security required for Loans.
Credit unions incorporated under Gen. St. 1915, c. 268, may loan money
to its members upon mortgages of real estate generally, and the suffi-
ciency of the property mortgaged is left entirely to the discretion of
the credit committee, under the provisions of section 17 of this act,
except as to loans secured by mortgages upon farm lands, which are
restricted by section 18 of this statute to 50 per cent, of the value of
the property pledged.
A credit union may not loan money to a person not a member of that
union.
April 3, 1917.
Hon. Augustus L. Thorndike, Bank Commissioner.
Dear Sir: — You have requested my opinion as to whether
credit unions incorporated or doing business under the au-
thority of Gen. St. 1915, c. 268, are authorized to loan money
upon mortgages of real estate other than farm lands, and if so,
whether there is any limitation upon the amount of such loans.
Gen. St. 1915, c. 268, contains the following pertinent pro-
visions: —
34 ATTORNEY-GENERAL'S REPORT. [Jan.
Section 2. Seven or more persons, resident in this commonwealth,
who have associated themselves by an agreement in writing with the
intention of forming a corporation for the purpose of accumulating
and investing the savings of its members and making loans to members
for provident purposes, may . . . become a corporation . . .
Section 5. A credit union may receive the savings of its members
in pajTnent for shares or on deposit; may lend to its members at reason-
able rates, or invest, as hereinafter provided, the funds so accumulated;
and may undertake such other activities relating to the purpose of the
association, as its by-laws may authorize, any provisions in section
one of chapter one hundred and fourteen of the Revised Laws not-
withstanding.
Section 8. All property of a credit union, except real estate, and all
capital stock in a credit union shall be exempt from state and local
taxation, except legacy and succession taxes.
Section 11. The capital, deposits and surplus funds of a credit
union shall be invested in loans to members with the approval of the
credit committee as provided in section seventeen of this act, and any
capital, deposits or surplus funds in excess of the amount for which
loans shall be approved by the credit committee may be deposited in
savings banks or trust companies incorporated under the laws of this
commonwealth, or in national banks located therein, or may be in-
vested in the bonds of any other credit union or any farmland bank
incorporated under the laws of this commonwealth, or in any securities
which are at the time of their purchase legal investments for savings
banks in this commonwealth, . . .
Section 17. . . . All applications for loans shall be made in writ-
ing and shall state the purpose for which the loan is desired and the
security offered.
Section 18. Loans upon the security of first mortgages upon farm
lands shall in no case exceed in amount fifty per cent of the value of
the property pledged as security, and shall be for the following pur-
poses only: . . .
This statute presents the rather unusual situation of a cor-
poration as to which there is no express authorization to hold
either real or personal property. However, it seems to be the
common law that a corporation has a right to take and hold
real property reasonably necessary and convenient for the
purposes authorized, except so far as expressly prohibited.
1918.] PUBLIC DOCUMENT — No. 12. 35
10 Cyc. 1122; 7 Am. & Eng. Encyc. of Law, 714; see also
Old Colony R.R. Corp. v. Evans, 6 Gray, 25, 38.
The purposes of a credit union, as disclosed by this statute,
necessarily require the possession of power to take and hold
property, and there is a direct implication that this power in-
cludes real estate, found in the provisions of section 8 above
quoted.
The primary purpose of these corporations is stated to be
that of "accumulating and investing the savings of its mem-
bers and making loans to members for provident purposes."
Whenever a corporation has power to loan money or enter into any
other contract by which another becomes or may become indebted to
it, and there are no express or implied charter or statutory restrictions,
it always has, as an incident thereto, the same power as an individual to
take any of the ordinary securities. And it may take a mortgage or
deed of trust on real property, though not authorized to purchase or
deal in land. (7 Am. & Eng. Encyc. of Law, p. 801; 10 Cyc. 1127.)
The present act contains an express implication of the power
to take security, since it is provided in section 17 that all
applications for loans shall state "the security offered."
Section 18 of the act prescribes in detail the limitations
placed upon the security obtained b}^ first mortgages upon
farm lands, thereby recognizing the right in the corporation to
take such mortgages.
A further indication pointing in the same direction is found
in the provision of section 5 exempting such corporations from
the provisions of R. L., c. 114, § 1, which section is a prohibi-
tion upon any persons or corporations, with certain exceptions
therein stated, against transacting "the business of accumu-
lating the savings of its members and loaning to them such
accumulations in the manner of a co-operative bank."
A careful examination of the entire act discloses no express
prohibition against taking a mortgage of real estate as security
for a loan to a member of a credit union other than the
limitations as to loans upon farm lands, found in section 18.
Accordingly, I am of the opinion that a credit union is
authorized to take as security for a loan to a member a mort-
gage of real estate generally.
Your question is broad enough to include a query as to
whether a loan could be made to a person other than a mem-
ber and secured by mortgage of real estate.
36 ATTORNEY-GENERAL'S REPORT. [Jan.
I am of the opinion that such an investment is not au-
thorized by the terms of this statute. It is true that section
11 authorizes surplus funds to be invested "in any securities
which are at the time of their purchase legal investments for
savings banks." It is, of course, common knowledge that first
mortgages of a certain class are legal investments for savings
banks. "Securities" is a word of broad meaning, and, in its
widest interpretation, is almost synonymous with "invest-
ments." The definition applied to it by the Supreme Court
of Massachusetts in the case of Boston Railroad Holding Co.
V. Commonwealth, 215 Mass. 493, 497, is perhaps broad
enough to include mortgages. The word, however, is fre-
quently employed in a more limited sense as referring to in-
vestments of the kind ordinarily bought and sold in the mar-
ket. In the present statute this word is restricted to this
limited sense by the use of the word "purchase," as shown in
the quotation above. It is only securities which are "at the
time of their purchase" legal investments for savings banks
which are here dealt with. A loan secured by a mortgage is
not a purchase of a mortgage.
The present statute in several places indicates an intention
that loans are to be made only to members. In section 5 it is
provided that the credit union "may lend to its members at
reasonable rates, or invest, as hereinafter provided, the funds
so accumulated." Section 6 authorizes the making of by-laws
prescribing "the fines, if any, which shall be charged for
failure to meet obligations to the corporation punctually."
Such a by-law, of course, would not be binding upon persons
not members, and therefore an implication arises that loans are
to be made only to members.
St. 1909, c. 419, which was the first act authorizing the in-
corporation of credit unions, and which, although repealed by
the present act, is, in fundamental provisions, largely con-
tinued by it, contains the following: —
Section 15. The capital, deposits and surplus funds of the cor-
poration shall be either lent to the members for such purposes and upon
such security and terms as the credit committee shall approve, or de-
posited to the credit of the corporation in savings banks or trust com-
panies incorporated under the laws of this commonwealth, or in na-
tional banks located therein.
1918.] PUBLIC DOCUMENT — No. 12. 37
In my opinion, it was not intended by the enactment of
Gen. St., 1915, c. 268, to enlarge the class of persons to whom
loans might be made.
Accordingly, I am of the opinion that such a corporation is
not authorized to make loans to persons who are not members
of it.
There is to be found in the act no restriction as to the
ratio of a loan to the value of the security offered other than
the limitation of section 18 with reference to mortgages upon
farm lands, and I find no language seeming to imply such
limitation.
Therefore, I am of the opinion that in making a loan
secured by a mortgage upon real estate other than farm lands
the sufficiency of the security offered is left entirely to the
discretion of the credit committee, under the provisions of
section 17 of the act, which is as follows: —
The credit committee shall hold meetings, of which due notice shall
be given to its members, for the purpose of considering applications
for loans, and no loan shall be made unless all members of the commit-
tee who are present when the application is considered, and at least
two thirds of all the members of the committee, approve the loan and
are satisfied that it promises to benefit the borrower. All applications
for loans shall be made in writing and shall state the purpose for which
the loan is desired and the security offered.
Very truly yours,
Henry C. Attwill, Attorney-General.
Insurance — Status of Alien Enemy — Situation of German
Insurance Companies in Event of Declaration of War
between this Country and Germany.
The Insurance Commissioner would be justified, under St. 1907, c. 576,
§ 7, in revoking the certificate of authority granted to a German insur-
ance company, its officers and agents, in the event of a declaration of
war between this country and Germany.
An alien enemy cannot enforce the payment of debts in the courts of this
country during the continuance of the war, but his liabilities may be
enforced against him, provided assets can be found here to meet such
liabilities.
It seems that payments to an agent of a German insurance company resi-
dent in this country may legally be made by a policyholder in the
absence of an act of Congress prohibiting such payment, and that
such policyholder may properly receive payment of claims from such
resident agents.
38 ATTORNEY-GENERAL'S REPORT. [Jan.
April 3, 1917.
Hon. Frank H. Harbison, Insurance Commissioner.
Dear Sir: — You have requested my opinion as to whether,
in the event of war between this country and Germany, the
German insurance companies now admitted under the law to
transact business in this Commonwealth, through United
States branches, so called, can continue to make new con-
tracts of insurance herein, renew their present contracts, col-
lect premiums, pay losses and carry out the terms of their
policies now outstanding.
It is not possible to say that the law governing such a
situation is definitely settled. In time of war the ultimate
limit to the disabilities which may be placed upon citizens of
the enemy country is a matter of power rather than of law.
Conceivably, it would be possible for this country to confiscate
the property of German companies situated in this country,
and thereby render them incapable of carrying out either old
or new contracts.
There would seem to be grave doubt as to the legality of
any contract made or renewed by a company incorporated
under the laws of a nation with which our own country might
be at war.
One of the most complete discussions of this subject is found
in the Massachusetts case of Kershaw v. Kelsey, 100 Mass.
561. In that opinion the following language is used by Mr.
Justice Gray: —
The result is, that the law of nations, as judicially declared, pro-
hibits all intercourse between citizens of the two belligerents which is
inconsistent with the state of war between their countries; and that
this includes any act of voluntary submission to the enemy, or receiving
his protection; as well any act or contract which tends to increase his
resources; and every kind of trading or commercial dealing or inter-
course, whether by transmission of money or goods, or orders for the
delivery of either, between the two countries, directly or indirectly, or
through the intervention of third persons or partnerships, or by con-
tracts in any form looking to or involving such transmission, or by in-
surances upon trade with or by the enemy. . . .
. . . When a creditor, although a subject of the enemy, remains in
the country of the debtor, or has a known agent there authorized to
receive the amount of the debt, throughout the war, payment there to
such creditor or his agent can in no respect be construed into a violation
of the duties imposed by a state of war upon the debtor; it is not made
to an enemy, in contemplation of international or municipal law; and
1918.] PUBLIC DOCUMENT — No. 12. 39
it is no objection that the agent may possibly remit the money to his
principal in the enemy's country; if he should do so, the offence would
be imputable to him, and not to the person paying him the money,
(pp. 572-573.)
The decision in this case has not always met with complete
approval. In Robinson v. Premium Oil Pipe Line, Ltd. (1915,
2 Chancery, p. 124), it is said: —
The learned Judge Gray, in the case of Kershaw v. Kelsey, which is
reported in 100 Mass. page 561 (97 Am. Dec. 124, 1 Am. Rep. 142),
states the law in our opinion correctly when he says, "The law of na-
tions as judicially declared prohibits all intercourse between citizens
of two belligerents which is inconsistent with the state of war between
their countries," but we respectfully disagree with him when he holds
that nothing comes within that principle except commercial inter-
course.
As pointed out in the Massachusetts case, there may be
found many declarations in other cases to the effect that
practically^ all contracts between citizens of belligerent nations
are prohibited. For example, in Scholefield v. Eichelberger,
7 Pet. 586, 593, it is said by Johnson, J.: —
The doctrine is not at this day to be questioned, that during a state
of hostility the citizens of the hostile States are incapable of contract-
ing with each other. For near twenty years this has been acknowl-
edged as the settled doctrine of this court.
The purpose of acquiring insurance, of course, is to obtain a
certainty of payment, in case of loss, as complete as possible.
It is most undesirable for citizens of this State to be given
policies as to which any reasonable excuse for avoidance can
be imagined.
St. 1907, c. 576, § 7, provides that the Insurance Commis-
sioner may revoke the certificate of authority granted to a
foreign insurance company, its officers or agents, if he is of
opinion that " its condition is such as to render its proceedings
hazardous to the public or to its policyholders."
In view of the uncertainty as to payment of the policies
issued by such a company, I am of opinion that you would be
justified, in the event of a declaration of war, in revoking the
authority of such companies.
As to payments made to such companies, it seems to be
40 ATTORNEY-GENERAL'S REPORT. [Jan.
established that it is illegal to make payments to citizens of a
hostile nation where, in order so to do, the money is trans-
mitted to that country. On the other hand, apart from some
enactment by Congress, it appears by the quotation from the
Massachusetts court, set forth above, that payment to an
agent of such companies resident here would not be pro-
hibited. 40 Cyc. 321-323.
The United States Supreme Court has held, contrary to the
opinions of certain State courts, that the authority of an
agent of a life insurance company resident in hostile territory
is terminated by war, although by agreement of the company
and the agent it might continue. Insurance Co. v. Davis,
95 U. S. 425. Whether or not the present contracts of agency
of the German companies contain such provisions I am not
informed, and of course I cannot predict whether or not, if the
agents are willing to continue to represent those companies,
their acts will be ratified.
It is stated that the law of Germany differs from that of
England and the United States, and that under that law trade
with the enemy is permitted to continue after the outbreak of
war unless special prohibitive orders are issued. S. Oppen-
heim: Treatise on International Law (2d ed.), p. 136. If this
is a correct statement of the German law, it might w^ell be
held that the authorization of agents of German companies
continued after a declaration of war until terminated by cor-
porate action or official order.
It is to be remembered, however, that during war the citizens
of one of the enemy countries have no standing in the courts
of the other, and can maintain no action to enforce payment
of debts so long as hostilities continue. Kershaw v. Kelsey,
supra.
On the other hand, liabilities of German companies may
be enforced against them by the courts of this country, pro-
vided assets can be found here to meet such liabilities. See
JVatts, Watts & Co. v. Unione Austriaca Di Navigazione, 224
Fed. Rep., 188, 192. If the resident agents of such companies
were willing to pay such claims without suit, I see no objec-
tion to an American citizen receiving the same.
Very truly yours,
Henry C. Attwill, Attorney -General.
1918.] PUBLIC DOCUMENT — No. 12. 41
Taxation — Exemption from — Farming Utensils — Utensils
used in Connection with making Maple Sugar.
Utensils used by the owner or occupant of a farm in connection with the
making of maple syrup or sugar are "farming utensils" within the
meaning of St. 1909, c. 490, pt. I, § 5, cl. 11, providing for their exemp-
tion from taxation, only when the sap is gathered and made into maple
sugar or sjTup merely as an incidental part of the operation of such
farm.
April 10, 1917.
Hon. William D. T. Trefry, Tax Commissioner.
Dear Sir: — I have your request for my opinion as to
whether utensils used in connection with the making of maple
sugar are "farming utensils" w^ithin the meaning of St. 1909,
c. 490, pt. I, § 5, cl. 11, exempting from taxation "the wearing
apparel and farming utensils of every person; his household
furniture not exceeding one thousand dollars in value; and
the necessary tools of a mechanic not exceeding three hundred
dollars in value."
The foregoing provision is an exemption from a general
tax, and therefore, in accordance wdth the usual rule, is to be
construed strictly against the taxpayer. In my opinion, the
word "farming," as used in this statute, includes merely the
pursuit of agriculture, and, accordingly, refers to the tillage of
the soil. It cannot be extended to include the gathering or
harvesting of natural forest products. Thus, the gathering of
sap from maple trees and its manufacture into syrup or sugar
do not of themselves constitute farming wdthin the meaning
of this provision. It is, however, an incident of the operation
of a farm for the owner or occupant to gather such products as
are grown upon his farm and to market them. This has come
to be an ordinary incident of the operation of a farm. Ac-
cordingl}-, in my opinion, when the sap of maple trees is
gathered and made into syrup or sugar by the owner or
occupant of a farm merely as an incidental part of the opera-
tion of his farm, the utensils used by him may be said to be
"farming utensils" within the meaning of the above quoted
provision, and thus exempt from taxation. Where such opera-
tions are not carried on as an incident of conducting a farm,
in my opinion utensils thus used do not come within this
exemption. In reaching this conclusion I in no way attempt
42 ATTORNEY-GENERAL'S REPORT. [Jan.
to review or reconsider the classification of farming utensils as
set forth in the opinion of my predecessor, Hon. Dana Malone,
III Op. Atty.-Gen. 66.
Yours very truly,
Henry C. Attwill, Attorney-General.
Labor Laics — Application to Employer performing Work
under Contract ivith the Federal Government in Time of
War.
An employer in this Commonwealth who is furnishing war suppUes under
contract with the Federal government is subject to the provisions of
St. 1913, c. 758, except when the performance of such contract, inde-
pendent of other work, requires the employment of labor in a manner
contrary to the provisions of that chapter.
April 16, 1917.
State Board of Labor and Industries.
Gentlemen: — I acknoAvledge your communication of the
13th inst., in which you request my opinion on the following
question : —
Shall a contractor, furnishing war materials under contract or re-
quirement of the United States government, be exempt from the
requirements relating to the hours of labor of women and children
contained in chapter 758 of the Acts of 1913, or shall the State Board
of Labor and Industries, in each case called to its attention, determine
what is ''extraordinary emergency" or "extraordinary public require-
ment" under the law to which we have referred?
It is to be noted at the outset that your question does not
involve a situation where the United States has required the
employer to do the work. In such a situation I would un-
hesitatingly advise you that the laws of this Commonwealth
would not apply. When a state of war exists no law of the
Commonwealth can interfere or control the necessities or
exigencies of the Federal government in prosecuting the war.
Your question involves only voluntary contracts made with
the United States for war supplies.
St. 1913, c. 758, provides, in part, that —
Every employer engaged in furnishing public service or in any other
kind of business in respect to which the state board of labor and in-
dustries shall find that public necessity or convenience requires the
employment of children under the age of eighteen or women by shifts
during different periods or parts of the day, shall post in a conspicuous
1918.] PUBLIC DOCUMENT — No. 12. 43
place in every room in which such persons are emploj^ed a printed notice
stating separately the hours of employment for each shift or tour of
duty and the amount of time allowed for meals.
It further provides that —
In cases of extraordinary emergency as defined by section one of
chapter four hundred and ninety-four of the acts of the year nineteen
hundred and eleven or extraordinary public requirement, the provisions
of this act shall not apply to employers engaged in public service or in
other kinds of business in which shifts may be required as hereinbefore
stated; but in such cases no employment in excess of the hours au-
thorized under the provisions of this act shall be considered as legalized
until a written report of the day and hour of its occurrence and its
duration is sent to the state board of labor and industries.
Cases of extraordinary emergency, as defined by St. 1911,
c. 494, § 1, as amended by Gen. St. 1916, c. 240, are the fol-
lowing: danger to property, life, public safety or public health.
I think it plain that employers engaged in furnishing war
materials to the United States government, under contracts,
are employers engaged in public service, within the meaning of
the act. It follows that in cases of extraordinary emergency
or extraordinary public requirement the provisions of St. 1913,
c. 758, do not apply to such employers.
It is to be presumed that the United States government, at
the time of making such contracts, has knowledge of the laws
of the Commonwealth and the capacity of the employers'
factories, and that it will not enter into contracts with em-
ployers in this Commonwealth requiring the operation of their
factories contrary to the provisions of our laws unless an
extraordinary emergency or public requirement necessitates it.
It follows that if, in order to fulfill the contracts, it is neces-
sary to operate the factories outside the provisions of said
chapter 758, an extraordinary emergency or public require-
ment exists. This emergency or requirement exists, however,
only when the necessity of so operating the factory is required
to fulfill the government's contracts. In other words, it does
not arise unless the work for the government, independent of
other work, requires the operation of the factory in a manner
contrary to the provisions of said chapter.
Accordingly, each case brought to your attention wdll de-
pend upon its own facts, and in the first instance, applying
the views above indicated, it is for your Board to determine
44 ATTORNEY-GENERAL'S REPORT. [Jan.
whether or not an extraordinary emergency or pubHc re-
quirement exists.
Instances may arise where the operation of the factory in a
manner outside of the provisions of chapter 758 is requested
by officials of the United States government, although the
work of the factory is not devoted exclusively to the manu-
facture of war materials. In such instances I am of the opin-
ion that your Board should assume that an extraordinary
emergency or extraordinary pubUc requirement exists.
Very truly yours,
Henry C. Attwill, Attorney-General.
Assessors of Town — Vacancy in Office of — How filled.
The office of assessor of taxes of a town is not one which can be filled under
the provisions of St. 1913, c. 835, § 429.
April 18, 1917.
Hon. William D. T. Trefry, Tax Commissioner.
Dear Sir: — I acknowledge your communication of the
12th inst., requesting my opinion as to whether a vacancy in
the office of assessor can be filled under the provisions of St.
1913, c. 835, § 429.
If at all, the vacancy could be filled only under the provi-
sions of the second clause of the section, as the office of as-
sessor is expressly excepted in the first clause. I am of the
opinion that in view of the reference in the first clause of the
section to the office of assessor as a tow^n office, which but for
the exception contained therein would be a tow^n office, a
vacancy in which would be filled by the selectmen by appoint-
ment, it was not the intention of the Legislature to include an
assessor as a member of " a board *' referred to in the second
clause, and, therefore, the section has no application to a
vacancy occurring in the office of assessor. I am fortified in
this view by the fact that assessors are seldom referred to as a
board in the Revised Laws and other statutes subsequent thereto.
It is also to be observed that where the statute provides
that three assessors shall be elected, two assessors may act
in the event of the death of one or in the event of the refusal
of one to qualify. See Cook v. Scituate, 201 Mass. 107; George
v. School District in Mendon, 6 Met. 497, 511.
Very truly yours,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 45
Motor Vehicles — Registration of — Operator's License — Status
of Automobiles owned by Federal or State Government and
used for Military Purposes.
The laws of this Commonwealth do not require the registration of motor
vehicles owned by the United States and used in the military service,
or of motor vehicles owned by the Commonwealth or by its militia or
home guard when such organizations are called out for active duty
by the Commander-in-Chief, nor are the operators of such motor
vehicles required to be licensed while operating them for military
purposes.
April 24, 1917.
Massachusetts Highway Commission.
Gentlemen: — You have requested my opinion upon the
question of whether automobiles owned by the Federal gov-
ernment, the militia of this Commonwealth or the home
guard authorized by Gen. St. 1917, c. 148, must be registered
before being operated on the highways, and the operators
thereof licensed, in accordance with St. 1909, c. 534, and acts
in amendment thereof.
Under date of May 8, 1908, in an opinion rendered to your
commission by the Hon. Dana Malone, then Attorney-General,
it was held that motor vehicles owmed by the United States
government w^ere exempt from registration in this Common-
wealth under the statutes relating to the use and operation of
motor vehicles, on the ground that a State cannot tax or sub-
ject to conditions instrumentalities of the Federal government
used in carrying out its constitutional functions. A fortiori it
must be held that in time of war motor vehicles owned by the
United States are exempt from registration under our statutes
while being used in military service, and the operators of such
automobiles, while on active duty, are not required to be
licensed.
Somewhat different considerations apply as regards automo-
biles owned by the Commonwealth or its military forces. In
this case there is no constitutional objection to requiring such
vehicles to be registered and the operators thereof licensed
under our statutes. The question is one of interpretation, to
determine whether or not it was the intention of the Legisla-
ture to include automobiles of this class. It is a w^ell-settled
rule of statutory construction that a general statute does not
apply to the sovereign in the absence of language in the act
show^ing a contrary intention. In this connection see Teasdale
V. Newell, etc., Construction Co., 192 Mass. 440.
46 ATTORNEY-GENERAL'S REPORT. [Jan.
Accordingly, I am of the opinion that automobiles owned by
the Commonwealth, the militia or the home guard provided
for by Gen. St. 1917, c. 148, when called out for active duty
by the Governor as Commander-in-Chief, are not required to
be registered before being operated upon the highway, nor the
operators thereof to be licensed while such vehicles are being
used for military purposes.
I suggest the advisability of \'our Commission communicat-
ing with the Governor and the United States military authori-
ties, to the end that some distinguishing sign may be placed
on such cars while in active service, so as to obviate the con-
fusion and difficulties which would otherwise arise.
Yours truly,
Henry C. Attwill, Attorney-General.
Fire Prevention Commissioner — Control over Cities and Towns
in Metropolitan District.
The Fire Prevention Commissioner is empowered by St. 1914, c. 795, to
make regulations governing the storage, use or other disposition of
dynamite or other explosives by cities and towns within the metro-
politan district.
May 2, 1917.
John A. O'Keefe, Esq., Fire Prevention Commissioner.
Dear Sir: — You have requested my opinion as to whether
St. 1914, c. 795, gives you control of the keeping, storage, use,
handling and other disposition of dynamite and other explo-
sives by cities and towns within the metropolitan fire preven-
tion district.
Under section 3 of that chapter all existing powers, in what-
ever officers vested, other than courts, "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 gunpowder, dynamite
... or any explosive or inflammable fluids or compounds,
. . . are hereby transferred to and vested in the commissioner."
St. 1904, c. 370, § 2, as amended by St. 1905, c. 280, § 1,
provides as follows: —
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 dis-
position of gunpowder, dynamite, crude petroleum or any of its prod-
1918.] PUBLIC DOCUMENT — No. 12. 47
ucts, or explosive or inflammable fluids or compounds, tablets, tor-
pedoes or any explosives of a like nature, or any other explosives, ex-
cept fireworks and fire crackers, and may prescribe the materials and
construction of buildings to be used for any of the said purposes.
There is no intimation in these statutes of any exception in
favor of cities and towns, and, accordingly, I am of the opinion
that your powers in this respect extend to cities and towns as
well as to individuals.
Very truly yours,
Henry C. Attwill, Attorney-General.
Sale of Real Estate for Payment of Taxes — Requisites of —
IV here assessed to Heirs of Deceased Person.
It seems that a tax collector, in advertising for sale for payment of taxes
real estate assessed to the heirs of a deceased person, under St. 1909,
c. 490, pt. II, § 39, should insert in the notice of the time and place of
the sale the names of all heirs or devisees shown by the records of the
Probate Court.
May 3, 1917.
Hon. William D. T. Trefry, Tax Commissioner.
Dear Sir: — I acknowledge your request for my opinion as
to whether, under St. 1909, c. 490, pt. II, § 39, a tax collector,
in advertising for sale real estate assessed to the heirs of a de-
ceased person, is required to give the names of those heirs as
disclosed by the records of the Probate Court. The section in
question is as follows: —
The collector shall give notice of the time and place of sale of land
for pajmient of taxes by publication thereof. Such notice so published
shall contain a substantially accurate description of the several rights,
lots, or divisions of the land to be sold, the amount of the tax assessed
on each, and the names of all owners known to the collector.
In the case of Conners v. Lowell, 209 Mass. Ill, 118, the
Supreme Judicial Court, in discussing the validity of a num-
ber of tax sales made by the collector of the city of Lowell,
dealt with a somewhat similar question in the following
manner: —
Certain lands were properly assessed to the ''Heirs of George T.
Woodward" and to the ''Heirs of Irene E. Richardson," under R. L. c.
12, § 21 (now St. 1909, c. 490, pt. I, § 21). In these instances the
48 ATTORNEY-GENERAL'S REPORT. [Jan.
records of the Probate Court for the county in which Lowell is located
showed on the 1st of May of the year in which the taxes were assessed
who the heirs of Woodward and Richardson severally were and that
one or more of the heirs of each resided in Lowell. The recitals in the
deeds of this class were that demand was made upon "ihe heirs" of
deceased. The collector was required to serve a demand for the pay-
ment of the tax upon every resident assessed, or, in case of heirs of a
deceased person, upon one of them, and to state in his deed "the name
of the person on whom the demand . . . was made." R. L. c. 13, §§ 14,
43 (now St. 1909, c. 490, pt. II, §§ 14, 44). To say that a demand has
been made upon the heirs of an intestate is not giving the name of the
person upon whom the demand was made. The two sections cited
impose upon the collector the duty of finding a resident heir, if there is
one, making the demand upon him, and then naming him in the deed.
To name a person is not the same as to describe him. The name of a
person is the distinctive characterization in words by which he is
known and distinguished from others. Such a designating appellation
was not given by the words ''heirs of" a person. Tax deeds lacking it
are invalid. Reed v. Crapo, 127 Mass. 39. Assessors are charged with
notice of what may be found upon the probate records in determining
whether to make an assessment to the heirs or devisees of one deceased.
Tobin V. Gillespie, 152 Mass. 219. There is no hardship in holding the
tax collector to the same investigation, if necessary, in ascertaining the
name of an heir.
If assessors are charged with notice of what may be found
upon the probate records in determining whether an assess-
ment is to be made to the heirs or devisees of a deceased per-
son, and a tax collector is charged with the same notice in
determining the name of an heir for the purpose of making a
demand, it seems to me probable that the court would hold
that a tax collector is also charged with notice of what may be
found upon the probate records in determining the names of
all owners known to him, for the purpose of complying with
section 39. In any event, in view of the necessity for a strict
compliance by a tax collector with all the requirements of law
in order that a tax sale may be valid, I must advise you that
the safe course for the collector to take is to insert in the no-
tice of the time and place of the sale the names of all heirs or
devisees shown by the records of the Probate Court.
Yours very truly,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 49
Trust Companies — Reserve — Status of Government Bojids,
A trust company holding, as part of its reserve, bonds of the United States
or of this Commonwealth complies with the provisions of St. 1908,
c. 520, § 9, if the amount of money held by it is at all times equal to
at least 5 per cent, of the amount of all its time and demand deposits,
and provided the amount of such bonds is sufl5cient to bring the total
cash and bonds up to two-fifths of the total reserve required.
May 4, 1917.
Hon. Augustus L. Thorndike, Bank Com,missioner.
Dear Sir: — You have requested my opinion as to whether,
under the provisions of St. 1908, c. 520, § 9, a trust company,
part of whose reserve is made up of United States bonds, is
required to have cash equal to two-fifths of the required
reserve, or only 5 per cent, of the aggregate amount of all its
time and demand deposits.
The section referred to is as follows: —
Not less than two fifths of such reserve shall consist either of lawful
money of the United States, gold certificates, silver certificates or
notes and bills issued by any lawfully organized national banking
association, and the remainder of such reserve may consist of balances,
payable on demand, due from any trust company in the city of Boston
authorized to act as reserve agent as hereinafter provided, or from any
national banking association doing business either in this common-
wealth or in the cities of New York, Philadelphia, Chicago, or Albany;
but a portion of such reserve not exceeding one fifth may consist of
bonds of the United States or of this commonwealth computed at
their fair market value, which are the absolute property and in the
possession of such corporation: provided, that the aggregate amount
of lawful money of the United States, gold certificates, silver certificates
and notes and bills issued by any lawfully organized national banking
association held by such corporation shall at all times be equal to at
least five per cent of the aggregate amount of all its time and demand
deposits, exclusive of deposits in its savings department.
While the statute is by no means clear in its provisions in
this regard, it appears that the section authorizes a portion of
''such reserve," meaning thereby the total reserve provided
in section 8, to consist of bonds of the United States or of
this Commonwealth, with the proviso immediately following
that the aggregate amount of lawful money held by the com-
pany shall be equal to 5 per cent, of the aggregate deposits,
exclusive of deposits in its savings department.
50 ATTORNEY-GENERAL'S REPORT. [Jan.
It is to be observed that the deposits to be considered in
determining this 5 per cent, will in general be a larger amount
than those upon which the total reserve of 15 per cent, is
normally based, since that reserve is determined by excluding
the amount of time deposits represented by certificates or
agreements in writing upon which thirty days are still to run.
In view of the ready marketability and generally stable
value of the bonds specified, it would seem that the Legisla-
ture might well have considered that such bonds to a limited
extent could safely be substituted for cash. Although, in view
of the difference in the class of deposits upon which the two-
fifths of the reserve dealt with in the first part of the section
and the 5 per cent, mentioned in the latter part are to be
figured, it is conceivable that the 5 per cent, might in some
cases exceed the two-fifths, such a condition would be most
unlikely. Accordingly, it is difficult to see what purpose could
have been intended by the Legislature in providing for the 5
per cent, mentioned except to fix absolutely the amount of
cash required as a minimum in cases where the company holds
government bonds as a part of its reserve.
I am of the opinion, therefore, that a trust company hold-
ing, as a part of its reserve, bonds of the United States or of
this Commonwealth complies with the provisions of this sec-
tion if the aggregate amount of lawful money is at all times
equal to at least 5 per cent, of the aggregate amount of all its
time and demand deposits, provided the amount of such bonds
is sufficient to bring the total cash and bonds up to two-fifths
of the total reserve required.
Very truly yours,
Henry C. Attwill, Attorney-General.
Constitutional Law — Effect of Unconstitutionality of Part of
Statute upon Remaining Parts.
«
A statute which exempts agreements between farmers or agriculturalists
relative to the sale of their crops from the operation of a general act,
prohibiting combinations in restraint of trade, is unconstitutional.
If such exemption was contained in a statute independent of the general
act, its unconstitutionality would not affect the validity of the general
act.
1918.1 PUBLIC DOCUMENT — No. 12. 51
May 7, 1917.
Warren E. Tarbell, Esq., House Chairman, Joint Committee on Con-
ference.
Dear Sir: — I am in receipt of a communication from the
Joint Committee on Conference requesting my opinion upon
the following questions: —
1. Whether the committee may recommend a division of House
Bill No. 1805, entitled "An Act to prohibit the control of prices of
commodities in common use," into two bills, the first to contain all
the provisions of the present bill, and the second to contain an exemp-
tion of agreements between farmers or other persons engaged in agri-
cultural or horticultural pursuits relative to the sale of the products
of their own farms.
2. Whether, if this be done and both enactments passed as separate
bills, they would be constitutional.
Your first request presents a question of parliamentary law
which is to be determined by the rules and precedents of the
General Court, and is one upon which I feel I should express
no opinion.
In answer to your second inquiry, I beg to advise you
that, in my opinion, the bill which exempts from the operation
of the general act, prohibiting certain combinations in re-
straint of trade and monopolies, agreements between farmers
or other p^sons engaged in agricultural or like pursuits rela-
tive to the sale of products of their own lands, under the
decision of Connolly v. Union Sewer Pipe Co., 184 U. S. 540,
would be unconstitutional, as in violation of the Fourteenth
Amendment to the Constitution of the United States.
The precise question presented by your order is as to what
effect the unconstitutionality of this exemption would have
upon the validity of the main bill. It was held in the Con-
nolly case, above cited, that where this exemption constituted
a part of the principal bill the entire bill was invalid. This is
on the ground that the court could not say that the Legisla-
ture would have passed the bill if the exemption had not been
included. The rule is stated in Commonwealth v. Petranich,
183 Mass. 217, 220, that "it is an established principle that
where a statutory provision is unconstitutional, if it is in its
nature separable from the other parts of the statute, so that
they may well stand independently of it, and if there is no
52 ATTORNEY-GENERAL'S REPORT. [Jan.
such connection between the valid and the invalid parts that
the Legislature would not be expected to enact the valid part
without the other, the statute will be held good, except in that
part which is in conflict with the Constitution."
Where an exemption from the operation of a general statute
is enacted subsequently to and independently of the main
statute, the two bills would quite clearly seem to be separable,
and the intention of the Legislature to have the main bill take
effect, even though the exemption were invalid, would be
sufficiently indicated. See ex parte Pfirrman, 134 Cal. 143,
where it was held that an unconstitutional special act amend-
ing a general act which was passed earlier on the same day
did not affect the validity of the otherwise valid general act.
Accordingly, I am of the opinion that if the exemption re-
ferred to is incorporated into a separate bill and passed sub-
sequently to the enactment of the main provisions of House
Bill No. 1805, the unconstitutionality of the exemption would
not affect the validity of the principal bill.
Yours very truly,
Henry C. Attwill, Attorney -General.
Constitutional Law — Equal Protection of the Laws — Due
Process of Law — Licensing of Milk Contractors.
A bill prohibiting the buying of milk or cream within the Commonwealth
from producers, for the purpose of shipping it to any other city or
town for sale or manufacture, unless such business is transacted regu-
larly at an office or station within the State, and unless the vendee is.
Ucensed by the State Board of Agriculture and furnishes security
conditioned upon the prompt payment by him for milk or cream
purchased, would be imconstitutional if enacted into law, as it would
violate the Fourteenth Amendment to the Constitution of the United
States.
May 7, 1917.
Hon. Channing Cox, Speaker of the House of Representatives.
Sir: — I acknowledge the receipt of an order of the
House of Representatives requesting my opinion upon the
constitutionaHty of House Bill No. 14, entitled "An act to
require the licensing of milk contractors by the State Board of
Agriculture and to regulate payment by them to milk pro-
ducers."
The bill in substance provides that no milk or cream shall
be bought in the State from producers, for the purpose of
1918.] PUBLIC document — No. 12. 53
shipping the same to any other city or town for sale or manu-
facture, unless such business be transacted regularly at an
office or station within the State, and unless the vendee is
Hcensed by the secretary of the State Board of Agriculture.
The bill further provides that before issuing a license the
secretary may require the applicant to furnish security, by
bond or otherwise, conditioned upon the prompt payment by
him for the milk or cream purchased, provided that the secre-
tary may exempt from the requirement of furnishing a bond
an applicant who satisfies the secretary of his financial re-
sponsibility, reliability and good intent, or who makes a sworn
statement that he intends to pay his patrons at regular in-
tervals of not more than two weeks for milk or cream fur-
nished to him. All licenses are made subject to revocation by
the secretary of the State Board of Agriculture for failure on
the part of the licensee to pay his bills for milk and cream, in
which case no new license may be issued to him until he shall
satisfy the secretary of his good intent and ability to pay in
the future, and all payments due the producers for milk or
cream prior to the cancelling of the license are made in full.
The obvious purpose of the proposed act is to insure regular
payments to producers for milk and cream purchased from
them for the purpose of resale or manufacture.
It is unnecessary, for the purposes of your question, to
determine whether legislation of the general character con-
templated by the bill could constitutionally be enacted if
restricted in its operation to vital necessaries, for the reason
that, assuming this could be done, there are objections to the
bill which, in my opinion, are fatal to its constitutionality. If
a bill of this character can constitutionally be enacted, it must
be upon the ground that it tends to promote the public health
or welfare by insuring an adequate production and suppl}^
of such a vital necessity. All legislation to promote the public
health or welfare must be reasonable and fairly adapted to
effect that result.
Ordinarily, a bill which limits the right of a person to en-
gage in a lawful business must be uniform, and apply equally
to all persons engaging in such business. Such legislation is
subject to the provisions of the Fourteenth Amendment to the
Constitution of the United States, which prohibits a State
from denying to any person within its jurisdiction the equal
protection of the laws. No arbitrary distinctions or dis-
criminations can be made by the Legislature in enacting such
54 ATTORNEY-GENERAL'S REPORT. [Jan.
laws, at least between persons within the general scope of the
act. All classifications must be based upon some sound
reason. As was said by the court in Commonwealth v. Hanaj
195 Mass. 262, 266, in discussing the constitutionality of an
act requiring hawkers and pedlers to be licensed, but exempt-
ing residents of a city or town who paid taxes there on their
stock in trade and who were qualified to vote there: —
Even before the adoption of the Fourteenth Amendment it was a
settled principle of constitutional law that statutes in regard to the
transaction of business must operate equally upon all citizens who
desire to engage in the business, and that there shall be no arbitrary
discrimination between different classes of citizens. Under the Four-
teenth Amendment, all persons are entitled to the equal protection of
the laws. . . . These cases and others show that a discrimination,
founded on the residence of the applicant for a license or the amount
of tax paid by him, cannot be sustained under the Constitution.
This bill applies only to persons, firms, associations or cor-
porations that buy milk or cream within the State from pro-
ducers, for the purpose of shipping the same to any other city
or town for sale or manufacture. It does not apply to persons
who buy milk or cream for the purpose of selling or manu-
facturing it in the same city or town. Neither does it apply
to a person who buys milk or cream for such purpose in a
city or town other than that in which he sells or manufactures
it, unless the milk or cream be "shipped" to the latter place.
The ordinary meaning of the word "ship" is to deliver to a
common carrier for transportation. Thus, a person in these
circumstances who transports the milk or cream himself or by
an agent other than a common carrier, to another city or town
for the purpose of sale or manufacture, would be exempt from
the requirements of this bill, while another person in the same
situation who delivers his milk for transportation to a com-
mon carrier is required to obtain a license and to furnish
security by bond or otherwise. I am unable to discern any
sound ground for this distinction, since there appears to be no
reason why a person who ships milk or cream, for the purpose
of sale or manufacture, into a town other than that in which
it was purchased is not as likely to pay his milk bills to the
producers as a person who buys from producers in the same
town in which he sells or manufactures it, or a person who
himself transports milk or cream into the town or city in
which it is sold or manufactured.
1918.] PUBLIC DOCUMENT — No. 12. 55
The bill would permit a person whose place of business is in
Boston to purchase milk of producers in the various cities and
towns and to resell it in the same community to persons who
ship the milk to other cities or towns for the purpose of sale
or manufacture there, without either of these persons being
subject to the provisions of this act.
Indeed, it is somewhat difficult to see any sound reason why
the general public is not as much interested in securing to the
producers payment for milk and cream bought from them by a
person, firm, association or corporation, when it is bought for
its own consumption or other use, as well as when bought for
the purpose of sale or manufacture.
Furthermore, the bill applies not only to milk but also to
cream, excluding all other products of milk. If a distinction
can be made at all in regard to necessaries of life, in a bill
which is not designed for purposes of inspection or insuring
the wholesome condition of their handling or transportation,
but solely intended for insuring an adequate supply by secur-
ing payment to the producers, it necessarily must be because
there is a greater necessity for the supply of the one than of
the others. Cream, so far as I am aware, is a no greater
necessity of life than other products of milk, such as butter
or cheese. Under the operation of this bill a person buying
cream from a producer is compelled to be licensed, furnish a
bond and regularly to maintain an office or station in the
place in which he purchases the cream, while another, buying
butter or cheese under the same circumstances, is under no
such obHgation. I am unable to see any sound ground for this
distinction.
It is to be observed, as bearing upon the reasonableness of
this provision, that one farmer engaged in the production of
cream is given certain security by law, while his neighbor
engaged in selling other products of milk is not given this
security.
The bill makes no distinction between persons buying milk
and cream for cash and those buying milk or cream on credit.
It is manifestly unreasonable to require persons purchasing
products paid for in cash at the time of the purchase to
furnish security for such payment.
The bill is, in my opinion, further objectionable in that it
requires not only the securing of a license and the furnishing
of a bond by a person, firm, association or corporation that
buys milk or cream for the purposes named in the bill.
56 ATTORNEY-GENERAL'S REPORT. [Jan.
but in addition requires that such business be transacted regu-
larly at an office or station within the State. If this latter
requirement stood alone it would be doubtful whether it
should be construed as requiring a person buying milk or
cream to maintain an office or station at which the business of
buying such milk or cream should be transacted regularly at
every place where the milk or cream was purchased, or whether
it required a person engaging in such business to maintain
only one office or station within the State where this business
is transacted regularly.
Section 1 of the bill, however, contains this further provision
in regard to the issuance of a license : —
The secretary shall thereupon issue to such applicant, on pajanent
of five dollars, a license entitling the applicant to conduct the business
of buying milk and cream from producers for the purpose aforesaid at
an office or station at the place named in the application.
This plainly indicates that the former construction must be
adopted; that is, that all persons buying milk or cream within
the State for the purposes mentioned in the bill must main-
tain an office or station, and regularly transact business at
every place where milk or cream is so purchased.
This additional requirement is, in my opinion, unreasonable
and burdensome. It would prevent, in times of emergency or
drought, persons who ordinarily buy their milk at certain
places in the State from buying milk at any other places,
unless the business of buying milk at such other places be
regularly transacted. It would operate to restrain trade by
tending to eliminate free competition and to divide the milk-
producing territory, and cannot, in my opinion, reasonably be
justified as a proper exercise by the Legislature of its police
power in the interests of the general welfare.
Again, section 3 of the bill provides that —
The secretary of the state board of agriculture may exempt from
the furnishing of a bond, any person, firm, corporation, partnership
or association applying for license as a milk contractor, who satisfies
said secretary of his financial responsibility, reliability and good
intent.
I doubt very much whether any law applicable to a partic-
ular business, which exempts from its operation all those who
satisfy an administrative officer of their financial responsibility,
1918.] PUBLIC DOCUMENT — No. 12. 57
reliability and good intent, can be sustained on the theory
that those who satisfy such officer of these facts are as likely
to pay their bills and to comply with the law without furnish-
ing security as those who actually do furnish security, partic-
ularly when the statute leaves the determination of such
exemption to the practically uncontrolled discretion of the
administrative officer. As is well stated in Cooley's Constitu-
tional Limitations, at page 559: —
Those who make the laws "are to govern by promulgated, estab-
lished laws, not to be varied in particular cases, but to have one rule
for rich and poor, for the favorite at court and the countryman at
plough."
There are other objections which might be urged against
the bill, dependent upon the construction finally given to its
terms, which I deem it unnecessary to discuss.
For the foregoing reasons I am constrained to advise that,,
in my opinion. House Bill No. 14 would be unconstitutional
if enacted into law.
Very truly yours,
Henry C. Attwill, Attorney -General,
Hawker and Pedler — Itinerant Vendor — Sales of Goods hy
Sample for Future Delivery.
A person who conducts a transient business in a building or structure,
making only bona fide sales by sample for future delivery, is not re-
quired to obtain a license either as an itinerant vendor under R. L.,
c. 65, §§ 1-12, as amended, or as a hawker and pedler under R. L.,
c. 65, § 13, as amended by Gen. St. 1916, c. 242.
May 10, 1917.
Thure Hanson, Esq., Commissioner of Weights and Measures.
Dear Sir: — I acknowledge your request for my opinion
as to whether a person who is conducting a transient busi-
ness in a building or structure, making only bona fide sales
by sample for future delivery, is required to obtain a license
either as an itinerant vendor under R. L., c. 65, §§ 1 to 12,
inclusive, as amended, or as a hawker and pedler under sec-
tion 13 of that chapter, as amended by Gen. St. 1916, c. 242.
Such a person plainly seems to come within the definition
of an itinerant vendor set forth in R. L., c. 65, § 1. By
58 ATTORNEY-GENERAL'S REPORT. [Jan.
section 2, however, it is expressly provided that the first
twelve sections of this chapter, regulating itinerant vendors,
shall not apply to "bona fide sales of goods, wares or mer-
chandise by sample for future delivery." This provision
makes it plain that a person conducting a business such as
you describe is not required to obtain a license as an itinerant
vendor.
R. L., c. 65, § 13, as amended by Gen. St. 1916, c. 242,
defines a hawker and pedler as follows: —
Whoever, except itinerant vendors, wholesalers or jobbers having a
permanent place of business in this commonwealth and selling to
dealers only, and commercial agents or other persons selling at whole-
sale by sample, lists, catalogues or otherwise for future delivery, goes
from town to town or from place to place in the same town carrying
for sale or barter, or exposing for sale or barter, goods, wares or mer-
chandise, shall be deemed a hawker or pedler within the meaning of
this chapter.
In my opinion, the phrase "except itinerant vendors" refers
to itinerant vendors as defined by section 1, and not merely to
such itinerant vendors as are regulated and required to be
licensed by the first twelve sections of the chapter. It follows
that no persons coming within the definition of itinerant
vendors set forth in section 1 can come within the definition of
hawkers and pedlers set forth in section 13, as amended.
Furthermore, a hawker and pedler is defined as a person who
"goes from town to town or from place to place in the same
town carrying for sale or barter, or exposing for sale or barter,
goods, wares or merchandise." A person who is conducting a
transient business in a building or structure cannot be said
to go from town to town or from place to place in the same
town, within the meaning of this definition, nor, in my opinion,
does a person who carries only samples, and who sells only for
future delivery by use of such samples, carry for sale or expose
for sale goods, wares and merchandise. Accordingly, a person
engaged in a business such as you describe is not a hawker
and pedler, and is not required to obtain a license as such.
Yours very truly,
Henry C. Attwill, Attorney-General,
1918.1 PUBLIC DOCUMENT — No. 12. 59
Tidewaters — Compe7isation for Displacement of.
The proprietors of the land bounding on the southerly side of the Mystic
River between Johnson's Wharf, so called, and the Chelsea bridge
cannot now fill the flats adjoining their property except subject to
the provisions of R. L., c. 96, § 23, providing for compensation for
tidewater displaced. Bradford v. Metcalf, 185 Mass. 205,
May 10, 1917.
Commission on Waterways arid Public Lands.
Gentlemen: — You request my opinion upon the question
of whether your Commission is authorized to make a charge
for tidewater displacement, under the provisions of R. L.,
c. 96, § 23, to present owners of property within the area
bounding on the southerly side of the Mystic River between
Johnson's Wharf, so called, and the Chelsea bridge.
By St. 1852, c. 105, the proprietors of land and flats within
this area were incorporated under the name of the Mystic
River Corporation, and the right was granted to this corpora-
tion to fill certain flats within the boundaries specified in said
act, provided that the work should be commenced within three
years and completed within eight years from the passage of
the act. This statute was repealed by St. 1855, c. 481, except
so far as it related to the incorporation of the Mystic River
Corporation. By the later statute substantially the same
rights were conferred upon the corporation, some change being
made in the boundaries within which the filling could be made,
and the time for the completion of the work extended to ten
years from the passage of the act. It appears that the Mystic
River Corporation attempted to divide the benefits among its
individual members, to be held by them in severalty in pro-
portion to their respective ownership of the shore. This at-
tempt, together with adverse possession for a long period of
time on the part of the individual owners, as against the cor-
poration, was decided by our Supreme Judicial Court in the
case of Bradford v. Metcalf, 185 Mass. 205, to have conferred
upon the individual proprietors the rights which were granted
to the corporation by the acts above referred to.
The time allowed to the corporation for the doing of the
work was extended by various statutes, the last of which ap-
pears to be St. 1893, c. 334. That statute provided that —
The time heretofore allowed for the completion of the improvements
by the proprietors of the lands, wharves and flats lying between John-
60 ATTORNEY-GENERAL'S REPORT. [Jan.
son's wharf and Elm street on Mystic river, authorized by the special
laws of this Commonwealth, is, with the rights and subject to the
requirements of such laws, extended ten years from the passage hereof.
In 1902 the precise question which you have presented arose
in the case of Bradford v. Metcalf, supra (decided 1904), in
which it was determined that the Commonwealth was not en-
titled to receive compensation for displacement of tidewater
caused by filling in this area. It is to be noted that the dis-
placement involved in this case was caused by work which was
done before the expiration of the time allowed for the comple-
tion of the improvements, as extended by St. 1893, c. 334.
No statute subsequent to 1893, further extending the time
for the completion of this work, can be found, and, accord-
ingly, I am of the opinion that the case of Bradford v. Metcalf,
supra, is not applicable to the present situation, since the
grant has by its own terms expired. Before any work can now
be done in this area a license must be procured from your
Commission, which will be subject to all the requirements of
the general law, including payment for displacement of tide-
water. The answer to your question, therefore, must be in
the affirmative.
Very truly yours,
Henky C. Attwill, Attorney-General.
Attorney-General — Powers of — District Attorneys.
The Attorney-General has as much power in investigating alleged crim-
inal acts as any other official, but has no power to enforce the attend-
ance of witnesses or the giving of testimony, that power being re-
stricted solely to the grand jury.
The Attorney-General has power equal to that of a district attorney in
presenting evidence to the grand jury.
Under R. L., c. 7, § 17, the Attorney-General, when present, has control
of all cases, both civil and criminal, enumerated in that section.
May 15, 1917.
Hon. Channing H. Cox, Speaker of the House of Representatives.
Sir: — I acknowledge the receipt of an order of the House
of Representatives in the following form: —
Ordered, That the House of Representatives hereby requests the
opinion of the Attorney-General upon the following question of law:
Has the Attorney-General full power under existing statutes to in-
1918.] PUBLIC DOCUMENT — No. 12. 61
vestigate and to prosecute criminally any individual, firm or corpora-
tion that may have been guilty of fraud in the building or financing
of the Hampden Railroad Corporation or in connection with the secu-
rities thereof?
I assume that the fraud therein referred to means such
fraud as would constitute a criminal offence at the common
law or under the statutes of the Commonwealth.
Your inquiry raises two questions: first, as to the power of
the Attorney-General, under the existing statutes, to investi-
gate any alleged criminal act; and second, as to his power to
prosecute individuals, firms or corporations that may have
been guilty thereof.
x\s to the power of the Attorney-General to investigate:
It is not entirely clear what is meant by "full" power. If the
meaning of this question is to inquire whether the Attorney-
General has power to investigate equal to that of any other
official, the question is to be answered in the affirmative. If,
on the other hand, the purpose of the inquiry is to ascertain
whether greater power could be given to the Attorney-General
to investigate than is now furnished under existing statutes,
I answer your question in the negative. The Attorney-General
may investigate an alleged criminal fraud to the extent to
which the persons within whose knowledge the facts lie are
willing to disclose them, but he has no power, in aid of such
investigation, to summon, or enforce the attendance of, wit-
nesses or to require any one to furnish information unless such
person desires to do so. This power, in the type of case to
which your question refers, is restricted solely to a grand jury.
It is to be observed that under the Constitution of this
Commonwealth the prosecution of crimes punishable by im-
prisonment in a State prison can be only after indictment by a
grand jury. Jones v. Rohhins, 8 Gray, 329. The position of
the district attorney or any other prosecuting officer before the
grand jury is but that of an assistant to that body, and his
right to remain and assist the grand jury is subject to their
control. I think it plain that the power of the Attorney-Gen-
eral in assisting the grand jury is equal to that of a district
attorney, and that he may assist and present evidence to that
body with its consent.
The second part of your question is more difficult to answer.
The powers of the Attorney-General are not defined by the
provisions of the Constitution. He is the general law officer of
62 ATTORNEY-GENERAL'S REPORT. [Jan.
the Commonwealth, and usually it has been assumed that,
where there is no provision of statute to the contrary, he may
represent the Commonwealth in all proceedings of every na-
ture in which the Commonwealth is a party or interested.
From time to time, however, statutes have been passed giving
powers to the district attorneys, and your question involves a
consideration of whether such statutes, by providing that the
district attorney shall represent the Commonwealth in certain
instances, abridge the power of the xA.ttorney-General by plac-
ing the district attorney in exclusive control in such instances.
R. L., c. 7, § 1, provides that the Attorney-General shall
appear for the Commonwealth and its officers, boards and
commissions "in all suits and other civil proceedings in which
the commonwealth is a party or interested, or in which the
official acts and doings of said officers are called in question,
in all the courts of the commonwealth, except upon criminal
recognizances and bail bonds." It also provides that "all
legal services required by such officers, boards, commissions
and commissioner of pilots for the harbor of Boston in matters
relating to their official duties shall be rendered by the attor-
ney general or under his direction." This statute undoubtedly
gives to the Attorney-General the general control of all civil
suits in which the Commonwealth is a party or interested,
other than suits upon criminal recognizances and bail bonds.
Section 4 of the same chapter provides that the Attorney-
General "shall consult with and advise the district attorne^^s
in matters relating to their duties; and, if in his judgment the
public interest so requires, he shall assist them by attending
the grand jury in the examination of a case in which the ac-
cused is charged with a capital crime, and appear for the com-
monwealth in the trial of indictments for capital crimes."
Section 17 of said chapter 7 provides: —
The district attorneys within their respective districts shall appear
for the commonwealth in the superior court in all cases, criminal or
civil, in which the commonwealth is a party or interested, and in the
hearing, in the supreme judicial court, of all questions of law arising
in the cases of which they respectively have charge, shall aid the
attorney general in the duties required of him, and perform such of
his duties as are not required of him personally; but the attorney
general, when present, shall have the control of such cases.
Statutes are to be construed, when possible, so as not to be
in conflict with each other, and I am therefore of opinion that
1918.] PUBLIC DOCUMENT — No. 12. 63
the clause in section 17, "but the attorney general, when pres-
ent, shall have the control of such cases," refers not alone to
the cases in which the district attorney is aiding the Attorney-
General in the duties required of him, but refers to all cases,
both civil and criminal. By adopting such a construction the
provisions of sections 1, 4 and 17 of chapter 7 are not incon-
sistent. Under section 1 general authority over all civil cases,
other than suits on recognizances and bail bonds, is expressly
given to the Attorney-General. Under section 4 he is directed
to appear in all capital cases if in his judgment the public in-
terest so requires; and by section 17 the district attorney is
required to appear in criminal cases and in civil cases unless
relieved from this obligation by reason of the Attorney-Gen-
eral's appearing in such cases, and at all times, within their
respective districts, the district attorneys are required to
render such aid to the Attorney-General as he may require.
I am fortified in this view by the history of section 17.
St. 1832, c. 130, § 9, provided for the division of the Com-
monwealth into criminal districts, and for the appointment of
a district attorney for each district. It provided that the dis-
trict attorneys, within their respective districts, should appear
and act for the Commonwealth in all cases, criminal or civil,
in which the Commonwealth should be a party to the record
or be interested, in the courts of common pleas and in the Su-
preme Judicial Court; and that they should also, witliin their
respective districts, perform all the duties which the Attorney-
General and the solicitor general, or either of them, before the
passage of the act were by law obliged to perform, provided
"that the attorney general, when present, shall in any court
have the direction and control of any prosecutions and suits in
behalf of the commonwealth." This provision was carried into
the Revised Statutes, appearing in section 38 of chapter 13, as
follows: "Provided, that the attorney general, when present,
shall have the direction and management of all prosecutions
and suits in behalf of the commonwealth." The clause as it
now reads in the Revised Laws appears for the first time in
section 31 of chapter 14 of the General Statutes. Section 9
of chapter 181 of the General Statutes provides that "the
provisions of the General Statutes so far as they are the
same as those of existing laws, shall be construed as a contin-
uation of such laws, and not as new enactments." This same
provision is contained in the Public Statutes and the Revised
Laws.
64 ATTORNEY-GENERAL'S REPORT. [Jan.
Accordingly, I am of the opinion that "such cases," referred
to in the latter part of section 17 of chapter 7 of the Revised
Laws, refers to all cases, criminal or civil, in which the Com-
monwealth is a party, enumerated in said section.
Assuming, then, that by the use of the term "full power"
to investigate is meant power equal to that of any other offi-
cial, I answer the inquiry of the House of Representatives in
the affirmative.
Very truly yours,
Henry C. Attwill, Attorney-General.
Statutes — Repeal by Implication — Board of Health.
The repeal of R. L., c. 75, § 57, by the enactment of St. 1902, c. 213, did
not repeal by implication R. L., c. 75, § 53, relating to the effect of
the neglect of local boards of health to give notice to the State Board
of Health, now the State Department of Health, of diseases dangerous
to the public health, in their respective cities and towns.
May 17, 1917.
State Board of Charity.
Gentlemen: — You have requested my opinion as to
whether R. L., c. 75, § 53, is law at the present time, in view
of the repeal of R. L., c. 75, § 57, by the enactment of St.
1902, c. 213.
R. L., c. 75, § 52, requires local boards of health having no-
tice of a disease dangerous to the public health, in their re-
spective cities or towns, to give notice thereof to the State
Board of Health, now the State Department of Health.
Section 53 provides: —
If such board refuses or neglects to give such notice, the city or
town shall forfeit its claim upon the commonwealth for the payment
of expenses as provided in section fifty-seven.
Section 57 provides that reasonable expenses incurred by
local boards of health, in making the provision required by
law for a person infected with such a disease, "shall be paid
by such person, his parents or master, if able; otherwise by
the town in which he has a legal settlement. If he has no
settlement, they shall be paid by the commonwealth and
the bills therefor shall be approved by the state board of
charity."
1918.] PUBLIC DOCOIEXT — No. 12. 65
St. 1902, c. 213, § 1, although it contains several new re-
quirements with reference to notice and determination of
settlement, nevertheless leaves the law substantially the same
as before with reference to the parties made liable for ex-
penses incurred, the only change in this respect being the elim-
ination of the words "or master." The person himself, his
parents, the city or town of settlement or the Commonwealth,
in case of no settlement, remains liable as before.
Section 3 of this statute expressly repeals R. L., c. 75, § 57.
Despite the fact of this express repeal, I am of the opinion
that, so far as Hability is fixed upon the parties mentioned
above, the statute is to be construed as a continuation of the
previous law rather than as a repeal and re-enactment.
This provision as to liability of the city or town of settle-
ment and the Commonwealth has been a part of our statute
law for over one hundred years. (See St. 1797, c. 16, § 1.)
Where a new act takes effect simultaneously with the repeal
of the old one, the new one may more properly be said to
be substituted in place of the old one, and to continue in
force, with modifications, the provisions of the old, instead of
abrogating or annulling them and re-enacting the same as a
new and original act. Bear Lahe Irrigation Co. v. Garland,
164 U. S. 1, 12; Steamship Co. v. Joliffe, 2 Wall. 450, 459.
This principle has been applied by the Supreme Judicial Court
of Massachusetts in cases dealing with the effect of express
repeal in general revisions or codifications of the statutes.
Wright v. Oakley, 5 Met. 400, 406; United Hebrew Benevolent
Assn. V. Benshimol, 130 Mass. 325.
The provisions of R. L., c. 75, §§52 and 53, were originally
enacted in 1883 (St. 1883, c. 138), at a much later time than
the statute as to payment of expenses incurred in caring for a
person suffering from a disease dangerous to the public health.
The second section of the 1883 statute, which is substantially
set forth in R. L., c. 75, § 53, virtually imposed a penalty for
failure to give the notice required, by forfeiture of the right to
receive reimbursement from the Commonwealth in cases of
persons legally chargeable to the Commonwealth.
In view of the fact that St. 1902, c. 213, practically con-
tinues the substantive liability set forth in R. L., c. 75, § 57,
it does not appear to me that the Legislature could have in-
tended practically to repeal section 53. This view is strength-
ened somewhat by the express repeal found in section 3 of the
1902 act. The fact that in such a provision one section of the
66 ATTORNEY-GENERAL'S REPORT. [Jan.
Revised Laws is expressly mentioned natural!}^ excludes the
idea of repeal of other sections by implication.
Accordingly, I am of the opinion that R. L., c. 75, § 53,
is law at the present time.
Very truly yours,
Henry C. Attwill, Attorney-General.
Fire Prevention Commissioner — Fireworks and Firecrackers —
Right to prohibit Sale and Use of.
The Fire Prevention Commissioner has no power under St. 1914, c. 795,
to restrain or prohibit the sale or use of fireworks or firecrackers,
except where such restraint or prohibition is reasonably necessary for
the prevention of fires.
May 22, 1917.
John A. O'Keefe, Esq., Fire Prevention Commissioner.
Dear Sir : — I acknowledge your communication in which
you request my opinion as to whether or not the Fire Preven-
tion Commissioner has the right to prohibit, by regulation or
otherwise, the sale and use of fireworks and firecrackers.
You refer to St. 1910, c. 565, section 2 of which provides
that "cities and towns, respectively, may by ordinances and
by-laws prohibit the sale or use of fireworks or firecrackers
within the city or town, or may limit the time within which
firecrackers and torpedoes may be used."
St. 1914, c. 795, § 3, provides that —
All existing powers, in whatever officers, councils, bodies, boards or
persons, other than the general court and the judicial 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 dis-
position of gunpowder, dynamite, nitroglycerine, camphine or any
similar fiuids or compounds, crude petroleum or any of its products,
or any explosive or inflammable fluids or compounds, tablets, tor-
pedoes, rockets, toy pistols, fireworks, firecrackers, or any other ex-
plosives, and the use of engines and furnaces described in section
seventy-three of chapter one hundred and two of the Revised Laws,
are hereby transferred to and vested in the commissioner.
The first question that naturally arises is whether the power
granted to cities and towns under the provisions of said
chapter 565, to prohibit the sale or use of fireworks and fire-
1918.] PUBLIC DOCUMENT — No. 12. 67
crackers, and to limit the time within which firecrackers and
torpedoes may be used, was transferred to the Fire Prevention
Commissioner by the provisions of said chapter 795. If such
is the construction to be placed upon the act, the power of a
city or town to prohibit the sale and use of fireworks and fire-
crackers throughout its limits has been taken away and given
to the Fire Prevention Commissioner.
I think this is not a reasonable construction to place upon
the act, and such construction would not be open to argu-
ment but for the use of the word "restrain" in section 3 of
said chapter 795. While the word "restrain" may include the
power to prohibit, ordinarily such power, when derived from
the power to restrain, is limited to such prohibition as is in-
cidental to the power to regulate.
In my judgment, the purpose of St. 1914, c. 795, as its title
indicates, is for the better prevention of fires. Under the pro-
visions of St. 1910, c. 565, cities and towns were not restricted,
in the making of by-laws to prohibit the sale or use of fire-
works or firecrackers, to those reasonably adapted to prevent
fires. By the passage of the act cities and towns were given
full power, in the exercise of local self-government, to deter-
mine whether or not fireworks and firecrackers should be sold
at all, and to determine and limit the time within which fire-
crackers and torpedoes could be used. It was not a power of
regulation, such as is given to the Fire Prevention Commis-
sioner, to determine under what conditions they might be sold
or used, but the power to pass by-laws and ordinances applica-
ble throughout the city or town to prohibit absolutely the sale
or use of fireworks and firecrackers, or to limit the time within
which firecrackers and torpedoes could be used. This power,
in my opinion, still remains in the cities and towns, and thus
cannot be exercised by the Fire Prevention Commissioner. I
think it plain, however, that, as incidental to his power to
prescribe regulations not inconsistent with the first or second
sections of chapter 565 of the Acts of 1910, for the keeping,
storage, transportation, manufacture, sale and use of fireworks
and firecrackers, he may restrain or prohibit their use where
such restraint or prohibition is reasonably necessary for the
prevention of fires.
Very truly yours,
Henry C. Attwill, Attorney -General.
68 ATTORNEY-GENERAL'S REPORT. [Jan.
Workmen's Covipensation Act — Authority of Counties or
Municipalities to insure their Liability thereunder.
A county, city, town or district having the power of taxation, which has
accepted the provisions of St. 1913, c. 807, may insure its liability to
pay the compensation therein provided for with a liabiUty insurance
company or the Massachusetts Employees Insurance Association, but
cannot take out such a policy covering some of its departments and
not others.
May 24, 1917.
Hon. Frank H. Harbison, Insurance Commissioner.
Dear Sir: — You have requested my opinion as to whether
a county, city, town or district having the power of taxation,
which has adopted the provisions of St. 1913, c. 807, may
insure its liability to pay compensation to injured laborers,
workmen and mechanics with the association created by St.
1911, c. 751, pt. IV, or with a liability insurance company,
in accordance with section 3 of part V of said act, or must
carry its risk directly, as a self-insurer.
Gen. St. 1915, c. 244, entitled "An Act to fix responsibility
for the payment of workmen's compensation by the Common-
wealth and by counties, cities, towns and districts," by section
1 required every city, town, etc., which had accepted the
provisions of St. 1913, c. 807, to "designate a person to act as
its agent in furnishing the benefits due under chapter seven
hundred and fifty-one of the acts of the year nineteen hun-
dred and eleven and acts in amendment thereof and in addi-
tion thereto."
Section 2 is as follow^s: —
This act shall not apply to counties, cities, towns and districts which
are insured under the provisions of chapter seven hundred and fifty-
one of the acts of the year nineteen hundred and eleven and acts in
amendment thereof.
While the language here used refers in express terms only to
the present ("counties, cities, towns and districts which are
insured"), it is inconceivable that the Legislature intended to
exempt only those counties, cities, towms and districts, if any,
which happened to be insured on the date w^hen the act took
effect. It must have been intended as of general application,
effective throughout the future, and equivalent to saying that
this act shall not apply to counties, cities, towns and districts
which may provide insurance under the provisions of St. 1911,
c. 751.
1918.] PUBLIC DOCOIEXT — Xo. 12. 69
It may be that this act was passed under the impression
that St. 1913, c. 807, in conjunction with St. 1911, c. 751,
authorized counties, cities, towns and districts to insure the
liability thereby created or permitted, and that such assump-
tion was erroneous. However, I deem it unnecessary to deter-
mine whether or not that is the case.
As was said by the late Chief Justice Marshall, —
A mistaken opinion of the Legislature concerning the law does not
make law; but if this mistake is manifested in words competent to
make the law in future, we know of no principle which can deny them
this effect. Postmaster General v. Early, 12 Wheat. 136, 148.
This principle has been recognized and acted upon by other
courts. Norton v. Spooner, 9 Moore, P. C, 129; Queen v.
Mayor of Oldham, L. R. 3 Q. B., 474; State v. Miller, 23 Wis.
634; Swa7in v. Buck, 40 Miss. 268, 308; State v. Eskridge, 1
Swan (Tenn.), 413.
The question then arises whether the language of this sec-
tion is broad enough to confer authority to take out insurance
of this type, if that authority did not already exist.
Assuming for the moment that there was no such authority,
and that that fact was known to the Legislature, it would
then appear that the Legislature must have intended to grant
the right to insure as a necessary implication from the lan-
guage used. The exemption of a person or corporation from
certain liabilities, in the event some act is done, contains in
itself authority to do the act.
In any event, this section is an absolute nullity unless these
districts are authorized to insure — a result which, under one
of the fundamental canons of construction, is to be avoided if
in any way possible.
I fail to see how the language used is any the less "com-
petent to make the law in the future" if we assume that the
Legislature was mistaken as to the existing state of the law,
than if we assume the contrary. In either event the language
used is the same.
It may be answered that the ultimate guide to correct
statutory interpretation is the intent of the Legislature, and
that this intent is different in the cases supposed, even though
the language is the same. But it is the basic intent and pur-
pose which is the real guide, and that intent, in the present
case, was to exempt certain counties, cities, towns and dis-
70 ATTORNEY-GENERAL'S REPORT. [Jan.
tricts from the application of the statute. This intent is
carried out only if the power to insure is held to exist.
The form of your question implies some doubt because of
the limited authority of taxation conferred upon cities and
towns. R. L., c. 25, § 15, besides authorizing taxation for
many specific purposes, contains at the end the following
words: "For all other necessary charges arising in such town."
This language has been employed since 1693, and though con-
siderably limited in its scope by the decisions of the courts, it
frequently has been held to include matters in which "a town
or city has a duty to perform, an interest to protect, or a right
to defend." Waters v. Bonvouloir, 172 Mass. 286, 288.
In Dunn v. Frainingham, 132 Mass. 436, 437, it is said: —
Therefore, whenever the Legislature confers a power or imposes a
duty upon towns, this clause applies and gives the towns authority to
grant money which is required to enable them to execute the power or
to perform the duty.
If the Legislature has authorized insurance in this class of
cases, that authorization carries with it the right to expend
moneys for the purpose, and to obtain those funds by taxation.
Accordingly, though with some hesitation, I have come
to the conclusion that your first question is to be answered in
the affirmative.
You also ask whether a municipality has the right to take
out a workmen's compensation policy with an insurance com-
pany covering the laborers, workmen and mechanics of some
of its departments and not such employees in other depart-
ments.
The language of neither St. 1913, c. 807, nor St. 1911, c.
751, contains any suggestion that employees of a single em-
ployer may be divided into classes, one of which shall be pro-
tected in one manner and others in another. The original
idea, upon the basis of which St. 1911, c. 751, was framed,
was of one insurance company, in which all employers who
came under the act should insure all their employees.
Part V, section 2, of that statute defines "employee" as
including "every person in the service of another," with cer-
tain exceptions not here material. Under part II of the act
"employees" of subscribers are given certain rights of com-
pensation. Part V, section 3, permits liability insurance com-
panies "to insure the liability to pay the compensation pro-
vided for by part two."
1918.] PUBLIC DOCUMENT — No. 12. 71
In my opinion, when insurance is provided under this act it
applies, subject to exceptions immaterial to this discussion, to
all employees of the employer obtaining the insurance, and
there is no ground for excepting part of such employees by
their division into departments or otherwise. Cox's Case, 225
Mass. 220.
It is perhaps needless to point out that this question does
not relate to a policy of indemnity, but only to a workmen's
compensation policy, under which the insurance company
takes the place of the "association," under the provisions of
St. 1911, c. 751.
It follows that in my opinion your second question is to be
answered in the negative.
Very truly yours,
Henry C. Attwill, Attorney-General .
Corporations — Issue of New Stock — Right of Stockholders to
participate proportionately — Constitutional Law.
A statute which purports to authorize a railroad corporation to issue cer-
tain preferred stock, exchangeable for common stock, without the
consent of certain stockholders who are denied the right to participate
in such issue, is unconstitutional in so far as it affects the value of the
shares of such stockholders by reducing their interest in the property
of the corporation.
May 24, 1917.
Hon. Clarence W. Hobbs, Jr., Chairman, Joint Committee on Railroads.
Dear Sir: — I acknowledge your communication in which
the Committee on Railroads requests my opinion upon cer-
tain questions raised by a proposed amendment to section 1 of
House Bill No. 2061. The bill provides as follows: —
Section 1. The New York, New Haven and Hartford Railroad
Company is authorized, for the purpose of paying its indebtedness,
to issue, subject to approval of the public service commission and the
pro\asions of chapter two hundred and ninety-nine of the General Acts
of the year nineteen hundred and fifteen, shares of preferred stock of
the par value of one hundred dollars each, upon which the company
may pay dividends out of its net income.
Section 2. Said preferred stock may be issued under such pro-
visions for future retirement or exchange for common stock as may
be authorized by a vote of stockholders holding not less than two-
thirds of the stock of such company and approved by the public service
commission.
72 ATTORNEY-GENERAL'S REPORT. [Jan.
The amendment proposed adds at the end of section 1 the
following: —
Provided, however, that if such preferred shares entitle the holders to
any voting power, no railroad corporation or railroad holdmg company
or express company, whether organized under the laws of this common-
wealth or any other state, shall directly or indirectly subscribe for,
purchase or hold any such preferred shares, and upon the offer of such
preferred shares to the stockholders of the New York, New Haven and
Hartford Railroad Company any railroad corporation, railroad hold-
ing company or express company which is a stockholder shall be ex-
cluded from such offer.
Your specific questions are as follow^s: —
1. As to whether the New York, New Haven & Hartford Railroad
Company could lawfully comply with the proviso if incorporated into
the act.
2. As to whether non-compliance with the proviso would result in
the New York, New Haven & Hartford Railroad Company losing the
right conferred by the act to pay dividends out of its net earnings.
I assume from your inquiry that certain railroad corpora-
tions, railroad holding companies and express companies are
at present stockholders of the New York, New Haven &
Hartford Railroad Company.
The effect of the proposed amendment is to provide, as a
requirement of the new issue of the preferred shares, that none
of such shares shall be offered to or held by a railroad cor-
poration, a railroad holding company or an express company.
You have called my attention to the cases of Gray v. Port-
land Bank, 3 Mass. 363, and Atkins v. Albree, 12 Allen, 359.
The effect of these decisions is that each stockholder has a
vested right to participate proportionately in any augmenta-
tion of the capital of the corporation, at least where new stock
is sold at less than its true value. The reason of this is plain.
In a sense stockholders are partners. Their interest in the
partnership and the partnership property is represented by
the shares they hold, and if it were permissible for those in
control of the corporation so to increase the capital without
giving to all stockholders an opportunity to participate pro-
portionately in such increase, the interest of the stockholders
denied the opportunity to participate would arbitrarily be
changed, and a part of their interest in the corporation would
1918.] PUBLIC DOCUMENT — No. 12. 73
thereby be taken away from them. It would in effect be a
taking of property without due process of law.
In this Commonwealth there is a reserve power in the Legis-
lature to amend or alter the charter of a corporation, but this
power has some limitations, and it cannot be exercised so as
to take away property of the corporation or of the stock-
holders. Commomvcalth v. Essex Co., 13 Gray, 239, 253. It
follows, that, in order to increase the capital stock under au-
thority of the Legislature, it must be done in such a way as
not to impair the value of the stock of shareholders who are
denied the right to participate in the new issue.
So far as the proposed amendment may affect participation
in the control and management of the property of the corpora-
tion, I am inclined to the view that it is free from objection.
Statutes affecting this right have in the past been enacted
and have operated in this Commonwealth without question.
An illustration is St. 1908, c. 636, § 2, which provides that if
the increase in the capital stock does not exceed 4 per cent,
of the existing capital stock it may be sold at public auction
without first offering the same to the stockholders. St. 1871,
c. 392, provided that any increased stock should be sold at
public auction. This was the only manner in which increased
stock in a railroad corporation could be sold from that time
until the passage of St. 1878, c. 84, which provided that such
increased stock might first be offered to the stockholders. By
St. 1893, c. 315, it was provided that stock in railroad cor-
porations should first be offered to the stockholders, except
that where the increase did not exceed 4 per cent, it might be
sold at public auction without first offering the same to the
stockholders.
So far, however, as the bill, as amended, affects the value of
shares of present stockholders by reducing the interest of such
stockholders in the property of the corporation, I am of the
opinion that it would be unconstitutional if construed as
authorizing the issue of the new stock without the consent of
the stockholders denied the right to participate.
The question of whether the issuance of this stock in the
manner proposed would have this effect is complicated by the
provision in the bill that the new stock may be issued ex-
changeable for common stock. This is a question of fact
which, obviously, I am not in a position to determine.
Accordingly, I am of the opinion that if the bill has the
effect above indicated, and is construed to authorize the issue
74 ATTORNEY-GENERAL'S REPORT. [Jan.
without the consent of stockholders who are denied the right
to acquire such stock, your first question is to be answered in
the negative; otherwise, in the affirmative.
The answer to your second question, in the first instance, is
in the affirmative, and in the second it is in the affirmative as
to such stock as may be held by railroad corporations, rail-
road holding companies and express companies.
Very truly yours,
Henry C. Attwill, Attorney -General.
Constitidional Law — Equal Protection of the Laws — Exemp-
tion of Farmers or Agriculturists from General Anti-
trust Act.
A general anti-trust bill which exempts agreements between farmers or
other persons engaged in agricultural pursuits, relative to the sale of
products of their own lands, would be unconstitutional if enacted
into law, as denjdng to all persons within the State the equal protec-
tion of the laws, in violation of article XIV of the Amendments to the
Constitution of the United States. •
May 24, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You have requested my opinion upon the constitu-
tionality of an act entitled "An act to prohibit combinations
and monopolies to control prices of commodities in common
use," which has been passed by both branches of the General
Court and is now awaiting the approval of Your Excellency.
This act is as follows: —
Section 1. Whoever agrees or combines with another to fix or
control the price at which any commodity or article in common use
shall be sold by any person, or to refrain from competition wdth any
person in the buying or selling of any such commodity or article, and
whoever monopolizes or attempts to monopolize, or combines or con-
spires with any other person to monopolize, any such article or com-
modity, shall be punished by a fine of not more than one thousand
dollars, or by imprisonment in the house of correction for not more
than three years.
Section 2. The pro\dsions of this act shall not apply to agreements
between vendor and vendee as to the price at which such goods are
sold by the vendor to the vendee; nor to agreements between persons
owning property jointly or in common as to the price at which such
property shall be sold; nor to agreements between the vendor and
vendee, in connection with the sale of the good-will of a business,
1918.] PUBLIC DOCUMENT — No. 12. 75
which are reasonably necessary for the preservation and protection of
the property which is sold; nor to agreements between farmers, or
other persons engaged in agricultural or horticultural pursuits, rela-
tive to the sale of the products of their own farms; nor shall the labor of
a person be considered a commodity or article in common use, within
the meaning of this act.
Section 3. The provisions of this act shall apply to, and the word
''person" as used herein shall include, corporations.
Section 4. The pro\dsions of this act shall remain in force only
for the duration of the existing state of war.
House Bill No. 1805, from which this act originated, was
reported on March 16, 1917, by the joint committee on the
judiciary, and enacted by the House of Representatives in
form identical with the first three sections of the present act.
While the bill was in the committee on bills in the third read-
ing of the Senate I advised the Hon. Alpheus Sanford, chair-
man of that committee, and the Hon. James F. Cavanagh,
chairman of the joint committee on the judiciary, under date
of April 5, 1917, that the bill, if enacted in the form it was
then in, would, under the decision of Connolly v. Union Sewer
Pipe Co., 184 U. S. 540, be unconstitutional, and recom-
mended that the exemption of agreements between farmers
or other persons engaged in agricultural or horticultural pur-
suits, relative to the sale of the products of their own farms,
should be stricken out, in order to insure the constitutionality
of the bill under the Connolly case. On the same day the
Senate committee on bills in the third reading reported the
bill, recommending that this be done, and the bill was accord-
ingly passed by the Senate, with the exemption of agreements
between farmers or other persons engaged in agricultural or
horticultural pursuits, relative to the sale of the products of
their ow^n farms, stricken out. The House of Representatives
non-concurred in this amendment, and the bill was thereupon
referred to the committee on conference. This committee
reported under date of May 15, 1917, recommending that the
Senate recede from its amendment, and that the bill be
amended by adding the following new section : —
Section 4. The provisions of this act shall remain in force onl}^
for the duration of the existing state of war.
This report w^as accepted by both branches of the General
Court and enacted in its present form.
76 ATTORNEY-GENERAL'S REPORT. [Jan.
If the question of whether the exemption from the opera-
tion of a general anti-trust bill, of agreements between farmers
or other persons engaged in agricultural pursuits, relative
to the sale of the products of their own lands, would be
such an arbitrary discrimination as to render the bill uncon-
stitutional, as denying to all persons the equal protection of
the laws, were to arise now for the first time, it might be con-
tended with much force that this exemption amounted to no
more than a reasonable classification, on the ground that it
was not within the evil sought to be remedied, since agricul-
tural producers must dispose of their stock quickly and have
no facilities for combinations. This contention is, however,
now concluded by the Connolly case, supra (1902), in which
the Supreme Court of the United States flatly decided that
section 9 of an anti-trust statute of Illinois of 1893, which
provided that "the provisions of this act shall not apply to
agricultural products or live stock while in the hands of the
producer or raiser," created an arbitrary discrimination in
favor of farmers and stock raisers, and denied to the other
persons falling within the scope of the bill the equal protection
of the laws, guaranteed by our Federal Constitution. It
further decided that this had the effect of rendering the entire
act unconstitutional, since the first section of the act embraced
within its terms all persons, firms, corporations or associations;
and if section 9 were eliminated as unconstitutional, then the
act, if it stood, would apply to agriculturists and live stock
dealers, which result the Legislature could not be held to have
intended.
The Supreme Court of the United States, in the case of
International Harvester Co. v. Missouri, 234 U. S. 199 (1914),
decided that the exemption of labor unions from such a bill
was constitutional, but cited with approval and reaffirmed the
Connolly case.
This case is decisive of the present question, unless the
effect of section 4 of our act is to create a sound reason for the
difference in treatment accorded to farmers or agriculturists
and all other persons included in the act.
It is difficult to see how such an emergency justifies the
difference in treatment between these classes, and, accordingly,
I am of the opinion that the act in question would be uncon-
stitutional if allowed to become a law.
Yours truly,
Henry C. Attwill, Attor7iey-General.
1918.1 PUBLIC DOCUMENT — No. 12. 77
Constitutional Law — Compulsory Workmen's Compensation
Act — Right to Trial by Jury — Police Power.
A statute making it compulsory for all employers in this Commonwealth
to take out insurance under the workmen's compensation act (St.
1911, c. 751), but allowing employees to claim their common law
rights under the existing compensation act, w^ould be imconstitu-
tional, as an unreasonable exercise of the poHce power.
A workmen's compensation act compulsory alike upon employer and em-
ployee would be constitutional, if limited to extra hazardous occupa-
tions and excluding persons engaged in interstate commerce, although
making no provision for a trial by jury.
May 25, 1917.
Hon. Channing H. Cox, Speaker of the House of Representatives.
Dear Sir: — I acknowledge an order from the honorable
House of Representatives in the following form: —
Ordered, That the House of Representatives hereby requests the
opinion of the Attorney-General on the following question of law:
Would House Bill No. 973 of the current year, being "An Act to
require all employers coming under the provisions of the workmen's
compensation act to insure for the protection of their employees," if
enacted into law be valid and in accordance with the provisions of the
Constitution of the Commonwealth and of the United States?
The bill referred to Is as follows: —
Section 1. All employers shall secure compensation to their em-
ployees by becoming and continuing as subscribers in the association
or in some stock or mutual liability insurance company authorized to
do business within this commonwealth.
Section 2. If an employer shall be in default under the provisions
of the preceding section for a period of thirty days, he may be en-
joined by the superior court from carrying on his business while such
default continues.
This bill, in my opinion, is not in proper form for enact-
ment, since its meaning and application cannot be determined
except by reference to the title. If the bill is to be enacted,
section 1 should be so drawn as to refer in terms to the work-
men's compensation act and its amendments. It has been
called to my attention, however, that this bill has been re-
ferred to the next General Court, and, accordingly, I assume
that my opinion is desired not so much with reference to a
bill in this particular form as for use in connection with some
legislative action looking tow^ard the enactment of legislation
78 ATTORNEY-GENERAL'S REPORT. [Jan.
along the general lines suggested by this bill. I therefore dis-
cuss the question presented by the order as a general proposi-
tion, without reference to the particular phraseology of the
bill.
I assume that the purpose of this order is to obtain an
opinion as to whether a statute may be enacted requiring all
persons having in their service employees who are entitled to
the benefits of the workmen's compensation act (St. 1911, c.
751) and its amendments to take out insurance under its pro-
visions. In other words, the question is: Can the provisions
of this statute, by which an employer is given the right to
elect as to whether he will bring himself within the statute by
subscribing to the Massachusetts Employees Association or
insuring with some other liability insurance company, be so
amended as to require him thus to insure, without modifying
the other features?
The workmen's compensation act now in force in this Com-
monwealth is entirely elective in character, both as to em-
ployers and as to employees. An employer may insure under
its provisions or not, as he chooses. If he does not elect to do
so, his employees, in case of injury, obtain more extensive
rights against him than they otherwise would have, since, in
that event, an employer is deprived of any defence on the
ground that the employee was negligent, or that the injury
was caused by a fellow servant, or that the employee assumed
the risk. If the employer elects to insure, the employee is
given the right to choose whether he will come within the pro-
visions of the act and take the benefit of the insurance or not.
On entering the employment or, if the employer insures after
the employee has been hired, within thirty days after such
insurance, the employee may claim his common law rights by
notice in writing. If he fails to do so, he is held to have chosen
to accept the benefits of the act. If he affirmatively elects not
to accept the benefits of the act, in case of injury he obtains
only his common law rights as they existed before the enact-
ment of the employers' liability act. Thus it will be seen that
the existing act gives both employer and employee a right to
choose whether they will come within the provisions or not,
although an attempt has been made to induce both parties to
choose in favor of the act by making the results of that choice
in the ordinary case more attractive than the results of the
opposite course.
The effect of the proposed bill is merely to deprive the em-
1918.] PUBLIC DOCUMENT — No. 12. 79
ployer of his right to elect not to come within the provisions
of the act. The bill requires him to subscribe to the Massa-
chusetts Employees Association or otherwise to insure, under
penalty of being enjoined from carrying on his business if he
fails to do so. The bill, however, leaves the remainder of the
act entirely unaffected, and thus still leaves to the employee
the right, upon entering the service or upon notice that the
emploj^er is insured, to choose whether he will come within the
provisions of the act or not.
It was largely because of its elective character that the
workmen's compensation act, as originally enacted, was sus-
tained by the Supreme Judicial Court as constitutional. Opin-
ion of the Justices, 209 Mass. 607; Young v. Duncan, 218
Mass. 346.
The court has never had occasion to pass upon the question
as to whether an act compulsory in any of its features could
constitutionally be enacted. It is my opinion, however, that
a law which requires all employers and employees who come
within its scope to submit to its provisions is not beyond the
power of the General Court, if such act is properly drawn and
properly limited. This is made plain, so far as the Federal
Constitution is concerned, by two recent decisions of the
United States Supreme Court.
In New York Central R.R. Co. v. White, 243 U. S. 188, the
court unanimously sustained the workmen's compensation law
of the State of New York. That law establishes forty-two
groups of hazardous employments, and requires all emploj^ers
and employees in such groups to comply with its provisions
and to submit to the exclusive provisions for compensation
which it establishes in case of personal injury. Aside from the
fact that the law is compulsory in its application to all per-
sons coming within its scope, the system of compensation pro-
vided and the method of administering it are analogous to
those established by our act. This statute, however, per-
mitted an employer to secure compensation to his employees
by (1) insuring in a State fund established by the act; or (2)
insuring in any stock or mutual insurance company authorized
to transact such business in the State; or (3) paying the com-
pensation provided by the act himself, the right to make this
latter election being conditioned upon furnishing satisfactory
proof to the commission of his financial ability to pa}', and, if
required, upon depositing security with the commission. The
court held that it is within the power of the States entirely to
80 ATTORNEY-GENERAL'S REPORT. [Jan.
set aside the rights and liabilities of employers and employees
in accident cases, as they exist at common law, at least pro-
vided that some reasonably just substitute is given therefor.
It held that the substitute provided, of compensation upon a
fixed and reasonable basis in all cases of injury, whether with
or without fault, short of intentional injury on the part of
either the employer or employee, was not an unreasonable nor
an arbitrary scheme. In view of the fact that this statute
gave to an employer a reasonable opportunity to subject him-
self only to liability to his employees, instead of bearing
through insurance the burdens of all industrial accidents in
industries of his class, none of the judges appear to have had
any doubt as to the reasonable character of the statute in the
liability which it imposed on employers.
In Mountain Timber Co. v. Washington, 243 U. S. 219, the
court sustained the compensation act of the State of Washing-
ton, four justices dissenting. This statute was similar in char-
acter to the New York statute, and, like that statute, was
applicable only to certain classes of employments expressly
recognized as "extra hazardous." It differed, however, from
the New York statute in one essential feature, namely, all
employers were required to secure compensation to their em-
ployees through contributions to a State fund established by
the act for the purpose of insuring payments of compensation
under it. This statute was thus in all respects compulsory,
and required each employer coming within its scope to con-
tribute toward the payment of compensation to all employees
in industries of his class, entirely without reference to whether
they received their injuries in his employ or not. In dealing
with this additional feature of the Washington statute the
court says: —
We are clearly of the opinion that a State, in the exercise of its
power to pass such legislation as reasonably is deemed to be necessary to
promote the health, safety, and general welfare of its people, may regu-
late the carrying on of industrial occupations that frequently and in-
evitably produce personal injuries and disability with consequent loss
of earning power among the men and women employed, and, occasion-
ally, loss of life of those who have wives and children or other relations
dependent upon them for support, and may require that these human
losses shall be charged against the industrj^, either directlj^, as is done
in the case of the act sustained in New York Central R.R. Co. v. White,
supra, or by publicly administering the compensation and distributing
the cost among the industries affected by means of a reasonable system
1918.] PUBLIC DOCUMENT — No. 12. 81
of occupation taxes. The act cannot be deemed oppressive to any
class of occupation, provided the scale of compensation is reasonable,
unless the loss of human life and limb is found in experience to be so
great that if charged to the industry it leaves no sufficient margin for
reasonable profits. But certainly, if any industry involves so great
a human wastage as to leave no fair profit beyond it, the State is at
liberty, in the interest of the safety and welfare of its people, to pro-
hibit such an industry altogether.
It is to be noted that in sustaining this statute the court
emphasizes the fact that it is applicable only to persons en-
gaged in "industrial occupations that frequently and inevi-
tably produce personal injuries and disability;" or, in other
words, to extra hazardous occupations. This emphasis strongly
suggests that if this statute had applied to all occupations,
without reference to the hazard involved, it would have been
declared invalid by the court.
These decisions of the Supreme Court of the United States
make it plain that a workmen's compensation act enacted in
this Commonwealth, applicable only to extra hazardous em-
ployments, and compulsory as to all employers and employees
engaged in such industries, would not be in violation of the
Constitution of the United States.
The fundamental rights guaranteed by the Declaration of
Rights of the Constitution of Massachusetts are in substance
the same as those protected by the Fourteenth Amendment to
the Federal Constitution. In Comvionwealth v. Strauss, 191
Mass. 545, 550, the Supreme Judicial Court said: —
The rights relied upon under the Fourteenth Amendment to the
Constitution of the United States, and under the Declaration of Rights
in the Constitution of Massachusetts, are substantially the same.
Though our court, in interpreting and applying the provi-
sions of the Massachusetts Constitution to such a statute,
is the final authority and is not bound by the decisions of
the Supreme Court of the United States, yet in view of the
high authority of that court and its clear reasoning in these
cases it seems highly probable that our Supreme Judicial Court
w^ould arrive at the conclusion that such a statute is not in-
consistent with our Declaration of Rights.
The enactment of such a compulsory law w^ould, however,
raise one serious question not involved in the decisions re-
ferred to, namely: Would a compulsory law, administered.
82 ATTORNEY-GENERAL'S REPORT. [Jan.
like the present law, by a State board which determines all
questions of fact, be a violation of the right to a trial by jury
guaranteed by the Massachusetts Constitution? Article XV of
the Declaration of Rights is as follows: —
In all controversies concerning property, and in all suits between
two or more persons, except in cases in which it has heretofore been
otherways used and practised, the parties have a right to a trial by
jury; and this method of procedure shall be held sacred, unless, in
causes arising on the high seas, and such as relate to mariners' wages,
the legislature shall hereafter find it necessarj^ to alter it.
It would seem that in the light of these decisions a contro-
versy as to the extent of the injury of an employee and the
amount of compensation which he is entitled to receive there-
for under such an act is not a controversy concerning prop-
erty, within the meaning of this provision; nor, in my opinion,
is a proceeding before an industrial accident board for the
arbitration of disputed questions of fact arising between an
employee and an insurance company, on a claim for compensa-
tion under a compulsory compensation act applicable to haz-
ardous businesses, a suit between two or more persons, within
the meaning of this provision. Neither the committee of
arbitration provided for by the act nor the Industrial Accident
Board is a court in the strict sense of the word, nor are their
members judicial officers, within the meaning of the Constitu-
tion. Pigeon's Case, 216 Mass. 51, 56. The proceedings be-
fore these bodies are hearings before administrative boards
authorized to make determinations of fact in the administra-
tion of the act, rather than trials of suits between two or more
persons.
In my opinion, however, this matter need not be put on any
narrow ground. It being held, as has been done by the Su-
preme Court of the United States, that actions of law between
employers and employees in hazardous occupations may be
abolished, and a reasonable system of compensation adminis-
tered by a public board substituted therefor, it would seem to
follow that where such system has been established the con-
stitutional right to a trial by jury of questions of fact relating
to such matters no longer exists. Rights of action within the
scope of the system have been abolished, and, therefore, there
can be no suit between parties to be determined by a jury.
As the court said in Mountain Timber Co. v. Washington, at
page 235: —
1918.] PUBLIC DOCUMENT — No. 12. 83
As between employee and employer, the act abolishes all right of
recovery in ordinary cases, and therefore leaves nothing to be tried
by jury.
This was also the view expressed by the Supreme Court of
the State of Washington in sustaining the same law. State v.
Mountain Timber Co., 75 Wash. 581.
A fundamental feature of all workmen's compensation laws
is that so far as possible they shall w^ork automatically, the
amount of compensation being readily ascertainable when the
extent of the injury is known. It is essential to the proper
administration of these laws that, except so far as questions of
law arise, they should be executed without the intervention of
the courts. To sustain as reasonable the scheme substituted
for the common law liability of the employer, and to deny the
validity of a fundamental feature of its method of adminis-
tration, can be regarded only as an absurd result. In my opin-
ion, a properly limited compulsory workmen's compensation
law would not be inconsistent with the provision of our Con-
stitution guaranteeing a trial by jury.
Accordingly, I reach the conclusion that a compulsory work-
men's compensation law similar either to that in force in New
York or in Washington would be valid if enacted in this
Commonwealth.
The proposed legislation referred to in the order of the
House does not, in my opinion, make the existing workmen's
compensation law of this Commonwealth a compulsory law
such as those I have described. House Bill No. 973 or any
similar measure, if enacted into law, would apply its compul-
sory provisions only to employers. It would still leave to em-
ployees their right under the existing compensation act to
elect their common law rights under the methods provided by
the existing act, and thus to subject their employers to actions
at law for damages in proper cases. Employers, on the other
hand, would be required by such enactment to obtain insur-
ance under the compensation act, and thus each employer
would be required to bear his share of the burdens of all in-
dustrial accidents in his industry, whether caused to his em-
ployees or not, and at the same time be required to run the
risk of suits by any of his employees who choose to claim their
common law rights. The only remedy of the employer would
be to refuse to hire, or to discharge, any person who claimed
such rights. It seems to me that to make the law compulsory
84 ATTORNEY-GENERAL'S REPORT. [Jan.
as to the employer and elective as to the employee is an arbi-
trary discrimination and not a reasonable application of the
police power. It does not appear to find justification in any
industrial condition that has been called to my attention.
Furthermore, our present compensation act applies to all
employees except domestic servants and farm laborers. If the
proposed compulsory insurance provisions were added to it,
every person in the Commonwealth having one or more em-
ployees other than domestic servants or farm laborers would
be required to secure insurance under the act. This compul-
sory feature would apply to all employments, whether to any
appreciable extent hazardous or not. The small merchant
with one clerk, the business or professional man with but one
stenographer, or with only an office boy, and every other
business man in the Commonwealth, no matter how trivial
were the risks run by his employees in the course of their em-
ployment, would be required to insure under the act. I know
of no conditions which warrant any such compulsion. The
decisions of the Supreme Court of the United States to which
I have referred are based largely upon the fact that the laws
there under consideration are confined in their operation to
industries reasonably classified as extra hazardous. In my
opinion, a compulsory law applicable to all employees except
domestic servants and farm laborers would be held to be un-
constitutional, as an unreasonable exercise of the police
power.
The proposed bill is extremely broad in its terms, and ap-
pears to apply even to persons and corporations engaged in
interstate commerce. Very recent decisions of the Supreme
Court of the United States indicate that if given such a broad
application the statute would be to that extent in violation of
the Federal Constitution. If legislation of this sort is to be
enacted, it should expressly be made inapplicable to persons
engaged in interstate commerce.
If a valid compulsory workmen's compensation law is en-
acted, I can see no reason why an employer who fails to com-
ply with its provisions may not be subjected to the penalty of
an injunction restraining him from further conducting his
business until he has so complied, in the general manner pro-
vided by the second section of this bill.
Yours very truly,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 85
Taxation — Income Tax — Deposits in Savings Departments
of Trust Companies.
Under Gen. St. 1916, c. 269, § 2 (a), 1st, interest on deposits in the savings
departments of trust companies is exempted from the income tax
only when the amounts of such deposits do not exceed the Umits upon
deposits in savings banks.
May 31, 1917.
Hon. W. D. T. Trefry, Tax Commissioner.
Dear Sir: — You request my opinion as to whether the
provision of Gen. St. 1916, c. 269, § 2 (a), 1st, relating to the
exemption from the income tax of the interest on certain de-
posits in the savings departments of trust companies, applies
only to the interest on accounts of individual depositors not in
excess of the limits imposed upon deposits in savings banks, or
whether it is applicable to interest on such part of all ac-
counts as does not exceed in amount such limits.
The exemption provision to which you refer is as follows: —
Deposits in any savings bank chartered by this commonwealth or
in the Massachusetts Hospital Life Insurance Company, or such of
the deposits in the savings department of any trust company so char-
tered as do not exceed in amount the limits imposed upon deposits in
savings banks by section fortj^-six of chapter five hundred and ninety
of the acts of the year nineteen hundred and eight, and acts in amend-
ment thereof and in addition thereto.
The words which require interpretation are "such of the
deposits in the savings department of any trust company
... as do not exceed in amount the limits imposed upon
deposits in savings banks." This language must be construed
in connection with the statutes relating to the establishment
and taxation of such departments of trust companies.
The establishment of savings departments by trust com-
panies was authorized and their conduct regulated by St.
1908, c. 520. No provision, however, was included for the
imposition of an excise tax on such deposits nor for their
exemption from taxation to the depositor.
By St. 1909, c. 342, it was provided as follows: —
Section 1. Every trust company having a savings department, as
defined by chapter five hundred and twenty of the acts of the year
nineteen hundred and eight, shall pay to the treasurer and receiver
general on account of its depositors in such department, an annual tax
on the amount of its deposits therein, to be assessed and paid at the
86 ATTORNEY-GENERAL'S REPORT. [Jan.
rate, in the manner, and at the times specified in chapter fourteen of
the Revised Laws and acts in amendment thereof and in addition
thereto, for the taxation of deposits in savings banks, except that in
the year nineteen hundred and ten the rate of said tax shall be one
eighth of one per cent, in the year nineteen hundred and eleven one
quarter of one per cent, and in the year nineteen hundred and twelve
three eighths of one per cent.
Section 4. All deposits taxed under the provisions of section one
of this act shall otherwise be exempt from taxation in any year in
which said tax is paid.
As no limit upon the amount of deposits in the savings
departments of trust companies is imposed by law, the fore-
going statute was apparently thought too favorable for such
depositors, and, accordingly, by St. 1911, c. 337, § 1, it was
provided as follows: —
The tax imposed by section one of chapter three hundred and forty-
two of the acts of the year nineteen hundred and nine shall apply only
to such of the deposits therein designated as do not exceed in amount
the limits imposed upon deposits in savings banks by section forty-six
of chapter five hundred and ninety of the acts of the year nineteen
hundred and eight and acts in amendment thereof and in addition
thereto.
It is to be noted that the provision of the income tax law
under consideration adopts the essential language of the
statute just quoted. In Old Colony Trust Co. v. Covimon-
wealth, 220 Mass. 409, 411, the court stated the effect of this
last-mentioned statute to be as follows: —
The law as to the excise tax, which is the growth of many years,
thus is made applicable only to that part of the deposits in the savings
departments of trust companies which corresponds with savings bank
deposits in amounts from individual depositors.
It is conceded that it has always been the practice of your
department and of the trust companies maintaining savings
departments to interpret this statute as subjecting to the
excise tax only the total amount of the accounts in which de-
posits do not exceed the savings bank limits. The opinion in
the case referred to plainly indicates that that is the proper
construction of the statute. It follows that before the enact-
ment of the income tax law only such accounts as did not
1918.] PUBLIC DOCUIVIEXT — No. 12. 87
exceed the savings bank limits were exempt from taxation to
the depositors. In my opinion, it was plainly the purpose of
the income tax law, in adopting the language of the statute of
1911, merely to adopt this exemption and not in any way to
extend it.
It follows, in my opinion, that the income tax law should be
construed as exempting from taxation only the income from
such accounts in the savings departments of trust companies
as do not exceed in the amount of their deposits the limits im-
posed upon deposits in savings banks.
Yours very truly,
Henry C. Attwill, Attorney -General.
Constitutional Convention — Oath of Office.
Members of the Constitutional Convention are not required by law to
take any oath of office.
June 5, 1917.
His Excellency Samuel W. McCall, Governor of the Coriimonwealth.
Sir: — You request my opinion upon the question of
whether the persons who have been elected delegates to the
convention to revise, alter or amend the Constitution of Mas-
sachusetts, under the provisions of Gen. St. 1916, c. 98, are
required to take any oath before entering into the performance
of their duties as such delegates.
Both the act providing for the convention and the statute
law of the Commonwealth are silent upon this question, so
that if required at all, it must be by virtue either of the
Constitution of the United States or of our Constitution.
Article VI of the Constitution of the United States pro-
vides, in part, as follows: —
The senators and representatives before mentioned, and the mem-
bers of the several state legislatures, and all executive and judicial
officers, both of the United States and of the several states, shall be
bound bj^ oath or affirmation, to support this constitution.
In my opinion, this article does not apply to the position
of delegate to the convention in question, for the reason that
the convention cannot be said to be a State Legislature, nor
can the delegates elected thereto be said to be executive or
judicial officers.
88 ATTORNEY-GENERAL'S REPORT. [Jan.
Mass. Const., pt. 2d, c. VI, art. I, provides:
Every person chosen to either of the places or offices aforesaid
[governor, lieutenant-governor, councillor, senator, or representative],
as also any person appointed or commissioned to any judicial, execu-
tive, military, or other office under the government, shall, before he
enters on the discharge of the business of his place or office, take and
subscribe the following declaration, and oaths or affirmations, viz.:
*'I, A. B., do solemnly swear and affirm, that I will faithfully and
impartially discharge and perform all the duties incumbent on me as
, according to the best of my abilities and understand-
ing, agreeably to the rules and regulations of the constitution and the
laws of the commonwealth. So help me, God."
It is obvious that this article does not apply to the position
of delegate to the Constitutional Convention.
The only other provision of our Constitution bearing upon
this question is article VI of the Amendments to the Consti-
tution of Massachusetts, w^hich provides, in part, as fol-
lows: —
Instead of the oath of allegiance prescribed by the constitution, the
following oath shall be taken and subscribed by every person chosen
or appointed to any office, civil or military, under the government of
this commonwealth, before he shall enter on the duties of his office,
to wit: —
''I, A. B., do solemnly swear, that I will bear true faith and allegi-
ance to the Commonwealth of Massachusetts, and will support the
constitution thereof. So help me, God."
It is to be noted that this article applies only to offices
under the government of this Commonwealth. In an opinion
rendered under date of Feb. 19, 1917, I advised the joint com-
mittee of the Legislature on constitutional amendments that
the position of delegate to this convention was not an office
under the government of this Commonwealth, within the
meaning of article VIII of the Amendments of our Constitu-
tion, for the reason that the word "office," as used in that
article, referred to a position the incumbent of which exercises
some powder of the existing government and not to the posi-
tion of a person selected to act in an advisory capacity in
framing a scheme or change of government to be submitted to
the people for adoption or rejection. The meaning of the
1918.] PUBLIC DOCUMENT — No. 12. 89
phrase "office under the government of this commonwealth,"
as used in articles VI and VIII of the Amendments, is un-
doubtedly the same, as both these articles were drafted at the
same time by the same convention. I am of the opinion,
therefore, that the position of delegate to this convention is
not an office under the government of this Commonwealth,
within the meaning of article VI of the Amendments to our
Constitution.
Accordingly, I am of the opinion that no oath or affirmation
is required by law to be taken by delegates to the Constitu-
tional Convention. I am fortified in this opinion by reason
of the fact that it does not appear that the delegates to the
convention of 1820 or the convention of 1853 took any oaths
of office or otherwise, nor that it was contended that they
were bound by law to do so. The convention may, of course,
if it deems it fitting and appropriate to do so, prescribe oaths
to be taken by its members, but this is a matter which, in my
judgment, rests entirely w^ithin the discretion of the conven-
tion itself.
Very truly yours,
Henry C. Attwill, Attorney-General.
War Service — State Pay — Woman Yeoman.
A woman who enlists in the navy as a yeoman is not a soldier or sailor
within the meaning of Gen. St. 1917, cc. 211 and 332.
June 6, 1917.
Hon. Charles L. Burrill, Treasurer and Receiver-General.
Dear Sir: — You ask my opinion as to w^hether a w^oman
who enlists in the navy as a yeoman is entitled to State pay
under the provisions of Gen. St. 1917, c. 211, as defined and
extended by Gen. St. 1917, c. 332.
As I understand it, the duties performed by a woman so
enlisting are the ordinary duties performed by a stenographer
or a clerk. In my opinion, a woman who performs such
duties is not a soldier or a sailor, within the meaning of these
statutes.
Yours very truly,
Henry C. Attwill, Attorney -General.
90 ATTORNEY-GENERAL'S REPORT. [Jan.
IVar Service — Scope of Statutes lyroviding for State Pay to
Persons in.
Gen. St. 1917, c. 211, providing for State pay of $10 a month to certain
persons mustered into the mihtary or naval service of the United
States "as a part of the quota of this Commonwealth," applies only
to non-commissioned officers, soldiers and sailors of the National
Guard of the Commonwealth, including therein any naval militia
maintained by the Commonwealth, who have been mustered into the
Federal service.
Gen. St. 1917, c. 332, extends the benefits conferred by c. 211 to any non-
commissioned officer or enlisted man who enlists or re-enUsts as a
resident of this Commonwealth in the regular or volunteer forces of
the United States Army, Navy or Marine Corps subsequent to Feb.
3, 1917, and who has been for at least six months legally domiciled in
the Commonwealth, although such enlistment or re-enlistment actu-
ally takes place in another State.
June 6, 1917.
Hon. Charles L. Burrill, Treasurer and Receiver-General.
Dear Sir: — You have asked my opinion as to several
questions which have arisen in carrying out the provisions of
Gen. St. 1917, c. 211, as defined and extended by Gen. St.
1917, c. 332.
Section 1 of chapter 211 provides, in part, as follows: —
There shall be allowed and paid out of the treasury of the common-
wealth to each non-commissioned officer, soldier and sailor, who has
been, or is hereafter, mustered into the military or naval service of the
United States as a part of the quota of this commonwealth for service
in the United States or in any foreign country, the sum of ten dollars
per month. . . .
Section 1 of chapter 332, for the purpose of carrying out the
foregoing provision, defines the war with the German Empire
as having begun Feb. 3, 1917, and then provides as follows: —
And any non-commissioned officer or enlisted man having a residence
of at least six months within this state and serving to the credit of
this commonwealth in the regular or volunteer forces of the United
States army, na\y or marine corps, whose federal service began sub-
sequent to said February third, nineteen hundred and seventeen, is
ehgible under the provisions of the above acts.
The first question to be decided in determining the persons
w^ho are entitled to receive State pay under the provisions of
these statutes is the proper interpretation of the words "as a
1918.] PUBLIC DOCUMENT — No. 12. 91
part of the quota of this commonwealth," as they appear
in chapter 211.
The word "quota" implies allotment or assignment of a
certain specified number of men which it is the duty of the
Commonwealth to raise for the military or naval service of the
United States. So far as I am aware, the only quota of this
character in any manner as yet assigned to the Commonwealth
by the Federal government grows out of the provision for the
maintenance of a portion of the National Guard by the Com-
monwealth. Section 62 of the Act of Congress approved June
3, 1916, entitled "An Act for making further and more effec-
tual provision for the national defense and for other purposes,"
provides that the number of enlisted men of the National
Guard to be organized by each State within one year from the
passage of that act in accordance with its provisions shall be
in the proportion of 200 men for each senator and representa-
tive in Congress from the State, and further provides that this
number shall be increased not less than 50 per centum in each
year thereafter until a total peace strength of not less than
800 enlisted men for each senator and representative shall
have been reached.
Section 117 of this act, in authorizing the formation of a
naval militia, contains the following proviso: —
Provided, that each state, territory or district maintaining a naval
militia, as herein provided, may be credited to the extent of the num-
ber thereof in the quota that would otherwise be required by section
sixty-two of this act.
This provision plainly seems to indicate that the word
"quota" is there used to indicate the total number of enlisted
men of the National Guard which each State is required to
raise.
In my opinion, therefore, the provision for State pay, con-
tained in chapter 211, applies at present only to the non-com-
missioned officers, soldiers and sailors of the National Guard
of the Commonwealth, including therein any naval militia
maintained by the Commonwealth, who have been mustered
into the Federal service. It applies, how^ever, to all such
persons, without condition as to length of residence in the
Commonwealth.
Chapter 332 does two things: It first defines the date of
the beginning of the war with the German Empire as Febru-
ary 3 last; and, in the second place, it somewhat extends the
92 ATTORNEY-GENERAL'S REPORT. [Jan.
right to receive State pay granted by chapter 211. It pro-
vides that, in addition to the persons entitled to State pay
under chapter 211, any non-commissioned officer or enlisted
man having a residence of at least six months within this
State and serving to the credit of the Commonwealth in the
regular or volunteer forces of the United States Army, Navy or
Marine Corps shall be entitled to that pay, provided his
Federal service began subsequent to the beginning of the war,
defined as being upon the 3d of February. This provision, in
my opinion, extended the right to receive State pay to all
persons enlisting in the United States Army, Navy or Marine
Corps subsequent to February 3, provided such persons had
at the time of their enlistment been residents of the Common-
wealth for at least six months. By its terms, however, it does
not apply to persons who had enlisted in the United States
Army, Navy or Marine Corps prior to the 3d of February.
In my opinion, the condition of residence for six months
within the Commonwealth, applicable only to the additional
persons entitled to State pay under chapter 332, must be in-
terpreted as requiring that the applicant for such State pay
shall have been legally domiciled within the Commonwealth
for a period of at least six months before his enlistment.
A question of some difficulty arises in determining when the
Federal service of an applicant under chapter 332 began where
his original enlistment was before the beginning of the war
and has been followed by a re-enlistment after February 3
and immediately at the expiration of his original term of serv-
ice, so that in a sense his Federal service has been of con-
tinuous duration. On the whole, however, in view of the
obvious purpose of the statute to encourage enlistments of
citizens of the Commonwealth, it is my opinion that the term
"Federal service," as used in this statute, should refer only to
service under the current enlistment of the applicant.
Accordingly, in case of re-enlistment after the beginning of
the war, the enlisted man, if then legally resident in the Com-
monwealth for the required period, is entitled to State pay.
The result of the foregoing is that all non-commissioned
officers, soldiers and sailors who have been mustered into the
military or naval service of the United States as a part of the
National Guard of the Commonwealth, including in that
description any naval militia of the Commonwealth, for serv-
ice in connection with the war with the German Empire, are
1918.] PUBLIC DOCUMENT — No. 12. 93
entitled to State pay from the time when they entered the
service of the United States, without reference to their legal
residence. In addition to the foregoing, any non-commissioned
officer or enlisted man who enlists or re-enlists in the regular
or volunteer forces of the United States Army, Navy or
Marine Corps subsequent to Feb. 3, 1917, is entitled to such
pay, provided that, at the time of the beginning of his Federal
service by such enlistment or re-enlistment, he has been for at
least six months legally domiciled in the Commonwealth and
enlisted as a resident thereof. In my opinion, it is not a re-
quirement that such enlistments or re-enlistments in the Army,
Navy or Marine Corps of the United States shall take place
within the Commonwealth. It is only essential that the ap-
plicant, at the time of such enlistment, shall be a legal resident
of the Commonwealth.
The determination of the question as to whether a given
person is a legal resident of the Commonwealth may often be
a matter of some difficulty, particularly in the case of re-
enlistment of a man who has been for some time in the Federal
service. If such a man originally enlisted from Massachusetts,
was then legally domiciled here, and his immediate family or
next of kin were then, and still are, domiciled here, it would
seem that he had retained his legal residence in the Common-
wealth. If, at the time of his original enlistment, he or his
next of kin were domiciled elsewhere, but the latter have since
acquired a legal residence here, and the applicant has in good
faith treated this change of residence on the part of his family
as a change of his own residence, it would seem that it might
well be said in such a case that he had acquired a legal resi-
dence here and was entitled to State pay under the provisions
of chapter 332 in case of subsequent re-enlistment. Of course,
the reverse of that proposition would also be true, namely,
that a change of domicile from Massachusetts to another
State by the family of a man who had originally enlisted from
Massachusetts should ordinarily be taken as meaning that he,
too, has changed his residence to the other State. These
various questions of legal residence, however, are all matters
of fact which must be determined in the particular cases as
they arise.
Yours very truly,
Henry C. Attwill, Attorney-General.
94 ATTORNEY-GENERAL'S REPORT. [Jan.
Street Railways — Power of Company to sell its Railway.
The sale by a street railway company of its electric cars to another street
railway company, and of its trolley lines, poles, fixtures and land to
a third company, is illegal and in violation of St. 1906, c. 463, pt. Ill,
§51.
June 6, 1917.
Public Service Commission.
Gentlemen: — You have communicated to me certain
facts with reference to a particular street railway company,
stating that it had sold its electric cars to another street rail-
way company, from which company it now leases them, and
had sold its trolley lines, poles, fixtures and land to another
corporation. I infer from your letter that you desire an
opinion as to the legality of such transfers.
Apparently, this is governed at present by the provisions of
St. 1906, c. 463, pt. Ill, § 51, which is as follows: —
A street railway company shall not lease or contract for the opera-
tion of its railway for a period of more than ninety-nine years without
the consent of the general court, nor, except as provided in the three
following sections, shall it sell its railway unless authorized so to do by
its charter or by special act of the general court.
I understand that no authorization under the three sections
follow^ing section 51 has been obtained, and that neither the
charter nor any special act of the General Court authorizes
the transfers mentioned.
So far as this section deals with a sale, it was first enacted
by St. 1864, c. 229, § 24, which was as follows: —
No street railway corporation shall sell or lease its road or property
unless authorized so to do by its charter, or bj^ special act of the legis-
lature. . . .
In 1871 this section was amended by omitting the words
"or property." As so changed, the section in substance has
remained until the present time, except for the substitution
of the word "railway" for "road" in the statute of 1906.
In the case of Richardson v. Sibley, 11 Allen, 65 (1865), the
Supreme Court decided that this section prevented a general
mortgage of all the property, real and personal, of a street rail-
way corporation. The court said, at page 70: —
1918.] PUBLIC DOCUMENT — No. 12. 95
But any alienation, either in fee, or for the period of its corporate
existence, or for any less term, of substantially all its real and personal
property, so as to disable it from carrying on the business which it had
been chartered to do for the benefit of the public, is clearly within the
terms and the meaning of this prohibition.
In this opinion the court laid some stress upon the fact that
the prohibition extended to a sale or lease of the "property"
as well as the "road" of the street railway corporation, and
pointed out that this should not be construed to prevent the
disposal of unimportant portions of the property of the cor-
poration, as "a few horses or cars, or worn out rails, or other
articles the sale or transfer of which would not impair its
powers to carry on its business."
Despite the fact that since 1871 the word "property" has
not appeared in the statute, the decisions of the Supreme
Court seem to imply that the rule as laid down in Richardson
V. Sibley is still law.
In demons Electrical Manfg. Co. v. Walton, 206 Mass. 215,
the court says: —
But a transfer of the property necessary to enable a railway to per-
form its duties as a public carrier is as much forbidden by Pub. Sts. c.
113, § 56 (now St. 1906, c. 463, pt. Ill, § 51), as a transfer of its fran-
chise. That was pointed out in the original case of Richardson v. Sibley,
11 Allen, 65, 70, and reaffirmed and decided in Clemens Electrical
Manuf. Co. v. Walton, 173 Mass. 286.
In French v. Jones, 191 Mass. 522, the court also said: —
Our earliest statute upon this subject provided that "no street
railway corporation shall sell or lease its road or property unless author-
ized so to do by its charter, or by special act of the Legislature." St.
1864, c. 229, § 24. And "any alienation, either in fee, or for the period
of its corporate existence, or for any less term, of substantially all its
real and personal property, so as to disable it from carrying on the
business which it had been chartered to do for the benefit of the pub-
lic, is clearly within the terms and meaning of this prohibition."
Gray, J., in Richardson v. Sibley, ubi supra. And subject to certain
limitations not materia] to the decision of this case, the same prohibi-
tion has since remained in force (Pub. Sts. c. 113, § 56; St. 1897, c.
269; R. L. c. 112, §§ 85 et seq.), except that in 1900 power was given
to the receiver of a street railway company to make such a sale of its
road, property, locations and franchises as is here in question.
96 ATTORNEY-GENERAL'S REPORT. [Jan.
Apart from this statutory prohibition there are cases hold-
ing that transfers of the corporate franchise or of the entire
property of public service corporations without express au-
thorization of the Legislature are ultra vires, because of the
fact that thereby the public service corporation disables itself
from the performance of the duties for which it was incor-
porated. See Davis v. Old Colony R.R. Co., 131 Mass. 258,
and cases cited; Braslin v. Somerville Horse R.R. Co., 145
Mass. 64.
Accordingly, I am of the opinion that these transfers by
the street railway company first referred to, taken together,
inasmuch as they include practically all of the property of that
corporation, and thereby disable it from the performance of its
public duties, are illegal and beyond the powers of that cor-
poration effectually to complete.
Apparently, action by your Commission in such a situation
is still governed by the provisions of St. 1906, c. 463, pt. I,
§ 8, which is as follows: —
If, in the judgment of the board, a railroad corporation or street
railway companj'- has violated a law, or neglects in any respect to
comply with the terms of the act by which it was created or with the
provisions of any law of this commonwealth, it shall give notice thereof
in writing to such corporation or company; and thereafter, if such
violation or neglect continues, shall forthwith present the facts to the
attorney-general for his action.
It would seem that notice under this section should be
given to the two corporations mentioned as grantees, inasmuch
as they are participating in the illegal transaction.
Very truly yours,
Henry C. Attwill, Attorney -General.
Intoxicating Liquors — Delivery by Railroad.
Under R. L., c. 100, § 49, as amended by St. 1912, c. 201, a railroad com-
pany may lawfully deliver at its railroad station intoxicating liquors
to the actual person shown upon the package as the purchaser or
consignee.
June 6, 1917.
Public Service Commission.
Gentlemen: — In consequence of a complaint relative to
the practices of the New York, New Haven & Hartford Rail-
1918.] PUBLIC document — No. 12. 97
road Company in connection with the delivery of shipments of
intoxicating liquors in no-license towns, you have requested
my opinion upon the following question: —
Do the provisions of R. L., c. 100, § 49, as amended by St. 1912, c.
201, providing that packages of hquors shipped to no-license towns be
plainly marked with the name and address, by street and number if
there be such, of the consignee, and that delivery to a person other
than the owner or consignee, ''or at any other place than is thereon
marked," shall be deemed a sale, constitute a requirement to deliver
only at the residence or place of business of the consignee, the address
to be shown on the package by some form of description, using the
street and number, if any, and by implication forbid the deUvery of
such a shipment to the consignee at the freight station of the railroad
company?
R. L., c. 100, § 49, as amended, is as follows: —
Spirituous or intoxicating liquor which is to be transported for hire
or reward for deliverj^ in a city or town in which licenses of the first
five classes are not granted, shall be delivered by the seller or consignor
to a railroad corporation or steamboat corporation operating a regular
line of steamships to Martha's Vineyard or Nantucket, or to a person
or corporation regularly and lawfully conducting a general express
business, and to no other person or corporation, in vessels or packages
plainly and legibly marked in' a conspicuous place on the outside with
the name and address, by street and number, if there be such, of the
seller or consignor, and of the purchaser or consignee, and also plainly
and legibly marked on the same place or label as the addresses afore-
said, with the kind and amount of liquor therein contained. No person
or corporation not regularly and lawfully conducting a general express
business, except a railroad corporation or steamboat corporation oper-
ating a regular line of steamships to Martha's Vineyard or Nantucket,
or a street railway corporation authorized to carry freight or express,
shall receive such liquors for transportation for hire or reward for
delivery in a city or town, in which licenses of the first five classes are
not granted, nor transport or deliver such liquors in such cities or
towns. Delivery of such liquors or any part thereof by a railroad cor-
poration, or steamboat corporation or by a person or corporation regu-
larly and lawfully conducting a general express business to a person,
other than the owner or consignee, whose name is marked by the seller
or consignor on said vessels or packages, or at any other place than is
thereon marked, shall be deemed to be a sale by any person making
such delivery to such person in the place in which such delivery is
made.
It is the interpretation of the last sentence of this section
98 ATTORNEY-GENERAL'S REPORT. [Jan.
which raises the question involved. The language here used
is substantially the same as that found in the original enact-
ment upon this subject, St. 1897, c. 271.
Section 1 of that statute is as follows: —
All spirituous or intoxicating liquors to be transported for deliver}^
to or in a city or town where licenses of the first five classes have not
been granted, when to be transported for hire or reward, shall be de-
livered by the seller or consignor to a railroad corporation or to a per-
son or corporation regularly and lawfully conducting a general express
business, in vessels or packages plainly and legibly marked on the out-
side with the name and address, by street and number, if there be such,
of the seller or consignor, and of the purchaser or consignee, and with
the kind and amount of liquor therein contained. Delivery of such
liquors or any part thereof, either by a railroad corporation or by a
person or corporation regularly and lawfully conducting a general ex-
press business, or by any other person, to any person other than the
owner or consignee whose name is marked by the seller or consignor
on said vessels or packages, or at any other place than thereon marked,
shall be deemed to be a sale by any person making such delivery to
such person in the place where such delivery is made.
Section 2 required "every railroad corporation" or person
conducting a general express business, receiving such liquors,
"or actually delivering intoxicating liquors to any person or
place in a city or town described in section one of this act,"
to keep a book showing the date of receipt, a correct tran-
script of the marks required, date of delivery and name of
person to whom delivered, the latter signed by the person re-
ceiving.
Read with strict literal accuracy, this last sentence of sec-
tion 1 makes delivery either to any person other than the
owner or consignee or at any place other than that marked on
the package a sale by the person making such deliver}^ to the
person in the place where delivery is made.
However, I am unable to believe that the Legislature in-
tended that this act should be so construed. It would seem
more reasonable to interpret the sentence to read, "delivery
other than to the owner or consignee or at the place thereon
marked shall be deemed to be a sale."
It is a matter of common knowledge that railroad corpora-
tions in this Commonwealth do not deliver freight from house
to house or other than at their freight houses or established
delivery points. This fact was recognized by the Supreme
1918.] PUBLIC DOCUMENT — No. 12. 99
Court in the case of Commonwealth v. Mixer, 207 Mass. 141,
147, per Rugg, J.: —
Moreover, railroads and street railways, common carriers which do
not deliver merchandise to houses or places of business, are exempted
from the operation of the statute (St. 1906, c. 421).
It is plain from an examination of St. 1897, c. 271, that
it was not intended thereby to prohibit the transportation
and delivery of intoxicating liquors in no-license cities or
towns by railroad corporations. The first sentence of the
section requires that sellers deliver the liquors "to a rail-
road corporation or to a person or corporation regularly and
lawfully conducting a general express business." Obviously, if
intoxicating liquors transported by a railroad corporation
cannot lawfully come into possession of the consignee, the in-
clusion of the railroad corporation in the classes of persons
to w^hom the seller might deliver liquors for transportation is
an absurdity.
It may be suggested that under this 1897 statute a railroad
corporation might transport liquors to its freight station and
there turn them over to a person or corporation conducting
a general express business, as a connecting carrier, and there-
fore the reasoning above is inconclusive; but it would seem
that such delivery by the railroad corporation is as much
"within the literal prohibitions of this section as that involved in
the present question, and it is also doubtful whether the cart-
ing of freight or packages from a freight station to a house
in the same town is the transaction of an express business.
See Commonwealth v. Peoples Express Co., 201 Mass. 564, 579.
It is only "liquors to be transported for delivery '' to which
this statute applies. Wherever "delivery" is used in this act
it seems to refer to the ultimate delivery to the consignee,
and it is for that purpose that the seller is to turn over the
liquors either to a railroad corporation or to a person or cor-
poration regularly and lawfully conducting a general express
business.
It would seem that the clauses of this last sentence were
used distributively, — delivery to the person addressed, ap-
plying primarily to the class of carriers first mentioned, to wit,
railroads; and delivery at the place designated, applying
primarily to those mentioned next, to wit, the express com-
panies. Such application of the words would be in accordance
100 ATTORNEY-GENERAL'S REPORT. [Jan.
with the well-known practice of each class as to manner of
delivery.
Section 2 of the 1897 act, as shown by the quotation there-
from, expressly recognizes that railroad corporations may
lawfully perform this service, and further indicates quite
clearly that it was not intended to require delivery to the
person at the place marked on the package by the seller, but
only to compel delivery either to the person or at the place
shown.
The language is, "Every railroad corporation or person
. . . conducting a general express business, receiving . . .
liquors for delivery, or actually delivering intoxicating liquors
to any person or place in a city or town described in section
one."
In my opinion, this prohibition of the statute is not violated
where delivery is made to the consignee in person or at the
place marked upon the package as the address of the purchaser
or consignee.
Apparently, this was the substance of the charge of the
presiding justice in the case of Commomcealth v. Cronan, 220
Mass. 467. The language of the Supreme Court is as fol-
lows: —
The presiding judge in his instructions to the jury carefully and
repeatedly stated that the charge against the defendant was keeping:
intoxicating liquors with intent to sell the same, and after referring to
St. 1912, c. 201, and reading it to the jury, pointed out that before a
delivery of intoxicating liquors could be deemed to be a sale the de-
livery must be of such liquors as are referred to in the statutes, and by
a person doing a general express business, and that the liquors must
have been delivered either to a person other than the owner or con-
signee whose name is marked on the vessel or package, or to some other
place than is marked thereon.
I am aware that there is some language in the opinion in the
case of Rea v. Aldermen of Everett, 217 Mass. 427, 429, which,
taken strictly, would imply an opposite construction, but it
seems that the court w^as not dealing expressly with this
point, and, in my opinion, did not intend to pass upon the
question here involved.
It has several times been said that —
The act was manifest^ intended to meet some difficulties which had
been encountered bj^ the government in the prosecution of common
carriers for illegal keeping of intoxicating Hquors, and to make it more
1918.] PUBLIC DOCOIENT — No. 12. 101
difficult for the guilty to escape detection when setting up the fraudu-
lent defence that the liquors found in the possession of the carrier were
for delivery by him as such to some person. Commonwealth v. Intoxi-
cating Liquors, 172 Mass. 311, 315.
Obviously, the interpretation outlined above in no way
violates the purpose of the act as here defined, and the tracing
of the liquors from the seller to the real purchaser is as com-
plete where delivery is made to the party in person, designated
as the purchaser, as where made at the address specified.
Assuming that this is the correct interpretation of the act
as passed in 1897, the later amendments to the particular
section have not changed its effect in this respect. Other
acts upon the same subject which have since been enacted can
give little light as to the intention of an earlier Legislature,
and none of them seem at all inconsistent with this construc-
tion.
Accordingly, though with some hesitation, I have come to
the opinion that delivery by a railroad corporation at its
freight station to the actual person shown upon the package
as the purchaser or consignee of the intoxicating liquors is not
illegal by virtue of the provisions of R. L., c. 100, § 49, as
amended by St. 1912, c. 201.
Very truly yours,
Henry C. Attw^ill, Attorney-General.
Motor Vehicles used by the Federal or the State Government for
Military Purposes — Registration of — Licensing of Oper-
ators of.
Motor vehicles which are loaned to the Federal or the State government
for military purposes are not required to be registered, nor the oper-
ators thereof to be licensed, while such vehicles are actually being
used for military purposes and operated by persons in the military
service of the Federal or State government in the performance of
their duty.
June 19, 1917.
Massachusetts Highway Commission.
Gentlemen: — I am in receipt of your letter requesting my
opinion upon the question of "whether motor vehicles which
are in the control of, but not owmed by, the L^nited States or
the Commonwealth must be registered, notwithstanding the
fact that they are to be used solely for military service; and
whether the operators of such vehicles must be licensed."
102 ATTORNEY-GENERAL'S REPORT. [Jan.
Under date of April 24, 1917, I advised your Commission
that motor vehicles owned by the United States or by the
Commonwealth are not required by the laws of this Common-
wealth to be registered while being used for military purposes,
nor the operators thereof to be licensed.
In my opinion, the same answer must be given with refer-
ence to cases where motor vehicles are loaned to the Federal
or the State government for military purposes, the title re-
maining in the individual owners, namely, that while such
vehicles are actually being used for military purposes and
operated by persons in the military service of the Federal or
the State government in the performance of their duty, they
are not required to be registered, nor such operators to be
licensed.
Very truly yours,
Henry C. Attwill, Attorney-General.
Employees of Commomvealth — Compensation of — Temporary
Increase — Watchmen at State Prison.
Watchmen at the State Prison who have received an increase in salary
under R. L., c. 223, § 19, as last amended by St. 1914, c. 554, since
July 1, 1916, are not entitled to receive the additional compensation
provided by St. 1917, c. 323, unless they choose to waive such increase;
nor will any of such watchmen be entitled to any increase in pay here-
after under R. L., c. 223, § 19, as amended by St. 1914, c. 554, while
they continue to receive additional compensation under Gen. St. 1917,
c. 323.
June 19, 1917.
Mr. Nathan D. Allen, Warden, State Prison.
Dear Sir: — I am in receipt of your letter requesting my
opinion upon whether any or all of the watchmen in the State
Prison are entitled to the temporary increases of salary pro-
vided for by Gen. St. 1917, c. 323.
Sections 1 and 2 of said chapter provide for a temporary
increase in salary of 20 per cent., but not to exceed $100 per
year, for all persons who have been regularly in the employ of
the Commonwealth from the first day of July, 1916, based
upon the salary received on that date. Section 4 of this act
is as follows: —
This act shall not be construed as in any way repealing or abridging
any act providing for the increase of compensation of any employees
of the commonwealth, including employees whose salaries, under exist-
1918.] PUBLIC DOCUMENT — No. 12. 103
ing provisions of law, are made to increase automatically, by graduated
instalments, from year to year, until the maximum therein provided
has been reached, but employees who accept additional compensation
under the provisions of this act shall not, during such time as they shall
continue to receive the additional compensation herein provided for,
be entitled to the benefit of any increase in compensation which they
may have received since the first day of July in the year nineteen hun-
dred and sixteen, or to which they may hereafter become entitled.
But any such employee may at any time elect to receive an}^ increase
in compensation to which he might otherwise be entitled in lieu of the
additional compensation hereby provided for.
R. L., c. 223, § 19, as last amended by St. 1914, c. 554,
provides that watchmen in the State Prison who have been in
said service for less than one year shall receive an annual sal-
ary of $800; w^atchmen who have been in said service for more
than one year and less than three years shall receive an annual
salary of $1,000; watchmen who have been in said service for
three years and less than five years shall receive an annual
salary of $1,200; and watchmen who have been in said service
for five or more years shall receive an annual salary of $1,400.
In my opinion, any of the watchmen at the State Prison
who have received an increase in salary since the first day of
July, 1916, are not entitled to the benefit of the additional
compensation provided for by Gen. St. 1917, c. 323, unless,
of course, they choose to waive such increase; nor will any of
the watchmen be entitled to any increase in pay hereafter
under the provisions of St. 1914, c. 554, while they continue to
receive the additional compensation provided for by the act
of 1917. For example, a watchman who had been in said serv-
ice more than five years on July 1, 1916, and who was, there-
fore, receiving a salary of $1,400 a year, would be entitled to
an increase of $100; but a watchman who had completed his
five-year term of service since July 1, 1916, and whose salary,
therefore, was increased from $1,200 to $1,400 since that date,
would not, as a practical matter, be entitled to receive the
additional compensation provided for by the act of the present
year, since, in order to be entitled thereto, it would be neces-
sary for him to waive the increase in salary of $200, which,
obviously, he would not elect to do.
Very truly yours,
Henry C. Attwill, Attorney-General.
104 ATTORNEY-GENERAL'S REPORT. [Jan.
Employees of Commonwealth — Compensation of — Temporary
Increase.
The temporary increase in the compensation of certain employees of the
Commonwealth, provided for by Gen. St. 1917, c. 323, is to be appor-
tioned to each of the monthly payments of salary, and is not to be paid
in a lump sum.
The maximum increase in salary of an employee coming within Gen. St.
1917, c. 323, § 3, is one-half of the maximum increase of $100 provided
for by section 2 of that act.
An employee of the Commonwealth who comes within the provisions of
St. 1914, c. 605, by accepting the temporary increase provided by
Gen. St. 1917, c. 323, w^aives the benefit of any increase in salary re-
ceived under said chapter 605 after July 1, 1916, so long as such em-
ployee continues to receive the temporary increase under said chapter
323. But upon the rehnquishment by such employee of the tem-
porary increase, he becomes entitled to the increase in compensation
to which he would otherw'ise be entitled under St. 1914, c. 605.
June 20, 1917.
Hon. Alonzo B. Cook, Auditor of the Commonwealth.
Dear Sir: — You have requested my opinion as to certain
questions which have arisen as to the proper interpretation of
Gen. St. 1917, c. 323, entitled "An Act to authorize temporary
increase in the compensation of certain employees of the
Commonwealth."
In my opinion, the increase in compensation provided for by
section 2 of that statute is to be regarded as an addition to
the regular salary of the employees entitled to it. Thus, it is
to be apportioned to each of the monthly payments of salary,
and is not to be paid in a lump sum.
Section 3 provides, in part, as follows: —
All persons included in the provisions of section one who are receiv-
ing from the commonwealth as part of their compensation maintenance
in full or in part, provided that the amount of compensation which
they receive in full for all services in addition to such maintenance
does not exceed twelve hundred dollars a year, shall, for the period
specified in said section, receive as additional compensation a sum
equal to one half the additional compensation provided for by section
two. . . .
In my opinion, the maximum increase of an employee com-
ing within the terms of this section is to be one-half of the
maximum increase of SlOO provided for by section 2. It is,
therefore, to be $50.
1918.] PUBLIC DOCUMENT — No. 12. 105
Section 4 is as follows: —
This act shall not be construed as in any way repealing or abridging
any act providing for the increase of compensation of any employees
of the commonwealth, including employees whose salaries, under exist-
ing provisions of law, are made to increase automatically, by graduated
installments, from year to year, until the maximum therein provided has
been reached, but employees who accept additional compensation under
the provisions of this act shall not, during such time as they shall con-
tinue to receive the additional compensation herein provided for, be
entitled to the benefit of any increase in compensation which they may
have received since the first day of July in the j'^ear nineteen hundred
and sixteen, or to which they may hereafter become entitled. But any
such employee may at any time elect to receive an}^ increase in compen-
sation to which he might otherwise be entitled in lieu of the additional
compensation hereby provided for.
It is my opinion that under the provisions of this section
any employee receiving compensation under St. 1914, c. 605,
who accepts the temporary increase provided by chapter 323,
is required thereafter to waive the benefit of any increases of
salary received under the provisions of chapter 605 after
July 1, 1916, so long as such person continues to receive such
temporary increase. In my opinion, however, the last sentence
of section 4 of said chapter 323 must be interpreted as author-
izing any employee who comes within the provisions of St.
1914, c. 605, and has accepted the temporary increase, to
relinquish that increase and to receive the compensation to
which he would at that time be entitled under chapter 605
if he had not accepted the temporary increase. Any other
interpretation of this last-mentioned provision would result in
penalizing an employee for accepting the temporary increase.
It is to be noted, however, that increases under the pro-
visions of St. 1914, c. 605, are not strictly automatic. By
section 4 of said chapter 605 they are made dependent upon
a certificate by the head of the department to the Auditor
that the conduct of the clerk or stenographer has been in all
respects satisfactory and that he or she is entitled to the in-
crease. It is not entirely clear that the head of a department
is authorized to issue such certificates for more than one annual
increase of $50 at one time. Accordingly, if the head of a
department desires that an employee coming within the pro-
visions of this statute should continue to have the benefit of
the annual increases provided by it, he should annually certify
106 ATTORNEY-GENERAL'S REPORT. [Jan.
under the provisions of section 4 of said chapter 605 that such
employee is entitled to this increase, even though in fact the
employee is not accepting the increase but is claiming the tem-
porary compensation provided by Gen. St. 1917, c. 323. Such
a course is desirable in order that when the employee desires
to give up the temporary increase and return to the system
of compensation provided by St. 1914, c. 605, there may be
no question as to his status under that statute at that time.
Yours very truly,
Henry C. Attwill, Attorney-General.
War Service — State Pay — Aviation Corps — Medical De-
partment.
Persons having a residence of at least six months within the Common-
wealth, who, subsequent to Feb. 3, 1917, have enlisted in the aviation
section of the signal corps of the United States Army or in the medical
department of the army, whether as members of the regular force or
of the enlisted reserve corps, and who have been called into active
service and assigned to that department, are eligible to the State pay
provided by Gen. St. 1917, cc. 211 and 332.
June 22, 1917.
Hon. Charles L. Burrill, Treasurer and Receiver-General.
Dear Sir: — You request my opinion as to whether citizens
of Massachusetts who enlist in the aviation corps or in base
hospital units are entitled to receive payments under Gen. St.
1917, cc. 211 and 332.
As I understand it, neither of the units to which you refer
is connected with the National Guard of the Commonwealth,
and therefore these men do not form a part of the quota of
the Commonwealth, within the meaning of chapter 211. In
order to bring them within the additional rights created by
chapter 332, it must appear that the units with which they are
connected are a part of the regular or volunteer forces of the
United States Army, Navy or Marine Corps as recognized by
the Federal statutes.
The Act of Congress approved June 3, 1916, regulating the
organization of the army of the United States, provides, in
section 13, for an aviation section of the signal corps. Con-
nected with this section are certain enlisted men, including
non-commissioned officers. These men, in my opinion, if
otherwise entitled, come within the provisions of chapter 332.
1918.] PUBLIC DOCUMENT — No. 12. 107
Section 10 of the Federal statute to which I have referred
provides for the organization of the medical department of
the Regular Armj^ and establishes a certain enlisted force. In
my opinion, the members of this force, if otherwise entitled,
come within the provisions of chapter 332.
This Federal statute also provides for the enlisted reserve
corps as one of the sections of the army of the United States.
This corps is established, as provided in section 55, "for the
purpose of securing an additional reserve of enlisted men for
military service with the Engineer, Signal, Quartermaster
Corps, Ordnance and Medical Departments, of the Regular
Army." The men enlisted in this corps, when called into
active service, have all the authority, rights and privileges of
men of like grades in the Regular Army; they wear the same
uniform, perform the same duties, and receive the same pay
as such grades. The President is authorized to assign them
"as reserves to particular organizations of the Regular Army."
In my opinion, the members of this enlisted reserve corps,
when called into active service and duly assigned to the
medical department of the Regular Army, or to any other
particular organization of that army, if otherwise entitled,
come within the provisions of chapter 332. Thus, citizens
serving in the base hospital units to which you refer, if mem-
bers of the enlisted force of the medical department of the
Regular Army or members of the enlisted reserve corps called
into active service and duly assigned to that department, are
entitled to receive the payments provided for by Gen. St., cc.
211 and 332.
Yours very truly,
Henry C. Attwill, AUorney-General.
Appointment to fill an Anticipated Vacancy in Public Office
— Validity of.
A valid appointment may be made to fill an office created by a statute
after the passage of that statute and before it goes into effect.
June 26, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You request my opinion in relation to the appoint-
ment of the two additional members of the Industrial Acci-
dent Board authorized by Gen. St. 1917, c. 297, entitled "An
108 ATTORNEY-GENERAL'S REPORT. [Jan.
Act relative to the settlement of claims under the workmen's
compensation act." The question submitted is: Has the Gov-
ernor authority to name the two additional members of the
Industrial Accident Board, as authorized by this act, before
the date that the act goes into full effect?
R. L., c. 8, § 1, provides: —
A statute shall take effect throughout the commonwealth, unless
otherwise expressly provided therein, on the thirtieth day next after
the day on which it is approved by the governor, or is otherwise passed
and approved, or has the force of a law, conformably to the constitution.
I think it clear that by reason of this statute the act did
not go into full effect until the thirtieth day next after May
24, 1917, the date when it was approved by the Governor.
Mechem's Public Offices and Officers, § 133, lays down the
following proposition: —
A prospective appointment to fill an .anticipated vacancy in a public
office made by the person or body which, as then constituted, is em-
powered to fill the vacancy when it arises, is, in the absence of express
law forbidding it, a legal appointment and vests title to the office in
the appointee.
See also Whitney v. Van Bushirh, 40 N. J. L. 463.
I have been unable to find any authority to the contrary.
It would seem as if the principle laid down in Mechem's Public
Offices and Officers would apply in the present instance, al-
though I have been unable to find any case in which this pre-
cise question has arisen. The reason for this doctrine is to
prevent hiatuses occurring. If the appointment could not be
thus made, many instances might occur where there was no
official qualified to act under the law during the period re-
quired to appoint, and secure the confirmation of the appoint-
ment, and the qualification of the official. I think it can be
strongly argued that one of the purposes of R. L., c. 8, § 1,
is to make provision so that the machinery required by a
statute may be prepared, in order that the act may go into
full operation upon its taking effect.
Accordingly, I beg to advise you that it is my view that
appointments made between May 24, 1917, and the time
when the act went into effect are lawful.
Very truly yours,
Henry C. Attwill, Attorney-General.
1918.] PUBLIC DOCUMENT — No. 12. 109
Banks and Banking — State Banks — Repeal of Law authoriz-
ing Formation of.
R. L., c. 115, authorizing the formation of State banks, was not repealed
by St. 1908, c. 590, and acts in amendment thereof, and an incorpora-
tion may now be effected under R. L., c. 115.
June 29, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You have requested my opinion as to whether you
should proceed under the provisions of R. L., c. 115, § 3, to
appoint commissioners to examine and count the money paid
in upon the capital stock of a new banking corporation or-
ganized under that chapter, w^hich relates to the formation
and regulation of State banks. The application in the present
instance is made by a proposed corporation having the name
^*The State Bank."
Although as a practical matter this chapter has been in-
operative for many years, it has remained upon the statute
books without express repeal and without direct amendment
for a long period of time.
The Commissioners for Consolidating and Arranging the
Public Statutes in their report annexed to this chapter the fol-
lowing note: —
This chapter is printed without substantial change. It has not been
amended since the Public Statutes of 1882, and nearly all its provisions
/ were enacted prior to the General Statutes of 1860. After the passage
of Sts. 1863, c. 244, 1864, c. 190, and acts in addition thereto relating
to State banks surrendering their charters upon becoming banking
associations under the laws of the United States, all the State banks in
this Commonwealth surrendered their State charters. For many years
no State bank has existed under this chapter, and until there is a change
in the United States banking laws no such bank will be established.
Many of the provisions of the chapter are antiquated and not adapted
to present modes of business, and the chapter requires re\dsion by a
legislative committee on banks and banking before being enforced. If
the chapter is repealed, some pro\ision may be necessary to authorize
the continuance of business in this Commonwealth of foreign banking
corporations. See opinion of the Attorney-General March 30, 1899,
addressed to the Commissioner of Corporations. See also note, c. 118,
§27.
The implied recommendation of repeal thereby made was
not accepted. The Bank Commissioner in his last report to
no ATTORNEY-GENERAL'S REPORT. [Jan.
the Legislature also advised that this chapter be repealed
(Pub. Doc. No. 8, p. XV). Such action, however, was not
taken.
The doubt as to your duty to make the appointment re-
quested arises by reason of St. 1908, c. 590, § 16, as amended
by St. 1909, c. 491, § 4, and by St. 1914, c. 610, which is as
follows: —
No corporation, either domestic or foreign, and no person, partner-
ship or association except savings banks and trust companies incor-
porated under the laws of this commonwealth, or such foreign banking
corporations as were doing business in this commonwealth and were
subject to examination or supervision of the commissioner on June
first, nineteen hundred and six, shall hereafter make use of any sign
at the place where its business is transacted having thereon any name,
or other word or words, indicating that such place or office is the place
or office of a savings bank. Nor shall such corporation, person, part-
nership or association make use of or circulate any written or printed
or partly written and partly printed paper whatever, having thereon
any name, or other word or words, indicating that such business is the
business of a savings bank; nor shall any such corporation, person,
partnership or association, or any agent of a foreign corporation not
having an established place of business in this commonwealth, solicit
or receive deposits or transact business in the way or manner of a sav-
ings bank, or in such a way or manner as to lead the public to believe, or
as in the opinion of the commissioner might lead the public to believe,
that its business is that of a savings bank. Nor shall any person, part-
nership, corporation or association except co-operative banks incor-
porated under the laws of this commonwealth and corporations de-
scribed in the first sentence of this section hereafter transact business
under any name or title which contains the words ''bank" or ''bank-
ing," as descriptive of said business, or, if he or it does a banking busi-
ness or makes a business of receiving money on deposit, under any
name or title which contains the word "trust," as descriptive of said
business.
The last sentence of this section, down to the words "or, if
he or it does a banking business or makes a business of receiv-
ing money on deposit, under any name or title which contains
the word 'trust,' as descriptive of said business," was added
by the 1909 amendment, and the words quoted immediately
above were added by the amendment of 1914.
While it may be doubted whether the Legislature, in enact-
ing the amendment of 1909, had in mind the possibility of
the formation of corporations under R. L., c. 115, the language
1918.] PUBLIC DOCUMENT — No. 12. Ill
used therein is broad enough in its terms to exclude all cor-
porations, other than those expressly excepted, from the
transaction of business "under any name or title which con-
tains the word * bank. ' " The fact that in the sweeping lan-
guage of this amendment there was included an exception of
"co-operative banks" would ordinarily raise an implication
that co-operative banks would have been included in the
general language but for their exception, and, accordingly,
that the Legislature intended a prohibition as broad as the
language in fact used.
But this rule must not be carried too far. Such clauses are often
introduced from excessive caution and for the purpose of preventing a
possible misinterpretation of the act by including therein that which
was not intended. The rule is, therefore, not one of universal obliga-
tion, and must yield to the cardinal rule which requires a court to give
effect to the general intent if that can be discovered within the four
corners of the act. If such general intention would be defeated by
construing the act as embracing everything of the same general de-
scription as those particularly excepted therefrom, an arbitrary appli-
cation of the rule is not admissible.
Per Lurton, C.J., in Baggaley v. Pittsburg & Lake Superior
Iron Co.f 90 Fed. Rep. 636, at p. 638. See also Arrowsmith v.
Dickenson, 20 Q. B. D. 252, 256; Tinkham v. Tapscott, 17 N. Y.
141.
What indications of the general legislative intent are dis-
closed by these statutes? Section 16 of St. 1908, c. 590, is
entitled "Unauthorized Banking Prohibited." The amenda-
tory act, St. 1909, c. 491, is entitled "An Act relative to
savings banks and trust companies," while section 4 thereof,
which adds to said section 16 the words which cause the pres-
ent difficulty, leaves the title of section 16 substantially as
before, — "Unauthorized banking prohibited, etc."
These titles expressly show an intent to prohibit "unau-
thorized" banking rather than to prohibit the transaction of
business by special corporations expressly authorized to en-
gage in banking.
R. L., c. 115, § 4, prescribes the name of corporations
created under that chapter to be in the following form: "The
President, Directors, and Company of the Bank (the name
of the bank)."
It is to be observed that the 1909 amendment was passed
112 ATTORNEY-GENERAL'S REPORT. [Jan.
apparently as a result of the recommendation of the Bank
Commissioner, found on page XXX of his report for the year
1908: —
Section 16 might well be broadened to prevent the use of the words
''bank," ''banking" and "trust" in connection with the word "com-
pany" by organizations not incorporated under the banking or trust
company laws of this Commonwealth.
The bill which ultimately became St. 1909, c. 491, was re-
ported to the Legislature by the committee to which was re-
ferred this portion of the report of the Bank Commissioner.
This fact also would raise some doubt as to whether the
Legislature intended to enact legislation so much more sweep-
ing in its effect than that recommended by the Bank Commis-
sioner, as would be the case if the statute were interpreted
as forbidding the transaction of business by a corporation
formed under the provisions of the statutes of the Com-
monwealth specially designed for the formation of banking
corporations, and expressly requiring the use of the word
"bank" as a part of the name thereof.
Unless there is implied some exception to the language used
in this amendment, the statute, if constitutional, would pro-
hibit the transaction of business by national banking associa-
tions doing business under the sanction and authority of
Federal laws. In my opinion, the Legislature could not have
intended such a result, and the section must be construed as
not including such corporations within its prohibitions. Simi-
larly, it seems unlikely that the Legislature intended to affect
domestic corporations required by Massachusetts statutes to
have the word "bank" as a part of their names.
It is true that State banks would fall within the literal
terms of the prohibition, but in cases w^here it appears that
a literal interpretation would lead to results absurd or con-
trary to the supposed intention of the Legislature, the Supreme
Court frequently has interpreted such statutes as subject to an
implied exception.
For example, the statute making a mother and grandmother
bound to support a pauper was held not to apply to a married
woman, but, it was said, "must be read as if the description
were * mother and grandmother not being under coverture.'"
Gleason v. Boston, 144 Mass. 25, 28.
A statute placing a heavier penalty upon larceny "by
1918.] PUBLIC DOCUMENT — No. 12. 113
stealing in any building'' than upon ordinary larceny was
held not to apply to larceny by the owner of the building or
his wife. Commonwealth v. Hartnett, 3 Gray, 150.
The United States statute limiting the individual liability
"of a shipowner" was held not to apply to the owner of a
fishing vessel, especially in view of the title to the act. Simp-
son V. Story, 145 Mass. 497; see also Ayers v. Knox, 7 Mass.
309.
In Inhabitants of Somerset v. Inhabitants of Dighton, 12
Mass. 383, at page 384, it is said: —
But, in the exposition of statutes such a construction should be given
as will best effectuate the intention of the makers. In some cases, the
letter of a statute may be restrained by an equitable construction; in
others, enlarged; and, in others, the construction may be even con-
trary to the letter. For a case may be within the letter, and not within
the meaning of a statute.
See also, Stamels v. Raymond, 4 Cush. 314, 316; Common-
wealth v. Kimball, 24 Pick. 366, 370; Commonwealth v. In-
habitants of Dracut, 8 Gray, 455, 457.
It would seem, then, that the Legislature could not have
intended to prohibit the transaction of business under a name
which included the word "bank'' when the use of such name
was expressly authorized by law in a chapter authorizing the
creation of State banks, unless it had in mind the repeal of
the earlier chapter. That the Legislature intended such a
sweeping effect seems to me improbable. In order to reach
the conclusion that new corporations cannot now be formed
under this chapter, it would be necessary to hold that it had
been repealed by implication. Such repeals are not to be
favored. Snell v. Bridgewater Cotton Gin Mfg. Co., 24 Pick.
296; Haynes v. Jenks, 2 Pick. 172, 176.
If the Legislature intended to repeal an entire chapter of
the Revised Laws it is fair to assume that it would be done by
express enactment rather than by implication.
Accordingly, although with some hesitation because of the
arguments which can be advanced on either side of the ques-
tion, I have come to the conclusion that an incorporation may
be legally effected under the provisions of R. L., c. 115, and
that you are warranted in proceeding to appoint commissioners
under section 3 thereof.
Very truly yours,
Henry C. Attwill, Attorney-General.
114 ATTORNEY-GENERAL'S REPORT. [Jan.
Taxation — Failure to bring in List of Taxable Personal
Estate — Amount of Assessment — Abatement.
A person who fails to bring in a list of his taxable personal estate, as re-
quired by sections 41 to 49, inclusive, of St. 1909, c. 490, pt. I, must
in the first instance be assessed by local assessors for an amount of
personal estate not less than that for which he was assessed in 1916,
and then he has all the remedies for abatement provided by sections
72 to 84 of that statute, subject to any conditions and penalties
therein contained.
July 9, 1917.
Hon. William D. T. Trefry, Tax Commissioner.
Dear Sir: — You request my opinion as to whether the
provisions of the statutes with reference to the abatement of
taxes assessed upon personal property apply to assessments
made under the provisions of Gen. St. 1916, c. 269, § 22.
That section provides, in part, as follow^s : —
Any taxpayer who in the j^ear nineteen hundred and seventeen fails
to bring in a list of taxable personal estate, as provided in sections
forty-one to forty-nine, inclusive, of Part I of chapter four hundred
and ninety of the acts of the year nineteen hundred and nine, and acts
in amendment thereof and in addition thereto, shall be assessed in that
year for an amount of personal estate not less than that for which he
was assessed and taxed in the year nineteen hundred and sixteen.
This section makes no reference whatever to abatement
proceedings.
St. 1909, c. 490, pt. I, § 73, provides, in part, as follows: —
A person shall not have an abatement, except as otherwise provided,
unless he has brought in to the assessors the list of his estate as required
by section forty-one. ... If such list is not filed within the time speci-
fied in the notice required by section forty-one, no part of the tax
assessed upon the personal estate shall be abated unless the applicant
shows to the assessors a reasonable excuse for the delay or unless such
tax exceeds by more than fiftj^ per cent the amount which would have
been assessed upon such estate if the list had been seasonably brought
in, and in such case only the excess over such fifty per cent shall be
abated. . . .
You refer to section 22 of the income tax law as a penalty
section. I cannot agree that it should be so construed. It
does not purport to impose a penalty upon a taxpayer who
fails to bring in a list, in addition to that imposed by section
1918.] PUBLIC document — No. 12. 115
73. It is applicable only in the year 1917, and it is most
unusual to establish a penalty for one year only.
In my opinion, section 22 of the income tax law should be
construed merely as a direction to the assessors as to the
manner in which in the year 1917 they should perform the
duty imposed upon them by St. 1909, c. 490, pt. I, § 47,
which provides that " they shall ascertain as nearly as possible
the particulars of the personal estate ... of any person, firm
or corporation which has not brought in such list, and shall
estimate its just value, according to their best information and
belief.'* As a result of the income tax law, hereafter local
assessors are to assess only tangible personal property. Their
previous assessments of personal property did not ordinarily
give any indication of the value of the tangible personal
property owned by the various taxpayers. It was necessary
for the proper administration of the new law that there should
be some definite starting point fixed in the assessment of local
taxes for the first year of the operation of the new law. The
Legislature, by enacting section 22, chose to fix as that start-
ing point for all cases where no return of taxable personal
property was filed the assessed valuation of the personal
property for the preceding year, and, accordingly, by this
section the assessors were directed to make their assessments
for 1917 upon this basis. The fact that the only penalty
referred to in this section is one to be imposed upon assessors
who do not carry out its provisions, plainly indicates that the
section is to be construed solely as a direction to the assessors,
and not as imposing a penalty upon taxpayers in one year
only.
The result is that, in my opinion, a person who fails to
bring in a list of his taxable personal estate, as provided in
sections 41 to 49, inclusive, of part I of the tax act, must in
the first instance be assessed by local assessors for an amount
of personal estate not less than that for which he was assessed
and taxed in 1916, and that he then has all the remedies for
abatement provided by sections 72 to 84 of part I of the tax
act, subject, of course, to any conditions and penalties therein
contained.
Very truly yours,
Henry C. Attwill, Attorney -General.
116 ATTORNEY-GENERAL'S REPORT. [Jan.
Settlement — Illegitimate Children — Inmates of Boston State
Hospital or Massachusetts School for the Feehle-Minded.
An illegitimate child whose mother died prior to the passage of St. 1911,
c. 669, retains the settlement, if any, which it had under the law as it
previously stood.
St. 1911, c. 669, § 2, applies to persons admitted to the Psychopathic De-
partment of the Boston State Hospital or the school department of
the Massachusetts School for the Feeble-Minded.
July 9, 1917.
Mr. Robert W. Kelso, Secretary, State Board oj Charity.
Dear Sir: — You have requested my opinion upon certain
questions arising under St. 1911, c. 669, as follows: —
1. Can an illegitimate child, who was a minor when this law was
passed, follow and have the settlement of the mother, in accordance
with the provisions of the fourth paragraph of section 1, if the mother
dies prior to the passage of the act?
The clause referred to is as follows: —
Fourth, Illegitimate children shall follow and have the settlement of
their mother if she has any within the commonwealth.
The law as it previously stood provided (R. L., c. 80, § 1,
cl. 3d): —
Illegitimate children shall have the settlement of their mother at
the time of their birth, if she then has any within the commonwealth.
It is a general presumption in the construction of statutes
that their operation is to be prospective unless the contrary
appears. Commonwealth v. Sudbury, 106 Mass. 268.
While the Legislature has the power arbitrarily to create a
settlement or transfer it from one municipality to another, the
intention to cause such a result must clearly appear if it is to
be effected.
I do not find any language in this statute which would seem
to rebut the general presumption that it is prospective in its
operation.
Under the facts stated the mother of the child died prior to
the enactment; consequently, it cannot strictly be said that
at the date of its passage "she has any" settlement within the
Commonwealth.
1918.] PUBLIC DOCUIVIENT — No. 12. 117
Accordingly, I am of the opinion that an illegitimate child
whose mother died prior to the passage of St. 1911, c. 669,
retains the settlement, if any, which it had under the law as it
previously stood.
2. Does section 2 apply to persons admitted to the Psychopathic
Department of the Boston State Hospital or to the school department
of the Massachusetts School for the Feeble-Minded?
Section 2 is as follows: —
No person shall acquire a settlement, or be in process of acquiring
a settlement, while receiving relief as a pauper, unless, within two
years after the time of receiving such relief, he tenders reimbursement
of the cost thereof to the commonwealth, or to the city or town fur-
nishing the same.
This is but a slight modification of the law as laid down by
the court prior to the original passage of this statute in 1874
{Charlestown v. Groveland, 15 Gray, 15), the general principle
being that persons supported at public expense are not capable
of acquiring a settlement.
As to the Psychopathic Department of the Boston State
Hospital, I am not aware of any statute which puts it in any
different class from the other hospitals for the insane. Persons
cared for therein are supported at the expense of the Com-
monwealth.
As to the school department of the Massachusetts School
for the Feeble-Minded there may originally have been some
distinction. In its inception this institution was a corporation
supported by private charity. Gradually, however, control
has been taken over by the State, so that it appears from the
sixty-ninth annual report of the trustees that all of the regular
maintenance expenses are borne by the State. Apparently,
by Gen. St. 1917, c. 223, the right of the trustees previously
existing to admit pupils gratuitously is practically abohshed,
while by chapter 133 of the General Acts of the same year pro-
vision is made for collection of charges for the support of all
inmates in the same manner as provided for inmates of other
institutions under the supervision of the Commission on Men-
tal Diseases.
Accordingly, at the present time it seems that all inmates,
charges for whose support are not paid by themselves or their
118 ATTORNEY-GENERAL'S REPORT. [Jan.
friends or relatives, are in fact supported at public expense as
truly as are any other persons who are prevented from acquir-
ing a settlement thereby.
I am of the opinion, therefore, that section 2 of St. 1911, c.
669, does apply to persons admitted to the Psychopathic De-
partment of the Boston State Hospital or to the school de-
partment of the Massachusetts School for the Feeble-Minded.
3. How does section 4 affect the legal settlement of a person absent
from his place of settlement for five years, exclusive of the time he was
in the almshouse of said place, he at the time of admission to the alms-
house being a resident of another city or town and immediately after
discharge returning thereto?
Section 4 is as follows: — •
A person who, after the passage of this act, is absent for five con-
secutive years from the city or town in which he had a settlement shall
thereby lose his settlement. But the time during which a person shall
have been an inmate of any public hospital, public sanatorium, alms-
house, jail, prison, or other public institution, within the common-
wealth, or of a soldiers' or sailors' home whether within or without the
commonwealth, shall not be counted in computing the time either for
acquiring or for losing a settlement, except as provided in section two.
Under this section the absence from the city or town of
settlement which will operate to defeat the settlement must
be "for five consecutive years." If a person is in the alms-
house located in the place of his settlement, it cannot be said
that he is absent from that city or town.
Accordingly, in my opinion, the fact that he was absent
from his place of settlement for a period of time less than five
years prior to his admission to the almshouse in his place of
settlement is not to be taken into account in applying the
provisions of section 4 of this act, and such a person will not
lose his settlement by departing from that place after his
discharge from its almshouse until he has been absent for five
years consecutively thereafter.
Very truly yours,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 119
Commonwealth — Commission for the Blind — Laws relating
to Hatchers and Pedlers not Applicable to Sales by.
R. L., c. 65, and amendatory acts, relating to itinerant vendors and hawkers
and pedlers, do not apply to sales conducted bj^ the Massachusetts
Commission for the Blind for disposing of home and shop products
of bhnd labor.
July 13, 1917.
Mr. James P. ]\Iunroe, Chairman, Commission for the Blind.
Deak Sir: — You request my opinion as to whether the
provisions of R. L., c. 65, and its amendments, relating to the
regulation of sales by itinerant vendors and by hawkers and
pedlers, apply to sales conducted by your Board for disposing
of home and shop products of blind labor.
As I understand it, these sales are made by persons em-
ployed by your Board and paid out of the appropriation made
for your work. I also understand that the goods sold are
either the property of the Commonwealth which have been
made by blind labor paid by the Commonwealth, from ma-
terial furnished by it, or else that they are goods made by
blind persons from their own materials on their own account
and consigned to your Board for sale. In the latter case the
goods are sold by you as agents of the consignors and no
commission is charged. On these facts it is apparent that
these sales are either sales conducted by the Commonwealth
of its own property, or sales conducted by it as agent, in both
instances as a part of its work of educating, assisting and
maintaining blind persons.
It is well settled that police regulations are not to be con-
strued as applying to the Commonwealth unless it clearly
appears that it was intended that they should so apply.
Teasdale v. Newell, etc., Construction Co., 192 Mass. 440;
II Op. Atty.-Gen. 400.
The statute under consideration is plainly a police regula-
tion, and must be construed with reference to this rule. I
am unable to find in it or in any of its amendments the
slightest indication that it was intended by the General Court
to apply to activities of the Commonwealth. Accordingly, in
my opinion, it must be interpreted as not applying to the
activities of your Board, and, therefore, your agents in carry-
ing on the work of your Board are not required to be licensed
120 ATTORNEY-GENERAL'S REPORT. [Jan.
either as itinerant vendors or as hawkers and pedlers, even
though the methods employed by them would otherwise bring
them within the terms of the statute.
Yours very truly,
Henry C. x4ttwill, Attorney-General.
Retirement Association — Assessment upon Members in Mili-
tary or Naval Service.
The assessments to be made upon members of the Retirement Association
who have been mustered into the mihtary or naval service of the
United States, and who are receiving from the Commonwealth the
payments provided by Gen. St. 1917, c. 301, should be in the same
amount as before the members were mustered into the Federal service.
July 13, 1917.
Board of Retirement.
Gentlemen: — You have requested my opinion as to the
basis upon which assessments are to be made upon members
of the Retirement Association who haye been mustered into
the military or naval service of the United States and are re-
ceiving payments under the provisions of Gen. St. 1917,
c. 301.
Section 1 of that statute is as follows: —
There shall be allowed and paid, out of the treasury of the common-
wealth, to every employee of the commonwealth who has been or is
hereafter mustered into the military or naval service of the United
States during the present war, an amount equal to the difference
between the compensation received by him from the United States,
plus the compensation received as extra military pay, received from
the commonwealth, and the amount which he was receiving from the
commonwealth at the time when he was mustered in. The said pay-
ments shall continue so long as he continues in the military or naval
service of the United States, but shall cease one month after the ter-
mination of the war. In case of his death in the said service his widow,
minor children, parents or dependents shall receive the said sum until
the termination of the war.
R. L., c. 19, § 25, provides as follows: —
Any person in the classified public service of the commonwealth or
of any city or town thereof who resigns such office or leaves such service
for the purpose of enlisting and serving in the army or navy of the
1918.] PUBLIC DOCUMENT — No. 12. 121
United States or in the militia of this commonwealth in time of war
and so enlists and serves, may at any time within one year after his
honorable discharge from such military or naval service be appointed
to or employed in his former or a similar position or employment,
without apphcation or examination.
Though the first-mentioned statute does not expressly pro-
vide that an employee is to be taken back into the service of
the Commonwealth at the termination of the war or of his
military or naval service, yet the last-mentioned provision
seems plainly to authorize such action, at least in the case of
employees in the classified civil service. The implication is
that the person performing the work of the absent employee is
doing so only temporarily, and that the absent employee may
be reinstated upon his return.
Reading these two sections together, in the light of their
apparent purpose, it seems to me that, at least for the pur-
poses of the administration of the retirement system. Gen. St.
1917, c. 301, should be interpreted as granting a leave of ab-
sence, with pay, during the continuance of the war and for
thirty days thereafter, to all employees mustered into the
military or naval service of the United States during the pres-
ent war. The employee is required to credit against his salary
merely such compensation as he receives on account of his
military services. Thus interpreting the statute, it is my opin-
ion that you should take as a basis for the assessments upon
members of the Retirement Association their full salary as it
was paid them when their leaves of absence under this statute
began, without considering the deductions made on account of
their military or naval pay. The result is that their assess-
ments are of the same amount as they were before the mem-
bers entered the service of the United States.
If cases arise where employees of the Commonwealth receive
more compensation on account of their military or naval serv-
ices than they had been receiving from the Commonwealth,
and thus they receive no compensation under chapter 301, it
is my opinion that, if you are satisfied that they have not re-
signed their positions but have merely been granted leaves of
absence, you are warranted in accepting from them assess-
ments of the same amount which they were paying before
they entered the service of the United States.
Very truly yours,
Henry C. Attwill, Attorney -General.
122 ATTORNEY-GENERAL'S REPORT. [Jan.
Commonwealth Flats — Authority of Commission on Watenvays
and Public Lands to authorize Lessee to keep or sell
Gasoline.
The Commission on Waterways and Public Lands may lease portions of
the Commonwealth Flats, so called, in South Boston, but cannot
authorize the keeping or sale of gasoline by the lessee without the
approval of the Fire Prevention Commissioner.
July 26, 1917.
Commission on Waterways and Public Lands.
Gentlemen: — You have requested my opinion as to
whether your Commission has authority to "grant a location
for a station from which gasoline may be sold on State prop-
erty in South Boston; and whether, if such a grant may be
made, it is subject to the approval of the Fire Prevention
Commissioner."
Your Commission undoubtedly has the right to lease por-
tions of the Commonwealth's lands in South Boston, subject
to the approval of no persons except, in certain instances, the
Governor and Council.
The lessee of such lands, however, is not exempt from the
police regulations of the State simply by reason of the fact
that he has obtained his title from the Commonwealth. Any
lease which might be given to a person or corporation in-
tending to keep or sell gasoline would not, in my opinion,
exempt such lessee from the provisions of law requiring a
license for that purpose.
Very truly yours,
Henry C. Attwill, Attorney-General.
War Service — State Pay — Drafted Men not entitled to.
The State pay of $10 a month provided for by Gen. St. 1917, c. 211, as
extended by Gen. St. 1917, c. 332, is not available to persons drafted
from this Commonwealth into the military service of the United States
under the provisions of the Act of Congress of May 18, 1917.
Aug. 1, 1917.
Hon. Charles L. Burrill, Treasurer and Receiver-General.
Dear Sir: — You have asked my opinion as to whether
Gen. St. 1917, c. 211, as extended by Gen. St. 1917, c. 332,
applies to men who are drafted into the military service of the
191S.] PUBLIC DOCUMENT — No. 12. 123
United States under the provisions of the Selective Service
Law, so called, approved May 18, 1917.
Gen. St. 1917, c. 211, is entitled "An Act to provide State
pay for soldiers and sailors from this Commonwealth in the
volunteer service of the United States." Section 1 provides,
in part, as follows: —
There shall be allowed and paid out of the treasury of the common-
wealth to each non-commissioned officer, soldier and sailor, who has
been, or is hereafter, mustered into the military or naval service of the
United States as a part of the quota of this commonwealth for service
in the United States or in any foreign county, the sum of ten dol-
lars per month.
By Gen. St. 1917, c. 332, the last-mentioned statute is ex-
tended so as to apply to "any non-commissioned officer or
enlisted man having a residence of at least six months within
this state and serving to the credit of this commonwealth in
the regular or volunteer forces of the United States army,
navy or marine corps, whose federal service began subsequent
to" Feb. 3, 1917.
This last-mentioned statute was approved on May 25,
1917, and thus after the enactment of the Selective Service
Law. It is obvious, however, that it cannot apply to men
drafted into the military service of the United States under
that act. Men drafted into service under this act cannot, of
course, be said to be serving in the "volunteer forces of the
United States army;" nor are they serving in the regular
forces of that army. This is made plain by the terms of the
Selective Service Law. It is entitled " An Act to authorize the
President to increase temporarily the military establishment
of the United States." On account of the existing emer-
gency the President is authorized to raise by draft, organize
and equip certain additional forces, and the men so drafted are
to serve for the period of the existing emergency, unless
sooner discharged. It is plain, therefore, that the forces raised
by the Selective Service Law are not regular forces of the
United States Army as permanently established by the Federal
statutes, but constitute merely special forces temporarily
added to the military establishment of the United States
for and during the period of a particular emergency.
Accordingly, it becomes necessary to determine whether
the men drafted under this Federal law, and mustered into
124 ATTORNEY-GENERAL'S REPORT. [Jan.
service thereunder, have been "mustered into the military
or naval service of the United States as a part of the quota
of this commonwealth for service in the United States or in
any foreign country," within the meaning of section 1 of
chapter 211. On May 2, 1917, when this chapter was ap-
proved and took effect, as I pointed out to you in the opinion
rendered you on June 6 last, the only quota assigned to this
Commonwealth by the Federal government was that of the
National Guard. Section 2 of the Selective Service Law, sub-
sequently enacted by Congress, provides for the assignment
of quotas for the several states and territories. The question
raised is whether the language of chapter 211 is broad enough
to include such quotas assigned under the provisions of
that law, which was not in force when chapter 211 was
enacted.
The last-mentioned statute originated in a message sent by
the Governor to the General Court on April 2, 1917, in which
the following recommendations were made: —
Three regiments of the National Guard of the Commonwealth have
been called by the President of the United States and are now in the
Federal ser\dce. How long this service will continue or how many
men of our Guard may be called to serve with them cannot now be
known, but we have the same situation that arose last summer after
the Legislature was prorogued and that was dealt with by it when it
came together again. The pay allowed by the national government is
only $15 a month, or scarcely more than the pay of the soldier fifty
years ago. The last Legislature by an act passed in September, 1916,
granted a supplementary pay of $10 a month to each non-commissioned
ofl&cer and soldier who had been called to do ser\dce at the Mexican
Border.
I recommend that you make similar provision in favor of the non-
commissioned ofl&cers and men of the National Guard who have been
or who shall be summoned into the national service. The object of
this recommendation is to establish the aggregate pay which the men
shall receive from the national and State government together at $25
a month. If the national government should raise the pay, as it prob-
ably will do, to that extent the amount involved in my recommenda-
tion would be correspondingly decreased.
A bill was submitted with this message, which was en-
acted without change so far as the language now under dis-
cussion is concerned. This history of the statute rather points
to the conclusion that it was intended to apply only to the
1918.] PUBLIC DOCUMENT — No. 12. 125
members of the National Guard. The fact that it was thought
necessary thereafter to extend the rights thus granted by the
provision already quoted from chapter 332 points also in the
same direction. It is significant that this last-mentioned
statute, enacted after the approval of the Selective Service
Law, makes no reference to it or to men summoned into serv-
ice in accordance with its provisions.
Though the language of section 1 of chapter 211 is not
entirely clear, the title of the chapter seems to indicate an in-
tent of the Legislature to restrict its application to volunteers.
It is well settled that reference to a title is permissible when
the enacting clauses of the statute are not free from doubt.
The title states it to be the purpose of the act "to provide
State pay for soldiers and sailors from this Commonwealth in
the volunteer service of the United States." The two statutes
under consideration were apparently designed to provide more
adequate pay for the members of the National Guard when
summoned into the Federal service, and to encourage vol-
untary enlistments in the various branches of the military
service of the United States. Under all the circumstances it
is my opinion that the provisions of neither chapter 211 nor
chapter 332 of the General Acts of 1917 apply to men drafted
into the military service of the United States under the pro-
visions of the Selective Service Law.
I reach the conclusion just stated with less hesitation
because of the fact that the payments authorized by these
statutes are to continue only until Jan. 15, 1918. Even if
construed as applicable to drafted men, they could be given
only when such men were actually mustered into service, and
would necessarily terminate on January 15 next. On or be-
fore that date the General Court wull probably be obliged to
consider the question of extending or modifying the provisions
for these payments. It can at that time deal with the case
of men drafted into service in such manner as is deemed
appropriate.
Very truly yours,
Henry C. Attwill, Attorney -General.
126 ATTORNEY-GENERAL'S REPORT. [Jan.
War Service — Aid by Cities and Towns to Dependents of
Persons drafted into.
The wife, widow, children or other dependents of a person drafted into the
military service of the United States under the Selective Service Law,
so called, are eligible to receive the aid authorized by Gen. St. 1917,
c. 179, from the city or town of which the person so drafted was an
inhabitant and in which he was residing.
Aug. 1, 1917.
Mr. Richard R. Flynn, Commissioner of State Aid and Pensions.
Dear Sir: — You have requested my opinion as to whether
the dependents of men drafted into the military service of the
United States under the provisions of the Selective Service
Law are entitled to receive aid under the provisions of Gen.
St. 1917, c. 179.
I have to-day advised the Treasurer and Receiver-General
that the provisions of Gen. St. 1917, c. 211, as extended by
Gen. St. 1917, c. 332, do not apply to such drafted men. The
language of chapter 179, how^ever, is quite different, and, in
my opinion, requires a different conclusion. Section 1 is as
follows : —
Any city or town may raise money by taxation or otherwise, and,
if necessary, expend the same by the officers authorized by law to
furnish state and military aid, for the benefit of the wife, widow, chil-
dren under sixteen years of age, or any child dependent by reason of
phj^sical or mental incapacity, or the actually dependent parents,
brothers and sisters, of any inhabitant of such city or town, having a
residence and actually residing therein, who has enlisted, and responded
to the call of the president or war department, or hereafter shall duly
be enlisted, and who has been or shall be mustered into the military
or naval service of the United States as a part of the quota of this com-
monwealth which may be called for service in the United States or in
any foreign country, up to January fifteenth, nineteen hundred and
nineteen, unless the said service is sooner terminated, in the same man-
ner and under the same limitations, except as hereinafter provided,
as state aid is paid to dependent relatives of soldiers or sailors of the
civil war and of the war with Spain.
It thus applies to the dependents of any inhabitant coming
within its terms "who has enlisted, and responded to the call
of the president or w^ar department, or hereafter shall duly be
enlisted, and who has been or shall be mustered into the mili-
tary or naval service of the United States as a part of the
quota of this commonwealth which may be called for service
1918.] PUBLIC DOCUMENT — No. 12. 127
in the United States or in any foreign country." The Selective
Service Law provides for the assignment of quota for the sev-
eral states and territories, and in the assigning of these quotas
credit is given for members of the National Guard in the
service of the United States on April 1, 1917, and for men sub-
sequently enlisted as members of the Regular Army or National
Guard. The language of chapter 179 is broad enough to in-
clude the quota of the Commonwealth under the Selective
Service Law, and there is nothing in the title of chapter 179
which would restrict the meaning of this language.
In Sheffield v. Otis, 107 Mass. 282, 284, our Supreme Judi-
cial Court, in construing a statute containing somewhat simi-
lar language, thus defined the meaning of the word "enlist:" —
It seems clear to us that the case is not taken out of the statute by
the fact that Walley was drafted, and did not volunteer to enter the
service. The words of the statute are, ''any person who shall have
been duly enlisted," and not any person who shall voluntarily enUst.
By the primary meaning of the word, a person is ''enlisted" whose
name is duly entered upon the mihtary rolls, and it applies to those
who are drafted as well as to those who volunteer. Both are enlisted.
The word is used in this sense in the articles of war for the government
of the armies of the United States. The eleventh article provides
that, "after a non-commissioned officer or soldier shall have been duly
enlisted and sworn, he shall not be dismissed the service without a dis-
charge in writing." The twentieth article provides that "all officers
and soldiers who have received pay, or have been duly enlisted in the
service of the United States, and shall be convicted of having deserted
the same, shall suffer death or such other punishment as by sentence
of court martial shall be inflicted." U. S. St. 1806, c. 20; 2 U. S. Sts.
at Large, 361, 362. In both of these articles the term "duly enlisted"
necessarily includes soldiers who have been drafted, as well as those
who have entered the service as volunteers.
In view of the foregoing definition it is my opinion that a
person drafted and mustered into service under the Selective
Service Law is a person who has been "enlisted, . . . and
. . . mustered into the military or naval service of the United
States," within the meaning of chapter 179. In my opinion,
therefore, this chapter should be construed as applying to the
dependents of men thus drafted.
I see no inconsistency in reaching different conclusions as
to the application in this respect of chapters 179 and 211.
The latter relates merely to the compensation of enlisted men,
and a substantial portion of its purpose was to encourage vol-
128 ATTORNEY-GENERAL'S REPORT. [Jan.
untary enlistments. The former, however, applies to all per-
sons who are dependent for their means of sustenance upon
inhabitants of the Commonwealth engaged in military service.
The duty of the Commonwealth toward all such dependents
is the same without regard to the cl^ss of service in which the
person upon whom they are dependent is engaged.
Yours very truly,
Henry C. Attwill, Attorney-General.
Club Charter — Cause for Revocation by Secretary of Com-
monwealth.
A conviction under the provisions of R. L., c. 100, § 88, does not warrant
action by the Secretary of the Commonwealth under R. L., c. 100,
§ 89, relating to the revocation of club charters.
Aug. 8, 1917.
Hon. Albert P. Langtry, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion as to whether
the charter of a club incorporated under the provisions of
R. L., c. 125, should be declared void, in accordance with the
provisions of R. L., c. 100, § 89, on evidence that a certain
person has been found guilty of a charge that he did "with-
out legal authority keep and maintain a certain building and
place . . . used by a club ... for the purpose of illegally
selling, distributing and dispensing intoxicating liquors to its
members and others to the common nuisance of all the people."
Such a complaint is preferred under R. L., c. 100, § 88.
The provision of section 89 is : —
If any person is convicted of exposing and keeping for sale or selling
intoxicating liquor on the premises occupied by any club ... or of
illegal gaming upon said premises, . . . the selectmen of the town
. . . shall immediately notify the secretary of the commonwealth, and
he shall, upon receipt of such notice, declare the charter of said club
void.
It thus appears that the sale or keeping for sale of in-
toxicating liquors is a distinct offence from that prescribed by
section 88, under which the conviction in the present case
was had, and, accordingly, it does not appear that any person
has been convicted of exposing and keeping for sale intoxicat-
ing liquors on the premises occupied by the club in question.
Furthermore, it is to be observed that a conviction under
the provisions of section 88 is sustained by proof of either a
1918.] PUBLIC DOCUMENT — No. 12. 129
sale and distribution or a dispensing of intoxicating liquors,
and, therefore, a conviction may occur under the section
where no illegal sale took place.
As this is a penal statute, it is to be construed strictly, and,
accordingly, I am of the opinion that such conviction does not
warrant your taking action under the provisions of R. L., c.
100, § 89.
Very truly yours,
Henry C. Attwill, Attorney -General.
Steam Boilers — Board of Boiler Rules — Power to exempt
from Operation of Rules.
Under St. 1907, c. 465, the Board of Boiler Rules has no power, even in
time of war, to grant special permission to any person to install in
this Commonwealth boilers which do not conform to the rules of
construction formulated by said Board.
Aug. 15, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You have requested my opinion as to the legality of
a suggested amendment to the rules formulated by the Board
of Boiler Rules which in substance would permit, during a
time of war, the installation within this Commonwealth of
boilers which do not conform to the rules of construction
formulated by the Board of Boiler Rules, upon application
made to that Board and permission granted by it.
The law governing the regulation of steam boilers is found
in St. 1907, c. 465, as amended.
Section 1 of that chapter, as originally enacted, contained
the following: — ■
No certificate of inspection shall be granted on any boiler installed
after May first, nineteen hundred and eight, which does not conform
to the rules of construction formulated by the board of boiler r,ules.
It was undoubtedly the purpose of this act to forbid, in
general, and, subject to the exceptions found therein, to pro-
hibit, the operation of boilers which had not been inspected
and a certificate of inspection issued therefor. Although the
original act may not in its criminal provisions have effectu-
ally enforced its purpose, the later amendments have cured
any such defects.
130 ATTORNEY-OENERAL'S REPORT. [Jan.
By section 24 of that act the Board of Boiler Rules was
created. By section 26 it was provided: —
It shall be the duty of the board of boiler rules to formulate rules for
the construction, installation and inspection of steam boilers, and for
ascertaining the safe working pressure to be carried on said boilers, to
prescribe tests, if they deem it necessary, to ascertain the qualities of
materials used in the construction of boilers; to formulate rules regu-
lating the construction and sizes of safety valves for boilers of differ-
ent sizes and pressures, the construction, use and location of fusible
safety plugs, appliances for indicating the pressure of steam and the
level of water in the boiler, and such other appliances as the board may
deem necessary to safety in operating steam boilers; and to make a
standard form of certificate of inspection.
Under this statute as originally enacted it is certainly
doubtful whether, in view of the provision of section 1 above
quoted, it was within the power of the Board of Boiler Rules,
in formulating the rules which, by section 26, it was authorized
to make, to provide that any person might by special per-
mission from that Board violate the rules made.
It is apparent that the purpose of the statute in this re-
spect and of the rules to be formulated by this Board was to
secure "safety in operating steam boilers;" and there would
seem to be no reason for exempting special persons from the
operation of laws and rules necessary to secure such safety.
If any doubt upon this point could exist under the original law,
it would seem to have been removed by the later amendments.
St. 1909, c. 393, § 1, amended the original section 1 by
inserting the following: —
A boiler in this commonwealth at the time of the passage of this act»
which does not conform to the rules of construction formulated by the
board of boiler rules may be installed after a thorough internal and
external inspection and hydrostatic pressure test by a member of the
boiler inspection department of the district police, or by an inspector
holding a certificate of competency as an inspector of steam boilers,
as provided by section six of chapter four hundred and sixty-five of
the acts of the year nineteen hundred and seven, and employed by
the company insuring the boiler. The pressure allowed on such boilers
is to be ascertained by rules formulated by the board of boiler rules.
This express provision of the Legislature for installation of
certain boilers which might not conform to the rules of con-
struction formulated by the Board of Boiler Rules would
naturally exclude from such special favor boilers not included
1918.] PUBLIC DOCUMENT — No. 12. 131
within the class designated, to wit: boilers in this Common-
wealth at the time of the passage of that act.
This same act of the year 1909 amended section 26 by the
insertion of certain provisions in part as follows : —
When a person desires to manufacture a special type of boiler the
design of which is not covered by the rules formulated by the board
of boiler rules', he shall submit drawings and specifications of such boiler
to said board, which, if it approves, shaU permit the construction of the
same.
This provision for special type of boilers not covered by
the rules also impliedly excludes the idea of special permission
by the Board of Boiler Rules for the construction or installa-
tion of boilers in fact covered by the rules but contrary to
their terms.
As stated above, the design and purpose of these statutes
and rules is to prevent the operation of boilers which cannot
be operated with safety. It would seem to be undesirable
that boilers which cannot be operated with safety should be
installed or used at any time. If, on the other hand, the rules
formulated by the Board of Boiler Rules now existing prevent
the installation or operation of boilers which can be used
with safety to the public, it would seem to furnish a reason
for amending the rules so as to permit the installation and
use of such boilers, regardless of the persons desiring to use
the same, rather than for the creation of a rule permitting the
use by some and refusing it to others.
For the reasons stated above, I am of the opinion that such
a rule as is referred to in your request is not authorized by
the statutes upon this subject.
Very truly yours,
Henry C. Attwill, Attorney-General.
Board of Parole — Permits to be at Liberty — Cannot be
voted to a Convict while actually confined in Insane Hos-
pital.
A person who has been sentenced to the Massachusetts Reformatory, the
Reformatory for Women, the State Prison or the Prison Camp and
Hospital, and who has been committed under St. 1909, c. 504, § 105,
from any of said institutions to a State hospital for the insane, cannot
be voted a permit to be at liberty by the Board of Parole of the Massa-
chusetts Bureau of Prisons so long as he is actually confined in such
insane hospital.
132 ATTORNEY-GENERAL'S REPORT. [Jan.
Sept. 8, 1917.
Mr. Frank A. Brooks, Chairman, Board of Parole oj the Massachusetts
Bureau of Prisons.
Dear Sir: — I acknowledge receipt of your communication
in which you state the following facts: —
A person was committed to the reformatory at Concord on the
18th of June, 1914. On the 24th of September, 1915, under the
provisions of St. 1909, c. 504, § 105, he was committed to the State
Hospital at Bridgewater. It now seems advisable to the Commission
on Mental Diseases and to the Board of Parole that this prisoner be
transferred to the control of the authorities of the State of Connecti-
cut having charge of insane persons.
You request my opinion upon the question of whether your
Board has authority under these circumstances to vote a
permit to be at liberty to this man, he now being actually in
confinement at the Bridgewater State Hospital.
You further request my opinion as to whether, if he had
been transferred to the Bridgewater State Hospital from the
State Prison, the Prison Camp and Hospital, or (being a
woman) from the Reformatory for Women at Sherborn, the
Board would have such authority.
R. L., c. 225, § 117, as amended by St. 1906, c. 244, au-
thorizes the Prison Commissioners to issue a permit to be at
liberty to "a prisoner in the Massachusetts reformatory, or a
prisoner who has been removed therefrom to a jail or house of
correction," under the conditions therein set forth.
Section 118 of this chapter conferred a similar authority
upon the Prison Commissioners in relation to "a prisoner in
the reformatory prison for women, or a prisoner who has been
removed therefrom to a jail or house of correction."
No permits to be at liberty could be issued to a prisoner
in the State Prison who had been sentenced thereto for a
crime committed after Jan. 1, 1896, until after his minimum
term of sentence had expired, until the passage of St. 1911,
c. 451. This statute authorized the granting by the Prison
Commissioners, under certain conditions, of "a special permit
to be at liberty from the state prison to a prisoner held
therein." The provisions of this act were extended by St.
1912, c. 103, to prisoners transferred from the State Prison
to the Massachusetts Reformatory.
1918.] PUBLIC DOCUMENT — No. 12. 133
St. 1906, c. 243, relating to the Prison Canip and Hospital,
provided that all laws relative to the temporary industrial
camp for prisoners should apply to the Prison Camp and
Hospital. St. 1904, c. 243, relating to the industrial camp for
prisoners, provided that: —
The prison commissioners in their discretion may issue to any pris-
oner held at said camp a permit to be at liberty upon such terms and
conditions as they shall prescribe.
St. 1913, c. 829, as amended by Gen. St. 1915, c. 206,
creating the Board of Parole for the State Prison and the
Massachusetts Reformatory, and the Board of Parole for the
Reformatory for Women, provided, —
All the powers of the board o,f prison commissioners relating to the
granting of permits to be at liberty from the state prison, the Massa-
chusetts reformatory, the reformatory for women and the prison camp
and hospital are hereby transferred to and vested in the several boards
of parole for said institutions.
By Gen. St. 1916, c. 241, the Board of Parole for the State
Prison and the Massachusetts Reformatory and the Board of
Parole for the Reformatory for Women were abolished, and
all the powers and duties of said Boards of Parole were trans-
ferred to the Board of Parole of the Massachusetts Bureau
of Prisons, which was thereby established. All other powers
and duties belonging to the Board of Prison Commissioners
were transferred to the Director of said Massachusetts Bureau
of Prisons, and the Board of Prison Commissioners was
abolished.
It may be noted that the powers transferred by St. 1913, xj.
829, were limited to the issuance of permits to be at liberty
from the State Prison, the Massachusetts Reformatory and
the Reformatory for Women. It did not include the authority
to issue such permits to prisoners who had been removed
from the Massachusetts Reformatory or the Reformatory for
Women to a jail or house of correction, but this authority
remained in the Board of Prison Commissioners, and was
transferred by Gen. St. 1916, c. 241, to the Director of the
Massachusetts Bureau of Prisons instead of to the Board of
Parole. This situation, however, was changed by Gen. St.
1917, c. 245, which provides that —
134 ATTORNEY-GENERAL'S REPORT. [Jan.
All the powers and duties of the director of prisons relating to the
granting of permits to be at liberty to prisoners who have been removed
from the Massachusetts reformatory to a jail or house of correction,
and to prisoners who have been removed from the reformatory for
women to a jail or house of correction, are hereby transferred to, and
shall hereafter be exercised by, the board of parole of the Massachu-
setts bureau of prisons.
Since the passage of the act last quoted, your Board pos-
sesses all the powers in relation to the granting of permits to
be at liberty theretofore exercised by the Board of Prison
Commissioners.
The difficulty, however, which, in my judgment, prevents
your Board from issuing a permit to be at liberty to the
prisoner in question is that, so long as he is actually confined
in the Bridgewater State Hospital under order of the court, he
cannot be considered to be "a prisoner in the Massachusetts
Reformatory," within the meaning of R. L., c. 225, § 117, as
amended by St. 1906, c. 224.
St. 1909, c. 504, § 105, is as follows: —
The state board of insanity shall designate two persons, experts in
insanity, to examine prisoners in the state prison, the Massachusetts
reformatory, or the reformatory prison for women, who are alleged to
be insane. If any such prisoner appears to be insane, the warden or
superintendent shall notify one or both of the persons so designated,
who shall, with the physician of the prison, examine the prisoner and
report the result of their investigation to the superior court of the
county in which the prison is situated. If, upon such report, the court
considers the prisoner to be insane and his removal expedient, it shall
issue a warrant, directed to the warden or superintendent, authorizing
him to cause the prisoner, if a male, to be removed to the Bridgewater
state hospital and, if a female, to be removed to one of the state hos-
pitals for the insane, there to be kept until, in the judgment of the
superintendent and the trustees of the hospital to which the prisoner
has been committed, he or she should be returned to prison. When
the superintendent and trustees determine that the prisoner should
be so returned, they shall so certify upon the said warrant, and notice,
accompanied by a written statement regardiilg the mental condition
of the prisoner, shall be given to the warden or superintendent of the
prison, who shall thereupon cause the prisoner to be reconveyed to the
prison, there to remain pursuant to the original sentence, computing
the time of his detention or confinement in the hospital as part of the
term of his imprisonment.
1918.] PUBLIC DOCUMENT — No. 12. 135
When a prisoner has been removed under the provisions of
this section from the State Prison, the Massachusetts Re-
formatory or the Reformatory Prison for Women to a State
hospital for the insane, he must, in my judgment, be kept
there until he is in fit condition to be reconveyed to the
prison or reformatory from which he was sent. When a pris-
oner has been so reconveyed, your Board of course has au-
thority to grant to him a permit to be at liberty, under the
conditions prescribed by the statutes first above quoted; but
so long as he is actually confined in a State hospital for the
insane I am of the opinion that your Board has no jurisdiction
over him in this respect. Accordingly, the answer to your
inquiry must be in the negative.
In reply to your further inquiry I beg to advise that, in
my opinion, it would make no difference if the prisoner had
been committed to the Bridgewater State Hospital from the
State Prison, the Reformatory for Women or the Prison Camp
and Hospital.
Yours truly,
Henry C. Attwill, Attorney-General.
War Service — Employees of Commonwealth — Payment of
Difference in Compensation to those drafted.
An employee of the Commonwealth who has been drafted into the military
service of the United States under the Selective Service Law, so
called, is entitled to the benefits provided by Gen. St. 1917, c. 301.
Sept. 18, 1917.
Hon. Alonzo B, Cook, Auditor of the Commonwealth.
Dear Sir: — You request my opinion as to whether a State
employee who is drafted into the military service of the United
States under the so-called Selective Service Law is entitled to
the difference between his military pay and the amount which
he is receiving from the Commonwealth under the provisions
of Gen. St. 1917, c. 301. Section 1 of that statute provides,
in part, as follows: —
There shall be allowed and paid, out of the treasury of the com-
monwealth, to everj^ employee of the commonwealth who has been or
is hereafter mustered into the military or naval service of the Ujiited
States during the present war, an amount equal to the difference be-
tween the compensation received by him from the United States, plus
136 ATTORNEY-GENERAL'S REPORT. [Jan.
the compensation received as extra military pay, received from the
commonwealth, and the amount which he was receiving from the
commonwealth at the time when he was mustered in. . . .
This language is very broad, and applies to every employee
of the Commonwealth "who has been or is hereafter mustered
into the military or naval service of the United States during
the present war." Plainly, employees who are drafted into
that service come within this language. They are, in my
opinion, entitled to the benefits of the act from the date when
they are thus mustered into the military service.
Yours very truly,
Henry C. Attwill, Attorney-General.
War Service — Employees of Commonwealth attending Officers*
Training Camps — Whether mustered into the Military
Service of the United States.
An employee of the Commonwealth who is serving at an officers' training
camp conducted under authority of section 54 of the National De-
fence Act "has been . . . mustered into the military . . . service of
the United States," and is, accordingly, entitled to the benefits of Gen.
St. 1917, c. 301.
Sept. 18, 1917.
Hon. Alonzo B. Cook, Auditor of the Commonwealth.
Dear Sir: — You have requested my opinion as to whether
employees of the Commonwealth who attend officers' training
camps conducted at Plattsburg and elsewhere are entitled to
the benefits of Gen. St. 1917, c. 301. Section 1 of that act pro-
vides, in part, as follows: —
There shall be allowed and paid, out of the treasury of the conmion-
wealth, to every employee of the commonwealth who has been or is
hereafter mustered into the military or naval service of the United
States during the present war, an amount equal to the difference
between the compensation received by him from the United States,
plus the compensation received as extra military pay, received from
the commonwealth, and the amount which he was receiving from the
commonwealth at the time when he was mustered in. . . .
These officers' training camps are conducted by the War
Department under the authority of section 54 of the National
Defence Act. It is there provided that these camps are to be
1918,] PUBLIC DOCUMENT — No. 12. 137
conducted "under such terms of enlistment and regulations as
may be prescribed by the Secretary of War.'' He has pre-
scribed that persons admitted to these camps for training shall
be required to enlist for a period of three months, though this
enlistment carries with it an obligation to undertake service in
the training camp only. It is also required that a person at-
tending such a camp shall agree to accept such commission in
the army of the United States as he may be tendered by the
Secretary of War.
The question whether a person serving in one of these camps
has been "mustered into the military service of the United
States" must be determined largely by the attitude of the
United States, particularly the War Department, toward these
men. If the War Department considers them and deals with
them as in the military service of the government, the Com-
monwealth ought to follow that ruling. Accordingly, I have
delayed replying to your letter until I could learn what that
attitude was. I have just received a letter from the Judge
Advocate-General of the United States, which reads in part
as follows : —
This office, in an opinion dated June 30, 1917, on the question
whether candidates for commissions undergoing training in the re-
serve officers' training camps are to be considered in the military serv-
ice of the United States for campaign badge purposes, or whether
they are to be considered civilians until receiving commissions, held
that such candidates should be considered to be in the military service
of the United States, and that campaign badges may properly be issued
to such of them as might be entitled thereto, using the following lan-
guage respecting their status: —
Upon inquiry at the office of The Adjutant-General this office has been in-
formed that the men now in training camps have been enlisted for three months
under the provisions of section 54 of the National Defense Act, authorizing the
training of " such citizens as may be selected for instruction and training,
upon their application and under such terms of enlistment and regulations as
may be prescribed by the Secretary of War; . . ."
Being enUsted in the service of the United States they are, for the
term of their enlistment, members of the military force of the United
States, although the purpose of their membership is solely training for
future use as commissioned officers.
In view of this ruling I deem it my duty to advise you that
employees of the Commonwealth while attending these train-
ing camps, so far as they are conducted under present condi-
138 ATTORNEY-GENERAL'S REPORT. [Jan.
tions, are to be regardedjas "mustered into the military . . .
service of the United States," and that, accordingly, they are
entitled to the^benefits of this statute.
Yours very truly,
Henry C. Attwill, Attorney-General.
War Service — Employees of Commonwealth drafted into Mili-
tary Service — Application of Civil Service Laws and Rules
to.
Under R. L., c. 19, § 25, any person in the classified public service of the
Commonwealth who has been drafted into the military service of the
United States under the Selective Service Law, so called, may be ap-
pointed to or employed in his former or a similar position in the classi-
fied public service within one year after his honorable discharge from
such military service, without application or examination, and Civil
Service Rules 31 and 45 do not apply to such a situation in so far as
they are inconsistent with this statute.
Oct. 16, 1917.
Mr. Charles E. Burbank, Supervisor of Administration.
Dear Sir: — You have requested my opinion upon behalf
of the committee on civil service of the Executive Council
upon the question of whether R. L., c. 19, § 25, protects em-
ployees of the Commonwealth who have been drafted into the
military service of the United States so that they may without
difficulty return to their positions in the State service when
their military service is finished; and whether the present Civil
Service Rules 31 and 45 conflict in any way with R. L., c. 19,
§ 25, or in any way jeopardize the positions of State employees
who have entered the military or naval service of the United
States.
R. L., c. 19, § 25, is as follows: —
Any person in the classified public service of the commonwealth or
of any city or town thereof who resigns such office or leaves such serv-
ice for the purpose of enlisting and serving in the army or navy of
the United States or in the militia of this commonwealth in time of war
and so enlists and serves, may at any time within one year after his
honorable discharge from such military or naval ser\ace be appointed
to or employed in his former or a similar position or employment,
without application or examination.
The difficulty presented by your inquiry is whether a person
selected for military service and inducted into the military
1918.] PUBLIC DOCUMENT — No. 12. 139
forces of the United States under the provisions of the Act of
Congress approved May 18 can be said to have enlisted, within
the meaning of the act above quoted. In considering a similar
question our Supreme Judicial Court said, in the case of
Sheffield v. Otis, 107 Mass. 282: —
It seems clear to us that the case is not taken out of the statute by
the fact that Walley was drafted, and did not volunteer to enter the
service. The words of the statute are, ''any person who shall have
been duly enlisted," and not any person who shall voluntarily enlist.
By the primary meaning of the word, a person is ''enlisted" whose
name is duly entered upon the military rolls, and it applies to those who
are drafted as well as to those who volunteer. Both are enlisted.
While it is true that R. L., c. 19, § 25 (originally St. 1898,
c. 454), was enacted at the time of our war with Spain, at
which time no draft law was in effect, or, so far as is known,
under contemplation, nevertheless, I am of the opinion that an
employee of the Commonwealth who is drafted under the pro-
visions of the Selective Service Law, so called, comes within the
purview of this statute, and may be appointed to or employed
in his former or a similar position or employment after his hon-
orable discharge from military or naval service without appli-
cation or examination.
I am fortified in this opinion by reason of the fact that
under the provisions of Gen. St. 1917, c. 301, employees of the
Commonwealth who are mustered into the military or naval
service of the United States during the present war are paid by
the Commonwealth an amount equal to the difference between
the compensation they were receiving at the time when they
were mustered in and the amount which they receive while in
the military service. In an opinion given under date of Sept.
18, 1917, to the Auditor of the Commonwealth this depart-
ment ruled that the provisions of this act included drafted
men.
It would seem that it was in the mind of the Legislature
that these men were to be considered as temporarily absent
from the service of the Commonwealth as on a leave of ab-
sence, and that their positions in the classified civil service
were not to be affected by their absence until the cause of
such absence had been removed.
Furthermore, I beg to advise that Civil Service Rules 31
and 45, in my opinion, do not conflict in any way with the
140 ATTORNEY-GENERAL'S REPORT. [Jan.
statute in question nor jeopardize the positions of State em-
ployees who have entered the military or naval service of the
United States. All rules made by the Civil Service Commis-
sion must be consistent with law, and they cannot change the
force or effect of this statute. General rules of the Civil Serv-
ice Commission relating to reinstatements and appointments,
such as the ones to which you refer, must be interpreted as
not applying to persons within the purview of said 'section 25
in so far as these rules are inconsistent with the terms of that
section. Accordingly, the answer to your second question
must be in the negative.
Yours very truly,
Henry C. Attwill, Attorney-General.
Street Railways — Location — Power to mortgage — Rights of
Purchaser at Foreclosure Sale.
The location of a street railway company may be included in a mortgage
given by it to secure a bond issue, and upon foreclosure of the mort-
gage may pass to the purchaser and his successors in title.
The signature of one of the subscribers to the agreement of organization
of a proposed street railway company made by an attorney is a suffi-
cient and proper signature, provided the attorney had sufficient au-
thority.
Oct. 26, 1917.
Public Service Commission.
Gentlemen: — In connection with the application of a
street railway company for a certificate under St. 1906, c.
463, pt. Ill, § 9, you have requested my opinion upon the
following questions: —
1. It appears that said company, in process of organization, has
acquired from a purchaser at a foreclosure sale, made by the trustee
under a mortgage given to secure an issue of bonds by a street railway
company, ''all and singular the lines of railway," ''lands," "real and
leasehold estate," "franchises," "rights" and "privileges" of said
mortgagor company. The question presented is whether by this means
it has "obtained" "locations" "for a railway between the termini and
substantially over the route set forth in the agreement of association,"
which is one of the conditions required by section 9 of part III of
chapter 463 of the Acts of 1906.
In other words, does the location of a street railway company pass
as a part of its grant under a mortgage given by it to secure a bond
issue?
1918.] PUBLIC DOCUMENT — No. 12. 141
Under the provisions of R. L., c. 112, § 23, and the earlier
act, St. 1889, c. 316, a street railway company is authorized
to secure an issue of bonds "by a mortgage of a part or of the
whole of the railway of such company and its equipments,
franchise and other property, real and personal."
This language is sweeping in its terms, and, in my opinion,
was intended to authorize the conveyance by mortgage of all
of its property and rights. This conclusion is strengthened
by the fact that R. L., c. Ill, § 74, which, by the provisions of
R. L., c. 112, § 24, is made applicable to street railway com-
panies, provides : —
A purchaser of a railroad at a sale under a valid foreclosure of a
legal mortgage thereof and his successors in title, shall be subject to
all and the same duties, liabilities and restrictions, and have all and
the same powers and rights, relative to the construction, maintenance
and operation of said railroad which the mortgagor was subject to and
had at the time of said sale.
The applicability of this provision to street railways was
provided for by St. 1889, c. 316, § 3, referred to above.
It is apparent that in order for this authorization to become
effective it is requisite that the locations of the street railway
company should pass to the mortgagee and purchasers at a
sale under a foreclosure.
By express provision of the section last quoted these rights
pass equally to the successors in title of a purchaser at a fore-
closure sale.
This provision of the statute is still in effect. See St. 1906,
c. 463, pt. II, § 56, made applicable to street railways by pt.
Ill, § 103.
It has been held by the court that these statutes are but
declaratory of the law "as it exists without legislation in other
jurisdictions, and as doubtless it would have been held to be
in this Commonwealth upon general principles before the en-
actment of the statute." Chadwick v. Old Colony R.R., 171
Mass. 239, 244.
Accordingly, I am of the opinion that by conveyance to the
said street railway company from a purchaser at a foreclosure
sale it may properly be found to have obtained locations as
required by St. 1906, c. 463, pt. Ill, § 9.
142 ATTORNEY-GENERAL'S REPORT. [Jan.
2. The question is also raised as to whether signature of one of the
subscribers to the agreement for organization of the proposed street
railway company made by an attorney, expressly authorized thereto
in writing, is a sufficient and proper signature.
In my opinion, the requirement of the statute is satisfied
when there is an agreement of association so executed as to be
legally binding upon the individual associates. I see no reason
for doubting the validity of such an agreement executed by an
attorney, provided the authority in that attorney sufficiently
appears.
It is stated that the particular person whose name is signed
by power of attorney is one of the directors. The foregoing
opinion relates merely to the agreement of association, and
does not extend to any of the preliminary papers which are
required by the statute to be executed by the preliminary
officers or directors.
Very truly yours,
Henry C. Attwill, Attorney-General.
Laborers — Regularly employed by Cities and Towns for more
than a Year — Determination of Who are.
A person whose employment has not been terminated for more than a
year, and which is of such a nature as to require the services of such
person the usual number of hours a day throughout the year, is "regu-
larly employed" for more than a year, within the meaning of St. 1914,
c. 217, § 1, even though he has been absent from his work for some
time during the year on account of sickness or other cause.
Oct. 31, 1917.
State Board of Labor and Industries.
Gentlemen: — You request my opinion as to the inter-
pretation of the word "regularly" as used in St. 1914, c. 217,
§ 1. That section reads as follows: —
All persons classified as laborers, or doing the work of laborers, and
regularly employed by cities or towns for more than one year, shall be
granted a vacation of not less than two weeks during each year of their
employment, without loss of pay.
You state that certain cities and towns have arbitrarily
fixed the number of days which shall constitute regular em-
ployment under this act; others leave it to the discretion of
1918.] PUBLIC DOCUMENT — No. 12. 143
the employing authorities; while still others have prepared a
list of those employed all the time, and hold that these only
are entitled to vacation.
While it is difficult in a matter of this kind to prescribe a
general rule which will apply to all cases which may hereafter
arise, it is my opinion that the word "regularly'' in this act
is used in the sense of continuously, as distinguished from
intermittently or at intervals. This does not mean, however,
that a person must be actually at work during all of the work-
ing days of the year. The fact that he was absent from his
work on account of sickness or other cause which did not
constitute a termination of his employment would not prevent
him from being regularly employed within the meaning of this
act. On the other hand, if his employment had terminated
during the year this fact would prevent him from being regu-
larly employed, although he was re-employed by the city or
town a short time afterwards. The test, in my judgment, is
whether or not the employment of the man has terminated
within the year so as to make it necessary for him to be re-
employed before he starts to work again. If it has been so
terminated, he cannot be said to be regularly employed for
more than one year, within the meaning of the act above
quoted. If, however, it is not terminated for more than a
year, and the nature of his employment is such as to require
his services for the usual number of hours a day throughout
the year, he is, in my opinion, regularly employed within the
meaning of this act.
Yours truly,
Henry C. Attwill, Attorney-General.
Elections — Corrupt Practices Act — Promise by Candidate to
donate his Salary to Particular Charity.
A promise made by a candidate for office of representative in the General
Court to donate his salary, if elected, to the Red Cross would be a
violation of the corrupt practices act.
Nov. 1, 1917.
Mr. Hekbert H. Boynton, Deputy and Acting Secretary of the Common-
wealth.
Dear Sir: — You request my opinion upon the question of
whether a promise by a candidate for the position of repre-
144 ATTORNEY-GENERAL'S REPORT. [Jan.
sentative in the General Court to donate his salary, in case he
is elected, to- the Red Cross would "conflict with paragraph 4
in section 347 of the corrupt practices act."
Section 347 of this act (St. 1913, c. 835) only forbids a
candidate to promise to appoint or assist in securing the ap-
pointment, nomination or election of another person to a pub-
lic position or employment, or to a position of honor, trust or
emolument. This section plainly does not apply to the prom-
ise in question.
Section 348 of this act, as superseded by St. 1914, c. 783,
§ 2, provides as follows : —
No person shall, in order to aid or promote his own nomination or
election to a public office, either directly or indirectly, himself or
through another person, give, pay, expend or contribute, or promise to
give, pay, expend or contribute any money or other thing of value in
excess of the following amounts: —
For each Representative in the General Court to which a dis-
trict is entitled, $100
The gift, payment, contribution or promise of any money or thing
of value in excess of the sums hereby authorized to be expended for
the several offices, by a candidate directly or indirectly, or by any
other person or persons for his benefit, excepting political committees
as hereinafter provided, shall be deemed a corrupt practice.
This section prohibits all promises by candidates to pay
money in excess of the amount named in order to aid their
election. I am inclined to the view that a promise of the char-
acter described is to be construed as a promise made for the
purpose of aiding the election of the candidate. Accordingly,
I am of the opinion that it is prohibited by the terms of the
statute.
Yours truly,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 145
Trial Justices — Jurisdiction of.
The trial justice of the town of North Andover has no jurisdiction over
cases arising in the town of Methuen, but all such cases as could be
heard by the trial justice of Methuen may, during his incapacity, be
heard and determined by the District Court of Lawrence.
Nov. 6, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You have requested my opinion as to the legality of
the trial justice of the town of North Andover sitting on cases
in the town of Methuen, the trial justice in the town of Me-
thuen being incapacitated at the present time.
Formerly trial justices were appointed under the provisions
of R. L., c. 161, in the several counties, and their jurisdiction
extended throughout the counties for which they were ap-
pointed. The law was changed in this respect by Gen. St.
1917, c. 326, which provides for the designation of justices of
the peace as trial justices in certain towns therein specified,
including North Andover and Methuen. Section 1 of this
act, superseding R. L., c. 161, § 10, expressly confers authority
upon such trial justices to receive complaints, issue warrants
and try criminal cases within the towns where they are resi-
dent at the time when they are appointed and commissioned,
"except that the trial justices resident in Barre and Hardwick
shall have concurrent jurisdiction of offences committed in the
towns of New Braintree and Oakham." This section, taken in
connection with the other provisions of this act, seems to me
clearly to indicate that the intention of the Legislature was to
restrict the jurisdiction of these trial justices to the towns
where they were resident at the time of their appointment, and
to prevent their exercising jurisdiction as trial justices within
any other towns.
Accordingly, I am of the opinion that the trial justice of the
town of North Andover may not hear and determine cases
arising in the town of Methuen.
The fact that the trial justice in the town of Methuen is at
present incapacitated to perform his duties as such trial justice
does not, however, seriously embarrass the administration of
the law in that town, inasmuch as there is a police court which
has jurisdiction of cases arising in that town which is concur-
rent with the trial justice. By St. 1914, c. 532, the towns of
146 ATTORNEY-GENERAL'S REPORT. [Jan.
North Andover, Andover and Methuen were annexed to, and
made a part of, the judicial district of the police court of
Lawrence for civil business, and the name of that court was
changed to the District Court of Lawrence. Gen. St. 1917,
c. 302, § 1, provides that all towns now within the judicial
district of any district court for civil business shall be an-
nexed to, and made a part of, the judicial district of such court
for all kinds of business. Section 2 of this act provides that
the jurisdiction acquired by any court under the provisions of
section 1 shall, in all towns which now or hereafter have a trial
justice resident and holding court therein, be exclusive of such
trial justice only as to matters without the jurisdiction of a trial
justice and concurrent with the trial justice as to all matters
within his jurisdiction. It seems clear, therefore, that all cases
which could be heard by the trial justice of Methuen can,
during his incapacity, be as readily heard and determined by
the District Court of Lawrence.
Yours truly,
Henry C. Attwill, Attorney-General.
War Service — State Pay — Enlistments in National Guard of
Another State.
Citizens of this Commonwealth who have enlisted in the National Guard
of another State are not entitled to the State pay from this Common-
wealth of $10 a month provided for by Gen. St. 1917, ce. 211 and 332.
Nov. 13, 1917.
His Excellency Samuel W. McCall, Governor of the Commonwealth.
Sir: — You request my opinion as to whether certain citi-
zens of the Commonwealth residing in Attleboro and its vi-
cinity, who have enlisted in regiments of the Rhode Island
National Guard, are entitled to the State pay from this Com-
monwealth of $10 a month granted by Gen. St. 1917, c. 211,
as defined and extended by Gen. St. 1917, c. 332.
Section 1 of chapter 211 provides that this allowance shall
be paid "to each non-commissioned officer, soldier and sailor,
who has been, or is hereafter, mustered into the military or
naval service of the United States as a part of the quota of
this commonwealth for service in the United States or in any
foreign country." At the time of the enactment of this stat-
1918.] PUBLIC DOCUMENT — No. 12. 147
ute the only quota in any manner assigned to the Common-
wealth by the Federal government grew out of the provision
in the National Defense Act regulating the numerical strength
of the National Guard to be maintained by the Common-
wealth.
Accordingly, on June 6 last, I advised the Treasurer and
Receiver-General as follows: —
In my opinion, therefore, the provision for State pay contained in
chapter 211 applies at present only to the non-commissioned officers,
soldiers and sailors of the National Guard of the Commonwealth, in-
cluding therein any naval militia maintained by the Commonwealth,
who have been mustered into the Federal service. It applies, however,
to all such persons without condition as to length of residence in the
Commonwealth.
Since this opinion was given, a further quota was assigned
to the Commonwealth in connection with the draft under the
Selective Service Law. After a full consideration of the matter,
however, I was forced to the conclusion that neither chapter
211 nor chapter 332 applied to men called to service under
that statute, and I have advised State officials upon whom the
duties in connection with the administration of these statutes
devolve to that effect. In my opinion, it follows that chapter
211 applies only to soldiers and sailors mustered into the Na-
tional Guard of the Commonwealth, and cannot apply to men
who enlist in the National Guard of another State. They be-
come a part of the quota of that State and not a part of the
quota of this Commonwealth.
Chapter 332 extends the rights granted by chapter 211 to
"any non-commissioned officer or enlisted man having a resi-
dence of at least six months within this state and serving to
the credit of this commonwealth in the regular or volunteer
forces of the United States army, navy or marine corps, whose
federal service began subsequent to said February third, nine-
teen hundred and seventeen." This provision, however, applies
only to men serving in the United States Army, Navy or
Marine Corps, and does not, in my opinion, apply to men
serving in the National Guard of any State. Furthermore, it
requires that the service shall be "to the credit of this com-
monwealth." That, in my opinion, at least requires that the
Commonwealth shall have the credit of the service of such men
in the records of the Federal government. It is obvious that
148 ATTORNEY-GENERAL'S REPORT. [Jan.
it cannot have such credit in the case under consideration, for
the men referred to are serving as a part of the quota of Rhode
Island in the National Guard of that State, and I know of no
way in which it can appear in the records of the Federal gov-
ernment that this Commonwealth is to have the credit of such
service.
Accordingly, in my opinion, the men to whom you refer are
not entitled to the benefits of either chapter 211 or chapter 332
of the General Acts of 1917.
Yours very truly,
Henry C. Attwill, Attorney-General.
Militia — State Guard — Status of — Appropriations for.
The State Guard established under Gen. St. 1917, c. 148, does not have
the same status as the National Guard, but is rather a part of the un-
organized mihtia of the Commonwealth, temporarily organized in a
Hmited way and for a limited purpose.
No part of the appropriations made by Spec. St. 1917, c. 292, for the land
and naval forces of the Commonwealth may be used in organizing,
maintaining and training the State Guard.
Nov. 15, 1917.
Col. Jesse F. Stevens, The Adjutant General.
Dear Sir: — You have submitted to me the following re-
quest for my opinion: —
The National Guard of this Commonwealth, which was formerly
the only organized militia of the Commonwealth, has been called into
the service of the United States, leaving within the State but five
commissioned officers.
The Legislature, under Gen. St. 1917, c. 148, and under Gen.
St. 1917, c. 342, § 10, created a military force from our unorganized
militia, which has been called the State Guard.
Your opinion is respectfully requested as to how far appropria-
tions created by the Legislature under Gen. St. 1917, c. 292, approved
April 23, 1917, may be used in organizing, maintaining and training
said State Guard.
The answer to your inquiry involves the determination of
the status of the State Guard in its relation to the military
forces of the Commonwealth and the various statutes govern-
ing their organization and maintenance. Various similar
questions, the answers to which depend upon that status, have
already arisen and others are likely to arise. Accordingly, I
1918.] PUBLIC DOCUMENT — No. 12. 149
propose to discuss that matter somewhat more broadly than
the terms of your request necessarily require.
The provision for the organization of a State Guard, then
called a home guard, was first made by Gen. St. 1917, c. 148,
which took effect April 5, 1917. Section 1 authorized the
Commander-in-Chief in time of war to raise by voluntary
enlistment and organize such a body from certain specified
classes of citizens of the United States who are inhabitants
of the Commonwealth. Section 2 provides as follows: —
The home guard may be of such numerical strength, and shall be
so organized, maintained, officered, armed and equipped, and enlisted
for, or disbanded from, such service within the commonwealth at any
time and on such terms as the commander-in-chief may from time to
time by executive order determine. When called for service the home
guard shall perform such duties as shall be prescribed bj^ order of the
commander-in-chief, and all members of the home guard shall have and
exercise throughout the commonwealth all the powers of constables,
police officers and watchmen, except the service of civil process. The
compensation of officers and men of the home guard, when called by
executive order for service and while on such ser\dce, shall be fixed by
the commander-in-chief, and shall in no event exceed the compensation
of officers and men of the national guard of like grade.
By section 3 certain provisions of the existing military law
relating to the election, appointment and authority of officers
and to the compensation of members injured in the discharge
of their duty are made applicable to this force. By section 4
it is exempted from the provisions forbidding bodies not ex-
pressly authorized to drill with firearms or to maintain an
armory. Except in these respects there is no attempt to
extend the general statutes for the government and mainte-
nance of the organized militia to this body. Section 6 is as
follows : —
For the purpose of carrying out the provisions of this act the governor
is authorized to expend the sum of two hundred thousand dollars,
to be taken from the sum of one million dollars appropriated by chapter
two hundred and two of the Special Acts of the year nineteen hundred
and seventeen.
The appropriation referred to is a special emergency appro-
priation made in view of the exigencies of a possible war.
By Gen. St. 1917, c. 327, approved May 25, 1917, the
statutes relating to the militia of the Commonwealth were
150 ATTORNEY-GENERAL'S RE'KJRT. jJan.
codified, re\dsed and amended. No part of the Itatut^s iht'^
in force as to the State Guard was in any way iVf ^rpofa^t^^L ^
in this codification or referred to therein. They appear in" ^^
way to have been repealed or otherwise affected by it. (S^^t^
§ 268.)
By Gen. St. 1917, c. 331, the Governor is authorized to'
''incur expenses, not exceeding two hundred and fifty thousand
dollars, for the maintenance of the state guard, so-called, when
said guard is called for active duty."
On Aug. 20, 1917, the Governor, as Commander-in-Chief,
issued the following executive order: —
(a) By the authority vested in me by chapter 148, Greneral Acts of
1917, I prescribe that the Guard authorized by said chapter 148 shall
be organized, maintained, officered, armed and equipped, as the or-
ganized militia is organized, maintained, officered, armed and equipped,
under the provisions of chapter 327, General Acts of 1917, in so far as
the provisions of said chapter 327 are not inconsistent with the provi-
sions of said chapter 148.
(6) All officers of the hereinbefore mentioned Guard are directed to
execute any and all lawful commands issued to them by the proper
persons mentioned in sections 25 to 34, both inclusive, chapter 327,
General Acts of 1917.
Obviously, the State Guard, not being organized in accord-
ance with the Federal law (Act of June 3, 1916) or in accord-
ance with the laws governing the Massachusetts Volunteer
Militia (St. 1908, c. 604; Gen. St. 1917, c. 327), cannot be a
part of the National Guard.
The limited provisions of the statutes above set forth dealing
with the organization, equipment and maintenance of this
force seem to me to make it clear that it was not intended!
to be a complete substitute for the National Guard, or to
have all the powers and privileges of that force while it is
absent from the Commonwealth in the service of the United
States.
In my opinion, the State Guard may be regarded as a part
of the unorganized militia of the Commonwealth temporarily
organized in a limited way and for a limited purpose. Its
character, duties and powers, in the main, are prescribed by
Gen. St. 1917, c. 148, § 2. It is to be of such numerical
strength, to be organized, equipped and maintained, and to
have such terms of service as the Commander-in-Chief shall
determine. "AYhen called for service" it "shall perform such
1918.] PUBLIC DOCUMENT — No. 12. 151
duties as shall be prescribed by order of the commander-in-
chief, and all members of the home guard shall have and
exercise throughout the commonwealth all the powers of con-
stables, police officers and watchmen, except the service of
civil process."
Acting under the authority given to him by Gen. St. 1917,
c. 148, § 2, the Commander-in-Chief, on Aug. 20, 1917, pre-
scribed that so far as not inconsistent with chapter 148, the
State Guard shall be organized, maintained, officered, armed
and equipped in the same manner as the National Guard
under Gen. St. 1917, c. 327. This was merely a convenient
method of carrying out the provisions of section 2 of chapter 148.
By the same general order the Commander-in-Chief also
directed all officers of the State Guard "to execute any and
all lawful commands issued to them by the proper persons
mentioned in sections 25 to 34, both inclusive, chapter 327,
General Acts of 1917." These sections provide for the calling
out of the Volunteer Militia by the Commander-in-Chief or
a brigade commander in case of actual or threatened invasion
or insurrection, or, in case of riot or public catastrophe, by
certain local civil officers. The Gov^ernor has thus, under the
general authority granted to him by chapter 148, prescribed
that the State Guard shall perform the duties which ordinarily
devolve upon the Volunteer Militia under those sections. So
far as I am informed this is the only duty as yet assigned to
this force, but it is at any time subject to be called to active
service within the Commonwealth and assigned to perform
such emergency duties therein as the Commander-in-Chief
shall by general or special order direct.
The status of the State Guard being as above determined,
-jtlie various questions which have arisen as to the scope of its
. duties and the manner of its organization and maintenance
may readily be answered. Particularly is this so as to the use
of appropriations. The appropriations made by Spec. St. 1917,
c. 292, are declared to be " for salaries and expenses in the
, department of the adjutant general, and for certain allowances
. and expenses of the land and naval forces." Its items cover
the annual appropriations ordinarily made for the Volunteer
Militia. In large part it covers various annual allowances
, estabhshed by law for that militia. (St. 1908, c. 604, §§ 173
and 177, as amended by Gen. St. 1917, c. 105.) The term
'"land and naval forces" used in this appropriation statute
152 ATTORNEY-GENERAL'S REPORT. [Jan.
is plainly used to describe the land forces and the naval forces
as defined in the codification of the military laws shortly after
enacted by the same General Court. (See Gen. St. 1917, c.
327, §§ 78 and 194.) These definitions do not include the
State Guard, and, as already pointed out, this codification
does not purport to deal with that organization. Further-
more, definite special provisions have been made for financing
it. By St. 1917, c. 148, § 6, the Governor was authorized to
expend the sum of $200,000 for its organization. By Gen.
St. 1917, c. 331, he was authorized "to incur expenses, not
exceeding two hundred and fifty thousand dollars for the
maintenance of the state guard, so-called, when said guard is
called for active duty," the amount thus expended to be
raised by a loan. These two statutes fully cover the matter;
the former providing for the expense of organizing and equip-
ping the State Guard, and the latter for its maintenance when
and if called for active duty. If either or both of the amounts
thus authorized prove inadequate, the Governor, with the
consent of the Council, may unquestionably apply to such
purpose any part of the second war emergency appropriation
of $1,000,000 authorized by Gen. St. 1917, c. 324.
Accordingly, answering your specific question, in my opinion
no part of the appropriations made by Spec. St. 1917, c. 292,
for the land and naval forces of the Commonwealth may be
used in organizing, maintaining and training the State Guard.
Yours very truly,
Henry C. Attwill, Attorney-General.
War Service — Employees of Commonwealth — Amount paid
by Commonicealth to those entering Military or Naval
Service of the United States.
The so-called family allowance granted to enlisted men in the military or
naval forces of the United States by Act of Congress approved Oct. 6,
1917, is to be regarded as part of the compensation received by such
men from the United States, for the pm-pose of computing the amount
which an employee of the Commonwealth is entitled to receive from
this Commonwealth under the provisions of Gen. St. 1917, c, 301.
Dec. 4, 1917.
Hon. Aloxzo B. Cook, Auditor of the Commonwealth.
Dear Sir: — You have requested my opinion as to whether
the so-called family allowance granted to enlisted men in the
1918.] PUBLIC DOCUMENT — No. 12. 153
military and naval forces of the United States by sections
204 to 210, inclusive, of an Act of Congress approved Oct. 6,
1917, is to be regarded as a part of the compensation received
by such men from the United States in administering the
provisions of Gen. St. 1917, c. 301.
This family allowance is an amount not exceeding $50 a
month which is paid, upon application and subject to certain
restrictions, to the wife and children of all enlisted men in
the military and naval forces of the United States and to
certain other relatives who are shown to be in whole or in
part dependent upon them. It is a payment made on account
of the enlisted man because of the services which he is render-
ing in the performance of his duty, for the purpose of enabling
him the better to perform his legal and moral obligations with
reference to the support of his family. This payment ceases
upon the death of an enlisted man in the service or one month
after his discharge from the service.
Though the matter is not entirely free from doubt, it seems
to me, on the whole, that this payment may and fairly ought
to be regarded as a part of " the compensation received by him
from the United States," within the meaning of Gen. St. 1917,
c. 301, § 1. The allowance paid relieves him, to the extent
thereof, of an obligation that he otherwise would have to as-
sume. The members of Class A of the Federal act, for whom
allowances are made, are those whom a man ordinarily is
bound by law to support, while the allowances to the members
of Class B under the act are to be granted onl}^ if and while
the member is dependent in whole or in part on the enlisted
man, and then only if and while the enlisted man makes a
voluntary allotment of his pay for said member. Thus, the
benefit of the payment accrues to the enlisted man fully as
much as if paid to him directly and by him used to discharge
obligations imposed on him by law or voluntarily assumed.
Any other interpretation would place an employee of the
Commonwealth mustered into the military or naval service of
the United States, and his family, in a better financial position
than if he had not enlisted. It would result in their having
the benefit of an amount equivalent to the full salary which
he was receiving from the Commonwealth at the time of his
enlistment and in addition the amount of this family allow-
ance paid by the United States. I cannot believe that it was
the intention of the General Court that such a result should
154 ATTORNEY-GENERAL'S REPORT. [Jan.
follow from the enactment of this statute. It rather was its
purpose to place an employee of the Commonwealth enlisting
in the military or naval service in the same financial position
that he would have been in if he had not so enlisted. In my
opinion, the statute should be so interpreted as to carry out
this purpose, and not, unless absolutely necessary, to place the
employee in a better position financially than he was in before
enlistment.
Yours very truly,
Henry C. Attwill, Attorney-General.
1918.1 PUBLIC DOCUMENT — No. 12. 155
INDEX TO OPINIONS.
PAGE
Assessors, board of; in towns; vacancy; how filled, . . . .44
Power of mayor of a city to act as member of, . . . . 6
Assistant city clerk; power to act as member of board of registrars of
voters, .......... 27
Attorney-General; powers with reference to investigation and prosecution
of all cases in which the Commonwealth is a party, ... 60
Banks; formation of State banks under R. L., c. 115, . . . . 109
Boiler Rules, Board of; authority to permit installation of steam boilers
which do not conform to rules, ...... 129
Cities and towns; hospitals for constunptives; State subsidy, . . 30
Right to insure liability under Workmen's Compensation Act, . 68
Club charter; revocation by Secretary of the Commonwealth, . . 128
Commonwealth Flats; authority of Commission on Waterways and
Public Lands to authorize lessee of portion thereof to keep or sell
gasoline, .......... 122
Constitutional Convention ; incompatibility of offices, .... 18
Oath of office by delegates, ........ 87
Constitutional law; compulsory Workmen's Compensation Act; right
to trial by jury; police power, ...... 77
Effect of unconstitutionality of part of statute upon remaining parts, 50
Exemption of farmers or agriculturists from general anti-trust act;
equal protection of the laws, ....... 74
Licensing of milk contractors; equal protection of the laws, . . 52
Offices incompatible with the position of delegate to the Constitutional
Convention, ......... 18
Power of General Court to provide for investigation of office of dis-
trict attorney, ......... 24
Validity of statute denying to stockholders in a corporation the right
to participate in issue of new stock, ..... 71
Whether members of the Constitutional Convention are required to
take oath of office, ........ 87
Corporations; right of stockholders to participate in issue of new stock, . 71
County commissioner; vacancy; effect of death of person elected who
died before qualifj-ing, ........ 8
Credit unions; powers of ; security required for loans ; loan to person not
a member, .......... 33
District attorney, office of; power of General Court to investigate, . . 24
Elections; corrupt practices act; promise by candidate to donate his
salary to a particular charity, ...... 143
Farming utensils; whether utensils used in making maple sugar are ex-
empted from taxation as such, ...... 41
Fire Prevention Commissioner; control over cities and towns in metro-
politan district, ......... 46
Fireworks and firecrackers; authority to prohibit sale and use of, . 66
Hawker and pedler; license; sales of goods by sample for future delivery, 57
Sales made by the Massachusetts Commission for the Blind; license, 119
156 ATTORNEY-GENERAL'S REPORT. [Jan.
PAGE
Health, local boards of ; authority of mayor to exercise powers of, . . 11
Effect of neglect to notify State Department of Health of diseases dan-
gerous to health, ......... 64
Hospitals for consumptives; State subsidy, ...... 30
Income tax; interest on deposits in savings departments of trust com-
panies, when exempted, ....... 85
Insurance; against fire on movable risks; form of policy, . . . 13
Duty of Insurance Commissioner in approving form of policy, . 2
German insurance companies; status of alien enemy, ... 37
Reinsurance of "full coverage" automobile policy, .... 13
Intoxicating liquors ; delivery by railroads, ...... 96
Sale to minor; sixth-class licenses ; certificates of fitness, . . 32
Itinerant vendor; license; sales of goods by sample for future delivery, . 57
Sales made by Massachusetts Commission for the Blind; Hcense, . 119
Labor laws; application to contracts with Federal government in time of
war, ........... 42
Laborers regularly employed by cities and towns for more than a year;
determination of who are, ....... 142
Milk contractors; licensing of, . . . . . . . .52
Motor vehicles; status when loaned to the Federal or the State government
and used for military purposes; registration; operator's license, 101
Status when owned by the Federal or the State government and used
for military purposes; registration; operator's license, . . 45
Parole, Board of; authority to grant permit to be at liberty to a convict
confined in an insane hospital, ...... 131
Public warehouseman, definition of , . . . . . . . 1
Registrars of voters; power of assistant city clerk to act as member of
board of, .......... 27
Retirement Association; assessments upon members of, in militaryor
naval ser\'ice, ......... 120
Settlement; illegitimate children, . . . . . . .116
Inmates of Boston State Hospital or Massachusetts School for the
Feeble-Minded 116
State employees; application of ci\-il service laws and rules to drafted men, 138
Assessments upon members of the Retirement Association mustered
into service, ......... 120
Attendance at officers' training camps; military servdce, . . . 136
Family allowance granted by Federal government; compensation, . 152
Payment of difference in compensation to drafted men, . . . 135
Temporary increase in compensation; apportionment, . . . 104
Effect of, upon automatic increase, ...... 104
Maximum increase to persons receiving maintenance as part of
compensation, ......... 104
Watchmen at the State Prison, ....... 102
State Guard, status of; appropriations for, ...... 148
Steam boilers, installation of; conformity to rules formulated by Board of
Boiler Rules, 129
Street railways; power to mortgage location; rights of purchaser at fore-
closure sale, . • . . . . . . . . 140
Power to sell railway, . . . . . . . . .94
Tax returns; who may inspect, ........ 6
Taxation; exemption of utensils used in making maple sugar; farming
utensils, .....*..... 41
Income tax; deposits in savings departments of trust companies,
when exempted, ......... 85
List of taxable personal estate; assessment; abatement, . . .114
Water district; property devoted to a public use, .... 16
1918.] PUBLIC DOCUMENT — No. 12. 157
Taxes, sale of real estate for pajTnent of; requisites of advertisement of
sale where assessed to heirs of deceased person,
Tidewaters; compensation for displacement, ....
Trial justices; jurisdiction, .......
Trust companies; reserve; status of government bonds.
Tuberculosis hospitals; State subsidy, ......
Vacancy, anticipated; public office; appointment.
Not created where a person elected county commissioner dies before
qualifying, .........
Town assessor, office of; how filled, .....
War service; aid by cities and towns to dependents of drafted men.
State employees ; application of ci\'il service laws and rules to drafted
men, ..........
Assessments upon members of Retirement Association mustered
into service, ........
Attendance at officers' training camps; military service.
Family allowance granted by Federal government; compensation
Payment of difference in compensation to drafted men,
State pay; aviation corps and medical department of the Regular
Army; enlisted reserve force, ......
Drafted men not entitled to payment of $10 a month, .
Enlistments in National Guard of another State,
Persons entitled to payment of $10 a month; domicile.
Woman yeoman, ........
Workmen's Compensation Act; authority of counties or municipalities to
insure their liability thereunder, .....
Whether constitutional if made compulsory, ....
47
59
145
49
30
107
44
126
138
120
136
152
135
106
122
146
90
89
68
77
158 ATTORNEY-GENERAL'S REPORT. [Jan.
GRADE CEOSSINGS.
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.
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. 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.
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.
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
1918.] PUBLIC DOCUMENT — No. 12. 159
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.
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.
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.
Lawrence, Mayor and Aldermen of, petitioners. Petition for
abolition of grade crossing at Parker Street. James D.
Colt, Henry V. Cunningham and Henry C. Mulligan
appointed commissioners. Pending.
Lynn, Mayor and Aldermen of, petitioners. Petition for aboli-
tion of Summer Street and other crossings on Saugus
branch of Boston & Maine Railroad and Market Street
and other crossings on main line. George W. Wiggin,
Edgar R. Champlin and Edmund K. Turner appointed
commissioners. Commissioners' report filed. Edward A.
McLaughlin appointed auditor. Auditor's seventh report
filed. Pending.
160 ATTORNEY-GENERAL'S REPORT. [Jan.
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.
Franklin County.
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. Commissioners' second report
filed. Pending.
Hampden County.
Palmer, Selectmen of, petitioners. Petition for abolition of
Burley's crossing in Palmer. Pending.
Westfield, Attorney-General, petitioner. Petition for aboHtion
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.
H ampshire County.
Amherst, Selectmen of, petitioners. Petition for abolition of
grade crossings at Whitney, High and Main streets. Rail-
road Commissioners appointed commissioners. Pending.
1918.1 PUBLIC DOCUMENT — No. 12. 161
Middlesex County.
Actoa, 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.
Arlington, Selectmen of, petitioners. Petition for abolition of
grade crossings at Mill and W^ater streets. 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.
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.
162 ATTORNEY-GENERAL'S REPORT. [Jan.
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.
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
twelfth 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.
James D. Colt appointed auditor in place of Patrick H.
Cooney deceased. Auditor's tenth report filed. Pending.
Wakefield, Selectmen of, petitioners. Petition for abolition of
Hanson Street crossing in W^akefield. 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
1918.] PUBLIC DOCUMENT — No. 12. 163
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.
Wiggin, 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.
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 W^m. Jackson appointed commis-
sioners. Commissioners' report filed. Recommitted.
Agreement to dismiss filed. Disposed of.
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.
Disposed of.
Needham, Selectmen of, petitioners. Petition for abolition of
Charles River Street crossing in Needham. Pending.
164 ATTORNEY-GENERAL'S REPORT. [Jan.
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.
Disposed of.
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 Comity.
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, 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
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.
1918.] PUBLIC DOCmiENT — No. 12. 165
Boston, New York, New Haven & Hartford Railroad Com-
pany, petitioner. Petition for abolition of grade crossing
at West First Street. 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 thirteenth report filed. Pend-
ing.
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.
West Boylston. Boston & Maine Railroad Company, peti-
tioners. Petition for abolition of Prescott Street cross-
ing. Pending.
166 ATTORNEY-GENERAL'S REPORT. [Jan.
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. iVuditor's seventy-third report
filed. Pending.
1918.] PUBLIC DOCUMENT — No. 12. 167
RULES OF PEACTICE
In Interstate Rendition.
Every application to the Governor for a requisition upon the
executive authority of any other State or Territory, for the de-
livery up and return of any offender who has fled from the
justice of this Commonwealth, must be made by the district or
prosecuting attorney for the county or district in which the
offence was committed, and must be in duplicate original
papers, or certified copies thereof.
The following must appear by the certificate of the district
or prosecuting attorney: —
(a) The full name of the person for whom extradition is
asked, together with the name of the agent proposed, to be
properly spelled.
(6) That, in his opinion, the ends of public justice require
that the alleged criminal be brought to this Commonwealth
for trial, at the public expense.
(c) That he believes he has sufficient evidence to secure the
conviction of the fugitive.
(d) That the person named as agent is a proper person, and
that he has no private interest in the arrest of the fugitive.
(e) If there has been any former application for a 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.
168 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 applieation.
5. The official character of the officer taking the affidavits
or depositions, and of the officer who issued the warrant, must
be duly certified.
1918.] PUBLIC DOCUMENT — No. 12. 169
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.
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