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



Commonwealth of Massachusetts 



ATTORNEY- GENERAL'S REPORT 



Public Document No. 12 



®l?e (EnmittOttuiealtlj of iKaaDartjuHftta. 



REPORT 



ATTORNEY-GENERAL 



Year ending January 15, 1919. 




BOSTON: 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS, 

32 DERNE STREET. 

1919. 



3tye tHommonroealtt) of itla£sacl)itsett0. 



Department of the Attorney-General, 
Boston, Jan. 15, 1919. 

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. 



&l)e CommoMDealtl) of Jttassactjusette, 



DEPARTMENT OF THE ATTORNEY-GENERAL, 
State House. 



Attorney-General. 
HENRY C. ATTWILL. 

Assistants. 
Nelson P. Brown. l 
H. Ware Barnum. 2 
Wm. Harold Hitchcock. 
Arthur E. Seagrave. 
John W. Corcoran. 
Charles W. Mulcahy. 
Max L. Levenson. 
Jay R. Benton. 

Chief Clerk. 
Louis H. Freese. 



Resigned Feb. 27, 1918. 2 Resigned Dec. 31, 1918. 



Statement of Appropriation and Expenditures. 



Appropriation for 1918, $49,000 00 

Expenditures. 

For law library, $1,917 93 

For salaries of assistants, 16,142 88 

For clerks, 6,280 00 

For office stenographers, 4,900 00 

For telephone operator, 600 00 

For legal and special services and expenses, . . . 6,644 84 

For office expenses, 2,967 31 

For court expenses, 5,488 88 

Total expenditures, $44,941 84 

Costs collected, 2,617 63 

Net expenditures, $42,324 21 



Sty? Gtotttttwtttittaitij of JMaujaartfUBrtte . 



Department of the Attorney-General, 
Boston, Jan. 15, 1919. 

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 9,635, are tabulated below: — 

Corporate franchise tax cases, 1,184 

Extradition and interstate rendition, 160 

Grade crossings, petitions for abolition of, 68 

Indictments for murder, 32 

Inventories and appraisals, 16 

Land Court petitions, 76 

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

Charles River Basin Commission, 6 

Land-damage cases arising from the taking of land by the Mas- 
sachusetts Highway Commission, 39 

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, 12 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Park Commission, . . . * . . . . 29 
Land-damage cases arising from the taking of land by the 

Commission on Waterways and Public Lands, ... 11 

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

House Building Commission, 6 

Miscellaneous cases arising from the work of the above-named 

commissions, 44 

Miscellaneous cases, 878 

Petitions for instructions under inheritance tax laws, . . 52 

Public charitable trusts, 79 

Settlement cases for support of persons in State Hospitals, . 23 
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, . . 6,917 



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: — 

Pasquale Angotti, alias, indicted in Hampshire County, 
October, 1917, for the murder of Antonio Angotti, at North- 
ampton, on Aug. 26, 1917. He was arraigned Oct. IS, 1917, 
and pleaded not guilty. David H. Keedy, Esq., Thomas R. 
Hickey, Esq., and N. Seelye Hitchcock, 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. The defendant was 
sentenced to the House of Correction at Northampton for a 
term of one year. The case was in charge of District Attor- 
ney John H. Schoonmaker. 

Fred Gallera.ni, indicted in Hampden County, Decem- 
ber, 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, 1917. He was arraigned 
Dec. 28, 1917, and pleaded not guilty. Frank M. Zottoli, 
Esq., and Silvio ATartinelli, Esq., appeared as counsel for the 
defendant. In April, 1918, the defendant was tried by a 
jury before Callahan, J. The result was a verdict of guilty 
of murder in the second degree. The defendant was there- 
upon sentenced to State Prison for life. The case was in 
charge of District Attorney Joseph B. Ely. 

Pall Karpeck, 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 
not guilty. Thomas J. Collins, Esq., appeared as counsel for 
the defendant. The indictment for murder was nol-prossed 
and in May, 1918, the defendant was tried by a jury before 
Callahan, J. The result was a verdict of guilty of man- 
slaughter. The defendant was thereupon sentenced to the 
House of Correction for one year. The case was in charge 
of District Attorney Joseph B. Ely. 



1919.] PUBLIC DOCUMENT — No. 12. ix 

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. In February, 1918, the defendant was 
tried by a jury before Dubuque, J. The result of such trial 
was a verdict of not guilty. The case was in charge of Dis- 
trict Attorney Louis S. Cox. 

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

Maria Cammerota and Antonio Teregno, indicted in 
Hampden County, March, 1918, for the' murder of Raffaele 
Cammerota, at Westfield, on Jan. 30, 1918. The defendants 
were arraigned March 22, 1918, and pleaded not guilty. 
Frank M. Zottoli, Esq., and Silvio Martinelli, Esq., appeared 
as counsel for Antonio Teregno, and Frank P. Fralli, Esq., 
for Maria Cammerota. In September, 1918, the defendants 
were tried by a jury before Nelson P. Brown, J. The result 
was a verdict of guilty of murder in the first degree in the 
case of Antonio Teregno, and a verdict of guilty of man- 
slaughter in the case of Maria Cammerota. The defendant 
Maria Cammerota was thereupon sentenced to the Reforma- 
tory for Women for a term of fifteen years. In the case of 
the defendant Teregno exceptions were taken at the trial of 
the case and are now pending. The case was in charge of 
District Attorney Joseph B. Ely. 

Anthony Delgoldi, Gabrielo Porcillo, Selvio Mel- 
chiorre and John Doe, indicted in Suffolk County, April, 

1918, for the murder of Lavario Merola, at Boston, on March 
7, 1918. The defendant John Doe has never been appre- 
hended. The defendants Selvio Melchiorre, Anthony Del- 
goldi and Gabrielo Porcillo were arraigned April 10, 1918. 
Melchiorre pleaded guilty to manslaughter and Delgoldi and 
Porcillo pleaded not guilty. Thomas J. Grady, Esq., and 
J. H. O'Brien, Esq., appeared as counsel for the defendants. 
This plea was accepted by the Commonwealth. Melchiorre 



x ATTORNEY-GENERAL'S REPORT. [Jan. 

was sentenced to State Prison for a term of not more than 
eight nor less than five years. The indictment was nol- 
prossed as to Delgoldi and Porcillo. The case was in charge 
of District Attorney Joseph C. Pelletier. 

Michael Di Gioia, indicted in Suffolk County, March, 
1918, for the murder of Vincenzo Di Gioia, at Boston, on 
Feb. 14, 1918. He was arraigned Sept. 18, 1918, and 
pleaded guilty to manslaughter. Thomas J. Grady, Esq., 
appeared as counsel for the defendant. This plea was ac- 
cepted by the Commonwealth, and the defendant was sen- 
tenced to State Prison for a term of not more than five nor 
less than three years. The case was in charge of District 
Attorney Joseph C. Pelletier. 

Athanasius Kazanas, alias, indicted in Middlesex County, 
January, 1918, for the murder of James Barbagianis, at 
Lowell, on Jan. 21, 1918. He was arraigned Feb. 13, 1918, 
and pleaded guilty to murder in the second degree. William 
H. Wilson, Esq., and Albert O. Hamel, Esq., were assigned 
as counsel for the defendant. 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 
Nathan A. Tufts. 

Harry R. Maxster, alias, indicted in Suffolk County, 
February, 1918, for the murder of Joseph C. Reiser, at Bos- 
ton, on Jan. 20, 1918. He was arraigned Feb. 25, 1918, and 
pleaded not guilty. John W. Connelly, Esq., appeared as 
counsel for the defendant. In March, 1918, the defendant 
was tried by a jury before Sanderson, J. The result was a 
verdict of guilty of murder in the second degree, and the de- 
fendant was sentenced to State Prison for life. The case was 
in charge of District Attorney Joseph C. Pelletier. 

Sylvester Parham, indicted in Middlesex County, Janu- 
ary, 1918, for the murder of Francis A. Roberts, at Win- 
chester, on Dec. 23, 1917. He was arraigned Jan. 15, 1918, 
and pleaded not guilty. John W. Schenck, Esq., and Isidore 



1919.] PUBLIC DOCUMENT — No. 12. xi 

H. Fox, Esq., appeared as counsel for the defendant. In 
March, 1918, the defendant was tried by a jury before 
McLaughlin, 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 Nathan A. Tufts. 

Antonio Pellegrino, alias, indicted in Middlesex County, 
January, 1918, for the murder of Luisa Granata, at Win- 
chester, on Jan. 19, 1918. He was arraigned Feb. 13, 1918, 
and pleaded guilty to murder in the second degree. H. H. 
Patten, Esq., appeared as counsel for the defendant. 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 Nathan A. Tufts. 

Patrick J. Sullivan, alias, indicted in Worcester County, 
May, 1918, for the murder of Stella C. E. Soldi, at Clinton, 
on April 5, 1918. He was arraigned May 28, 1918, and 
pleaded not guilty. Thomas H. Sullivan, Esq., and Charles 
T. Tatman, Esq., appeared as counsel for the defendant. 
In June, 1918, the defendant was tried by a jury before 
O'Connell, 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 Edward T. Esty. 

Antonio J. Szczepanek, indicted in Essex County, Janu- 
ary, 1918, for the murder of Annie Spiewok and Wladyslaw 
Bill, at Newburyport, on Dec. 10, 1917. He was arraigned 
Nov. 2, 1918, and pleaded not guilty. Timothy S. Herlihy, 
Esq., appeared as counsel for the defendant. In December, 
1918, the defendant was tried by a jury before Thayer, J. 
The result was a verdict of guilty of murder in the first 
degree. At the trial of the case the defendant alleged ex- 
ceptions which are now pending before the Supreme Judicial 
Court. The case was in charge of District Attorney Henry 
G. Wells. 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

The following indictments for murder are now pending: — 

August Alves, alias, indicted in Hampden County, Sep- 
tember, 1918, for the murder of Jose Rodriguez, at Ludlow, 
on July 7, 1918. He was arraigned Sept. 20, 1918, and 
pleaded not guilty. 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. 

Joseph Balzarano, indicted in Berkshire County, Janu- 
ary, 1916, for the murder of Vincenzo Cresci, at Dalton, on 
March 27, 1915. T. F. Cassidy, Esq., and J. W. Lewis, 
Esq., were assigned as counsel for the defendant. The de- 
fendant has not yet been arraigned. The case is in charge 
of District Attorney Joseph B. Ely. 

Isaiah E. Booth, indicted in Suffolk County, December, 
1918, for the murder of Fred Pullum, on Nov. 9, 1918. The 
defendant has not yet been arraigned. The case is in charge 
of District Attorney Joseph C. Pelletier. 

Paul Codispotti, indicted in Suffolk County, August, 
1918, for the murder of John Carrioti, at Revere, on July 
14, 1918. On Dec. 9, 1918, the defendant was committed to 
the Bridgewater State Hospital for observation. The case 
is in charge of District Attorney Joseph C. Pelletier. 

Joseph Cordia, alias, and Francisco Feci, alias, indicted 
in Middlesex County, November, 1918, for the murder of 
Louis Fred Soulia, at Billerica, on Oct. 31, 1918. The de- 
fendants were arraigned Nov. 19, 1918, and pleaded not 
guilty. Daniel J. Donahue, Esq., appeared as counsel for 
Joseph Cordia, and Meyer J. Sawyer, Esq., for Francisco 
Feci. No further action has been taken in this case. The 
case is in charge of District Attorney Nathan A. Tufts. 

Willard E. Ellis, indicted in Hampden County, Sep- 
tember, 1918, for the murder of Henry M. Green, at Wil- 



1919.] PUBLIC DOCUMENT — No. 12. xiii 

braham, on June 27, 1918. He was arraigned Sept. 20, 1918, 
and pleaded not guilty. No further action has been taken 
in this case. The case is in charge of District Attorney 
Joseph B. Ely. 

Domenico Fioranti, indicted in Suffolk County, Sep- 
tember, 1918, for the murder of Marie Tamburino, at Bos- 
ton, on May 9, 1918. The defendant was arraigned Dec. 9, 
1918, and pleaded not guilty. No further action has been 
taken in this case. The case is in charge of District Attorney 
Joseph C. Pelletier. 

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 de- 
fendants 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 Margaret Hewitt. On 
Jan. 15, 1918, the defendant Lincoln M. Grant was com- 
mitted to the Bridgewater State Hospital for observation. 
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 
Bridgewater State Hospital for observation. The case is in 
charge of District Attorney Joseph C. Pelletier. 

James Houston, indicted in Suffolk County, August, 1918. 
for the murder of John Jackson, on July 10, 1918. He was 
arraigned Aug. 23, 1918, and pleaded not guilty. John 
Burke, 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. 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

Vixcexzo Issarella, indicted in Essex County, May 2, 
1918, for the murder of Vito Rocco, at Haverhill, on Feb. 
10, 1918. He was arraigned May 28, 1918, and pleaded not 
guilty. William J. McDonald, Esq., appeared as counsel for 
the defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Henry G. Wells. 

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 Danvers State Hospital for observation. The case 
is in charge of District Attorney Henry G. Wells. 

Henry Paxon, indicted in Suffolk County, June, 1918, 
for the murder of Julius Warren, at Boston, on May 25, 
1918. On Dec. 4, 1918, the defendant was committed to the 
Bridgewater State Hospital for observation. The case is in 
charge of District Attorney Joseph C. Pelletier. 

George L. Rollins, alias, and Charles Rollins, indicted 
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. The defend- 
ants have not yet been tried upon this indictment. The 
case is in charge of District Attorney Joseph C. Pelletier. 

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. On June 3, 1918, the defendant 
was tried by a jury before Keating, J. The result was a ver- 
dict of guilty of murder in the first degree. Exceptions were 
filed which are now pending. The case is in charge of Dis- 
trict Attorney Joseph C. Pelletier. 

Nathan Schwartz, indicted in Suffolk County, December, 

1917, for the murder of Emil Knab, at Boston, on Nov. 10, 



1919.] PUBLIC DOCUMENT — No. 12. xv 

1917. The defendant has not yet been arraigned. On May 
20, 1918, the indictment was placed on file to be brought 
forward by order of the court. The case is in charge of 
District Attorney Joseph C. Pelletier. 

Salem Seif, alias, indicted in Hampden County, Septem- 
ber, 1918, for the murder of Mohammed Shahane Barber, at 
Springfield, on May 26, 1918. He was arraigned Sept. 20, 

1918, and pleaded not guilty. No further action has been 
taken in this case. The case is in charge of District Attor- 
ney Joseph B. Ely. 

Elizabeth M. Skeels, alias, indicted in Essex County, 
September, 1918, for the murder of Florence W. Gay, at An- 
dover, on Dec. 10, 1917. She was arraigned Nov. 1, 1918, 
and pleaded not guilty. Daniel J. Daley, Esq., appeared as 
counsel for the defendant. No further action has been taken 
in this case. The case is in charge of District Attorney 
Henry G. Wells. 

Alexander Thompson, indicted in Plymouth County, 
June, 1918, for the murder of Charles H. Wood, at Bridge- 
water, on Feb. 25, 1918. On June 27, 1918. the defendant 
was committed to the Taunton Insane Hospital for observa- 
tion. The case is in charge of District Attorney Frederick G. 
Katzmann. 

Grade Crossings. 

The following is the report of the work done in connection 
with the elimination of grade crossings during the year 
1918: — 

Three hearings before special commissions have been 
attended. 

No construction work has been in progress during the 
year, although one crossing has been eliminated by dis- 
continuance. 

Statements of expenditures, numbering three, amounting 
to $391,621.62, have been examined. 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

Workmen's Compensation. 

A serious situation has arisen in relation to claims against 
the New England Equitable Insurance Company of Massa- 
chusetts under the workmen's compensation act. 

In the spring of 1917 the Insurance Commissioner reported 
to this department that the capital of this company was 
impaired, and that the further prosecution of its business was 
hazardous to the public. Upon a petition to the Supreme 
Judicial Court on behalf of the Insurance Commissioner by 
this department permanent receivers of the company were 
appointed on the thirteenth day of April, 1917. 

Soon after the appointment of the receivers it was brought 
to the attention of this department by the Industrial Acci- 
dent Board that payments to injured workmen insured by 
the company under the compensation act had ceased. As 
counsel for the company had at all times insisted that the 
company was solvent, I felt it desirable to bring to the at- 
tention of the receivers the desirability of petitioning the 
court for authority to make partial payments to the injured 
workmen affected. Thereupon the receivers made applica- 
tion to the court for such authority, and as a result of the 
petition an order was made by the court authorizing the 
payment of 75 per cent, of the amount due on account of 
workmen's compensation claims. 

During the summer of last year, hearings were held for the 
purpose of determining the policy that should be adopted by 
the receivers in winding up the affairs of the company. As 
a result of these hearings it was found that the capital of 
the company was seriously impaired, and it was determined 
that the receivers should thereafter in the management of 
the affairs of the company act as if the company were in- 
solvent. Prior to the hearings an order was made by the 
court suspending any payments on account of workmen's 
compensation claims. 

On September 9, a further order was made by the court, 
ordering the receivers to make payments of 33^ per cent, on 
account of workmen's compensation claims due, to be paid 
out of certain funds held on deposit by the Treasurer and 



1919.] PUBLIC DOCUMENT — No. 12. xvii 

Receiver-General. This deposit was made under the pro- 
visions of St. 1907, c. 576, § 99, to be held in trust for the 
purpose of complying with the laws of any other State, to 
enable the company to do business in such State. A serious 
question has arisen as to whether or not these funds on de- 
posit with the Treasurer and Receiver-General can be used 
in the manner directed by the court. The question is now 
pending for determination on proceedings brought against 
the Treasurer and Receiver-General for the purpose of having 
him comply with the order of the court. What the outcome 
of these proceedings will be is uncertain. 

The workmen's compensation act was designed as a sub- 
stitute for the right of action of the workman against the 
employer. Its purpose was to give the workman a more 
certain remedy and to provide for payment on account of 
his injuries while he needed the payment the most; that is, 
during his disability. Thus as to claims insured by the New 
England Equitable Insurance Company the workmen's com- 
pensation act has failed of its purpose. It not only has de- 
prived these workmen of the right of action which formerly 
they would have had against their employers, but the pro- 
visions of law providing for speedy payment on account of 
their injuries have failed, and it may well be that the work- 
men never will receive other than a small portion of that 
which the law was designed to give them. 

It is to be regretted that constitutional difficulties prevent 
the Commonwealth from immediately making provision for 
the payment out of its own treasury of the claims that have 
been found to be due to workmen from the New England 
Equitable Insurance Company by the Industrial Accident 
Board. 

Under the original plan proposed for workmen's compensa- 
tion, the situation arising in relation to the New England 
Equitable Insurance Company could not, in all probability, 
have arisen. That plan contemplated one insurance com- 
pany whose business should be devoted entirely to workmen's 
compensation insurance. The company was to have been 
a mutual company, its rates approved by the Insurance 
Commissioner as adequate, and the assured liable for assess- 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

ments in addition equal to the rates. It would have resulted, 
so far as it was practical, in the various classes of industries 
in the Commonwealth sustaining the burden of injuries to 
workmen arising out of each class, and it is difficult to see 
how a company which did all the workmen's compensation 
business in the Commonwealth upon a mutual basis, super- 
vised by the State, could ever have become insolvent or 
have failed to meet its obligations, or that the amounts 
contributed by the employers would have been in excess of 
the rates charged by other companies doing a general lia- 
bility business. This plan was not carried through. An 
amendment to the original plan authorizing liability insurance 
companies to do business in competition with the Massachu- 
setts Employees Insurance Association, the mutual company 
originally provided in the plan, was adopted. I understand 
this amendment was adopted for the reason that it was 
felt by the Legislature that the act as drawn would be unjust 
to liability insurance companies authorized to do business 
within the Commonwealth, which were willing to insure the 
payment of the compensation provided by the act, and that 
difficulties might be experienced in the beginning by the 
mutual company being unable to assume all the risks readily. 
Furthermore, it was argued that many employers preferred 
to pay a definite rate of insurance, although somewhat 
higher, than be subject to the possibility of a further assess- 
ment under the mutual plan. 

I am informed that the result of the competition by the 
liability insurance companies with the mutual company orig- 
inally provided in the act created such a condition that the 
original company was unable successfully to conduct business 
unless it was authorized to engage in some of the classes of 
business which the liability companies were allowed to engage 
in, and that accordingly, by Sp. St. 1915, c. 314, and Gen. 
St. 1916, c. 200, the Massachusetts Employees Insurance As- 
sociation was authorized to do other types of business, both 
within and without the Commonwealth, and to do workmen's 
compensation business outside of the Commonwealth. The 
result has been that the original plan has been perverted, 
resulting in workmen's compensation business being done by 



1919.] PUBLIC DOCUMENT — No. 12. xix 

liability companies doing business both on the stock and 
mutual plan in competition with each other. 

By Gen. St. 1915, c. 183, foreign companies entering into 
workmen's compensation business are required to furnish a 
bond satisfactory to the Insurance Commissioner. The con- 
dition of the bond requires that the company, upon its with- 
drawal from the transaction of business here, or upon the 
revocation of its license to do business here, or upon the Insur- 
ance Commissioner's refusal to renew its license, shall deposit 
with a trustee, to be named by the Industrial Accident Board, 
funds equal to the amount of the obligations incurred or to 
be incurred under workmen's compensation policies, issued 
to employers in this Commonwealth; the amount of said 
obligations to be determined by the Industrial Accident 
Board, to meet any liability which may arise by reason of 
their insurance of workmen's compensation. To a certain 
extent this insures the injured workmen in receiving their 
compensation from these companies in the event of their 
withdrawing from business in this Commonwealth or ceasing 
to do business by reason of the loss of their licenses. On 
the other hand, this provision probably does not cover the 
ceasing to do business by reason of receivership proceedings, 
and as to domestic companies there is no provision whatso- 
ever insuring the receiving of their compensation by injured 
workmen in the event of the companies ceasing to do business 
or the appointment of receivers to wind up their affairs. It 
seems to me imperative that additional legislation should be 
passed by the Legislature to insure more effectually the pay- 
ment of compensation to workmen injured in the employ of 
subscribers to the workmen's compensation act. The Com- 
monwealth of Massachusetts cannot afford to deprive the 
workmen of their right of action against these employers with- 
out making an adequate and certain substitute. Accordingly, 
I recommend legislation that will prevent in the future the 
failure of the payment of claims determined under the work- 
men's compensation act. 



xx ATTORNEY-GENERAL'S REPORT. [Jan. 



Combinations to raise the Price of Food and Other 
Necessities of Life. 
In the closing days of the Legislative session of last year 
the House of Representatives adopted the following order, a 
copy of which was subsequently forwarded to me by the 
clerk of the House of Representatives : — 

Ordered, That a copy of the report of the joint special committee 
appointed to investigate the fish industry in this Commonwealth, 
and a transcript of the evidence taken before said committee, be 
transmitted to the Attorney-General, and that he be requested to 
take such proceedings as in his judgment may be appropriate to deter- 
mine whether the Boston Fish Market Corporation has allowed to be 
made any unlawful or improper use of the leased premises in violation 
of the terms of its lease from the Commonwealth, and, if so, to take 
such steps as may be necessary or expedient to compel compliance 
with the covenants of the lease or its termination. Also that the 
Attorney-General be requested to examine the record of the proceed- 
ings of the committee as transmitted to him, with a view to deter- 
mining whether the provisions of chapter 650 of the Acts of 1912, 
or of any other statutes of the Commonwealth, have been violated 
by the Bay State Fishing Company of Maine or any of its subsidiary 
companies, or by the president or any officials or agents of any of the 
said companies, and if in his judgment there has been such violation 
to take such steps as in his judgment may be fitting in the premises. 

I have not deemed it expedient to take any action looking 
towards the termination of the lease of the fish pier from the 
Commonwealth to the Boston Fish Market Corporation, as it 
is not yet clear that any acts of the Boston Fish Market 
Corporation or its lessees have been such as in law constitute 
a violation of the terms of the lease. Furthermore, I doubt 
the power of the Attorney-General to take any proceedings 
towards the termination of the lease even if such acts consti- 
tute such a violation. Section 2 of chapter 188 of the Re- 
vised Laws provides as follows : — 

If the title of the commonwealth is founded on a forfeiture for the 
breach of a condition in a grant or conveyance made by the common- 
wealth or by the province or colony of Massachusetts Bay, no action 
for the recovery of such land shall be commenced unless by an order 
of the general court. . . . 



1919.] PUBLIC DOCUMENT — No. 12. xxi 

If it is the judgment of the General Court of Massachusetts 
that greater authority should be possessed by the Attorney- 
General for the enforcing of the conditions of leases executed 
by the Commonwealth provision should be made therefor. 

The facts disclosed in the testimony given before the joint 
special committee appointed to investigate the fish industry 
in this Commonwealth, together with additional evidence 
secured by this department upon further inquiry, seemed to 
justify the presentation of the facts to a grand jury of 
Suffolk County for their determination as to whether or not 
the activities of any individuals connected with the Bay 
State Fishing Company of Maine warranted the finding of an 
indictment. Accordingly, at the sittings of the grand jury in 
July and August of last year, evidence was presented which 
resulted in indictments being found against various indi- 
viduals, charging them in the first two counts with conspiring, 
by means of monopolizing and engrossing, to enhance the 
price of fresh fish within and throughout the Commonwealth 
beyond what was fair and reasonable, to follow the language 
of the indictment, "whilst the possession of fresh fish at fair 
and reasonable prices was indispensable to the inhabitants of 
this Commonwealth because of conditions of war and general 
scarcity of foodstuffs;" and, in addition, charging them in 
fourteen counts with the statutory offence, described in sec- 
tion 2 of chapter 651 of the Acts of 1912, of combining for 
the purpose of destroying the business of another and of 
creating a monopoly within this Commonwealth. 

Motions to quash the various counts of the indictment 
were made by the defendants and arguments were made upon 
the motions in December last before a justice of the Superior 
Court. On the sixth day of January, current, the learned 
justice * sustained the motions to quash as to the first two 
counts, and filed the following memorandum in relation 
thereto : — 

This indictment is an indictment, consisting of sixteen counts, 
the first two of which are based upon the common law and the other 
fourteen of which are based upon St. 1912, c. 651, § 2. Each count 
is*an entity by itself. 

1 Hon. William F. Dana, Justice of the Superior Court, presided at the hearing on the 
motions. 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 



Common Law Counts. 
These counts, in substance, charge that the defendants "did com- 
bine, conspire, confederate, and agree together, and with each other, 
. . . knowingly and designedly to create an unlawful monopoly in 
and unlawfully to engross and monopolize fresh fish in said Common- 
wealth, and thereby to fix, regulate, control and enhance the prices 
thereof beyond what was fair and reasonable." / 

1. The creation of a monopoly as such (at least, apart from a patent) 
was not a criminal offence at common law in England, and is not such 
here to-day. Wherever it is a criminal offence, it is so by force of 
statute. 

2. A contract or agreement in restraint of trade is unenforceable, 
and, in this sense, illegal; but it is not a crime under our law. It 
requires a statute to make it so. 

3. There was in England a crime, known as engrossing, created in 
1552 by statute 5 & 6 Edward VI, c. 14; and existing, possibly, also, 
at common law. Apparently, the statutory offence, if there was a 
common law offence, was declarator}' of it. It prohibited the pur- 
chase in the realm of England of corn, butter, cheese, fish, or other 
dead victual, with the intent to sell the same again, and evidently 
was aimed at middlemen, or wholesale dealers. The quantity of 
goods purchased for resale seems not to have been the prime factor 
in the offence, nor were the prosecutions generally against more than 
one defendant. The statute 5 & 6 Edward VI, c. 14, was repealed 
in 1772 by the statute 12 George III, c. 71, as representing an archaic 
system of political philosophy, and has never been re-enacted in 
England. Inferentially, it was the intention of Parliament, by the 
legislation of 1772, to abolish the offence of engrossing altogether. 
Otherwise its action has no meaning, and was nugatory. But there 
are one or two decisions in England, in 1800, holding the contrary 
doctrine; and to meet these Parliament, in 1844, supplemented the 
legislation of 1772 by abolishing the offence of engrossing, whether 
at common law, or by statute 5 & 6 Edward VI, c. 14, or any other 
statute (7 & 8 Victoria, c. 24). The statute 5 & 6 Edward VI, c. 
14, against engrossing, with some differences, was enacted, for limited 
periods, at several sessions of the Legislature, from 1779 to 1782. 
(Province Laws, 1778-9, 1779-80, 1780; Acts of the General Court, 1781). 

After 1782 the legislation was allowed to lapse by its own limitation. 
No renewal of it was ever attempted, and the judicial records of the 
Commonwealth, so far as is known, contain no prosecution for en- 
grossing, either at common law or under any statute. I think that 
the inescapable conclusion from the premises is that engrossing is 
not a crime, by virtue of 5 & 6 Edward VI, c. 14, or at common law, 
to-day, in Massachusetts, and that if it ever has been such it is not 
so now, and long since has become obsolete and a nullity. 



1919] PUBLIC DOCUMENT — No. 12. xxiii 

(1) The first two counts set forth a combination, conspiracy, con- 
federation, or agreement, among the defendants, with sufficient definite- 
ness to conform to our present rules of criminal pleading. 

(2) I rule that the common law counts, as reasonably construed, 
do not intend to charge the defendants with the technical offence 
of engrossing, but with monopolizing, as that phrase is more or less 
inartifically used in the modern statutes, creating monopolizing a 
crime. As has been stated, however, this crime has no existence at 
common law, and is solely of statutory origin. That being so, and 
no such statute existing in this State, I find that these counts do not 
charge the defendants with a combination, conspiracy, confederation, 
or agreement having for its end a criminal object. 

(3) The means set forth in the first count as the means to accomplish 
the end of the combination, conspiracy, confederation, or agreement 
do not appear to be criminal, if the end itself be not so. That the end 
is not so is above shown; and the means, therefore, as set forth in this 
count, are not of themselves criminal. There are no means set forth 
in the second count. 

(4) This is not a case where the doctrine (if it be a doctrine) 
that several may be responsible for an act criminally when one would 
not be. There are possible cases of the sort, but they are of infrequent 
occurrence, and should be carefully scrutinized. Otherwise there 
is danger of arbitrary extension by judicial construction of the criminal 
law to cases to which it was never intended to apply. To constitute 
an indictable conspiracy, in premises like the present, there must be, 
in contemplation of the conspirators, an interference with the lawful 
trade or business of another, by fraud, misrepresentation, intimidation, 
molestation, destruction, physical interference, or the like, and not 
merely commercial rivalry, incidental elimination of competition, or 
temporary or otherwise increase or decrease of prices. 

I hold, therefore, that the first two counts, based upon the common 
law, are invalid. 

The Statutory Counts. 
These counts are based upon St. 1912, c. 651, § 2. They all follow 
substantially the terms of the statute, except that the wording is 
reversed. The statute makes it a criminal offence for any person, 
firm, association, or corporation to combine with any other person, 
firm, association, or corporation for the purpose of destroying the 
trade or business of any person, firm, association, or corporation 
engaged in selling goods o£ commodities, and of creating a monopoly 
within this Commonwealth. The counts charge the defendants with 
combining in the business of dealing in and selling goods and commodi- 
ties in general use, to wit, fresh fish, for the purpose of creating a 
monopoly within this Commonwealth in said fresh fish, and for the 
purpose of unlawfully destroying the trade and business of divers 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

corporations, or persons, engaged in selling goods and commodities 
in general use, to wit, fresh fish, in said Commonwealth. The com- 
bination, to come within the prohibition of the statute, must be both 
for the purpose (1) of destroying the trade or business of a person, 
firm, association, or corporation engaged in selling goods or commodi- 
ties, and (2) of creating a monopoly. If it have not both these im- 
mediate ends in view there is no crime. The mere order of the wording 
of the counts seems a matter of indifference, and they are to be given 
the same meaning as the terms of the statute. In my opinion the 
counts comply with our rules of criminal pleading as in force to-day, 
and, so far as relates to tins motion, are otherwise sufficient. 

The motions to quash are allowed in respect of the first two counts, 
and are denied in respect of the other fourteen counts. 

So ordered. 

As the government has no appeal in criminal cases, and as 
it is to be presumed that the opinion of the learned justice 
reflects the views on this subject of the other justices of the 
Superior Court, the effect of this decision is to preclude any 
final determination of the question by the Supreme Judicial 
Court. As a practical matter this amounts to a final deter- 
mination that there is no law in this Commonwealth on the 
criminal side of the court that forbids combinations or con- 
spiracies made for the purpose of monopolizing or unreason- 
ably enhancing the price of necessities of life, notwithstanding 
the conspiracy is entered into during a time of scarcity of 
food or during a public catastrophe. 

In my report for the year ending Jan. 17, 1917, I brought 
to the attention of the Legislature that it was at least 
doubtful in this Commonwealth whether agreements to fix 
prices were criminal unless a monopoly was in fact created by 
such agreements. The decision of the learned justice goes 
much farther, as it is a finding that even if a monopoly 
is in fact accomplished by a combination for the purpose 
of enhancing unreasonably prices of necessities of life and 
such prices are thereby enhanced, nevertheless the combi- 
nation is not criminal at common lawtin this Commonwealth. 
This decision obviously has a far-reaching effect, and, if it is 
deemed wise by the Legislature that such combinations 
should be restricted, it is necessary that additional legislation 
should be enacted. 



1919.1 PUBLIC DOCUMENT — No. 12. xxv 



Stenographer for the Supreme Judicial Court for the 
County of Suffolk. 

At the present time there is no stenographer appointed for 
the Supreme Judicial Court for the county of Suffolk to take 
the testimony in cases involving issues of fact. Provision is 
made for the appointment of a stenographer from time to 
time, at a fixed compensation per day, when the court may 
think the services of a stenographer necessary. This arrange- 
ment is at times very unsatisfactory, as there are delays in 
obtaining the stenographer, and such delays are expensive to 
the Commonwealth and inconvenient to the parties. 

I recommend that provision be made for the appointment 
of a permanent stenographer for the Supreme Judicial Court 
for the county of Suffolk, with provision that as a part of the 
stenographer's duties he shall perform such services as the 
justices of the Supreme Judicial Court may require in relation 
to their respective duties and such services as may be re- 
quired by the full court. Such an appointment, in my judg- 
ment, would not add materially to the expenses of the court 
and would greatly assist the justices of the court and facili- 
tate their work. 

Escapes from Hospitals. 

On Aug. 28, 1918, an inmate of the Boston Insane Hospital 
was taken from the hospital by her two sons and a daughter. 
The sons and daughter had been admitted to the hospital, and, 
in the parlor of the hospital, in the presence of a nurse, met 
their mother. While in the parlor the sons assaulted the 
nurse and took from her possession a key to the outer door 
of the hospital, which door they then unlocked and opened. 
The sons and the daughter with the mother then hastened 
across the hospital grounds to the public highway, where an 
automobile was in waiting. They entered the automobile, 
which was driven off, and that is the last information the au- 
thorities have as to the whereabouts of the mother. 

The two sons were subsequently arrested and were charged, 
under the provisions of St. 1909, c. 504, § 93, with secreting 
an insane person, and at the same time were charged with 



xxvi ATTORNEY-GENERAL'S REPORT. [Jan. 

assault and battery upon the nurse. At a trial in the Supe- 
rior Court it was held that there was no evidence which war- 
ranted a conviction upon the charge of secreting. The 
result would seem to be that under this statute inmates may 
be assisted by outside persons to escape, and such persons 
can be charged with no offence unless they also secrete the 
person they aid to escape. 

I recommend that the statute be amended to make it a 
criminal offence to assist an insane person to escape from a 
hospital for the insane. 

Wokkmen's Compensation Act as applied to the Com- 
monwealth. 

By chapter 807 of the Acts of 1913 the provisions of the 
Workmen's Compensation Act were extended to such labor- 
ers, workmen and mechanics employed by the Common- 
wealth as receive injuries arising out of and in the course of 
their employment. The amounts paid by the Common- 
wealth for compensation under the provisions of this act 
have, for several years, been in excess of $10,000 a year, and 
would naturally be expected to increase in the future. 

By chapter 244 of the General Acts of 1915, each board, 
commission and department of the Commonwealth employ- 
ing laborers, workmen and mechanics was required to appoint 
a person to act as its agent in furnishing the benefits pro- 
vided by the Workmen's Compensation Act. 

It frequently happens that the question of whether an 
employee of the Commonwealth is entitled to compensation 
depends upon disputed questions of fact, or, if the facts 
themselves are not in dispute, it frequently happens that 
questions of law are involved, upon the proper determination 
of which the employee's rights to compensation are depend- 
ent. Whenever cases of this nature have been brought to 
the attention of this department I have considered it my 
duty to represent the Commonwealth at the hearing of the 
case before the Industrial Accident Board. The ordinary 
case, however, of a claim for compensation from the Com- 
monwealth does not come before this department but is ad- 
justed by an agreement between the agent of the board or 



1919.] PUBLIC DOCUMENT — No. 12. xxvii 

commission in which the injured person was employed and 
the injured employee, and approved by the Industrial Acci- 
dent Board more or less as a matter of course. Furthermore, 
the ordinary agreement for the payment of compensation is 
limited by the period of disability of the injured employee, 
and there seems to be at present no adequate means for 
ascertaining when the incapacity of an employee who is 
receiving compensation under such an agreement has termi- 
nated. 

Another difficulty in the present situation is that it fre- 
quently happens that the period of incapacity of the injured 
employee could be materially lessened by his receiving proper 
medical attention, which would be of benefit both to the. 
Commonwealth and to the injured employee, but that either 
through ignorance or lack of funds such employee neglects to 
have proper care and treatment. 

Accordingly, I recommend the passage of legislation pro- 
viding that all claims for compensation from the Common- 
wealth on account of injuries sustained by laborers, workmen 
and mechanics employed by it shall be passed upon by some 
person, either in this department or elsewhere, who shall have 
authority to enter into agreements with the injured employee 
for the payment of compensation, subject to the approval of 
the Industrial Accident Board, and who shall represent the 
Commonwealth before the Industrial Accident Board in all 
cases of this nature, with authority to investigate the facts of 
all such claims and to provide for medical attendance and 
services in all cases where it would be for the interests of the 
Commonwealth so to do. 

Abatement and Refund of Taxes. 
From time to time cases arise where it turns out that taxes 
assessed and collected by the Commonwealth have been 
illegally or erroneously assessed* The Income Tax Law con- 
tains provisions for abatement and refund upon application 
made to the Tax Commissioner without court proceedings, 
but there is no such provision applicable to legacy and 
succession taxes or to corporation taxes. In such cases the 
Treasurer and Receiver-General is authorized to make repay- 



xxviii ATTORNEY-GENERAL'S REPORT. [Jan. 

ments only upon the presentation of appropriate decrees of 
court. A decree may be obtained in case of legacy and 
succession taxes only upon a petition to the Probate Court, 
filed within one year after the payment of the tax, and in the 
case of corporation taxes only upon a petition to the Supreme 
Judicial Court, filed within six months. In cases where the 
Commonwealth concedes the error or where the illegality has 
been established in some test case, of course a decree may be 
and is entered by the assent of the Attorney-General, but 
this puts the interested party to the trouble and expense of 
filing such a petition and obtaining a decree from the court. 
This is a cumbersome proceeding. In my judgment there 
ought to be some simpler method of doing justice in these 
cases. I recommend the enactment of legislation authorizing 
the Treasurer and Receiver-General to refund legacy and 
succession and corporation taxes upon the certificate of the 
Tax Commissioner, approved by the Attorney-General, that 
the same have been erroneously or illegally exacted, provided 
application for such a certificate is made within the time pre- 
scribed by law for filing in court a petition for abatement. 

Public Administrators. 

R. L., c. 138, § 18, authorizes public administrators to 
administer estates coming into their hands of a value less 
than $20 without proceedings of any sort in the Probate 
Court. The experience of this department indicates that this 
limit is too low. Cases not infrequently arise in small estates 
where funds are necessarily used for expenses of administra- 
tion which ought in justice to be applied to the payment of 
funeral expenses or other debts. The proper protection of 
possible parties in interest requires that this limit should be 
low, but, in my judgment, it can properly be increased to 
SI 00; and I so recommend. 

Our statutes contain no adequate provision for the adminis- 
tration of the estate of a person leaving no heirs within the 
Commonwealth in the event that such person leaves a will 
but names no executor, or that the person named declines to 
serve or vacates his office before completing his duties. I 
recommend that in such cases it be provided that a public 



1919.] PUBLIC DOCUMENT — No. 12. xxix 

administrator shall be appointed administrator with the will 
annexed, and that he shall complete the administration sub- 
ject to all the requirements of chapter 138 of the Revised 
Laws and its amendments. I also recommend legislation to 
the effect that in any case where an executor under a will 
shall have a balance remaining in his hands after fully ad- 
ministering an estate, to which heirs at law would be entitled, 
and there are no heirs at law known to him, he shall pay over 
the same to the Treasurer and Receiver-General, subject to 
the right of any party in interest to establish that he is 
legally entitled to the same, as provided in R. L., c. 138, § 14. 

Service upon Corporations. 
Considerable practical difficulty has been met in instituting 
legal proceedings against corporations by reason of the fact 
that R. L., c. 167, § 36, providing the manner in which 
process shall be served upon corporations, seems to permit 
service upon a president or a treasurer only when found to be 
in charge of the business of the corporation. The natural 
officer upon whom to serve, and usually the most accessible 
one, is the treasurer, but deputy sheriffs are often unable to 
certify that he is in charge of the business. I recommend 
that this section be amended by inserting the president and 
the treasurer in the list of officers upon whom service may in 
any event be made. 

Money paid into Court. 
By the provisions of section 22 of chapter 21 of the Re- 
vised Laws, chapter 36 of the Acts of 1911 and chapter 121 
of the Acts of 1913, county officials are required to deposit 
in banks, at interest, in their official names, all money in 
their hands, except such amounts as may be required for 
immediate use, and to pay over the interest accruing thereon 
to the county treasurer. By the provisions of section 16 of 
chapter 116 of the Revised Laws, as amended by chapter 
417 of the Acts of 1907, when such money is deposited in a 
trust company and remains unclaimed for more than ten 
years, the court may, upon motion of the Attorney-General, 
order and decree that it shall be paid over to the Treasurer 



xxx ATTORNEY-GENERAL'S REPORT. [Jan. 

and Receiver-General, to be held by him in accordance with 
the terms of said order or decree. By chapter 370 of the 
Acts of 1910 it was provided that "money paid into the 
courts for the county of Suffolk shall be placed at interest 
by the clerks thereof, and the interest shall be available for 
the uses of the county, unless the court directs it to be paid 
to one of the parties to the litigation in connection with 
which such money has been paid into court." It is further 
provided that all interest in the custody of any clerk of the 
said courts, after payment, by order of the court, of the 
principal fund to the party litigant held to be entitled 
thereto, shall on the thirty-first day of January in each year 
be turned over to the collector of the city of Boston, to be 
used for general county purposes. 

Recently, in a proceeding brought in relation to funds 
held by the clerk of the Superior Court of the county of 
Suffolk for civil business, a difficulty arose in determining 
what portion of a fund held by him was principal and what 
portion was interest. Furthermore, a difficulty has arisen 
because of the fact that the money has not been deposited 
in a trust company for ten years, and, therefore, no pro- 
ceedings can be brought by the Attorney-General to have the 
principal of the fund turned into the State treasury, although 
a large part of the money is money deposited with the clerk 
many years ago. It would seem wise that provision should 
be made for a more definite arrangement as to the disposition 
of funds deposited in court with the clerk, and that after the 
same have remained unclaimed for a number of years they 
may be used by the Commonwealth or by the counties, with 
provision that, in the event of claims being made therefor, 
the Commonwealth or the county, as the case may be, shall 
pay to claimants such sums as the court shall order. In this 
way the Commonwealth or the county would get the benefit 
not only of the interest but of the deposit. I recommend 
consideration of the entire subject, and that provision be 
made for a better method of handling funds deposited in 
court. 



1919.1 PUBLIC DOCUMENT — No. 12. xxxi 



Department of the Attorney-General. 

The number of official opinions rendered by the depart- 
ment during the year, up to Jan. 1, 1919, was 154. The 
number of cases tried in the Probate Court was 5, and 2 cases 
were tried in the Land Court. The number of cases tried in 
the Superior Court was 17. Seventeen hearings before a 
single justice of the Supreme Judicial Court have been at- 
tended, and there have been 7 cases argued before the 
Supreme Judicial Court, and 1 case tried before the Munici- 
pal Court of the city of Boston. There has been 1 case 
argued before the United tates Supreme Court and 4 cases 
before the L T nited States District Court for the District of 
Massachusetts. In addition there have been 12 hearings 
before the Industrial Accident Board of Massachusetts. 

The collections of the department amounted to $933,889.34, 
exclusive of the sum of $886,389.68 which was collected 
through this department from the LTnited States government 
on account of Civil War claims. 

During the past year this department has lost the services 
of Nelson P. Brown, Esq., and H. Ware Barnum, Esq., both 
of whom resigned after nearly four years of faithful and 
efficient service as assistant attorneys-general; the former 
having been appointed as justice of the Superior Court and 
the latter as general counsel to the trustees of the Boston 
Elevated Railway Company. 

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

Respectfully submitted, 

HENRY C. ATTWILL, 

Attorney-General. 



OPINIONS. 



War Service — Associate Members of Legal Advisory Boards — 
Incompatibility of Offices. 

Associate members of legal advisory boards do not hold office under 
authority of the United States, within the meaning of article VIII of 
the Amendments to the Massachusetts Constitution, so as to dis- 
qualify them as members of the General Court. 

Jan. 4, 1918. 

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

Sir: — You have requested my opinion as to whether mem- 
bers of legal advisory boards hold an office under authority of 
the United States, within the meaning of article VIII of the 
Amendments to the Massachusetts Constitution, so that the 
acceptance of that office after the beginning of the legislative 
year 1918 would disqualify them as members of the General 
Court. 

The members of the so-called permanent legal advisory 
boards are appointed under the rules of the President promul- 
gated on the eighth day of November, 1917, under the provi- 
sions of the Selective Service Act of Congress. The associate 
members of such legal advisory boards are such members of 
the bar and competent laymen as are called upon by the 
Governor to offer their services to the permanent legal ad- 
visory boards in the several districts, for the purpose of being 
present at the headquarters of the local boards and rendering 
aid and advice to registrants. 

To hold an office under the authority of the United States 
within the meaning of said amendment to the Constitution, in 
my opinion, a person must be an officer of the government of 
the United States, whose duties involve in their performance 
the exercise of some portion of the sovereign power, whether 
great or small. In advising and assisting registrants in the 
filling out of the so-called questionnaire I think it is obvious 
that the associate members of the legal advisory boards are 
not exercising any part of the sovereign power of the United 
States. 

Accordingly, the answer to your question is in the negative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



2 ATTORXEY-GEXERAL'S REPORT. [Jan. 

Justice of the Peace — Notary Public — Jurisdiction. 

No person appointed a justice of the peace or notary public in this Com- 
monwealth can act as such when outside the jurisdiction of the Com- 
monwealth. A justice of the peace or notary public can continue to 
act as such although he is at the same time in the service of the United 
States Army, provided that when he acts as such he is within the 
Commonwealth. 

Jan. 16, 1918. 

Hon. Albert P. Laxgtry, Secretary of the Commonwealth. 

Dear Sir: — You request my opinion as to whether a jus- 
tice of the peace or notary public in this Commonwealth can 
continue to act after he goes to another State, and whether he 
can continue to act after entering the service of the United 
States Army, either as a private or non-commissioned officer, 
if stationed in this Commonwealth or elsewhere. 

I am of the opinion that a justice of the peace or notary 
public can continue to act as such although he is at the same 
time in the service of the United States Army, provided that 
wdien he acts as such he is in the Commonwealth. It is to be 
noted, however, that section 1222 of the Revised Statutes of 
the United States provides that no officer of the army on the 
active list shall hold any civil office, whether by election or 
appointment, and every such officer who accepts or exercises 
the functions of a civil office shall thereby cease to be an 
officer of the army, and his commission shall thereby be 
vacated. 

I am of the opinion that no person appointed a justice of the 
peace or notary public in this Commonwealth can act as such 
when outside the jurisdiction of the Commonwealth. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



War Service — State Benefits — United States Guard. 

The organization known as the United States Guard is a volunteer force 
of the United States Arm}-, within the meaning of Gen. St. 1917, 
c. 332. Persons enlisting in the United States Guard subsequent to 
Feb. 3, 1917, are eligible to the benefits provided for by Gen. St. 
1917, c. 179. 

Jan. 17, 1918. 
Col. Jesse F. Stevens, Adjutant -General. 

Dear Sir: — You request my opinion upon the question of 
"whether the United States Guard, now being enlisted in the 



1919.] PUBLIC DOCUMENT — No. 12. 3 

service of the United States, is considered a part of the quota 
of the Commonwealth of Massachusetts, and therefore eligible 
to aids and pay under the statutes of 1917." 

I am informed that the United States Guard, so called, is a 
military force raised under the provisions of section 2 of the 
Act of Congress approved May 18, 1917, which is as follows: — 

Provided, That the President is authorized to raise and maintain by 
voluntary enlistment or draft, as herein provided, special and technical 
troops as he may deem necessary, and to embody them into organiza- 
tions and to officer them as provided in the third paragraph of section 
one and section nine of this act. 

Gen. St. 1917, c. 211, entitled "An Act to provide State pay 
for soldiers and sailors from this Commonwealth in the volun- 
teer service of the United States," provides, in part, as fol- 
lows : — 

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. 

It should be noted that this chapter expressly provides that 
the benefits of this statute shall not continue beyond Jan. 15, 
1918, so that your inquiry, so far as it relates to the aid pro- 
vided for by this statute, is now a moot question. 

Gen. St. 1917, c. 179, entitled "An Act to provide aid for 
certain dependent relatives of soldiers and sailors of the com- 
monwealth in the federal service," authorized cities and 
towns to provide aid for certain relatives and dependents "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 commonwealth which may be called for 
service in the United States or in any foreign country." 

The benefits of these acts were extended by chapter 332 of 
the acts of the same year 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 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

the regular or volunteer forces of the United States army, 
navy or marine corps, whose federal service began subsequent 
to said February third, nineteen hundred and seventeen. " 

In an opinion rendered by me to the Treasurer and Receiver- 
General under date of June 6, 1917, it was stated that the 
requirement that the service must be "as a part of the quota 
of this commonwealth" limited the scope of said chapter 211 
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. This phrase as used in 
chapter 179 must be interpreted likewise. My opinion was 
also expressed that the right to receive State pay was extended 
by the provisions of said chapter 332 to all persons enlisting in 
the regular or volunteer forces of the United States Army, pro- 
vided such persons had at the time of their enlistment been 
residents of the Commonwealth for at least six months. 

It seems plain, in my judgment, that the organization raised 
by the President under the provisions of the Act of Congress 
of May 18, 1917, above quoted, and known as the United 
States Guard, is a volunteer force of the United States Army, 
within the meaning of Gen. St. 1917, c. 332. The copy of the 
enlistment blanks used by persons enlisting in this force ap- 
pears to be similar in form to those used in the Regular Army. 

Accordingly, I beg to advise that I am of opinion that 
persons enlisting in the United States Guard subsequent to 
Feb. 3, 1917, are eligible to the benefits provided for by Gen. 
St. 1917, c. 179. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Corporations — Increase of Capital Stock — Filing Fee. 

The Secretary of the Commonwealth is not authorized to return to a 
corporation the filing fee paid by it on filing a certificate of increase 
of capital stock, even though the stock may in fact never be issued. 
Upon the filing of the certificate the authority to increase the capital 
stock is complete, and it is for that right that the fee is required. 

Jan. 21, 1918. 

Hon. Albert P. Langtry, Secretary of the Commonwealth. 

Dear Sir: — You have requested my opinion as to whether 
you can properly refund to a corporation a filing fee paid by it 



1919.] PUBLIC DOCUMENT — No. 12. 5 

on filing a certificate of increase of capital stock, in view of the 
fact that thirty days after the filing of such certificate the 
directors and stockholders of the corporation each voted to re- 
scind all action which had previously been taken, so that as a 
matter of fact it appears that there has been no actual increase 
of the stock of the corporation. 

Under the provisions of St. 1903, c. 437, §§ 40-44, inclusive, 
a corporation is permitted to amend its agreement of associa- 
tion in several ways, including therein the amount of stock 
authorized. Under the provisions of section 41 the amend- 
ments cannot take effect until the articles of amendment have 
been filed in the office of the Secretary of the Commonwealth, 
and it is for such filing that the fee fixed by the provisions of 
section 89, as amended, is required. 

Upon such filing the authority to increase the capital stock 
is complete. Even though the stock may in fact never be 
issued, the right to issue it has been obtained, and it is for that 
right that the fee is required. 

The same situation exists with reference to original incor- 
poration. The fees based on capitalization are determined by 
the amount of stock authorized, not by the amount which 
may be issued after the authorization has been obtained It 
seems quite clear that if, upon incorporating, a larger amount 
of capital were authorized than needed, and, the whole 
amount authorized not having been issued, the amount of 
capital should be reduced, there would be no ground for re- 
questing a return of any part of the fees. 

Similarly, the fact that the corporation did not avail itself 
of the authority which it had obtained, but saw fit to have 
that authority revoked, does not affect the fact that it did 
obtain the right to increase its capital stock. Very much the 
same reasoning appears in an opinion of Attorney-General 
Knowlton rendered in 1895 to the then Secretary of the Com- 
monwealth (I Op. Atty.-Gen.205). 

Accordingly, I am of the opinion that you are not authorized 
to return to the corporation in question the filing fee which has 
been paid. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

Board of Registration in Pharmacy — Medicated Alcohol — 
Recording of Sales. 

Medicated alcohol containing ingredients rendering the compound poisonous 
does not fall within the prohibition of our laws relative to intoxicating 
liquors. It is not necessary that the sale of such a non-beverage 
alcohol shall be recorded in the liquor record book, under the pro- 
visions of R. L., c. 100, § 26. 

Jan. 23, 1918. 

Mr. John J. Tobin, Secretary, Board of Registration in Pharmacy. 

Dear Sir: — I am in receipt of your request for an opinion 
as to the right of a druggist to sell "non-beverage" alcohol 
without making a record of the sale in the liquor record book, 
under the provisions of R. L., c. 100, § 26. 

R. L., c. 100, § 21, as amended by St. 1913, c. 410, and as 
affected by St. 1913, c. 413, provides that a registered pharma- 
cist to whom a certificate of fitness has been issued may sell 
pure alcohol for medicinal and other purposes without a physi- 
cian's prescription, if such sale is recorded in the manner pro- 
vided for in section 26 of said chapter 100. Under the United 
States law enacted on Sept. 9, 1917, and the regulations issued 
by the Commissioner of Internal Revenue relative to the regu- 
lation and control of alcohol purchased for use or sale, it is pro- 
vided that pharmacists who are holders of special tax stamps 
as retail liquor dealers will be- entitled to sell non-beverage 
alcohol if the same is properly medicated in accordance with 
certain formula- therein mentioned, among which are the fol- 
lowing: — 

Carbolic acid 1 part, alcohol 99 parts. 
Formaldehyde 1 part, alcohol 250 parts. 
Bichloride of mercury 1 part, alcohol 2,000 parts. 

I am advised that in every instance the added ingredients 
render the compound poisonous, and if the alcohol w T ere to be 
used as a beverage it would probably be attended with fatal 
results. At all events, I think it clear that such medicated 
alcohol is not pure alcohol, under the provisions of chapters 
410 and 413 of the Acts of 1913. Nor do I understand that 
such medicated alcohol can be used as an intoxicating drink. 
If not, it does not fall w r ithin the prohibition of our law r s rela- 
tive to intoxicating liquor. Commonwealth v. Ramsdcll, 130 
Mass. 68, 69. 



1919.] PUBLIC DOCUMENT — No. 12. 7 

Accordingly, without expressing any opinion as to whether 
such medicated alcohol is of such a poisonous nature as to re- 
quire the recording of its sale in the book in which sales of 
poisonous substances are required to be recorded, I am of the 
opinion that its sale need not be recorded in the liquor book. 
Very truly yours, 

Henry C. Attwill, Attorney-General 



Minimum Wage Commission — Authority to issue Special 
Licenses — Women Physically Defective. 

Under the provisions of St. 1912, c. 706, § 9, the Minimum Wage Com- 
mission is warranted in issuing to women special licenses permitting 
their employment at less than the legal minimum wage fixed for 
women in their occupation, provided the women are physically de- 
fective to such an extent as to make them incapable of doing an 
amount of work required to entitle them to the minimum wage deter- 
mined. The Minimum Wage Commission is not warranted in issuing 
such licenses to women incapacitated solely by reason of mental 
defects. 

Jan. 25, 1918. 

Minimum Wage Commission. 

Gentlemen: — You request my opinion as to whether your 
Commission is authorized to issue special licenses to women 
incapacitated by age or mental defect, permitting their em- 
ployment at less than the legal minimum wage fixed for women 
in their occupation, under the provisions of St. 1912, c. 706, 



Section 9 is as follows: — 



For any occupation in which a minimum time rate only has been 
established, the commission may issue to any woman physically de- 
fective a special license authorizing the employment of the licensee 
for a wage less than thef legal minimum wage: provided, that it is not 
less than the special minimum wage fixed for that person. 

This section, in my judgment, is to be construed in connec- 
tion with the other provisions of the act. The act provides 
for the determination of a minimum wage suitable for a female 
employee of ordinary ability in the occupation in question, and 
also suitable minimum wages for learners and apprentices and 
for minors below the age of eighteen years. I think it obvious 
that the Legislature intended to authorize your Board to issue 
special licenses to women who were physically defective, from 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

any cause, to such an extent as to make them incapable of 
doing an amount of work required to entitle them to the mini- 
mum wage determined. Consequently, if a woman's physical 
powers have become impaired by age to such an extent, I am 
of the opinion that your Board is warranted in issuing to her a 
license in which a special minimum wage is fixed. 

Ordinarily, mental defects are not included within the term 
" physical defects," and I am of the opinion that you are not 
warranted in issuing such licenses to women incapacitated 
solely by reason of mental defects. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Employment of Minors — Selling Newspapers and practicing 
Other Street Trades — Employment Certificate. 

A boy between the ages of fourteen and sixteen, who has an employment 
certificate issued under St. 1913, c. 779, § 15, and who is in fact regu- 
larly and habitually engaged for at least six hours per day in the em- 
ployment or business of selling newspapers or in the practice of other 
street trades, does not come within the compulsory provisions of 
section 1 of said act. The person whose duty it is to issue the employ- 
ment certificate should be satisfied that the pledge or promise pre- 
sented is made in good faith by or in behalf of a bona fide employer; 
if he is not so satisfied, he should decline to approve and file the 
pledge or promise, and refuse to issue the certificate. 

Jan. 30, 1918. 
State Board of Labor and Industries. 

Gentlemen: — I acknowledge your request for my opinion 
upon the following question: — 

Shall the selling of newspapers and the practice of street trades 
upon the public streets during school hours by boys between the com- 
pulsory school ages of fourteen and sixteen years be considered regular 
employment for the granting of employment certificates in accordance 
with the requirements of St. 1913, c. 779, § 1, even though the boy 
claims to be so engaged for at least six hours per day and presents a 
written promise for such employment? 

The section to which reference is made in this question 
relates merely to children upon whom school attendance is 
made compulsory. Among its other provisions it requires 
attendance of "every child under sixteen years of age who has 
not received an employment certificate as provided in this act 
and is not engaged in some regular employment or business for 



1919.] PUBLIC DOCUMENT — No. 12. 9 

at least six hours per day." Thus, to be excused from attend- 
ance such a child must have received an employment certifi- 
cate and be actually "engaged in some regular employment or 
business for at least six hours per day." The nature of the 
employment or business is not specified. In my opinion, the 
statute intends to cover any legal employment or business in 
which the child is habitually engaged for at least six hours per 
day. There seems to be no intention to restrict the employ- 
ment or business in any way, or to confine it to the classes of 
employment mentioned in St. 1913, c. 779, § 15. 

Accordingly, in my opinion, if a boy between the ages of 
fourteen and sixteen has an employment certificate issued 
under section 15 of this statute, and is in fact regularly and 
habitually engaged for at least six hours per day in the em- 
ployment or business of selling newspapers or in the practice 
of other street trades, he does not come within the compulsory 
provisions of section 1. 

It should be noted that to be exempt from school attendance 
such a boy must have an employment certificate, and that, by 
section 16, this certificate cannot be issued before the person 
issuing it has received, examined, approved and filed a pledge 
or promise of employment signed by the employer or in his 
behalf, containing the detailed statements set forth in section 
16. If the person whose duty it is to issue the certificate is not 
satisfied that the pledge or promise presented is made in good 
faith by or in behalf of a bona fide employer, he should, of 
course, decline to approve and file it, and refuse to issue the 
certificate. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Board of Parole — Permits to be at Liberty — Issuance thereof 
to Inmates of the State Prison who have been transferred to 
the Prison Camp and Hospital. 

The Board of Parole of the Massachusetts Bureau of Prisons has the 
authority to issue permits to be at liberty to inmates of the State 
Prison who have been transferred, to the Prison Camp and Hospital, 
subject, however, to the provisions of St. 1911, c. 451. 

Feb. 4, 1918. 
Board of Parole. 

Gentlemen: — You have requested my opinion as to 
whether you may issue permits to be at liberty to inmates of 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

the State Prison who have been transferred to the Prison 
Camp and Hospital. 

By St. 1904, c. 243, § 3, the Prison Commissioners were au- 
thorized to issue a permit to be at liberty to any prisoner held 
at said camp, upon such terms and conditions as they should 
prescribe. By Gen. St. 1915, c. 141, all the powers of the 
Board of Prison Commissioners to release a prisoner from the 
Prison Camp and Hospital on permits to be at liberty were 
transferred and vested in the Board of Parole for the State 
Prison and the Massachusetts Reformatory. Gen. St. 1916, 
c. 241, § 1, provided that all the powers of the Board of 
Parole for the State Prison and Massachusetts Reformatory 
should be transferred and vested in the Board of Parole of the 
Massachusetts Bureau of Prisons. Thus all the powers to re- 
lease prisoners from the Prison Camp and Hospital are now 
vested in your Board. 

Under the provisions of Gen. St. 1916, c. 76, prisoners may 
be removed from the State Prison to the Prison Camp and 
Hospital. I think that the Legislature did not intend by the 
passage of this act to repeal in any way any of the general 
laws relating to the release of prisoners sentenced to the State 
Prison. The act of 1916, therefore, must be read in connec- 
tion with the provisions of law which were in effect at the time 
of the passage of the act relating to the release of prisoners 
from the State Prison. 

St. 1911, c. 451, § 1, provides that special permits to be at 
liberty from the State Prison may be granted to certain 
prisoners who have served at least two-thirds of the minimum 
term of their sentence, but in no event until such prisoner has 
served at least two and one-half years in said prison. 

Accordingly, I am of the opinion that you may release 
prisoners in the Prison Camp and Hospital who have been 
transferred thereto from the State Prison, subject, however, to 
the provisions of St. 1911, c. 451. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.1 PUBLIC DOCUMENT — No. 12. 11 



State Board of Agriculture — Massachusetts Apple Grading 
Law — Liability for selling or distributing Adulterated or 
Misbranded Apples. 

Under the provisions of Gen. St. 1915, c. 261, known as the Massachusetts 
Apple Grading Law, a person who sells or distributes adulterated or 
misbranded apples is not subject to the penalty imposed by section 
14 of the aforesaid act if it appears that he acted in good faith solely 
as a distributor. The word "distributor" is to be interpreted as 
meaning the middleman, and if he acts in good faith he must sell or 
distribute without knowing or having reasonable ground for believing 
that the packages of apples with which he is dealing have been packed 
in violation of law. 

If the apples in the possession of the middleman have been inspected by 
the State authorities, under the provisions of section 10, and he has 
been notified that they are not packed in accordance with law, he 
cannot, after such notice, be said to be acting in good faith, within 
the meaning of section 15 of the aforesaid act. 

Feb. 19, 1918. 

Wilfrid Wheeler, Esq., Secretary, State Board of Agriculture. 

Dear Sir: — You have requested my opinion with reference 
to certain questions which have arisen under Gen. St. 1915, 
c. 261, known as the Massachusetts Apple Grading Law, rela- 
tive to the liability of persons who purchase apples packed or 
marked in violation of law and later resell them after holding 
them in storage. 

This statute establishes certain standard grades for apples 
packed in Massachusetts, and provides for the manner in 
which such apples shall be packed and marked. It defines 
adulteration and misbranding within the meaning of the 
statute, and, by section 14, imposes a penalty upon "any 
person who adulterates or misbrands apples within the meaning 
of this act, or who packs, repacks, sells, distributes, or offers or 
exposes for sale or distribution, apples in violation of any pro- 
vision of this act." Section 10 provides that apples that have 
been in cold storage shall not be sold or distributed in closed 
packages until they have been inspected under rules and regu- 
lations to be prescribed by you. Section 15 provides as fol- 
lows: — 

No person who sells or distributes or offers or exposes for sale or 
distribution apples adulterated or misbranded within the meaning of 
this act shall be deemed to have violated any of the provisions of this 
act, if it shall appear that he acted in good faith solely as a distributor, 
or if he shall furnish a guaranty signed by the person from whom he 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

received the apples, with the address of such person, that the apples 
are not adulterated or misbranded within the meaning of this act. 
In such case, the person from whom the distributor received the 
apples shall be liable for the acts of the distributor who relied upon 
his guaranty, to the same extent as the distributor would have been 
liable under the provisions of this act. 

You will note that the last-mentioned section excludes from 
liability for the penalty imposed by section 14 a person who 
sells or distributes adulterated or misbranded apples "if it 
shall appear that he acted in good faith solely as a distribu- 
tor." In my opinion, the word "distributor" is intended to 
refer to a person not a grower, who receives or purchases 
apples for the purpose of selling them to other dealers either on 
his own account or as an agent; in other words, it refers to 
the middleman, so called. By this section such a middleman is 
excused from liability if he sells or distributes in good faith. 
This seems to imply that he sells or distributes without know- 
ing or having reasonable ground for believing that the pack- 
ages of apples with which he is dealing have been packed in 
violation of law. It seems to me plain that, if you inspect the 
apples in his possession, under the provisions of section 10, 
and notify him that they are not packed in accordance with 
law, he cannot, after such notice, be said to be acting in good 
faith, within the meaning of section 15. 

Accordingly, in such a case, in my opinion, he will be liable 
to the penalty imposed by section 14, unless he is able to bring 
himself within the other provision of section 15, relating to a 
guaranty signed by the person from whom he received the 
apples. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



War Service — Selective Service Act — Clerk of District Court — 

Classification. 

Under the Selective Service Act and the rules and regulations made there- 
under, the clerk of the District Court of Western Hampden is entitled 
to classification in class V. 

Feb. 28, 1918. 

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

Sir: — You have requested my opinion as to whether or not 
the clerk of the District Court of Western Hampden is entitled 



1919.] PUBLIC DOCUMENT — No. 12. 13 

to classification in class V, under the Selective Service Act and 
the rules and regulations made thereunder, as a legislative, 
executive or judicial officer of the Commonwealth. 

The District Court of Western Hampden is established by 
R. L., c. 160. Section 9 of this chapter provides that clerks of 
district courts shall be appointed by the Governor, with the 
advice and consent of the Council, for a term of five years. 
Section 13 provides that — 

... If the office of clerk is established by law, the clerk may make 
and issue warrants, writs and processes, shall make all returns of the 
court, tax all bills of costs and receive all fines, forfeitures, fees and 
costs accruing from the business of the court in civil and criminal 
cases, including fees for blanks and copies. 

In performing these acts the clerk represents the Common- 
wealth as a whole, and exercises some portion of the sovereign 
power of the State, within the rule laid down in Attorney- 
General v. Tillinghast, 203 Mass. 539. 

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

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Coinmissioners of Massachusetts School Fund — Method of 
Distribution of Income — Definition of " School ■ Tax" and 
of "Whole Tax" — Figures to be used in Arriving at Dis- 
tribution. 

Under the provisions of St. 1903, c. 456, which directs the method of dis- 
tribution of the income of the Massachusetts School Fund, the words 
"school tax" mean the amount appropriated for school purposes 
which is included by the assessors in making up the local tax rate. 
The " whole tax" rate of a city or town, as those words are commonly 
employed, is the rate made necessary by the inclusion of the State 
and county taxes. The figures to be used under the provisions of the 
aforesaid statute are those of the same calendar year as that in which 
was accumulated the income which is to be distributed. 

March 5, 1918. 
Commissioners of Massachusetts School Fund. 

Gentlemen: — You have requested my opinion upon cer- 
tain questions connected with the interpretation of St. 1903, 
c. 456, which directs the method of distribution of the income 
of the Massachusetts School Fund. 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

One portion of this fund is to be distributed to certain 
towns "whose annual tax for the support of public schools is 
not less than one sixth of their whole tax for the year, as fol- 
lows: — Every town whose school tax is not less than one 
third of its whole tax shall receive a proportion of said re- 
mainder expressed by one third; every town whose school tax 
is not less than one fourth of its whole tax shall receive a pro- 
portion expressed by one fourth; every town whose school tax 
is not less than one fifth of its whole tax shall receive a pro- 
portion expressed by one fifth; and every town whose school 
tax is not less than one sixth of its whole tax shall receive a 
proportion expressed by one sixth." 

You desire my opinion as to the meaning of the terms 
"school tax" and "whole tax," as used in the quotation 
above. 

It is at the present time, and was at the time this method 
of distribution was first adopted (1893), the general practice 
for all sums to be raised by taxation in the various cities and 
towns, whether for State, county or local purposes, to be in- 
cluded in one tax levy. It is apparent, therefore, that the 
phrase "school tax" was not intended to be interpreted with 
strict literal accuracy, and must be considered to have been 
intended to mean the tax which would have been imposed in 
case all moneys raised by taxation for school purposes were 
raised by a special tax. 

In fact, the language used in the original statute (St. 1891, 
c. ITS, § 1) provided for distribution to certain towns "whose 
annual tax rate for the support of public schools is not less 
than one sixth of their whole tax rate for the year." The 
omission of the word "rate" in the Revised Laws would not 
indicate an intention to change the meaning of the statute. 

The whole tax rate of a city or town, as those words are 
commonly employed, is the rate made necessary by the inclu- 
sion of the State and county taxes, even though a taxpayer 
has the right to have the amounts separated. See Boston Fish 
Market Corp. v. Commonwealth, 224 Mass. 31. 

You query whether the amounts received by a town from 
the Massachusetts School Fund and by reason of certain State 
aid for school purposes are an element to be taken into con- 
sideration in defining the term "school tax." So far as these 
sums are deducted from amounts which would otherwise be 
raised bv taxation thev are to be taken into account. In my 



1919.] PUBLIC DOCUMENT — No. 12. 15 

opinion, it is only the amount appropriated for school purposes 
which is included by the assessors in making up the local tax 
rate which is to be considered as the school tax. 

Your second question is whether the above-mentioned 
figures should be those of the "preceding year." St. 1903, 
c. 456, § 2, provides that income accrued on the thirty-first 
day of December in each year shall be apportioned and the 
amounts paid on the twenty-fifth day of January thereafter. 
In my opinion, the figures to be used are those of the calendar 
year preceding the day of payment (January 25); or, in other 
words, those of the same calendar year as that in which was 
accumulated the income which is to be distributed. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Board of Conciliation and Arbitration — Non-performance of 

Award. 

The non-performance of an award made by the Board of Conciliation and 
Arbitration under St. 1909, c. 514, § 12, as amended by St. 1914, 
c. 681, does not subject the non-complying parties to the penalty 
contained in section 36 of said chapter 514. 

March 6, 1918. 

Board of Conciliation and Arbitration. 

Gentlemen: — You inquire whether the non-performance 
of an award of your Board is an offence punishable under St. 
1909, c. 514, § 36, and if such non-performance is an offence, 
by whom or by what department complaint should be made. 

I assume that your inquiry is directed to that part of St. 
1909, c. 514, § 12, as amended by St. 1914, c. 681, which 
reads as follows: — 

Said decision shall, for six months, be binding upon the parties who 
join in said application, or until the expiration of sixty days after 
either party has given notice in writing to the other party and to the 
board of his intention not to be bound thereby. 

I am of the opinion that this provision deals simply with the 
effect of the decision made by the Board upon an arbitration 
voluntarily entered into by the parties, and does not provide 
for a rule of conduct to be observed by the parties which sub- 
jects them, upon a breach thereof, to the penalty contained m 
section 36 of said chapter 514. 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

I am confirmed in this view by the history of the provisions 
of the statute involved in your inquiry. Section 36 of said 
chapter 514 first appeared as section 70 of chapter 106 of the 
Revised Laws. It was evidently inserted by the commissioners 
to take the place of the following statutes: St. 1892, c. 410, 
§ 2, and St. 1894, c. 508, § 78. St. 1892, c. 410, was an act to 
prohibit the deduction of wages of employees engaged at 
weaving, and St. 1894, c. 508, was an act regulating the em- 
ployment of labor, section 78 of the latter act providing as fol- 
lows : — 

Any person violating any provision of this act where no special pro- 
vision as to the penalty for such violation is made shall be punished 
by a fine not exceeding one hundred dollars. 

St. 1909, c. 514, § 12, is a re-enactment of R. L., c. 106, § 3, 
as amended by- St. 1904, c. 313, § 2. The provision in said 
section 12 that "said decision shall, for six months, be binding 
upon the parties who join in said application, or until the 
expiration of sixty days after either party has given notice in 
writing to the other party and to the board of his intention 
not to be bound thereby," first appears in section 6 of chapter 
263 of the Acts of 1886. Neither said chapter 263 nor any 
amendment thereof contains any penalty for violation of any 
of its provisions. 

Criminal statutes are to be construed strictly, and it would 
be a violation of this principle to assume that, because St. 
1886, c. 263, and its amendments were subsequently grouped 
in R. L., c. 106, and later in St. 1909, c. 514, with the other 
provisions of law relating to. labor, it was the intention of the 
Legislature to make the non-compliance of one of the parties 
to the decision of the Board in an arbitration a crime where 
such non-compliance was not a crime prior to such grouping. 

Accordingly, I am of the opinion that your question is to be 
answered in the negative. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 17 



Commissioners on Fisheries and Game — Licenses to catch or 

take Lobsters. 

Licenses issued by clerks of cities and towns to catch or take lobsters, 
under the provisions of Gen. St. 1917, c. 312, § 2, give authority to 
catch or take lobsters in the waters of the Commonwealth lying 
within the county within which the city or town granting the license 
is situated, or in the waters of an adjoining county lying within three 
miles of the county in which said city or town is situated. 

March 9, 1918. 
Mr. Willtam C. Adams, Chairman, Commissioners on Fisheries and Game. 
Dear Sir: — You have requested my opinion as to the con- 
struction to be placed upon that part of section 2 of chapter 
312 of the General Acts of 1917 which provides that — 

The clerk of any city or town in the counties of Essex, Middlesex, 
Suffolk, Norfolk, Plymouth, Barnstable, Bristol, Dukes or Nantucket, 
situated on the shores of this commonwealth, shall, in the manner and 
subject to the provisions hereinafter set forth, grant licenses to catch 
or take lobsters from the waters of the commonwealth within three 
miles of the county within which the city or town granting the license 
is situated. 

I understand your question is directed to whether the license 
authorizes the holder to catch and take lobsters only within 
three miles of the shore line of the county within which the 
city or town granting the license is situated, or to catch and 
take lobsters in the waters of the Commonwealth in said 
county and also in an adjoining county if the lobsters are 
caught or taken w T ithin three miles of the county within which 
the city or town granting the license is situated. 

R. L., c. 20, § 1, provides that a the boundary line of coun- 
ties bordering on the sea shall coincide with the line of the 
commonwealth as defined in section three of chapter one" of 
the Revised Laws. Said section 3 is as follows: — 

The territorial limits of this commonwealth extend one marine 
league from its sea shore at extreme low water mark. If an inlet or 
arm of the sea does not exceed two marine leagues in width between 
its headlands, a straight line from one headland to the other is equiva- 
lent to the shore line. 

All of the waters of the Commonwealth, therefore, lying 
within three miles directly offshore are within the county, and 
if it was intended to restrict the catching and taking of lobsters 



IS ATTORNEY-GENERAL'S REPORT. [Jan. 

to the waters of the Commonwealth within the county, it 
would have been unnecessary to have used the words "three 
miles of," and the intent of the Legislature would have been 
more clearly expressed by the omission of those words. On 
the other hand, it seems unlikely that the Legislature intended 
to prohibit the taking of lobsters within the county in the 
waters of the Commonwealth which might be more than three 
miles from the shore line. 

Accordingly, I am of the opinion that the licensee is au- 
thorized to take or catch lobsters in the waters of the Com- 
monwealth lying within the county within which the city or 
town granting the license is situated, or in the waters of an 
adjoining county lying within three miles of the county in 
which said city or town is situated. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Industrial School of Shoe-making at Lynn — Cost of Establish- 
ment and Equipment — Cost of Maintenance and Operation. 

To the extent of paying the cost of the establishment and equipment of 
the Industrial School of Shoemaking at Lynn, and raising by taxation 
annually such sums as may be needed for its maintenance and opera- 
tion after it has been established and equipped, Spec. St. 1916, c. 174, 
is mandatory upon the city of Lynn. 

March 12, 1918. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion as to whether, 
upon acceptance by the voters of the city of Lynn of Spec. 
St. 1916, c. 174, it became mandatory upon said city to estab- 
lish, equip and maintain an industrial school of shoemaking, 
subject to the approval of the Board of Education, in accord- 
ance with the provisions of St. 1911, c. 471. 

Spec. St. 1916, c. 174, provides that, upon acceptance of the 
act by a majority of the voters of the city of Lynn, the 
Governor, with the advice and consent of the Council, shall 
appoint eight persons, residents of said city of Lynn, who, to- 
gether with the mayor of Lynn, shall be known as the Trustees 
of the Independent Industrial Shoemaking School of the City 
of Lynn. Section 3 of the act provides : — 

The said trustees are hereby authorized to determine the situation 
of the said school, subject to the approval of the board of education, 
and to expend annually for rent of suitable floor space for the school 



1919.] PUBLIC DOCUMENT — No. 12. 19 

a sum not exceeding six thousand dollars until such time as it is deemed 
expedient to purchase, construct or alter a building for the use of the 
school. After the said school is established and equipped, the city of 
Lynn shall annually raise by taxation such sums as may be needed 
for its maintenance and operation. 

Under this section the trustees are given the power, subject 
to the approval of the Board of Education, to determine the 
situation of the school and to expend annually for rent of 
suitable floor space a sum not exceeding six thousand dollars, 
until such time as it shall be deemed expedient to purchase, 
construct or alter a building for the use of the school. The 
section further provides that after the school is established and 
equipped the city of Lynn shall annually raise by taxation 
such sums as may be needed for its maintenance and opera- 
tion. 

I think it plain that the trustees are authorized to incur lia- 
bility for rent of floor space so long as this liability does not 
exceed $6,000 annually, provided the situation has first been 
approved by the Board of Education. This expense is to be 
met in the first instance by the city of Lynn, a part thereof to 
be subsequently paid by the Commonwealth. 

When the school has been established and equipped, the city 
of Lynn is bound by law to raise annually by taxation such 
sums as may be needed for its maintenance and operation. 
By the provisions of section 4 the cost of establishing and 
equipping the said school is to be paid by the city of Lynn. 

The provisions of the act are somewhat indefinite as to who 
is to determine the equipment of the school, but I think any 
question that may be raised in relation thereto is met by sec- 
tion 5, which provides that the school established under this 
act is to be "established and maintained as an approved 
school, subject to the provisions of chapter four hundred and 
seventy-one of the acts of the year nineteen hundred and 
eleven, and of any amendments thereof." 

Section 4 of the last-mentioned act provides: — 

Any city or town may, through its school committee or through a 
board of trustees elected by the city or town to serve for a period of 
not more than five years, and to be known as the local board of trustees 
for vocational education, establish and maintain independent indus- 
trial, agricultural and household arts schools. 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 8 provides: — 

Independent industrial, agricultural and household arts schools shall, 
so long as they are approved by the board of education as to organiza- 
tion, control, location, equipment, courses of study, qualifications of 
teachers, methods of instruction, conditions of admission, employment 
of pupils and expenditures of money, constitute approved local or 
district independent vocational schools. Cities and towns maintain- 
ing such approved local or district independent vocational schools 
shall receive reimbursement as provided in sections nine and ten of 
this act. 

Reading the two acts together, the intention of the Legisla- 
ture seems clear. The school is to be organized, equipped and 
maintained through a board of trustees consisting of the mayor 
and eight persons to be appointed by the Governor, subject to 
the approval of the Board of Education, as provided in St. 
1911, c. 471, § 8, the cost to be met in the first instance by the 
city of Lynn, reimbursement to be made by the Common- 
wealth to the extent provided by said chapter 471. 

It follows that, by Spec. St. 1916, c. 174, the trustees are 
empowered to establish the school at a place to be approved 
by the Board of Education so long as the rental for floor space 
does not exceed $6,000 annually, and to incur expenses on 
behalf of the city for its equipment, which the city is bound by 
law to meet and pay; and that, after the school is established 
and equipped, the city of Lynn is bound to raise annually by 
taxation such sums as are needed for its maintenance and 
operation. 

Accordingly, to the extent of paying the cost of the estab- 
lishment and equipment of the school and raising by taxation 
annually such sums as may be needed for its maintenance and 
operation after it has been established and equipped, the act, 
in my opinion, is mandatory upon the city of Lynn, and, to 
that extent, the answer to your question is in the affirmative. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 21 

State Board of Charity — Charitable Corporation — Election of 
Officers — Voting by Proxy. 

A charitable corporation organized under the laws of Massachusetts 

cannot legally conduct an election of officers by mail only, without 

the assembly of the voters at a meeting. 
Members of a charitable corporation may legally vote by proxy for any 

purpose, including the election of officers, provided the by-laws of 

the corporation so provide. 

March 20, 1918. 
State Board of Charity. 

Gentlemen: — You have requested my opinion upon the 
following questions: — 

1. Can a charitable corporation organized under Massachusetts 
laws legally conduct an election of officers by mail only, without the 
assembly of the voters at a meeting? 

2. Can members legally vote by proxy for any purpose, including 
the election of officers? 

1. It seems to be generally accepted law that a corporation 
cannot hold a valid meeting for the election of officers or other 
purpose except by assembly of the stockholders or members, 
either in person or by proxy, at a meeting duly called. 1 
Thompson on Corporations, § 706; 10 Cyc. 323. The general 
reason for this rule is that each member has a right of consul- 
tation with the others, and the minority has a right to be 
heard by other members for the purpose of attempting, at 
least, to change their opinion. 

2. As to voting by proxy, R. L., c. 109, § 5, which is 
applicable to all corporations organized under the laws of this 
Commonwealth except so far as its terms are inconsistent w T ith 
the provisions of special statutes, provides that "every cor- 
poration may by its by-laws, except as otherwise expressly pro- 
vided, determine . . . the mode of voting by proxy." There 
is nothing in the general law relating to charitable organiza- 
tions w r hich is inconsistent with such a by-law. , 

Accordingly, I am of the opinion that members of such a 
corporation may legally vote by proxy for any purpose, includ- 
ing the election of officers, provided the by-laws of the par- 
ticular corporation so provide. 

If, however, the by-laws do not contain provisions for voting 
by proxy, such method is not permissible. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

Salaries — Probation Officer — District Court — Superior Court. 

A probation officer of a district court, who has been temporarily employed 
in connection with the probation work of the Superior Court during 
the disability of a probation officer of that court, is entitled to receive 
compensation from the county for the latter services. 

April 9, 1918. 
Commission on Probation. 

Gentlemen: — I acknowledge your request for my opinion 
as to whether the probation officer of a district court, who has 
been temporarily employed in connection with the probation 
work of the Superior Court during the disability of a proba- 
tion officer of that court, is entitled to receive compensation 
from the county for the latter services. 

In my opinion, R. L., c. 204, § 42, has no application to the 
question raised. Its main purpose is to prevent the officers 
specified from receiving fees or extra compensation for services 
performed as a natural or ordinary incident of their regular 
duties, but it does not forbid an officer to perform work out of 
the line of his regular duties which is not inconsistent with 
those duties, and does not interfere with their performance. 
Nor does it prevent him from obtaining proper compensation 
therefor. 

R. L., c. 217, § 92, provides: — 

The compensation of each probation officer and assistant probation 
officer of a police, district or municipal court shall be determined by 
the justice thereof, subject to the approval of the county commis- 
sioners, and shall be paid by the county, upon vouchers approved by 
said justice and the county commissioners, . . . 

As I understand it, the amount of time which the probation 
officers of the various district courts are required to devote to 
their w 7 ork depends upon the number of cases which are re- 
ferred to them, and varies greatly in the different districts. I 
assume that their compensation also varies, and that it is 
fixed w T ith due consideration of the amount of time they are 
required to devote to their duties. I am told that in a number 
of instances the probation officer of a district court has also 
been appointed probation officer of the Superior Court, and has 
been able to perform the duties of both offices. 

It seems to me that the question raised by your inquiry de- 
pends entirely upon the amount of time which the probation 
officer in question is required to devote to the work of the dis- 



1919.] PUBLIC DOCUMENT — No. 12. 23 

trict court. His salary has doubtless been fixed by the justice 
of that court after due consideration of the amount of time 
which he is required to devote to his work. I see no reason 
why the time which the officer is not required to devote to the 
work of the district court is not his own, and why, if he 
chooses, he may not employ that time in probation work in 
some other court. He must not, however, neglect his regular 
duties, and must devote to them the full time required, as, 
otherwise, he will not be entitled to full compensation. 

The statute, however, provides that the compensation of the 
probation officers of the district courts shall be paid "upon 
vouchers approved by said justice and the county commis- 
sioners." If the probation officer in question has presented a 
proper voucher for his compensation as probation officer of a 
district court, that would seem to settle his right to receive 
pay for services rendered in that court. His right to receive 
that pay will establish the fact that he has fully performed the 
duties of that office, and I see no reason why his right to re- 
ceive compensation for additional services rendered to the 
county in any other capacity should be questioned. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Weights and Measures — Kindling Wood — Sale of, without 

Measure. 

The provisions of R. L., c. 57, § 78, do not forbid the selling or offering 
for' sale of kindling wood without being measured by a sworn measurer, 
provided the wood is not offered as containing any specific quantity 
determined by cord measure. 

April 9, 1918. 

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

Dear Sir: — You have requested my opinion as to whether, 
in view of the provisions of R. L., c. 57, § 78, kindling wood 
can be sold or offered for sale without being measured by a 
sworn measurer. 

The section to which you refer is as follows: — 

If firewood or bark which is exposed for sale in a market or upon a 
cart or other vehicle is offered for sale before it has been measured by 
a public measurer of wood and bark and before a ticket thereof signed 
by him has been delivered to the driver, certifying the quantity which 



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

the load contains, the name of the driver and the place in which he 
resides, the driver and owner shall for each load thereof severally 
forfeit five dollars. 

It is by no means clear that kindling wood is included within 
the term "firewood" as used in this statute. In view of the 
length of time this statute has been in force, it would seem 
more natural that it should apply to wood used for maintain- 
ing a fire than to wood consumed merely in the starting of a 
fire. However that may be, it is my opinion that this section 
applies merely to wood offered for sale, under the conditions 
and in the manner specified in the statute, by cord measure 
and when sold as an entire load. In my opinion, the statute 
does not apply to wood offered for sale in less than an entire 
load, and in no way forbids the sale of wood by any other 
method of measurement than by cord measure. It follows 
that this section does not forbid the selling of kindling wood 
by bag or basket, or even by the load when the latter is not 
offered as containing any specific quantity determined by cord 
measure. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



War Service — State Aid — Dependents of Persons drafted into 
the Military Service — Brothers and Sisters of Half Blood — 
Stepbrothers and Stepsisters — Brothers and Sisters through 
Adoption. 

Under Gen. St. 1917, c. 179, brothers and sisters of half blood and brothers 
and sisters through adoption are entitled to State aid where actual 
dependency on a person drafted into the military service of the United 
States exists. 

Stepbrothers and stepsisters are not entitled to receive State aid under 
the statute referred to. 

April 11, 1918. 

Mr. Richard R. Flynn, Commissioner of State Aid and Pensions. 

Dear Sir: — I have received from you the following request 
for an opinion: — 

Will you kindly give me your opinion as to the eligibility of brothers 
and sisters of half blood, stepbrothers and stepsisters and brothers and 
sisters through adoption to receive State aid under the provisions of 
Gen. St. 1917, c. 179, § 1. 



1919.] PUBLIC DOCUMENT — No. 12. 25 

Section 1 of the statute referred to authorizes any city or 
town to raise money by taxation or otherwise, and, if neces- 
sary, to expend such money, through certain designated 
officials, — 

for the benefit of the wife, widow, children under sixteen years of age, 
or any child dependent by reason of physical or mental incapacity, or 
the actually dependent parents, brothers and sisters of any inhabitant 
of such city or town . . . who has enlisted ... 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. . . . 

Brothers and sisters of half blood have from an early period 
in this Commonwealth been accorded equal rights of inherit- 
ance with those of whole blood. R. L. c. 133, § 2. 

Under the laws of this Commonwealth an adopted child 
stands in the same relation to a natural child of the adopting 
parent as if he were the natural child of such parent. R. L. 
c. 154, § 7. 

It would seem, therefore, that under Gen. St. 1917, c. 179, 
brothers and sisters of half blood and brothers and sisters 
through adoption are entitled to receive State aid where actual 
dependency exists. Your question, so far as it relates to step- 
brothers and stepsisters, is to be answered in the negative. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Treasurer and Receiver-Ge?ieral — Intoxicating Liquors — 
License Fees — Clubs. 

One-fourth of the fees received by a city or town from liquor licenses 
issued to clubs should be paid to the Treasurer and Receiver-General, 
under the provisions of R. L., c. 100, § 45. 

April 12, 1918. 

Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — In reference to the letter sent to you by the 
treasurer of the town of Agawam I would say that from an 
examination of the history of R. L., c. 100, § 45, one-fourth of 
the fees received by a city or town from liquor licenses issued 
to clubs should be paid to the Treasurer and Receiver-General 
as therein provided. 

Pub. St., c. 100, § 14, provides: — 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

The treasurer of a city or town shall pay to the treasurer of the 
commonwealth one-fourth of all moneys received by him for licenses, 
within one month after he receives the same. 

Club licenses were first authorized by St. 1887, c. 206. St. 
1897, c. 233, § 1, provides as follows: — 

All treasurers of cities and towns in this Commonwealth shall, 
within thirty days after the receipt of moneys for liquor licenses 
granted by their several cities and towns, make a return of amounts 
so received to the treasurer of the Commonwealth, and at the same 
time shall pay to him twenty-five per cent, of the amount so received, 
in accordance with the provisions of section fourteen of chapter one 
hundred of the Public Statutes. 

This last act was never amended or changed, but when the 
commissioners compiled the Revised Laws they substituted 
therefor section 45 of chapter 100. You will note that the act 
of 1897 provided for money received from liquor licenses, but 
R. L., c. 100, § 45, changed the phraseology so that it should 
read, "money received for licenses for the sale of intoxicating 
liquors." 

It is plain that under the provisions of the act of 1S97, 25 
per cent of the money received from club licenses was payable 
into the treasury of the Commonwealth, as well as money 
received for other liquor licenses. No reason was given by the 
commissioners in revising the laws for the change in the word- 
ing, and thus there appears to have been no intention on their 
part to change the law; neither is there anything to indicate 
that the Legislature intended any change. An interpretation 
of the present statute as excluding club licenses is, under the 
circumstances, not to be favored, and, accordingly, I advise 
you that one-fourth of the fees received from club licenses 
should be paid to the Treasurer and Receiver-General. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Retirement — Supervisor of Loan Agencies — Removal — Re- 
fund — Pension. 

Under the provisions of the statutes governing the retirement system for 
the employees of the Commonwealth, where a person was appointed 
Supervisor of Loan Agencies on Jan. 1, 1912, and at the expiration 
of his three-year term of office failed to receive reappointment but 



1919.] PUBLIC DOCUMENT — No. 12. 27 

was removed, and thereafter, in accordance with his request, his 
deposits as a member of the Retirement Association remained in the 
annuity fund for a period of two years, the only course open to him 
after that is to accept a refund of his payments. 
Any member of the association who ceases to be an employee after he has 
acquired voluntary retirement rights is not entitled to a refund of 
his payments. The only course open to him upon leaving the service 
is to exercise his retirement rights and to accept a pension. 

April 18, 1918. 
Board of Retirement. 

Gentlemen: — I acknowledge your request for my opinion 
with reference to certain questions which have arisen as to the 
interpretation of the statutes governing the retirement system 
for the employees of the Commonwealth (St. 1911, c. 532, as 
amended). 

You refer to the case of a person who was appointed Super- 
visor of Loan Agencies on Jan. 1, 1912, and who, at the expira- 
tion of his three-year term of office as provided by the statutes, 
failed to receive reappointment but was removed. You state 
that, in accordance with his request, his deposits as a member 
of the Retirement Association remained in the annuity fund 
for a period of two years, and that at the expiration of that 
period he refused to accept a refund and filed a request for 
retirement, which the Board refused to grant. 

For the purpose of dealing with your inquiry, I assume, 
without attempting to pass upon the matter, that the retire- 
ment system is intended to include public officers appointed by 
the Governor, with the consent of the Council, for definite 
terms. The section of the retirement act relating to refunds is 
as follows [section 6 (2) ] : — 

A. Refunds. — (a) Should a member of the association cease to 
be an employee of the commonwealth for any cause other than death, 
or to enter the service of the public schools as defined by paragraph 
(5). of section one of chapter eight hundred and thirty-two of the acts 
of the year nineteen hundred and thirteen, before becoming entitled to 
a pension, there shall be refunded to him all the money paid in by him 
under section five, (2) A, with such interest as shall have been earned 
thereon. 

In my opinion, the phrase "before becoming entitled to a 
pension" must be interpreted as meaning before having become 
entitled to retire as a matter of right. It thus restricts refunds 
to persons who have not yet acquired voluntary retirement 
rights. 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

The member to whom you refer had not been "in the con- 
tinuous service of the commonwealth for a period of fifteen 
years immediately preceding," and therefore, though over 
sixty years of age, he was not entitled to retire under section 
3 (4). He does not come within section 3 (5). As he had 
reached the age of fifty-five years when the retirement system 
was established, his only rights arose under the following pro- 
vision of section 6 (2) C: — 

Any employee who had already reached the age of fifty-five years 
on the date when the retirement system was established, and also 
became a member of the association may be retired under the provi- 
sions of the preceding paragraph [intending to refer to paragraph 
(2) C (b) of section 6] without having completed the otherwise re- 
quired service period of fifteen years. . . . 

It is plain that under this provision the person to whom you 
refer at no time was entitled to retire as a matter of right, but 
could be retired only by action of your Board under its dis- 
cretionary power. The only effect, however, of this last- 
mentioned provision is in certain cases to establish an exception 
to the retirement privileges granted by section 3 (4). Those 
privileges are conditioned upon having been in the "continuous 
service of the commonwealth for a period of fifteen years 
immediately preceding" retirement. The exception is merely 
that an employee who had reached the age of fifty-five years 
when the retirement system was established could be retired 
"without having completed the otherwise required service 
period of fifteen years." If so retired by action of your Board, 
he received the benefits of section 6 (2) C (b), but the only 
exception was that he need not complete the required service 
period. There is no exception to the requirement of "con- 
tinuous service." His service must be of such a character as 
regards continuity that if the fifteen-year period were com- 
pleted he would come within section 3 (4). Thus, his service 
must be continuous, though not extended over the full period 
required of younger men. 

It is provided, however, by section 1 (/), which was added 
to the retirement act by St. 1914, c. 568, that "the words 
'continuous service' mean uninterrupted employment, with 
these exceptions: a lay-off on account of illness or reduction of 
force, and a leave of absence, suspension or dismissal followed 
by reinstatement within two years." It follows from this pro- 



1919.] PUBLIC DOCUMENT — No. 12. 29 

vision that in case of suspension or dismissal an employee does 
not absolutely lose his rights until the expiration of the two- 
year period within which he may be reinstated and regain his 
rights. When that period has expired, however, such an em- 
ployee has no further right to complete his period of continuous 
service. 

It follows, in my opinion, that after the service of the person 
in question had been terminated by removal, your Board had 
no power under the act to retire him until and unless he was 
reinstated in the service of the Commonwealth within two 
years from his removal. When that period expired without 
such reinstatement, the continuity of service was broken, and 
he had no rights under section 6 (2) C (6), even in the dis- 
cretion of your Board. Therefore, the only course now open to 
him is to accept a refund of his payments. 

Answering your remaining questions, it is my opinion that 
any member of the association who ceases to be an employee 
after he has acquired voluntary retirement rights is not en- 
titled to a refund of his payments. In my judgment, he has 
become " entitled to a pension," within the meaning of section 
6 (2) A, and thus no refund to him is authorized. The only 
course open to him upon leaving the service is to exercise his 
retirement rights and to accept a pension. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Maintenance and Distribution of Neces- 
saries — Power of General Court — Power of Cities and 
Towns — Statutes, Construction of. 

Under article XLVII of the Amendments to the Constitution of the Com- 
monwealth, although the General Court may in the first instance 
determine what rates are reasonable for the distribution of necessaries, 
its determination is subject to review by the courts. 

The power given to the General Court by this article of amendment can 
be exercised only when a time of war, public exigency, emergency or 
distress actually exists, but during these times the General Court 
may determine when this power is to be exercised. 

Cities and towns have no power to exercise the public functions declared 
in article XLVII of the Amendments to the Constitution of this 
Commonwealth except as provided by the General Court. 

House Bill No. 1400, authorizing cities and towns to exercise the powers 
enumerated in article XLVII of the Amendments to the Constitution 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the Commonwealth, is construed as not affecting powers of officials 
of the United States or of officials acting directly for the Common- 
wealth. 

April 18, 1918. 

Leland Powers, Esq., Chairman, House Committee on Bills in the Third 

Reading. 

Dear Sir: — I acknowledge your communication requesting 
my opinion on certain questions relative to House Bill No. 
1400, hereinafter referred to. The questions relate to article 
XLVII of the Amendments to the Constitution, which is as 
follows: — 

The maintenance and distribution at reasonable rates, during time 
of war, public exigency, emergency or distress, of a sufficient supply 
of food and other common necessaries of life and the providing of 
shelter, are public functions, and the commonwealth and the cities 
and towns therein may take and may provide the same for their in- 
habitants in such manner as the general court shall determine. 

The first clause of the amendment is a declaration that, dur- 
ing time of war, public exigency, emergency or distress, the 
maintenance and distribution at reasonable rates of a sufficient 
supply of food and other common necessaries of life and the 
providing of shelter are public functions. The purpose of the 
amendment is to authorize the raising of funds by taxation, in 
time of war or other public emergency, for the purpose of 
securing at reasonable rates a supply of food and other com- 
mon necessaries of life for the inhabitants of the Common- 
wealth. Justification for the use of this pow T er of taxation is a 
public exigency, emergency or distress which creates a situa- 
tion in which the inhabitants may not be able to obtain the 
necessaries of life at reasonable rates. Thus, w T bere a public 
exigency or emergency arises of such a character that a suffi- 
cient supply of food or other common necessaries of life or of 
shelter cannot be or is not supplied at reasonable rates by 
private effort, or such as to create reasonable grounds for the 
belief that such supplies cannot or will not be furnished at 
reasonable rates by such effort, the exercise of the power is 
justified. The amendment, in my opinion, does not authorize 
the engaging in business at a profit, nor, on the other hand, 
does it justify a distribution of the necessaries of life at a loss, 
unless required to carry out the object of the amendment. 

It is to be borne in mind that the pow T er of the Legislature 



1919.] PUBLIC DOCUMENT — No. 12. 31 

to provide relief to those in want or distress, and to raise funds 
by taxation for that purpose, never has been questioned in this 
Commonwealth. The amendment goes further, and authorizes 
the raising of funds so that those who are not actually in 
want or distress may obtain the necessaries of life at reason- 
able rates. 

With these observations in mind I proceed to answer your 
specific questions. 

Your first question is: "Has the General Court any au- 
thority to determine what are reasonable rates?" 

The final determination of what are reasonable rates is a 
judicial question. Within reasonable limits, however, the 
General Court, in authorizing the exercise by the Common- 
wealth and the cities and towns of the power conferred by the 
amendment, may, in my opinion, prescribe conditions and 
regulations adapted to the securing of a reasonable use of that 
power. This may involve a control of the prices at which the 
supplies are to be sold, and may, in the first instance, involve 
a determination by the General Court of what, in its judg- 
ment, are reasonable rates. The action of the General Court 
in this respect will not lightly be disturbed by the courts. If 
there is any sound basis for the judgment of the General Court, 
in my opinion it will be upheld. 

I am not sure as to your purpose in asking this question, but 
I assume it is occasioned by the provision in the bill that the 
supplies " shall, so far as practicable, be sold, furnished or pro- 
vided at rates calculated to cover all costs and charges con- 
nected with the particular undertaking or service." I am of 
the opinion that this provision does not undertake to determine 
what are reasonable rates. As I have before stated, the object 
of the amendment is to insure the distribution of a sufficient 
supply of necessaries at reasonable rates, and it contemplates 
that it may be necessary on the part of the Commonwealth 
and the cities and towns therein, in order to accomplish this 
object, to acquire necessaries and distribute them in compe- 
tition with others. In order to obtain this result it may some- 
times be necessary to sell the supplies to the communities at 
less than the cost thereof. On the other hand, ordinarily it 
would seem reasonable to expect that they could be sold at a 
price sufficient to cover the cost, and thus relieve the general 
taxpayers of any burden. The provision in the bill simply 
directs the community, in the exercise of the power, to sell, so 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

far as is practicable, the supplies at a price to cover the cost 
thereof. 

Your second question is: "Has the General Court any au- 
thority to define what is meant by 'time of war, public 
exigency, emergency or distress'?" 

Obviously, the General Court cannot declare it to be a time 
of war when there is no war, nor can it declare a public 
exigency, emergency or distress to exist when none exists. On 
the other hand, it may determine when and in what manner 
the power may be exercised in time of war, and it may define 
the kind of public exigency, emergency or distress in which the 
power may be exercised. In other words, it may limit the use 
of the power to certain wars, exigencies, emergencies or times 
of distress. 

Your third question is: "If the General Court makes any 
provisions either as to rates or as to definition of terms will 
these provisions be enforced by the courts?" 

The answer to this question is dependent upon the character 
of the provisions. Without further information as to what 
provisions you have in mind I am unable to answer this ques- 
tion other than in a general way. In a general way your 
question is answered by my answers to your other questions. 

Your fourth question is: "Whether a bill passed by the 
General Court, authorizing cities and towns to provide the 
common necessaries of life, etc., gives to the cities and towns 
any greater authority than they now have under the Constitu- 
tion?" 

This question is to be answered in the affirmative. The 
cities and towns have no power to exercise the public functions 
declared in the first part of the amendment except as is pro- 
vided in the last part of the amendment; that is, in such 
manner as the General Court shall determine. The mere fact 
that an undertaking can be sustained as a public function does 
not warrant a city or town in carrying on the undertaking. 
There are now many public functions that they cannot per- 
form without authority from the General Court. If the 
General Court fails to prescribe the manner in which the public 
functions declared in the amendment are to be performed, the 
cities and towns have no authority to perform them. 

Your fifth question is: "If the General Court fails to pass 
any bill in regard to this matter will the cities and towns have 
authority to act by virtue of the Constitution?" 



1919.] PUBLIC DOCUMENT — No. 12. 33 

This question I have already answered in the negative in my 
answer to your previous question. 

Your sixth question is: "How much is included by the 
words 'in such manner as the General Court shall determine,' 
in article XLVII of the Amendments to the Constitution?" 

These words, in my opinion, are comprehensive, and, within 
the scope of the power authorized by the amendment, the 
General Court has full control over the manner in which the 
power or any part thereof shall be exercised by the cities and 
towns. It is obvious that the General Court cannot authorize 
the cities and towns to exercise greater powers than are au- 
thorized by the amendment or to exercise them in a manner 
other than that prescribed by the amendment; but in pre- 
scribing the manner in which the power may be exercised it 
may, in my judgment, impose restrictions and limitations upon 
its exercise. 

In your seventh question you request my opinion as to 
whether the addition of a proposed amendment will change 
the effect of the bill in any way, and if so, to what extent. 
The proposed amendment is as follows: — 

Nothing in this act shall be construed to interfere with the opera- 
tion of the statutes or regulations of the United States or of this state 
in regard to the conservation and distribution of food or other neces- 
saries of life herein mentioned, or the powers and duties of the adminis- 
trators duly appointed to carry out the provisions of such statutes or 
regulations. 

The part of the proposed amendment relating to the statutes 
or regulations of the United States, or the lawful acts of duly 
appointed officers thereof, if adopted, in my opinion would 
have no effect. Without this provision the bill will be con- 
strued "with reference to the powers and authority of the 
superior government, and not be deemed as invading them un- 
less such construction is absolutely demanded." Common- 
wealth v. Gagne, 153 Mass. 205; Attorney-General v. Electric 
Storage Battery Co., 188 Mass. 239. The amendment is equally 
unnecessary and of no effect in so far as it might be claimed 
that the bill interferes with the exercise by the Commonwealth, 
acting through its food administrators or other officials, of 
powers in the conservation and distribution of food or other 
necessaries of life. Acts of the General Court authorizing the 
exercise of powers by cities and towns are to be construed as 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

not invading the powers of officials acting directly for the 
sovereign in relation to such powers, unless such an intention 
by the General Court is clearly apparent from the act. Teas- 
dale v. Newell Construction Co., 192 Mass. 440. In so far, 
therefore, as the proposed amendment relates to powers exer- 
cised by officials of the United States, or powers exercised by 
officers acting directly for the Commonwealth, I am of the 
opinion that the proposed amendment is unnecessary and 
would be of no effect. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Bureau of Statistics — Cities and Toicns — Serial Bond or 
Note Issue — Temporary Loan. 

Under the provisions of St. 1913, c. 719, § 9, a temporary loan can be 
made in advance of each of several loans which a town treasurer, with 
the approval of the selectmen, is authorized to make under a vote of 
the town. 

The Director of the Bureau of Statistics has authority to certify notes 
issued in anticipation of a serial bond or note issue, as authorized by 
St. 1913, c. 719, § 9, when the loans are made from time to time 
covering a period of more than one year. 

April 26, 1918. 

Mr. Charles F. Gettemy, Director, Bureau of Statistics. 

Dear Sir: — You have requested my opinion as to whether 
you may properly certify notes issued in anticipation of a serial 
bond or note issue, as authorized by St. 1913, c. 719, § 9, when 
the loans are made from time to time covering a period of 
more than one year. 

In my opinion, your question is dependent upon the vote of 
the town authorizing the loan. Your question, I understand, 
arises in connection with the raising of money for the building 
of a schoolhouse in Norwood under a vote of the town, in part 
as follows: — 

And that the town treasurer and collector of taxes, with the ap- 
proval of the selectmen, be and hereby is authorized and directed to 
borrow a sum or sums of money in the aggregate not exceeding $250,- 
000, and to issue therefor notes of the town subject to the provisions 
and limitations of chapter 719 of the Acts of 1913 and amendments 
thereto. 



1919.] PUBLIC DOCUMENT — No. 12. 35 

This vote, obviously, authorized the treasurer, with the ap- 
proval of the selectmen, from time to time to borrow sums of 
money so long as the aggregate of the sums did not exceed 
$250,000. Under the vote the treasurer and the selectmen 
were authorized to issue different series of notes of the town, 
maturing at different times, so long as none of the notes ma- 
tured at a period of time beyond that prescribed by said 
chapter 719. 

By St. 1913, c. 719, § 9, it is provided that if a city or town 
votes to issue bonds, notes or certificates of indebtedness in 
accordance with the provisions of law, the officers authorized to 
issue the same may, in the name of such city or town, make a 
temporary loan for a period of not more than one year, in 
anticipation of the money to be derived from the sale of such 
bonds, notes or certificates of indebtedness, and may issue 
notes therefor; but the time within which such securities shall 
become due and payable shall not be extended, by reason of 
the making of such temporary loan, beyond the time fixed in 
the vote authorizing the issue of such bonds, notes or certifi- 
cates of indebtedness. This section, in my judgment, author- 
izes the raising of money temporarily in anticipation of a 
permanent loan to be later made in place thereof. The tempo- 
rary and the permanent loan are to be treated as one loan in 
estimating the time within which the securities are to mature, 
when given for the permanent loan which takes the place of 
the temporary loan. 

Your question resolves itself to this: Can a temporary loan 
be made in advance of each of the several loans which the 
treasurer, with the approval of the selectmen, is authorized to 
make under the vote? 

I am of the opinion that this can be done. There seems to 
be no sound reason why the statute should be interpreted as 
limiting the town to making a temporary loan in anticipation 
of the first loan it is proposed to negotiate under the authority 
of the vote. Such an interpretation would work to the disad- 
vantage of the town, as it would tend to the borrowing of 
more money than was actually needed at the time, and a con- 
sequent imposition of unnecessary interest charges upon the 
town. Such a result I cannot believe was contemplated by the 
Legislature. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

Taxation oj Property oj the Commonwealth — Sidewalk 
Assessment. 

The Commonwealth is not liable for a sidewalk assessment levied by a 
city for a sidewalk constructed in front of an armory owned by the 
Commonwealth in that city. 

May 4, 1918. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — You have requested my opinion as to whether 
the Commonwealth is liable for a sidewalk assessment levied 
by the city of Brockton for a sidewalk constructed in front of 
an armory owned by the Commonwealth in that city. 

It is a general principle of law that the Commonwealth is 
not liable for taxes unless there is some express legislative 
enactment to that effect. Boston Fish Market Corpn. v. 
Boston, 224 Mass. 31, 34. In that case the court said: — 

Naturally, and apart from express enactment or plain implication, 
property of the State is not subject to taxation. Instrumentalities of 
government are not deemed ordinarily subject to taxation in any 
form. 

Corcoran v. Boston, 185 Mass. 325; Essex County v. Salem, 
153 Mass. 141. 

There is no language in the statutes authorizing assessments 
upon abutters of a portion of the cost of construction of a side- 
walk which indicates any intention to depart from this general 
rule. In fact, it is provided that the collection of such assess- 
ments "may be made in like manner as demands for the pay- 
ment of taxes, and sales for the non-payment of such assess- 
ments or charges and all proceedings connected therewith shall 
be upon the same notices thereof, and shall be otherwise con- 
ducted in the same manner as sales for non-payment of taxes." 
R. L., c. 49, §§ 22, 45. 

Accordingly, there seems to be no reason for considering that 
a different rule should be applied in the case of sidewalk 
assessments from that applicable to taxes in general. 

I am of the opinion that the Commonwealth is not liable for 
the assessment mentioned. 

Very truly yours, 

Hexry C. Attwill, Attorney-General. 



1919.1 PUBLIC DOCUMENT — No. 12. 37 



Municipal Government — Refusal of Assessors to act — Power 
to fill Vacancies. 

A board of selectmen has no authority to accept the resignation of a board of 
assessors, which resignation can become effective only upon acceptance 
by the voters of the town in a town meeting duly called for that purpose. 

Under St. 1913, c. 835, § 426, if there are actual vacancies in a board of 
assessors, or if the assessors refuse to act, the county commissioners 
have the power to appoint three or more inhabitants of the county 
to act as assessors. 

May 6, 1918. 

Hon. William D. T. T re fry, Tax Commissioner. 

Dear Sir: — You have requested my opinion concerning a 
situation which has arisen in the town of Maynard owing to 
the fact that two of the three members of the board of assessors 
have signified to the board of selectmen their intention and 
desire to resign, and have refused to act further as members of 
the board of assessors. 

I find no provision in the statutes relating to or permitting 
the resignation of assessors or similar town officers in this 
manner. In my opinion, the selectmen have no authority to 
accept their resignation, which can become effective only upon 
acceptance by the voters of the town in a town meeting duly 
called for that purpose. 

As I stated to you in an opinion rendered April 18, 1917, it 
is my opinion that St. 1913, c. 835, § 429, has no application 
to vacancies in boards of assessors, and, accordingly, even if 
such vacancies existed in the present case, they could not be 
filled by the joint action of the selectmen and the remaining 
member of the board of assessors. 

The facts stated seem to me plainly to warrant action by 
the county commissioners under section 426 of said chapter 
835. That section applies not merely to actual vacancies in 
the board of assessors, but to all cases where for any reason 
the assessors are failing to perform the duties imposed upon 
them by law. If two of the assessors of the town continue in 
their refusal to act, it is my opinion that, under the last- 
mentioned section, the county commissioners of the county of 
Middlesex are authorized to appoint three or more inhabitants 
of the county to act as assessors. If they take such action, I 
see no reason why they cannot appoint as one of the members 
of the board to be designated by them the third assessor, who 
has not refused to perform his duties. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

Constitutional Law — Legislature — Delegation of Legislative 
Power — Size of City Council. 

It is unconstitutional for the Legislature to delegate to the voters of any 
city the unrestricted right and power to determine the size of its 
city council. 

May 14, 1918. 

Committee on Cities. 

Gentlemen: — In accordance with your request, I have 
examined House Bill No. 479, entitled " An Act to provide for 
a home rule charter for cities," giving particular consideration 
to section 12. 

Under the provisions of that section and the other related 
provisions of the bill, a city which adopts the form of govern- 
ment prescribed by this bill would, without any action by the 
General Court, determine the number of its councilmen. It is 
provided that the petition for the adoption of this form of 
government shall state that one councilman is to be elected 
from each ward, and the remainder, the number to be deter- 
mined by the persons preparing and submitting the petition, 
are to be elected at large. It is thus left to the petitioners, in 
the first instance, without limitation, to determine how many 
councilmen at large shall be proposed for approval by the city. 
If the city then votes to adopt the proposed form of govern- 
ment, the number of councilmen at large stated in the petition 
becomes fixed as the number of councilmen to be chosen, so 
long as this form of government remains in force. It would 
thus be within the power of the city to adopt a council varying 
in size from one for each ward into which the city was divided, 
with no upper limit whatever. Under our Constitution it is 
the duty of the General Court to determine the form of 
government which may be adopted by any city in the Com- 
monwealth. In my opinion, it is an unconstitutional delega- 
tion of power for it to leave to the voters of any city the 
unrestricted right to determine the size of its city council. Ac- 
cordingly, in my judgment, the provisions of section 12 and 
the other related provisions of this proposed act would be un- 
constitutional if enacted. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 39 

Constitutional Law — Educational Institutions — Tuition — 
Appropriation of Funds for. 

Under article XLVI of the Amendments to the Constitution of this Com- 
monwealth it still remains unconstitutional for cities and towns to 
appropriate funds for the maintenance of an academy not under the 
order and superintendence of the school committee, or to pay the 
tuition of pupils resident in such town and attending such academy. 

It is unconstitutional for cities and towns to appropriate funds to reimburse 
parents for tuition they may pay for pupils attending a school of 
their own choice, such choice including an academy not under the 
order and superintendence of the school committee. 

May 18, 1918. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — I have your request for my opinion as to 
whether, after Oct. 1, 1918, when article XLVI of the Amend- 
ments to the Constitution becomes effective, it will be consti- 
tutional for a town to expend money for any one of the follow- 
ing purposes : — 

1. To appropriate funds for the maintenance of an academy not 
under the order and superintendence of the school committee; or — 

2. To pay the tuition of pupils resident in such town and attending 
such an academy; or — 

3. To reimburse parents for tuition that they may pay for pupils 
attending a school of their own choice, such choice including such an 
academy when the parents so elect. 

On March 18, 1896 (I Op. Atty.-Gen. 319), my predecessor, 
Hon. Hosea M. Knowlton, in an opinion rendered to the 
Senate, declared that, by reason of the provisions of article 
XVIII of the Amendments to the Constitution, it was uncon- 
stitutional for a town to grant and vote money to pay the 
tuition of children attending an academy in the town or to pay 
the tuition of children attending an academy outside of the 
town. This opinion was based upon the ground that such an 
expenditure, being for the education of the children of the 
town, was an expenditure of money "raised by taxation in the 
towns and cities for the support of public schools," and that 
therefore, by article XVIII, it could be "applied to, and ex- 
pended in, no other schools than those which are conducted 
according to law, under the order and superintendence of the 
authorities of the town or city in which the money is to be 
expended." 



40 ATTORXEY-GEXERAL'S REPORT. [Jan. 

I see no reason for disagreeing with this opinion of my 
predecessor. When article XLVI of the Amendments to the 
Constitution becomes effective, it takes the place of article 
XVIII, but it plainly gives no broader powers to cities and 
towns with reference to the expenditure of moneys appro- 
priated for educational purposes than they had under the 
earlier article. It seems to me plain, therefore, that under the 
later amendment cities and towns will have no constitutional 
right to appropriate funds for the maintenance of an academy 
not under the order and superintendence of the school com- 
mittee, or to pay the tuition of pupils resident in such town 
and attending such an academy. 

It seems to me to follow, with equal clearness, that they will 
have no constitutional right to reimburse parents for tuition 
they may pay for pupils attending a school of their own choice 
when that choice includes such an academy. For the purpose 
of enforcing the provisions of the Constitution under discus- 
sion, the substance, and not the mere form of the transaction, 
must be considered. The money in fact will go from the treas- 
ury of the town to that of the academy, whether the parents 
be required to make the payment out of their own pockets in 
the first instance or not. In my judgment, it would be a mere 
subterfuge to hold that the town was authorized to reimburse 
the parents for tuition paid by them in cases where it had no 
constitutional authority to make the payment direct to the 
academy in the first instance. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Insurance — Circumstances under which Agreement by Auto- 
mobile Association to furnish Attorney or guarantee Credit 
may not be Contract of Insurance. 

An agreement bj r an automobile association to furnish attorney's services, 
or to guarantee the credit of a member under certain conditions up 
to $25, is not a contract of insurance; but an agreement to reimburse 
a member for reasonable charges which he may be obliged to pay to 
an attorney is a contract of insurance. 

May 24, 1918. 

Hon. Frank H. Hardison, Insurance Commissioner. 

Dear Sir: — You have requested my opinion as to whether 
any features contained in a contract of membership of the 
Automobile Legal Association involve insurance. 



1919.] PUBLIC DOCUMENT — No. 12. 41 

Under this contract the association agrees to furnish the 
member with the services of its attorneys to defend civil and 
criminal complaints and to furnish advice. It further agrees 
that if "the services of said attorneys cannot be secured 
promptly, or if the association has no regularly appointed at- 
torney at the place where needed by said member," then the 
member may employ any attorney he desires, and the associa- 
tion will reimburse the member for reasonable charges paid. 

In accordance with opinions rendered to your department by 
former Attorneys-General, one of which appears in I Op. 
Atty.-Gen. 544, this agreement, so far as it provides for fur- 
nishing the services of the association's attorneys, is a contract 
of service rather than of insurance; but the agreement to reim- 
burse the member for reasonable charges which he may be 
obliged to pay does constitute insurance. The association as- 
sumes the risk of the member's requiring legal services because 
of the institution of proceedings against him, and agrees to 
reimburse his loss on that account. I see no reason for depart- 
ing from the rule applied in those opinions. 

In my opinion, the so-called credit guarantee in the form 
submitted does not constitute an insurance contract, nor does 
the issuance of such contracts constitute the transaction of an 
insurance business. 

The association agrees with the member that it will "guaran- 
tee the credit of said member at any hotel or garage once 
during said membership year for a sum not to exceed $25, as 
per coupon hereto attached." 

This agreement cannot be considered insurance, since it in- 
volves no risk or hazard which is insured against, nor, employ- 
ing the words of the statutory definition, the destruction, loss 
or injury of something in which the member has an interest. 
The determination of the member to use the guarantee coupon 
depends entirely upon his own volition. 

The guarantee coupon attached to the policy states the 
obligation of the association in these words: — 

I, , address, , 

hereby acknowledge my indebtedness to , 

address, , 

in the sum of $ , and agree to pay the same within thirty 

daj's from this date, 

Signature of Debtor 

The Automobile Legal Association . . . hereby guarantees the pay- 
ment of this account up to $25, provided notice by the creditor is 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

mailed to the association at once, and also provided that if the in- 
debtedness is not paid by the debtor within thirty days the creditor 
will make demand on the association for payment within thirty days 
thereafter, accompanied by an itemized bill. 

The member is undoubtedly authorized, as agent of the 
association, to fill in the blanks in the above coupon and de- 
liver the instrument to the creditor. It may be suggested that 
this new contract so made between the association and the 
hotel or garage owner is one of insurance. In many respects it 
is similar to the business of credit insurance companies. 

However, I am of the opinion that it is to be regarded rather 
as an ordinary contract of guaranty than as insurance, and for 
the same underlying reason stated above. The liability of the 
Automobile Legal Association is not dependent upon the de- 
struction, loss or injury of anything in which the hotel keeper 
has an interest, nor upon any risk or hazard, as those words 
are employed in insurance matters. It is dependent upon a 
contingency, to wit, non-payment by the debtor within thirty 
days. But it is not true that all contracts dependent upon a 
contingency constitute insurance contracts, but only those de- 
pendent upon the limited class of contingencies which involve 
a risk of loss to the assured. 

An agreement, for a consideration, to pay a certain sum of 
money to another on July 1 next if there should be a thunder 
shower upon that day would constitute a gambling contract, 
not a contract of insurance; while an agreement to pay a sum 
in the event that the other party should apprehend the perpe- 
trator of a crime would also be dependent upon a contingency, 
but not such as to constitute a contract one of insurance. 

Ordinary credit insurance contracts do, nevertheless, involve 
an insurable risk, since they are based on the destruction or 
loss of credit of the customers of the assured. The liability in 
such cases is generally limited to losses arising from sales to 
persons of apparently sound credit who have later been ascer- 
tained to be insolvent. 

Under the contract in the present case the liability of the 
association is not dependent upon such a loss of credit, but is 
absolute upon the lapse of thirty days, subject to the stipu- 
lated notices. 

For the reasons stated I am of the opinion that the contract 
referred to is not open to objection upon this ground. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 43 

War Service — State Aid — Dependents of State Employee who, 
upon his Death, was in the Military Service of the United 
States. 

Under the provisions of Gen. St. 1917, c. 301, the dependents of a deceased 
employee who died in the military service of the United States are 
entitled to be paid only the amount which the employee was entitled 
to receive at the time of his decease. 

May 28, 1918. 

Hon. Charles L, Burrill, Treasurer and Receiver-General. 

Dear Sir: — I have your request for my opinion as to the 
amount which the dependents of a deceased employee are en- 
titled to receive from the Commonwealth under the provisions 
of Gen. St. 1917, c. 301. Section 1 of that act 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 termi- 
nation 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. 

The first portion of this section establishes the method of 
determining the amount which an employee of the Common- 
wealth who is mustered into the military or naval service of 
the United States is to receive during the continuation of the 
war, provided he remains in that service. The last sentence is 
as follows: — 

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. 

This provides for the payment of "the said sum" to the bene- 
ficiaries named, in case of the employee's death in the service. 
These words seem to me to refer back to the amount estab- 
lished by the earlier portion of the section, and, in my judg- 
ment, should be interpreted as authorizing the payment to the 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

beneficiaries only of the amount which the employee was en- 
titled to receive at the time of his decease. In my opinion, 
this amount should not in any manner be increased after the 
decease of the employee, and should not be diminished by any 
consideration of insurance or similar benefits which may be- 
come payable to the beneficiaries on account of such decease. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Constitutional Laic — Registration of Certain Aliens — Regis- 
tration Fee — Treaties. 

A proposed bill requiring "every male alien twenty years and over, unless 
enrolled in the military or naval service of the United States, who 
has resided in this commonwealth for twelve months prior to the 
first day of May in the current year," to register with the city or 
town clerk of his residence and file a written statement of certain 
facts concerning his history, and requiring that "said statement shall 
be accompanied by a registration fee of five dollars," is inconsistent 
with the provisions of treaties entered into between the United States 
and various other nations. Treaties entered into by the United 
States protect resident aliens against the imposition of fees and excises 
because of their alienage. Therefore, such a bill as proposed, if enacted, 
would be unconstitutional and void. 

May 28, 1918. 

Hon. Chanxixg H. Cox, Sneaker, House of Representatives. 

Dear Sir: — I acknowledge the receipt of an order from 
the 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 Senate Bill No. 321 of the current year, being "An Act to pro- 
vide for the registration of certain aliens," if enacted into law r be valid 
and in accordance with the provisions of the Constitution of the Com- 
monwealth, and the Constitution, laws and treaties of the United 
States? 

The important sections of the bill in question are as fol- 
lows: — 

Section 1. Every male alien, twenty years and over, unless 
enrolled in the military or naval service of the United States, who has 
resided in this commonwealth for twelve months prior to the first day 
of May in the current year, shall, between the first and twentieth days 
of May in said year or within such further time not exceeding thirty 
days as the city or town clerk may for good cause allow, file with the 



1919.] PUBLIC DOCUMENT — No. 12. 45 

clerk of the city or town wherein he resides, upon blanks to be fur- 
nished by said clerk, a written statement setting forth his name, age, 
residence by street and number, his employment and place of business, 
place of birth, port or point of entry into the United States and date. 
Said statement shall be accompanied by a registration fee of five 
dollars. On or before the first day of July in the current year the pro- 
ceeds of all such registration fees received by the city or town, less the 
expense to the city or town of conducting said registration, to be ap- 
proved by the treasurer and receiver general, shall be paid into the 
treasury of the commonwealth. 

Section 3. Failure on the part of any alien designated in section 
one to comply with the provisions thereof shall be punished by a fine 
of not less than twenty-five dollars to the use of the commonwealth. 

The proposed bill contains two main features. It requires 
"every male alien, twenty years and over, unless enrolled in 
the military or naval service of the United States, who has 
resided in this commonwealth for twelve months prior to the 
first day of May in the current year," to register with the city 
or town clerk of his residence and file a written statement of 
certain facts concerning his history. Failure to comply with 
this requirement subjects the alien to a fine of "not less than 
twenty-five dollars." The bill then provides: "Said statement 
shall be accompanied by a registration fee of five dollars." 

In my opinion, the registration feature of this bill, if enacted 
into law, would be valid, at least in time of war, as a reason- 
able police regulation in the interest of the public safety. In 
time of war it is vital that it be publicly known what residents 
of the community are alien enemies. Furthermore, I am of the 
opinion that it cannot be said that the General Court would 
not be warranted in concluding that aliens who are subjects of 
neutral or even friendly nations are more likely than citizens 
to become involved in unfriendly or hostile acts or enterprises. 
The registration requirement of this bill, in providing for a 
public record in time of war of the facts specified regarding 
persons who are likely to be a source of danger to the com- 
munity, seems to me a measure reasonably directed toward 
the preservation of the public safety. 

The difficulty with the proposed act arises from the require- 
ment of the registration fee of $5. The bill in its present form, 
as passed to be engrossed in the Senate, seems to indicate that 
it is intended, in part at least, to be a revenue measure. Sec- 
tion 1 closes with the following provision: — 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

On or before the first day of July in the current year the proceeds 
of all such registration fees received by the city or town, less the expense 
to the city or town of conducting said registration, to be approved by 
the treasurer and receiver general, shall be paid into the treasury of 
the commonwealth. 

Whether the amount of money to be realized by such a fee 
could be regarded as not disproportionate to the financial 
burden imposed by the registration upon the Commonwealth 
and its cities and towns is, in the first instance, a legislative 
question. The judgment of the General Court would not 
lightly be set aside by the courts. If this fee can be deemed 
to bear a reasonable relation to such cost, it would then be 
imposed in connection with or as a part of a valid police regu- 
lation, and, in that event would not, in my judgment, be in 
violation of the provisions of the Fourteenth Amendment to 
the Federal Constitution, prohibiting the denial of the equal 
protection of the laws. Whether such a fee can be imposed 
under the Constitution of the Commonwealth, in view of the 
fact that it would in no way be connected with any privilege 
granted by the laws of the Commonwealth, is a grave ques- 
tion. It is unnecessary now to consider that matter, since, in 
my opinion, in any event, the requirement of this fee, what- 
ever its character, is inconsistent with the provisions of treaties 
entered into between the United States and various other 
nations. 

From a memorandum furnished to His Excellency the Gov- 
ernor by the Secretary of State of the United States, submitted 
to me with the order of the House, I make the following quota- 
tions. A treaty between the United States and Japan, con- 
cluded Feb. 21, 1911, referring to citizens or subjects of . each 
country traveling or residing in the other, provides : — 

They shall not be compelled, under any pretext whatever, to pay 
any charges or taxes other or higher than those that are or may be 
paid by native citizens or subjects. 

A provision of similar import in a treaty between the 
United States and Serbia, concluded Oct. 14, 1881, declares: — 

They shall be at liberty to exercise their industry and trade, both 
by wholesale and by retail, in the whole extent of both territories, 
without being subjected as to their persons or property, or with regard 
to the exercise of their trade or business, to any taxes, whether general 



1919.] PUBLIC DOCUMENT — No. 12. 47 

or local, or to any imposts or conditions of any kind other or more 
onerous than those which are or may be imposed upon natives or upon 
the subjects of the most favored nation. 

Other treaties contain agreements similar in phraseology or 
import; for example, see treaty between the United States 
and Spain, concluded July 3, 1902, and treaty between the 
United States and Switzerland, concluded Nov. 25, 1850. 
Treaties with various other nations secure to the subjects of 
those nations the privileges and protection enjoyed in this 
country by the subjects of the most favored nation. Such a 
clause in any treaty would, of course, adopt as a part of such 
treaty the protective obligation of the character under discus- 
sion, which is the broadest in its scope in any of the treaties of 
this character entered into by the United States. 

It requires no discussion to establish that the registration 
fee provision of the proposed bill is in conflict with these 
treaty obligations. Whatever the limits of the treaty-making 
power in its relation to the police power of the State, I cannot 
doubt that it extends to the protection of resident aliens 
against the imposition of fees and excises because of their 
alienage. Treaties duly entered into by the United States are, 
by the Constitution, expressly made "the supreme law of the 
land" (U. S. Const., art. VI), and it follows that legislation of 
any State in conflict therewith is invalid. 

Accordingly, I must advise the House of Representatives 
that Senate Bill No. 321, entitled "An Act to provide for the 
registration of certain aliens," would be invalid if enacted into 
law in its present form. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Collection of Taxes on Real Estate of a Person in the Military 
Service — Soldiers' and Sailors' Civil Relief Act. 

The provisions of the Soldiers' and Sailors' Civil Relief Act, relating to 
the collection of taxes on real estate owned or occupied by a person 
in the military service, do not apply to taxes assessed upon real estate 
in this Commonwealth in 1917 and the years prior thereto. 

June 6, 1918. 
Hon. William D. T. Trefry, Tax Commissioner. 

Dear Sir: — You have requested my opinion as to the 
effect of section 500 of the Act of Congress approved March 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

8, 1918, known as the Soldiers' and Sailors' Civil Relief Act, 
upon the collection of taxes on real estate assessed in this 
Commonwealth in 1917 and the years prior thereto. 
The section referred to is as follows: — 

(1) That the provisions of this section shall apply when any taxes 
or assessments, whether general or special, falling due during the 
period of military service in respect of real property owned and occu- 
pied for dwelling or business purposes by a person in military service 
or his dependents at the commencement of his period of military 
service and still so occupied by his dependents or employees are not 
paid. 

(2) When any person in military service, or any person in his behalf, 
shall file with the collector of taxes, or other officer whose duty it is 
to enforce the collection of taxes or assessments, an affidavit showing 
(a) that a tax or assessment has been assessed upon property which is 
the subject of this section, (b) that such tax or assessment is unpaid, 
and (c) that by reason of such military sendee the ability of such 
person to pay such tax or assessment is materially affected, no sale of 
such property shall be made to enforce the collection of such tax or 
assessment, or any proceeding or action for such purpose commenced, 
except upon leave of court granted upon an application made therefor 
by such collector or other officer. The court thereupon may stay such 
proceedings or such sale, as provided in this Act, for a period extending 
not more than six months after the termination of the war. 

(3) When by law such property may be sold or forfeited to enforce 
the collection of such tax or assessment, such person in military service 
shall have the right to redeem or commence an action to redeem such 
property, at any time not later than six months after the termination 
of such service, but in no case later than six months after the termina- 
tion of the war; but this shall not be taken to shorten any period, now 
or hereafter provided by the laws of any State or Territory for such 
redemption. 

(4) Whenever any tax or assessment shall not be paid when due, 
such tax or assessment due and unpaid shall bear interest until paid 
at the rate of six per centum per annum, and no other penalty or 
interest shall be incurred by reason of such nonpayment. Any lien 
for such unpaid taxes or assessment shall also include such interest 
thereon. 

As is apparent from paragraph (1) of this section, it applies 
only to taxes "falling due during the period of military serv- 
ice." Paragraph (2) of section 101 of this act defines the term 
"period of military service" as follows: — 

The term "period of military service," as used in this Act, shall 
include the time between the following dates: For persons in active 



1919.] PUBLIC DOCUMENT — No. 12. 49 

service at the date of the approval of this Act it shall begin with the 
date of approval of this Act; for persons entering active service after 
the date of this Act, with the date of entering active service. It shall 
terminate with the date of discharge from active service or death 
while in active service, but in no case later than the date when this 
Act ceases to be in force. 

It is plain, therefore, that the provisions of section 500 can 
have no effect upon the collection of taxes "falling due" prior 
to the approval of this act on March 8, 1918. 

St. 1909, c. 490, pt. I, § 71, as amended by Gen. St. 1916, 
c. 103, provides as follows: — 

Taxes shall be payable in every city and town and in every fire, 
water, watch or improvement district, in which the same are assessed, 
and bills for the same shall be sent out, not later than the fifteenth 
day of October of each year, unless by vote, ordinance or by-law of 
the city, town or district, an earlier date of payment is fixed. On all 
taxes remaining unpaid after the expiration of fifteen days from the 
date when taxes are payable, interest shall be paid at the rate of six 
per cent per annum, computed from the date on which they become 
payable; but if, in any case, the tax bill is sent out later than the day 
prescribed, interest shall be computed only from the expiration of 
such fifteen days. In no case shall interest be added to taxes paid 
prior to the expiration of fifteen days from the date when they are 
payable. Bills for taxes assessed under the provisions of section eighty- 
five of Part I of said chapter four hundred and ninety shall be sent 
out not later than December twenty-sixth, and said taxes shall be 
payable not later than December thirty-first. If remaining unpaid 
after that date, interest shall be paid at the rate above specified, com- 
puted from December thirty-first until the day of payment, but if, in 
any case, the tax bill is sent out later than December twenty-sixth, 
interest shall be computed from the fifteenth day of January next 
following. In all cases where interest is payable, it shall be added to 
and become a part of the tax. 

In my opinion, under the provisions of this section all taxes 
upon real estate or personal property assessed in due course in 
the regular annual assessment of taxes become due and pay- 
able not later than the fifteenth day of October in each year, 
and taxes assessed as omitted assessments under the provisions 
of section 85, therein referred to, become due and payable not 
later than December 31. To use the language of the Federal 
statute, these taxes must be regarded as "falling due" not 
later than the dates specified. 

Accordingly, in my judgment, it follows that all taxes as- 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

sessed upon real estate in this Commonwealth in the year 1917 
and the years prior thereto must be taken as having fallen due 
prior to any period of military service protected by the Sol- 
diers' and Sailors' Civil Relief Act. Thus the provisions of 
that act have no application to the collection of these taxes. 

Perhaps, however, it might not be inappropriate for me to 
suggest that collectors of taxes, acting within the spirit of this 
Federal statute, should, so far as is consistent with the per- 
formance of the duties imposed upon them by law, exercise 
whatever discretion is granted to them by law in such a man- 
ner as will not impose undue hardship upon any person in the 
military service of the United States. They, of course, cannot 
omit to take all steps necessary to insure the eventual collec- 
tion of such taxes from these persons, but they can, and 
doubtless will, in proper cases, as long as is possible within the 
provisions of the statutes, delay selling the property of such 
persons which is of the character protected by this act. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



State Guard — Authority of the Commander-in-Chief to require 
by General Orders the Execution of Commands given by 
Civil Authorities. 

The Commander-in-Chief may properly issue a general order requiring all 
officers to execute commands issued to them by the proper persons 
mentioned in Gen. St. 1917, c. 327, pt, I, §§ 25-34, inclusive. 

June 18, 1918. 
Col. Jesse F. Stevens, Adjutant-General. 

Dear Sir: — I acknowledge your communication in which 
you request my opinion as to the legality of that part of 
General Orders No. 17, issued by the Commander-in-Chief 
under the provisions of Gen. St. 1917, c. 148, § 2, which directs 
all officers to execute any and all lawful commands issued to 
them by the proper persons mentioned in Gen. St. 1917, c. 
327, pt. I, §§ 25-34, inclusive. 

Section 26 of said chapter 327 provides : — 

In case of a tumult, riot, mob or a body of persons acting together 
by force to violate or resist the laws of the commonwealth, or when 
such tumult, riot or mob is threatened, or in case of public catastrophe 
when the usual police provisions are inadequate to preserve order 
and afford protection to persons and property, and the fact appears to 
the commander-in-chief, to the sheriff of a county, to the mayor of a 



1919.] PUBLIC DOCUMENT — No. 12. 51 

city or to the selectmen of a town, the commander-in-chief may issue 
his order, or such sheriff, mayor or selectmen may issue a precept, 
directed to any commander of a brigade, regiment, naval brigade or 
battalion, battalion, squadron, corps of cadets or company, within the 
jurisdiction of the officer issuing such order or precept, directing him 
to order his command, or any part thereof, to appear at a time and 
place therein specified to aid the civil authority in suppressing such 
violations and supporting the laws. 

In my communication to you of Nov. 15, 1917, I said, in 
referring to this part of the order of the Commander-in-Chief, 
that "the Governor 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 said sections 25 to 34, inclusive. 

I am of the opinion that there is no difficulty on the 
ground of delegation of authority. What the Governor has 
done is simply to direct the officers of the various units of 
the State Guard to execute any and all lawful commands 
issued to them by the proper persons mentioned in said 
sections. This includes responding to precepts lawfully 
issued by the officers mentioned in section 26. Accordingly, 
I am of the opinion that the order of the Commander-in-Chief 
was authorized by law. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Pharmacy Law — Registered Pharmacist — Certificate of Fitness 
— Suspe7ision or Revocation of. 

The suspension or revocation of certificates of fitness to registered pharma- 
cists by the Board of Registration in Pharmacy or by the licensing 
authorities of cities and towns need not be for cause, but such sus- 
pension or revocation must be made in good faith. 

June 22, 1918. 
Mr. John G. Tobin, Secretary, Board of Registration in Pharmacy. 

Dear Sir: — You submit for my opinion the following 
question: — 

Must the suspension or revocation by the Board of Registration in 
Pharmacy or by the licensing authorities of cities and towns of certifi- 
cates of fitness to registered pharmacists be for cause, or otherwise? 

You will note that under R. L., c. 100, § 23, St. 1907, 
c. 308, and St. 1909, c. 261, the certificate of fitness there is a 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 

prerequisite to the granting of a sixth-elass license by the 
licensing authorities. The suspension or revocation of a 
certificate of fitness upon which a sixth-class license has been 
granted must be after giving a hearing to the parties interested 
and for any cause that the Board may deem proper, as 
provided for in St. 1909, c. 261, § 1. 

Under St. 1906, c. 281, and St. 1913, c. 413, the certificate 
of fitness is issued to registered pharmacists, and under it 
they may sell intoxicating liquors on the prescription of a 
registered physician. 

Bearing on this, it is to be noted that while St. 1906, 
c. 281, was under discussion before its enactment, a motion to 
amend section 2 by inserting after the word "revocation," 
in line 7, the words: — for cause, — and another motion to 
strike out in section 2, line 8, the word "by," and insert in 
place thereof the words : — at the pleasure of, — were both 
lost. 

Therefore, I am of the opinion that the intent of the 
Legislature was that the action of your Board was not to 
be restricted when, in your discretion, you determined to 
suspend or revoke in good faith certificates of fitness by which 
registered pharmacists are permitted to sell intoxicating 
liquors on the prescription of a registered physician. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Trust Companies — Loans in Excess of One-fifth of the Surplus 
Account and Capital Stock — Duty of Bank Commissioner. 

A trust company which lends sums of money (in each case less than one- 
fifth of its capital stock) to several individual borrowers, who later 
assign their several interests to a single corporation, to an aggregate 
amount exceeding one-fifth of the capital stock and surplus of the 
trust company, is not necessarily to be regarded as having lent to 
one borrower more than the law allows, especially where each loan 
was made upon adequate security; but the Bank Commissioner has 
authority to direct the discontinuance of such loans if for any reason 
he regards them as unsafe for the trust company. 

June 22, 1918. 

Hon. Augustus L. Thorndike, Bank Commissioner. 

Dear Sir: — You have asked my opinion upon the follow- 
ing question: — 

A trust company has arranged to lend sums of mone} 7 , which are 
less than one-fifth of its capital stock, to ten or more persons, each 



1919.] PUBLIC DOCUMENT — No. 12. 53 

person giving a separate note and mortgage on separate parcels of 
real estate adjoining one another. The various borrowers have entered 
into a contract with a construction company to erect buildings upon 
their land, and have assigned to that construction company the ad- 
vances that may be due from time to time on account of their mort- 
gages. These various borrowers, subsequent to their giving their 
notes and mortgages, appear to have transferred their titles to the 
aforesaid construction company. The name of the construction com- 
pany does not appear on any of the notes or the mortgages. 

While each note is less than one-fifth of the capital stock of the 
trust company, yet the aggregate of these loans would exceed the 
statutory limit. 

My question is: Can I assume this to be a subterfuge which would 
justify my taking action against the trust company as having lent to 
one borrower more than the law allows? 

The prohibition against the trust company lending money 
in excess of one-fifth of its paid-up capital stock and its 
surplus account is contained in R. L., c. 116, § 34, as amended 
by Gen. St. 1916, c. 129, § 2, and Gen. St. 1917, c. 172, § 2. 
Said section 34, as amended, is as follows: — 

The total liabilities of a person, other than cities or towns, including 
in the liabilities of a firm the liabilities of its several members, for 
money borrowed from and drafts drawn on any such corporation 
having a capital stock of five hundred thousand dollars or more shall 
at no time exceed one fifth part of the surplus account and of such 
amount of the capital stock of such corporation as is actually paid 
up. Such total liabilities to any such corporation having a capital 
stock of less than five hundred thousand dollars shall at no time exceed 
one fifth of such amount of the capital stock of the corporation as is 
actually paid up; but the discount of bills of exchange drawn in good 
faith against actually existing values, and the discount of commercial 
or business paper actually owned by the person negotiating it, shall 
not be considered as money borrowed. The total liabilities to any 
one such corporation of any government, either foreign or domestic, 
other than the government of the United States of America or of this 
commonwealth, shall not exceed one tenth part of the surplus account 
and of such amount of the capital stock of such corporation as is 
actually paid up, and no trust company shall invest, or advance an 
aggregate amount exceeding at any one time twenty per cent of its 
surplus account and paid up capital stock in such securities and evi- 
dences of indebtedness. 

Obviously, in the case you state there is no person whose 
liability to the trust company exceeds one-fifth of the surplus 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 

account and the paid-up capital stock, unless the persons 
signing the notes, or some of them, constitute a firm, within 
the meaning of said section 34. I think it extremely doubtful 
whether this could be contended simply on the facts stated 
by you, even if the persons signed the notes with an under- 
standing with the construction company that as soon as the 
notes and mortgages were signed their equities in the separate 
parcels were to be immediately transferred to the construction 
company. 

If the persons signing the notes should be considered as 
members of a firm, and the various loans treated as one loan, 
then your duty in the premises is a limited one, defined by 
St. 1908, c. 590, § 8, as amended by St. 1910, c. 622. Said 
section provides: — 

If, in the opinion of the commissioner, such bank, or its officers or 
trustees have "violated any law relative thereto, he may forthwith 
report such violation to the attorney-general, who shall forthwith, in 
behalf of the commonwealth, institute a prosecution therefor. If, in 
the opinion of the commissioner, such bank is conducting any part of 
its business in an unsafe or unauthorized manner, he shall direct in 
writing that such unsafe or unauthorized practice shall be discon- 
tinued; and if any such bank shall refuse or neglect to comply with 
any such direction of the commissioner, or if, in the opinion of the 
commissioner, a trustee or officer of such bank has abused his trust, 
or has used his official position in a manner contrary to the interest 
of such bank or its depositors, or has been negligent in the perform- 
ance of his duties, the commissioner may in the case of a savings bank, 
forthwith report the facts to the attorney-general, who may, after 
granting a hearing to said savings bank, trustee or officer, institute 
proceedings in the supreme judicial court which shall have jurisdiction 
in equity of such proceedings, for the removal of one or more of the 
trustees or officers, or of such other proceedings as the case may re- 
quire; or the commissioner may, in the case of any bank, after giving 
a hearing to the directors or trustees thereof, either report to the 
shareholders thereof, or, with the consent in writing of a board com- 
posed of the treasurer and receiver general, the attorney-general and 
the commissioner of corporations, publish such facts relative thereto 
as in his opinion the public interest may require. 

The violation of law referred to in the first sentence of 
the section obviously refers to a violation of a criminal law, 
as it provides for a prosecution therefor. The making of a 
loan in excess of one-fifth of the capital stock and surplus 
account nowhere is made a criminal act, unless made under 



1919.1 



PUBLIC DOCUMENT — No. 12. 55 



such circumstances as to show an intent to defraud the bank. 
It is an unauthorized act, of which it is your duty to take 
notice and to direct that it be discontinued; and, if not dis- 
continued, if you deem it expedient, after giving a hearing to 
the directors or trustees of the bank, to report to the share- 
holders thereof, or, with the consent in writing of a board com- 
posed of the Treasurer and Receiver-General, the Attorney- 
General and the Commissioner of Corporations, publish such 
facts relative thereto as in your opinion the public interest 
may require. 

However, upon the facts stated in your letter and the 
additional fact stated by you verbally to me, that the se- 
curity given upon each loan is more than adequate to secure 
the same, I am of the opinion that the loans are not such as 
to require you to direct that they be discontinued on the 
ground of being unauthorized. On the other hand, if you 
are of the opinion, for any reason, that the loans are unsafe 
for the trust company, I think it your duty, under the pro- 
visions of said section 8, to direct in writing that such loans 
be discontinued. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Board of Retirement — State Employees in Institutions taken 
over by Commonwealth — Annuities and Pensions. 

Employees of certain educational institutions taken over and operated by 
the Commonwealth forthwith become employees of the Common- 
wealth, and their membership in the Retirement Association is made 
compulsory. 
Any pension dependent on prior service is to be computed in such cases 
precisely as if the employee had entered the service of the Common- 
wealth at the time when he in fact entered the service of the institu- 
tion. 
The Board of Retirement has no authority to allow such employees to 
make up previous annuity assessments. 

June 27, 1918. 
Board of Retirement. 

Gentlemen: — You have requested my opinion as to 
certain questions which have arisen with reference to the 
status in the retirement system of employees of the New 
Bedford Textile School, the Bradford Durfee Textile School, 
the Lowell Textile School and the Massachusetts Agricultural 



56 ATTORXEY-GEXERAL'S REPORT. [Jan. 

College after such institutions have been taken over and are 
being operated by the Commonwealth under the provisions 
of chapters 246, 248, 274 and 262, respectively, of the General 
Acts of the present year. 

In my opinion, the employees of these institutions become 
employees of the Commonwealth as soon as these institutions 
are taken over by the Commonwealth. They then enter the 
service of the Commonwealth for the first time, and, accord- 
ingly, their membership in the Retirement Association is 
made compulsory by St. 1911, c. 532, § 3 (2), as amended by 
St. 1912, c. 363. I find no provision in any statute which 
authorizes your Board to extend to them the privilege of 
declining membership within any period of time. 

The retirement act contains the following provision, added 
to section 1 by St. 1912, c. 363: — 

In the case of employees of any department or institution formerly 
administered by a city, county or corporation and later taken over by 
the commonwealth, service rendered prior to such transfer shall be 
counted as a part of the continuous service for the purposes of this 
act. 

This refers to the provision of the retirement act estab- 
lishing pensions based upon prior service, which is as 
follows: — 

(b) Pensions based upon prior service. Any member of the associa- 
tion who reaches the age of sixty years, having been in the continuous 
service of the commonwealth for fifteen years or more immediately 
preceding, and then or thereafter retires or is retired, and any member 
who completes thirty-five years of continuous service and then or 
thereafter retires or is retired, shall receive in addition to the annuity 
and pension provided for by paragraphs (2) B and C (a) of this sec- 
tion, an extra pension for life as large as the amount of the annuity 
and pension to which he might have acquired a claim if the retirement 
system had been in operation at the time when he entered the service 
of the commonwealth, and if accordingly he had paid regular contribu- 
tions from that date to the date of the establishment of the retirement 
association at the same rate as that first adopted by the board of 
retirement, and if such deductions had been accumulated with regular 
interest. 

In my opinion, in applying these two provisions to em- 
ployees of these institutions thus taken over by the Common- 
wealth, it must be held that any such employee who there- 



1919.] PUBLIC DOCUMENT — No. 12. 57 

after retires and who has had the requisite service since his 
employment by the institution shall be entitled to an extra 
pension for prior service "as large as the amount of the 
annuity and pension to which he might have acquired a 
claim if the retirement system had been in operation at the 
time when he entered the service" of the institution in ques- 
tion, "and if accordingly he had paid regular contributions 
from that date to the date of the establishment of the retire- 
ment association." 

In my judgment, the first quoted provision requires a 
pension on prior service in these cases to be computed 
precisely as if the employee had entered the service of the 
Commonwealth at the time when he in fact entered the 
service of the institution. 

I find no provision in the law which authorizes your Board 
to allow any such employees to make up the annuity assess- 
ments which they would have paid if they had been in the 
service of the Commonwealth when the retirement system 
was established to the time when they now, for the first time, 
actually enter the service of the Commonwealth. In the 
absence of express authority authorizing such a course, it is 
my opinion that your Board has no authority to permit it. 
The result will be that these employees will be entitled to 
pensions and annuities under section 6 (2) B and C based 
upon annuity payments actually made by them after these 
institutions have been taken over by the Commonwealth. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



State Board of Labor and Industries — War Emergency In- 
dustrial Committee. 

The State Board of Labor and Industries has authority to remove certain 
members of the War Emergency Industrial Board established by 
Gen. St. 1917, c. 342, § 24, but has no authority to nullify or veto 
its acts. 

June 27, 1918. 
State Board of Labor and Industries. 

Gentlemen: — You have requested my opinion as to 
whether the State Board of Labor and Industries can revoke 
at any time any orders issued by the War Emergency In- 
dustrial Committee established by Gen. St. 1917, c. 342, § 24. 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

In my opinion, it has no such authority. The committee 
provided for by the section in question is to be appointed and 
given its name by your Board. The section then provides: — 

Any action taken and all permits granted by said committee shall 
have the same effect as though taken or granted by said board, which 
may at any time revoke the authority of said committee, remove any 
of its members except the commissioner of labor, and may fill any 
vacancies in said committee, and in the temporary absence of any 
member thereof, the committee or the commissioner of labor may fill 
such vacancy temporarily. 

I find no other provision in this section which bears upon 
your inquiry. In my judgment, while the language quoted 
authorizes your Board to remove any or all members of the 
committee except the commissioner of labor, and to fill any 
vacancies, and also authorizes you at any time to "revoke 
the authority of said committee," it does not authorize you 
to nullify or veto any of its acts. The statute provides that 
the permits granted by this committee "shall be revocable 
at any time by the aforesaid committee," but contains no 
other provision relating to revocation. In my opinion, such 
permits may be revoked only by the committee. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Military Service — Absent Voter — "Year" Preceding Election. 

The word "year," as used in the act permitting voting by persons absent 
in the military service (Gen. St. 1918, c. 293), does not mean the 
calendar year beginning January 1, but the period of twelve calendar 
months preceding the election at which the absent voter is proposing 
to vote. 

June 29, 1918. 

Hon. Albert P. Langtry, Secretary of the Commonwealth. 

Dear Sir: — You have requested my opinion as to whether 
applications for registration as absent voters, under the pro- 
visions of Gen. St. 1918, c. 293, filed on or before September 
1 next, would permit the absent voter to vote at the next 
State election. 

Section 3 of that statute provides: — 

Any person in the military or naval service of the United States 
who is a qualified voter in any city or town of this commonwealth 



1919.] PUBLIC DOCUMENT — No. 12. 59 

may apply, in writing, to the secretary of the commonwealth for 
registration as an absent voter not later than September first in the 
year preceding the election. . . . 

The question presented, in short, is whether, by the use 
of the words "not later than September first in the year 
preceding the election," the Legislature intended the calendar 
year beginning January 1 and ending December 31, or the 
year of twelve months, or three hundred and sixty-five days, 
preceding the election. 

R. L., c. 8, § 5, provides: — 

In construing statutes the following words shall have the meaning 
herein given, unless a contrary intention clearly appears : — 

Eleventh, The word " month" shall mean a calendar month, and 
the word "year," a calendar year, unless otherwise expressed; and 
the word "year" alone shall be equivalent to the expression "year of 
our Lord." 

When the word "year" appears in a statute, accordingly, 
it is to have the meaning stated above unless from the other 
provisions of the statute a contrary intention on the part of 
the Legislature is discerned. Cases have arisen in other 
States in which such intention has been discovered by the 
courts. Thus in Knode v. Baldridge, 73 Ind. 54, 55, it is 
said: — 

When the word "year" is used, twelve calendar months are usually 
intended, but not necessarily twelve months commencing with the 
first and ending with the twelfth month of the calendar. 

Similarly, in Rhode Island a provision of the Constitution, 
that no person should be allowed to vote in certain elections 
in Providence unless "he shall within the year next preceding 
have paid a tax assessed upon his property therein," was 
held not to mean the preceding calendar year, but only the 
preceding twelve months. In re Providence Voters, 13 R. I. 
737, 740; see also Inhabitants of Paris v. Inhabitants of 
Hiram, 12 Mass. 262. 

Looking at the provisions of the present statute it is ap- 
parent that unless the word "year" is considered as meaning 
the period of twelve calendar months, or three hundred and 
sixty-five days, preceding the election, in ordinary cases it 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

would be necessary for a voter to register fourteen months 
in advance of the election. Obviously, there could be no 
reason for requiring such a lengthy period in advance of the 
election. 

Section 13 of the act provides: — 

For all state and national elections there shall be prepared and 
printed official ballots to be known as absent voter ballots. . . . 

This clearly requires the printing of absent voter ballots 
for use in the next election following the passage of the act 
on June 13, 1918. It is apparent, therefore, that the Legis- 
lature intended that registrations might be made which would 
permit of the use of such a ballot at the election in the follow- 
ing November, and, accordingly, I am of the opinion that 
the word "year," as used in section 3, does not mean the 
calendar year from January 1 to December 31, but rather 
the period of twelve calendar months preceding the election 
at which the absent voter is proposing to vote. 

I am of the opinion that applications filed on or before 
September 1 next will be in time to permit the absent voter 
to vote at the next State election, provided the other re- 
quirements of the act are complied with. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Officers, Matrons and Subordinate Employees in the Prison 
Service — Compensation. 

The term "officers in the prison service of the several counties," as used 
in Gen. St. 1918, c. 240, does not include all subordinate employees, 
clerks or assistants, but only persons who as a regular and substantial 
part of their duties have charge and control of prisoners, and ap- 
parently does not include matrons. 

Whether or not any particular individual is to be regarded as an "officer" 
under this section is a question of fact to be decided in the first instance 
by the county treasurer, whose determination ought not to be set 
aside unless it is clearly wrong. 

July 10, 1918. 

Mr. Frank L. Dean, Controller of County Accounts. 

Dear Sir: — You have requested my opinion as to what 
persons come within the scope of Gen. St. 1918, c. 240, § 2, 
which establishes certain minimum salaries for "officers who 



1919.] PUBLIC DOCUMENT — No. 12. 61 

have been in the prison service of the several counties of the 
commonwealth for" specified periods of years. 

By R. L., c. 224, § 16, the following provision is made 
for the appointment of subordinates in jails and houses of 
correction: — 

The jailer, master or keeper shall appoint subordinate assistants, 
employees and officers, and shall be responsible for them. 

Section 18 of that chapter provides: — 

The county commissioners shall establish fixed salaries for all 
officers, assistants and employees of jails and houses of correction. 

These quotations seem plainly to indicate that all employees 
in the prison service subordinate to the master or keeper are 
not to be regarded as officers. They are described as "subor- 
dinate assistants, employees and officers." The statute under 
consideration, establishing minimum salaries, expressly applies 
only to officers. 

My predecessor, the Hon. Thomas J. Boynton, had occasion 
to consider the question as to what persons were officers or 
instructors in the prison service, within the meaning of St. 
190S, c. 601, as amended by St. 1911, c. 673, providing for 
the retirement of such officers and instructors and the grant- 
ing of pensions to them. In an opinion dated Sept. 24, 1914, 
directed to the chairman of the Board of Retirement, he 
ruled that a carpenter, a mechanic and a mason whose regular 
duties did not appear to require them to have charge of any 
prisoners were not officers or instructors, within the meaning 
of this statute. He denned officers of a prison to mean 
"those persons who are employed to, and who as a regular 
part of their duties do, have charge either of all or a definite 
number of persons committed to the prison, jail or reforma- 
tory by legal process." This seems to, me to be an appro- 
priate definition of the term, and, in my opinion, it should 
be employed in determining who are officers in the prison 
service, within the meaning of the statute under consideration. 
It necessarily becomes a question of fact in each individual 
case, as to whether the particular employee, as a regular part 
of his duties, has charge of some or all of the prisoners. This 
question of fact must be decided, in the first instance at 
least, by the county treasurer, whose duty it is to pay the 
salaries established by this act. In my opinion, in performing 
the duties intrusted to you by law you ought not to question 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

a determination of this character once made by him, unless 
you are satisfied that it was plainly wrong. 

If an employee is appointed and carried on the pay roll as 
an officer, that fact may, prima facie, entitle him to the 
benefits of this statute, though it is not conclusive. Calling a 
clerk an officer, of course, cannot make him such. Nor does 
the fact that an employee may occasionally, as an incidental 
part of his work, have some supervision over a few of the 
prisoners who are assigned to work in his department make 
him an officer. It must be a regular and substantial part 
of his duty to have charge and control of prisoners in order 
to bring him within the definition of prison officers to which 
I have referred. Thus, the engineers, assistant engineers and 
stewards or cooks cannot, in my opinion, be regarded as officers 
merely because prisoners are from time to time assigned to work 
in their departments under their direction. Again, persons ap- 
pointed as, and in the main performing the duties of, clerks are 
not officers unless in addition they perform substantial duties 
of the character indicated in this definition of prison officers. 

The question whether matrons come within the terms of 
this statute is a matter of some difficulty. From the facts 
furnished me, apparently they perform with reference to the 
female prisoners much the same duties that are performed with 
regard to the male prisoners by some of the persons who are 
plainly prison officers. There appears, however, to be no 
provision in the statute expressly authorizing the appointment 
of matrons. They seem to be appointed under the general 
authority to appoint subordinate assistants and employees. 
So far as the matter has been called to my attention, the 
compensation paid them is substantially less than that paid 
to any of the male employees prior to the enactment of this 
statute. In no county where the matter has been called to 
my attention are they paid more than $600 a year. In the 
county of Barnstable the matron receives but $100 a year. 
I cannot believe that by the enactment of this statute, and 
without referring definitely to these positions, the General 
Court intended to increase these salaries to a minimum of 
$1,000, increasing to a minimum of $1,400 in case of more 
than five years' service. I feel that I must advise you that 
these matrons do not come within the provisions of chapter 
240. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



1919.1 PUBLIC DOCUMENT — No. 12. 63 



Retirement Association — Officer of Massachusetts Reformatory 
employed after June 7, 1911 — Contributions to Annuity 
Fund. 

A person employed in the Lyman School for Boys, who was transferred 
to the Massachusetts Reformatory as an officer subsequent to June 
7, 1911, does not become entitled to the non-contributory pension 
provided by St. 1908, c. 601, and must, therefore, continue to make 
payments as a member of the Retirement Association. 

July 15, 1918. 
Board of Retirement. 

Gentlemen: — You have requested my opinion as to 
whether a person employed in the Lyman School for Boys, 
who has now been transferred to the Massachusetts Reforma- 
tory as an officer or instructor in that institution, continues 
to be a member of the Retirement Association and is required 
to make the contributions to the annuity fund as such 
member. 

Apparently, no question is raised or could be raised but 
that this employee while in the service of the Lyman School 
for Boys properly became a member of the Retirement 
Association as an employee of the Commonwealth, within 
the scope of the retirement act (St. 1911, c. 532). This person 
still remains an employee of the Commonwealth after his 
transfer to the Massachusetts Reformatory, and undoubtedly 
must remain a member of the Retirement Association unless 
excluded therefrom by the provision of section 3 (3) of the 
retirement act, to the effect that "any employee who is or 
will be entitled to a pension from the commonwealth for any 
reason other than membership in the association" is not 
entitled to be a member of it. 

By St. 1908, c. 601, as amended by St. 1911, c. 673, pro- 
vision is made for non-contributory pensions upon retirement 
from active prison service of "any officer of the state prison, 
or of the Massachusetts reformatory, or of the state farm, or 
of the reformatory prison for women, or of any jail or house 
of correction, or any person employed to instruct the prisoners 
in anv prison or reformatory, as provided in section forty- 
four of chapter two hundred and twenty-five of the Revised 
Laws, who began employment as such officer or instructor on 
or before June seventh, nineteen hundred and eleven." It 
is further expressly declared: — 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

Provided, that no such officer or instructor shall be retired unless he 
began employment as such officer or instructor on or before June 
seventh, nineteen hundred and eleven. 

In my opinion, only persons who began their employment 
as such officers or instructors in the institutions named in this 
statute before June 7, 1911, are entitled to this non-contribu- 
tory pension. The person to whom your inquiry relates did 
not begin his employment as such officer or instructor until 
his recent transfer to the Massachusetts Reformatory from 
the Lyman School for Boys. It follows that he is not entitled 
to the non-contributory pension to which I have referred, and 
must, therefore, remain a member of the Retirement Associa- 
tion and pay the regular contributions to the annuity fund 
required of such members. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



State Guard — Militia — Advances from State Treasury for 
Camp Pay and Expenses. 

The State Guard is not a part of the organized militia of the Common- 
wealth, and the Auditor of the Commonwealth has no authority to 
advance $42,000 for camp pay and expenses of this organization, nor 
any other sum for this purpose beyond the amount of $150 at any 
one time, as authorized by St. 1914, c. 370, § 1. 

July 16, 1913. 

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

Sir: — You have requested my opinion as to whether the 
Auditor of the Commonwealth is authorized to comply with 
the request of the Adjutant-General and arrange for an 
advance from the treasury of the sum of $42,000 for camp 
pay and expenses of mileage of the State Guard in connection 
with the tour of camp duty prescribed by your order as 
Commander-in-Chief, dated June 25, 1918. 

The provision of law relied upon by the Adjutant-General 
in making this request is St. 1914, c. 370, § 2, a portion of 
which is as follows: — 

The acting paymaster general of the militia may have advanced to 
him from the treasury of the commonwealth one hundred per cent of 
the pay and mileage for duty performed at camp or annual drill, 
under such rules and regulations as the auditor may prescribe, and 
shall return the unexpended balance of the sum so advanced as soon 
as possible, or at such times as the auditor may require; . . . 



1919.] PUBLIC DOCUMENT — No. 12. 65 

This provision now appears in the codification of the laws 
relating to the militia, known as the Militia Law (Gen. St. 
1917, c. 327), as follows: — 

Section 175. The chief quartermaster may have advanced to 
him, from the treasury of the commonwealth, under such rules and 
regulations as the auditor may prescribe, one hundred per cent of the 
pay and mileage for duty performed at camp or annual drill, and shall 
return the unexpended balance of the sum so advanced as soon as 
possible, or at such times as the auditor may require. 

On November 15 last, in an opinion given to the Adjutant- 
General with reference to the status of the State Guard, 
after reviewing at some length the statutes relating to that 
organization, I advised him as follows: — 

Obviously the State Guard, not being organized in accordance with 
the Federal law (act of June 3, 1916) or in accordance 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 provision of the statutes above set forth dealing with 
the organization, equipment and maintenance of this force seems to 
me to make it clear that it was not intended to be a complete substi- 
tute 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 main- 
tained, and to have such terms of service as the Commander-in-Chief 
shall determine. "When called for service" it "shall perform such 
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 constables, police officers and watch- 
men, except the service of civil process." 

Both the provision from chapter 370 of the Acts of 1914 
and Gen. St. 1917, c. 327, known as the Militia Law, in my 
judgment, apply only to the organized militia. In the opinion 
to which I have referred I advised the Adjutant-General 
that the latter statute had no application to the State Guard. 
In my opinion, neither of the provisions relied upon authorizes 
the advance requested. No other provision of law has been 
called to my attention, and I know of none which authorizes 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

the suggested advance. Sums not exceeding SI 50 at any one 
time may be advanced to the Adjutant-General as well as 
to other departments, under St. 1914, c. 370, § 1, but, in 
my opinion, this is the extent to which advances may be made. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Civil Service — Certificate of Positive Merit — Six Months' 
Probationary Period — Promotions. 

The statutory provision (St. 1914, c. 605, § 6) for promotion of clerks and 
stenographers in the service of the Commonwealth upon a certificate 
of merit from the head of a department refers only to persons in the 
permanent service of the Commonwealth, and does not affect civil 
service rule 26, relating to persons in the six months' probationary 
period. 

The Civil Service Commission has no authority to review a certificate of 
positive merit filed by the head of a department in making a promotion 
to a higher grade, under said section 6. 

Civil Service Commission. 

Gentlemen: — You have requested my opinion as to cer- 
tain questions involving the interpretation of St. 1914, 605, 
§ 6, relating to the grading of clerks and stenographers in the 
service of the Commonwealth. That section is as follows: — 

Promotions shall not be made from a lower to a higher grade except 
for positive merit and upon a certificate signed by the head of the 
department and filed with the civil service commission that the person 
to be promoted is thoroughly competent to perform efficiently work 
of a superior and more advanced character and that the needs of the 
department justify such promotion, and no increase of salary shall 
be paid until such certificate is filed. 

In an opinion rendered by me to the Auditor of the Com- 
monwealth (IV Op. Atty.-Gen. 437) the following statement 
was made: — 

Section 6 by plain implication authorizes promotions from a lower 
grade to a higher one for positive merit and upon the filing of a certifi- 
cate of the nature described in the section. There is no limitation 
upon this right of promotion from one grade to another, and I therefore 
see no reason why a head of a department may not make such a promo- 
tion from any step in the lower grade to the higher grade. 

The reading of this opinion, as a whole, will show that 
the questions which I then had before me related only, so 



1919.1 



PUBLIC DOCUMENT — No. 12. 67 



far as persons under the Civil Service Law and Rules are 
concerned, to persons in the permanent service of the Com- 
monwealth. The effect of this statute, so far as it relates 
to the promotion of persons under the civil service rules 
during the six months' probationary period established by 
section 1 of rule 26, was in no way considered by me. In my 
opinion, this statute is not to be regarded as revoking rule 26. 
It is to be read in connection with that rule. It follows 
that, in my judgment, a clerk or stenographer under civil 
service rules cannot be promoted to a higher grade, under 
the provisions of section 6 of the statute of 1914 above referred 
to, during the six months' probationary period except in 
accordance with section 2 of civil service rule 26. 

In my opinion, section 6 of the statute of 1914 above 
referred to does not authorize your Board in any manner 
to review or examine into the certificate of positive merit 
filed by the head of a department as a condition of making 
a promotion to a higher grade under this section. The stat- 
ute, in my judgment, places the sole responsibility for deter- 
mining the existence of such positive merit as justifies a 
promotion upon the head of the department making the 

promotion. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Board of Parole — Release of Prisoner after Expiration of 
Minimum Term of Sentence — Authority of the Warden 
of the State Prison. 

The Board of Parole is authorized, under R. L., c. 225, § 115, to determine 
whether a prisoner has observed the rules of the prison during the 
minimum term of his sentence, and, if he has, to permit him to be at 
liberty for the remainder of the sentence, upon such reasonable terms 
and conditions as they may prescribe. The warden of the State 
Prison is not at liberty to release any prisoner under this section of 
the law except upon a permit granted by the Board of Parole, after 

an investigation. 

July 17, 1918. 
Board of Parole. 

Gentlemen: — You have requested my opinion as to 
certain questions which have arisen in connection with the 
enforcement of R. L., c. 225, § 115. That section is as fol- 
lows : — 

If the record of a prisoner who was sentenced to the state prison 
for a crime committed on or after the first day of January in the year 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

eighteen hundred and ninety-six shows that he has faithfully observed 
all the rules of the prison and has not been subjected to punishment, 
the commissioners shall, upon the expiration of his minimum term of 
sentence, issue to him a permit to be at liberty therefrom during the 
unexpired portion of the maximum term of his sentence, upon such 
terms and conditions as they shall prescribe. If the record shows 
that he has violated the rules of the prison, he may be given a like permit 
at such time after the expiration of the minimum term of his sentence 
as the commissioners shall determine. If the prisoner is held in the 
prison upon two or more sentences, he shall be entitled to receive 
such permit when he has served a term equal to the aggregate of the 
minimum terms of the several sentences, and he shall be subject to 
all the provisions of this section until the expiration of a term equal 
to the aggregate of the maximum terms of said sentences. 

The authority granted to the Prison Commissioners and 
the duties imposed upon them by this section have now been 
transferred to your Board. 

In my opinion, the section in question imposes upon your 
Board two duties. It first must determine whether the 
record of a prisoner who comes within its terms "shows that 
he has faithfully observed all the rules of the prison and has 
not been subjected to punishment." If this determination 
is made in favor of the prisoner, it becomes the duty of the 
Board to " issue to him a permit to be at liberty therefrom 
during the unexpired portion of the maximum term of his 
sentence, upon such terms and conditions as they shall pre- 
scribe. " This plainly imposes a second duty upon your 
Board of determining what shall be the terms and conditions 
under which the permit to be at liberty is to be issued. It 
seems to be within the discretion of your Board to impose 
any reasonable terms and conditions upon such a permit 
w T hich are not inconsistent with any other provisions of this 
section or of the statutes in general. In my judgment, there- 
fore, under the terms of this section the warden of the State 
Prison is not authorized to release any prisoner except upon 
a permit to be at liberty duly granted by your Board, after 
an investigation of the matter by you. If the terms and 
conditions imposed by your Board in connection w T ith the 
issuance of such a permit require the assent or acceptance 
of the prisoner, the permit cannot be issued or the prisoner 
released until he has indicated his assent or acceptance. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



1919.1 PUBLIC DOCUMENT — No. 12. 69 



War Service — Useful Occupation Act — Registration — Duty 
of Director of the Bureau of Statistics. 

The act requiring work in a useful occupation during the war (Gen. St. 
1918, c. 286) applies only to the persons specified in it, and others who 
have registered in error are under no obligation to make weekly reports 
under section 4. Persons affected by it are not thereby required to 
engage in some useful occupation during their vacation season. 

July 22, 1918. 
Mr. Charles F. Gettemy, Director, Bureau of Statistics. 

Dear Sir: — I acknowledge your communication in rela- 
tion to Gen. St. 1918, c. 2S6. The act provides: — 

It shall be the duty of every male resident of the commonwealth, 
who is able to work and who is between the ages of eighteen and fifty 
years, to engage in and to pursue some regular, useful occupation for 
at least thirty-six hours per week, and to comply with the provisions 
of this act relative to registration. 

It further provides that any such person who fails so to be 
employed or who fails to comply with the provisions of the 
act shall be punished by a fine or imprisonment. 

The act has no application to persons not between the 
ages of eighteen and fifty years, nor to persons who are unable 
to work. It follows that where persons have registered in 
error they are under no obligation to continue to report 
weekly under the provisions of section 4 of the act, nor is a 
person who has registered but w T ho later becomes unable to 
work required to register while his disability continues. 

Section 11 provides that the act shall not apply to persons 
temporarily unemployed by reason of difficulties with their 
employers, nor to bona fide students during a school or college 
term, nor to persons fitting themselves to engage in trade or 
industrial pursuits, if any such person is able to produce 
from his union, strike committee, proper school or college 
authority, or other authority designated by the Director of 
the Bureau of Statistics, a satisfactory statement in writing 
setting forth the reason for his non-employment. 

It would seem to follow from the provisions of this act 
that students are required to register between terms of schools 
and colleges. I do not think, however, that school teachers 
who are engaged by the year are required to register between 
terms, as such an interpretation would require all male persons 
between the ages of eighteen and fifty to register during their 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

vacation period. It seems unlikely that the Legislature 
intended to require all male persons between the ages of 
eighteen and fifty to engage in some useful occupation during 
their vacation period. 

Confirming my conversation with you in relation to your 
duty under the act, I beg to say that the act apparently does 
not place upon you the responsibility of its enforcement. It is 
your duty to provide, in so far as you are able, employment 
for persons who register. Of course, it is your duty, if you 
have knowledge of any person who is violating the provisions 
of the act, to bring it to the attention of the proper authori- 
ties, in order that they may prosecute such person. No 
duty is imposed upon you to make classifications, nor would 
any classification made by you as to what are useful occu- 
pations and what are not be of any binding effect. Where a 
person is in doubt as to whether or not the occupation in 
which he is engaged is a useful one, it would seem wise for 
such person to register under the act. 

You call my attention to an instance of very great hardship 

of a partially paralyzed man in impoverished circumstances, 

who, in order to register weekly, will be obliged to hire a 

conveyance and travel a considerable distance. Unless he is 

unable to work, the law apparently gives no relief, as the^ 

provisions of section 4 require that he shall report in person. 

I doubt very much, however, if a man in his physical condition 

would be held to be a man able to work, within the provisions 

of the act. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



County Officers and Employees — Increase in Compensation — 
Basis on which Percentage is to be determined — Who are 
entitled to receive it. 

Gen. St. 1918, c. 260, providing a temporary increase of 10 per cent in 
salaries not previously increased and not exceeding $2,500, applies 
to all persons in the public service whose salaries are paid from the 
treasuries of the several counties, although they may not be strictly 
county officers or employees. 

Gen. St. 1918, c. 211, establishing the salaries of clerks of police, district 
and municipal courts at three-quarters of the salary received by the 
justice of such court, to take effect as of June 1, 1917, effected an 
increase in pay only in the cases where the previous act (Gen. St. 
1917, c. 340) had not already been adopted by the county commis- 



1919.] PUBLIC DOCUMENT — No. 12. 71 

The increase provided by the statute is to be computed upon the amount 
which the officer or employee was receiving on July 1, 1917, but is 
to be added to the salary actually established on July 1, 1918. 
The county commissioners have power to correct certain discrimina- 
tions. 

July 26, 1918. 

Mr. Frank L. Dean, Controller of County Accounts. 

Dear Sir: — You have requested my opinion with regard 
to certain questions which have arisen as to the general scope 
and effect of Gen. St. 1918, c. 260, entitled "An Act to author- 
ize a temporary increase in the compensation of certain 
employees of the counties of the Commonwealth." Section 
1 of that act is as follows : — 

From and after the first day of July in the current year, all persons 
who are regularly in the employ of the several counties of the common- 
wealth whose annual compensation in full for all services rendered 
does not exceed twenty-five hundred dollars and whose salaries have 
not been increased by act of the general court passed during the current 
year, shall, until further action of the general court relative to the 
standardization of the salaries of judicial and county officers and 
employees, receive additional temporary compensation equal to ten 
per cent of the salaries received by them on the first day of July in the 
year nineteen hundred and seventeen. 

This applies to " all persons who are regularly in the employ 
of the several counties of the Commonwealth" whose annual 
compensation does not exceed the sum specified. The chief 
difficulty in applying this statute is to determine the meaning 
of this language. It is not apt language to designate public 
officers. Furthermore, in a strict sense of the term, few, if 
any, persons can be said to be "regularly in the employ of 
the several counties" in their corporate capacities. They are 
either public officers elected by the people of the counties, or 
public employees appointed by the county commissioners or 
other so-called county officials. It becomes necessary to 
examine with some detail the history of this act and of various 
other statutes that were enacted in connection with it. 

In 1916 the Executive Council, at the request of the General 
Court, undertook an investigation and standardization of 
"salaries and compensations paid by the commonwealth and 
by the several counties, so far as they are established by the 
commonwealth." The report of the special committee of the 
Council upon this matter was submitted to the General 
Court this year as House Document No. 1175. Part I of 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

this document was devoted to departmental and institutional 
officials and employees, and dealt strictly with officials and 
employees of the Commonwealth. Part II was devoted to 
judicial and county officials and employees. It considered 
chiefly the matter of compensation of judicial officers and 
various other public officers usually referred to as county 
officials. It paid little or no attention to minor employees. 

This report was referred to the committee on public service. 
That committee, on March 21, submitted a report (Senate, 
No. 316) recommending the enactment of a statute based 
upon part I of the report of the Executive Council. It also 
suggested that there was need of further investigation as to 
the salaries of judicial and county officers, and recommended 
that "the subject of salaries and compensation paid to judicial 
and county officials and employees and to all other officers 
and employees of the commonwealth other than those included 
in" the bill based upon part I of the committee's report be 
referred to a special recess committee. The bill reported by 
the committee was subsequently enacted, with some changes, 
as chapter 228 of the General Acts of 1918. The matter of 
the order for a recess committee was recommitted to the 
committee on public service. 

On May 21 the committee on public service submitted a 
further report (Senate, No. 395), stating in substance that 
after further investigation they had become convinced that 
thorough analysis and standardization of county and State 
offices and positions not covered by the bill already reported 
was essential. They say: "Furthermore, we have not gone 
sufficiently deep into the matter of compensation of county 
employees other than those elective and appointive officers 
specified in House, No. 1175. Investigation should be made 
of salaries of janitors, draw-tenders and other minor officials 
and employees." The committee recommended five separate 
bills dealing with the salaries of specific officials. They re- 
peated their recommendation for a recess committee to con- 
sider the salaries "paid to judicial and county officials and 
employees, and to all other officers and employees of the 
commonwealth or the counties thereof, elected or appointed, 
other than those included in" the bill recommended in their 
first report. They also reported "a temporary bill which 
makes an attempt in the meantime to offset the increase in 
the cost of living. " 



1919.] PUBLIC DOCUMENT — No. 12. 73 

The five separate bills referred to subsequently became 
chapters 261, 203, 272, 284 and 287 of the General Acts of 
1918, dealing with the salaries, respectively, of county commis- 
sioners, county treasurers, district attorneys, judges and 
registers of probate courts and clerks of court. The order for 
an investigation recommended by the committee was subse- 
quently amended so as to impose the duty of investigation 
upon the Supervisor of Administration, and was enacted as 
chapter 86 of the Resolves of 1918. This resolve applies to 
"the judicial and all other officials and employees, appointive 
or elective, of the commonwealth, except in the department 
of legislation, and the several counties thereof, other than 
those included in senate document number three hundred and 
seventy of the present year. " Senate Document No. 370 *is 
the proposed bill, which was subsequently enacted as Gen. 
St. 1918, c. 228, above referred to. 

The temporary bill recommended by the committee was 
the original bill which formed the basis of the statute now 
under consideration. As first recommended, however, it 
applied to "all persons who are regularly in the employ of 
the commonwealth or of the counties thereof, as hereinafter 
specified." The persons specified were judges, registers and 
assistant registers of probate, assistant recorders of the Land 
Court, registers and assistant registers of deeds, sheriffs, 
medical examiners and justices, clerks and assistant clerks of 
district courts. The salaries of these officials, except those of 
the judges, registers and assistant registers of probate, are 
paid from the treasuries of the several counties. This bill 
was subsequently redrafted by the ways and means com- 
mittee of the Senate so as to apply to "all persons who are 
regularly in the employ of the commonwealth or of the coun- 
ties thereof" whose compensation did not exceed $2,500, 
without restriction. Still later, various changes in form were 
made, and the bill was again redrafted so as to apply to "all 
persons who are regularly in the employ of the several counties 
of the commonwealth" whose compensation did not exceed 
the specified sum, any reference to persons in the employ of 
the Commonwealth being eliminated. At the same time a 
second section was added establishing the salary of the justice 
of the District Court of Dukes County, and a third section 
dealing with the compensation of assistant recorders of the 
Land Court. In this form the bill was finally enacted. This 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

temporary bill, the resolve for an investigation by the Super- 
visor of Administration and four of the five special bills were 
all approved on May 31. Chapter 287 was approved on 
June 1. 

From the history and language of the act under considera- 
tion and from the provisions of the other related legislation, 
particularly resolve S6, I am led to the conclusion that it 
was the intention of the General Court, by the use in this 
statute of the words "all persons who are regularly in the 
employ of the several counties of the commonwealth," to 
designate as entitled to the proposed 10 per cent increase all 
persons in the public service whose salaries are paid from the 
treasuries of the several counties. The specific reference in 
the bill first drawn to justices, clerks and assistant clerks of 
district courts, who are not strictly county officers but who 
are paid by the counties, and the addition at its final stage 
of section 2, establishing the salary of the justice of the 
District Court of Dukes County, who is thus treated as an 
employee of a county within the scope of the statute as defined 
by its title, point to this conclusion. These suggestions, 
when considered together with the provision that the increase 
granted is to continue "until further action of the general 
court relative to the standardization of the salaries of judicial 
and county officers and employees," which it is contemplated 
will result from the investigation authorized by resolve 86, 
and the statement in the report of the committee on public 
service that this temporary increase is granted "to offset the 
increased cost of living," pending the investigation, all seem 
to indicate that there was no intention to confine the benefits 
of this temporary bill to persons who are strictly county 
officers or employees. The language used is unfortunate 
and gives rise to disturbing doubts, but on the whole I am 
of opinion that the statute must be construed as granting 
increase of salary to all persons otherwise within its terms 
who are by authority of law paid their salaries from the 
treasuries of the several counties of the Commonwealth. 

This statute is limited by its terms to persons otherwise 
within it "whose salaries have not been increased by act of 
the general court passed during the current year." Gen. St. 
1918, c. 211, established the salaries of clerks of police, dis- 
trict and municipal courts at three-quarters of the salary 
received by the justice of their respective courts. This statute 



1919.1 



PUBLIC DOCUMENT — No. 12. 75 



was made effective as of June 1, 1917. Gen. St. 1917, 
c. 340, established the salaries of these officials on the same 
basis, 'except that it provided that that act was to become 
effective upon acceptance by the respective county commis- 
sioners. I am informed that this 1917 statute was accepted 
by most if not all the county commissioners at varying times 
before the enactment of Gen. St. 1918, c. 211. It follows 
that, to the extent that the 1917 statute had been thus ac^ 
cepted by the county commissioners, the 1918 statute did not 
grant an increase in salary but merely provided back pay 
from June 1, 1917, to the date of such acceptance. In such 
cases it is not, in my judgment, to be regarded as an increase 
in salaries by the General Court during 1918, within the 
meaning of chapter 260, under discussion. If in any case the 
1917 statute was not accepted by the county commissioners 
before the enactment of Gen. St. 1918, c. 211, in such cases 
the latter statute did actually increase existing salaries, and 
thus in such cases no increase can be allowed under chapter 

260. 

In my opinion, in no case are clerks of district courts 
entitled to three-quarters of the 10 per cent increase granted 
by this statute to the judges of the district courts. They are 
entitled to an increase of 10 per cent of their salaries as 
established on July 1, 1917, but to no further increase. 

As the 10 per cent increase granted by this statute is based 
upon "the salaries received by them on the first day of July 
in the year nineteen hundred and seventeen," it, in my 
opinion, applies only to persons who were in the service of 
the county, as herein denned, on that date, and who have been 
regularly in its service since that time. It does not apply to 
persons appointed or employed after July 1, 1917. 

The increase provided for by this statute, being based upon 
the salary received on July 1, 1917, is to be computed upon 
the amount which the officer or employee was entitled to 
receive at that time, and in no other manner. The increase 
is to be added to the salary which the officer or employee 
would have received but for the enactment of this statute. 
If his salary was readjusted in January, 1918, on the basis 
of the business of his office in 1917, as in the case of registers 
and assistant registers of deeds, the increase must be added, 
by the terms of the statute, to the readjusted salary of 1918. 
If, in the case of salaries not fixed by act of the Legislature, 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

county commissioners or other persons in authority have 
granted increases subsequent to July 1, 1917, and prior to the 
enactment of this statute, its language seems to require the 
addition of the increase granted to such increased salaries. 
In other words, the increase is to be added to the salary 
actually' established on July 1, 1918. It is to be noted, how- 
ever, that if this last-mentioned result works a discrimination 
in any cases, it is well within the power of the county com- 
missioners or other constituted authority to withdraw increases 
granted during the year, in order that certain employees may 
not have the benefit of two increases within a year if such a 
result is not, in their opinion, justified. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Civil Service — Fire Department — Height required for Firemen. 

St. 1896, c. 424, does not restrict the power of the Civil Service Commission 
to certify persons for appointment as firemen to those who are 5 feet 
5 inches in height or over, but prevents them from requiring any 
greater height. 

Civil Service Commission. ' 

Gentlemen: — You request my opinion as to whether 
the provisions of St. 1896, c. 424, are now in force. The 
provisions of that chapter are now incorporated in R. L., 
c. 19, § 11, which is as follows: — 

Persons five feet five inches in height or over, if otherwise qualified, 
shall be eligible to appointment in the fire department of the city of 
Boston. 

These provisions were not affected by subsequent legislation 
included in St. 1904, c. 194, and St. 1911, c. 352. 

Your remaining question is whether, by reason of the pro- 
visions of R. L., c. 19, §11, your Commission is restricted to 
certifying persons who are 5 feet 5 inches in height or over. 
This construction could arise only by implication. The pro- 
visions of the statute as originally passed (St. 1S96, c. 424) 
seem to rebut this conclusion. Said chapter 424 reads as 
follows: — 

Persons five feet five inches in height, and over, shall be eligible 
to appointment on the fire force of the city of Boston, if otherwise quali- 
fied; and no rules shall be made by the civil service commissioners 
in conflict with the provisions of this section. 



1919.] PUBLIC DOCUMENT — No. 12. 77 

Prior to the passage of said chapter 424 the minimum height 
of applicants for fire service in Boston was fixed by the civil 
service rules. Obviously, this rule was the cause of the passage 
of said chapter 424 of the Acts of 1896. As there is no rule at 
the present time fixing the height of applicants to the fire 
service of the city of Boston, I am of the opinion that you are 
warranted in certifying applicants irrespective of height. 
Very truly } T ours, 

Henry C. Attwill, Attorney-General. 



District Attorneys — Power over Cases in Inferior Courts. 

The power of a district attorney over a criminal case arising within his 
district is as complete before it reaches the Superior Court as after, 
and the statutory requirement (R. L., c. 7, § 17) as to certain appear- 
ances in the Superior Court does not in any way lessen his power to 
appear in the inferior courts. 

July 29, 1918. 

Hon. Joseph T. Kenney, District Attorney for the Southern District. 

Dear Sir: — You have requested my opinion as to your 
power in relation to criminal cases which have not yet reached 
the Superior Court either by way of appeal, by indictment or 
by the defendant's being held to await the action of the grand 
jury. 

I am of the opinion that your power over criminal cases 
arising within your district is as complete before they reach the 
Superior Court as after reaching that court. 

On May 15, 1917, I had occasion to advise the House of 
Representatives as to the powers of the Attorney-General and 
the district attorneys. I then stated in relation to the powers 
of the Attorney-General that — 

The powers of the Attorney-General are not defined by the provi- 
sions of the Constitution. He is the general law officer of the Common- 
wealth, and usually it has been assumed that, where there is no 
provision of statute to the contrary, he may represent the Common- 
wealth in all proceedings of every nature in which the Commonwealth 
is a party or interested. 

It was said in Common wealth v. Tuck, 20 Pick. 364, that — 

The authority of the Attorney-General when present, to conduct 
and manage all criminal prosecutions, is unquestionable. It is his 
exclusive duty to do so; and although he may seek assistance from 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

his brethren of the bar, yet a private prosecutor has no right to employ 
counsel to aid him. The law, in the district attorneys, has provided 
the proper assistance. 

Within their respective districts I am of the opinion that the 
power of the district attorneys in the administration of the 
criminal law is as complete as that of the Attorney-General, 
unless the Attorney-General sees fit to supersede them or to 
assume the direction of the investigation and trial of criminal 
cases. 

In my judgment, the purpose of R. L., c. 7, § 17, was not 
to restrict the power of the district attorneys to appearing in 
the Superior Court, but was for the purpose of making it 
mandatory upon the district attorneys to appear for the 
Commonwealth in all cases, criminal or civil, in which the 
Commonwealth was a party, leaving it to their discretion as 
to how far they should appear in cases in which the Common- 
wealth was a party in the inferior courts. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Public Defence — Right of Governor and Council to erect and 
remove Temporary Office Building on State Property. 

The Governor and Council have authority to erect a temporary building 
on the State House grounds for use as office room for the Committee 
on Public Safety and the Food and Fuel Administration. 

In the absence of legislative direction, the Governor and Council have 
authority to request that such a building be taken down at least six 
months after the close of the war. 

Under the provisions of Gen. St. 1917, c. 342, relating to the public safety 
or defence, and Mass. Const., pt. 2d, c. II, § I, art. VII, the Governor 
may use any property of the Commonwealth for the defence of the 
Commonwealth, and, with the approval of the Council, may take 
possession of private property in case of such necessity. In the absence 
of direction by the Legislature, the power of the Governor in this re- 
spect is full and complete. 
1 ^ July 30, 1918. 

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

Sir: — You request my opinion as to whether the Governor 
or the Governor and Council have authority to erect a tempo- 
rary wooden building on the State House grounds adjacent to 
the west wing of the State House, for use as office room for the 
Committee on Public Safety and the Food and Fuel Adminis- 
tration; and also if the Governor or the Governor and Council 



1919.] PUBLIC DOCUMENT — No. 12. 79 

have authority to request that the building be taken down at 
least within six months after the close of the war. 
Gen. St. 1917, c. 342, § 6, provides that — 

Whenever the governor shall believe it necessary or expedient for 
the purpose of better securing the public safety or the defence or welfare 
of the commonwealth, he may with the approval of the council take 
possession: (a) of any land or buildings, machinery or equipment. . . . 

It further provides: — 

He may use and employ all property so taken possession of for the 
service of the commonwealth or of the United States, for such times 
and in such manner as he shall deem for the interests of the common- 
wealth or its inhabitants. 

Section 11 of the same act provides: — 

The governor shall have full power and authority to co-operate 
with the federal authorities and with the governors of other states 
in matters pertaining to the common defence, and with the military 
and naval forces of the United States and of the other states. 

In a communication to you bearing date Nov. 9, 1917, I 
expressed some doubt as to whether the provisions of this act 
as to the taking possession of property included property of the 
Commonwealth, or at least property devoted by the Common- 
wealth to a specific purpose. I then called to your attention 
that, under the provisions of article VII of section I of chapter 
II of part the second of the Constitution, the Governor was 
authorized, "for the special defence and safety of the common- 
wealth, to assemble in martial array, and put in warlike 
posture, the inhabitants thereof, and to lead and conduct them, 
and with them to encounter, repel, resist, expel, and pursue, 
by force of arms, as well by sea as by land, within or without 
the limits of this commonwealth, and also to kill, slay, and 
destroy, if necessary, and conquer, by all fitting ways, enter- 
prises, and means whatsoever, all and every such person and 
persons as shall, at any time hereafter, in a hostile manner, 
attempt or enterprise the destruction, invasion, detriment, or 
annoyance of this commonwealth." 

It is my view that the provisions of Gen. St. 1917, c. 342, 
were passed to supplement this power given by the Constitu- 
tion, providing means by which the Governor, with the advice 
and consent of the Council, could take possession, for the 
purpose of the defence of the Commonwealth, of private 
property. 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

Accordingly, in my judgment, if the Governor is of the 
opinion that it is necessary to use property of the Common- 
wealth for the purpose of repelling or resisting hostile attempts 
or enterprises for the destruction, invasion, detriment or annoy- 
ance of the Commonwealth by those now at war with this 
country, or to conquer them, he is authorized to take posses- 
sion of and use such property; and he may, with the approval 
of the Council, under the provisions of said chapter 342, take 
possession of private property in case of such necessity. The 
authority given the Governor under the provisions of said 
article VII is to be exercised, as therein stated, "agreeably to 
the rules and regulations of the constitution, and the laws of 
the land, and not otherwise." I do not think this provision 
of the Constitution is to be construed as requiring an act of 
the Legislature before the authority can be exercised, but is 
to be construed as giving the Legislature power to regulate and 
control the exercise of it. ^Yhere no such regulation or control 
is exercised, the power of the Governor is full and complete. 

It follows, in my judgment, that unless there is some statute 
prohibiting the taking possession of land or property of the 
Commonwealth which the Governor may determine to be 
necessary for the proper defence of the Commonwealth, he is 
authorized to take possession of such land or property. I have 
examined the statutes and I find no provision prohibiting the 
exercise of this power in relation to the State House grounds. 
The only provision relating to the subject is contained in 
R. L., c. 10, § 20, which provides: — 

The land now taken by the commonwealth about the state house 
shall remain an open space, and no railroad or railway shall be con- 
structed or operated in, upon or over the same. 

This statute was passed in 1894, and relates to land other 
than that referred to in your communication. The land 
referred to in your communication was taken under authority 
of Gen. St. 1915, c. 256, and Gen. St. 1916, c. 250. 

If, therefore, you deem the necessity exists, you may take 
possession of the land, and if the Council approves you may 
expend out of the appropriation made available by Gen. St. 
1918, c. 278, such sum as may be necessary for the building. 

As to your second question, I think that the Governor and 
Council can require the building to be taken down within six 
months after the war, as the only authority for its construe- 



1919.] PUBLIC DOCUMENT — No. 12. 81 

tion and maintenance would be the necessity arising out of 
the war. The necessity having been removed, its maintenance 
would no longer be authorized. Of course, if the Legislature 
should, after the erection of the building, authorize or require 
its use for specific purposes, the Governor and Council would 
not have authority to remove it. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Teachers' Retirement Act — Pensioner who becomes Member of 
the General Court. 

A teacher, other than one excepted by St. 1913, c. 657, § 1, as amended, 
could not, after Feb. 1, 1919, while receiving a pension under the 
teachers' retirement act, be paid for services rendered as a member 
of the General Court. 

Aug. 1, 1918. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You request my opinion as to whether a 
teacher pensioned under the terms of the teachers' retirement 
act would forfeit his pension if he served as a member of the 
General Court. 

So far as I am aware, there is no provision of law in force at 
the present time applicable to such a case. St. 1913, c. 657, 
§ 1, as amended by Gen. St. 1916, c. 88, applies only to per- 
sons who receive pensions or annuities from cities, towns or 
counties. However, by Gen. St. 1918, c. 257, § 135, the fore- 
going section was amended so as to read as follows: — 

No person while receiving a pension or an annuity from the common- 
wealth, or from any county, city or town, except teachers who on 
March thirty-first, nineteen hundred and sixteen, were receiving annu- 
ities not exceeding one hundred and eighty dollars per annum, shall, 
after the date of the first payment of such annuity or pension, be paid 
for any service, except jury service, rendered to the commonwealth, 
county, city or town, from whose treasury said pension or annuity 
is payable. 

This amendment becomes effective on Feb. 1, 1919. 

It would seem that after that date a teacher pensioned 
under the terms of the teachers' retirement act, other than one 
excepted from the operation of this provision by its terms, 
could not be paid for services rendered to the Commonwealth 
as a member of the General Court while receiving a pension. 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

It will be noted, however, that the statute quoted in no way 
forfeits or affects any pension or annuity. Its sole operation 
is to forbid payment for services rendered in certain cases to 
persons who are receiving a pension. Thus, to answer your 
specific question, a teacher pensioned under the terms of the 
teachers' retirement act would not forfeit his pension if he 
should serve as a member of the General Court. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Public Service Commission — Jurisdiction of Appeal by a Street 
Railway Company from City Regulations, in Certain 
Cases. 

The Public Service Commission has no jurisdiction of an appeal by a street 
railway company from the rules and regulations of a city relating 
to the licensing of public vehicles, when the city has not accepted the 
provisions of Gen. St. 1916, c. 293, and the vehicles in question are not 
owned or operated by a street railway company. 

Aug. 10, 1918. 

Public Service Commission. 

Gentlemen: — You have called my attention to the follow- 
ing situation: — 

The city of New Bedford has not accepted Gen. St. 1916, 
c. 293, entitled "An Act to authorize the licensing by cities 
and towns of motor vehicles carrying passengers for hire. " 
That city, however, has adopted certain ordinances relating to 
the licensing of public vehicles. The Union Street Railway 
Company operates a street railway in the city of New Bedford, 
and has not applied for or been granted the right to acquire, 
own and operate, for the transportation of passengers or 
freight, motor vehicles not running upon rails or tracks, which 
right might be granted to it by your Commission under the 
provisions of Gen. St. 1918, c. 226. The street railway company, 
however, has appealed to your Board from the orders, rules and 
regulations of the city of New Bedford which are in force. 

You have requested my opinion as to whether your Commis- 
sion has jurisdiction in the premises. 

This jurisdiction, if it exists, is by virtue of the last-men- 
tioned statute. This act is entitled, "An Act to permit street 
railway companies to use motor vehicles not running on rails 
or tracks, and to make operators of such vehicles common 



1919.] PUBLIC DOCUMENT — No. 12. 83 

carriers subject to the supervision of the Public Service Com- 
mission." 

Section 1 of the statute authorizes a street railway company, 
with the approval of your Commission, to acquire, own and 
operate such vehicles for the purposes mentioned. 

Section 2 declares operators of such vehicles "for the car- 
riage of passengers for hire in such a manner as to afford a 
means of transportation similar to that afforded by a street 
railway ..." to be common carriers, and subject to orders, 
rules and regulations prescribed by the licensing authorities 
"of any city or town which has accepted the provisions of 
chapter two hundred and ninety-three of the General Acts of 
nineteen hundred and sixteen. Any petitioner, or any street 
railway company aggrieved by such orders, rules or regula- 
tions, may appeal to the public service commission." 

Section 3 is as follows: — 

In cities or towns that have not accepted the provisions of said chap- 
ter two hundred and ninety-three wherein a street railway exists, and 
wherein a line of motor vehicles has been established under the pro- 
visions of section one of this act, the public service commission shall 
have original jurisdiction over persons, firms or corporations mentioned 
in section two, and may prescribe rules and regulations until the city 
or town accepts the provisions of said chapter two hundred and ninety- 
three whereupon original jurisdiction shall rest in the city or town, 
subject to appeal to the public service commission as provided in 
section two. 

It is apparent from the language of section 2 quoted above 
that the appeal therein provided for is from orders, rules and 
regulations prescribed or adopted by the licensing authorities 
of cities or towns which have accepted Gen. St. 1916, c. 293, 
and does not extend to rules, ordinances, etc., adopted in a 
city or town which has not accepted said act. 

In the latter class, in which it appears from your statement 
the city of New Bedford falls, the only authority of your 
Commission with reference to rules and regulations relating to 
such vehicles so employed arises under the provisions of sec- 
tion 3, and is limited, as expressly stated therein, to such 
cities or towns "wherein a street railway exists, and wherein 
a line of motor vehicles has been established under the provi- 
sions of section one." 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

Military Service — Absent Voters — Registration before 
September 1. 

An application for registration by a person in the military or naval service 
of the United States to permit his voting in a State election under 
Gen. St. 1918, c. 293, must be actually received by the Secretary of 
the Commonwealth, or in his office, not later than September 1. 

Aug. 14, 1918. 
To His Excellency the Governor, and the Honorable Council. 

Gentlemen: — You have requested my opinion as to 
whether persons in the military or naval service of the United 
States may lawfully be permitted to vote at the next election 
if their applications for registration under the provisions of 
Gen. St. 1918, c. 293, are filed with the Secretary of the 
Commonwealth later than September 1 of the current year. 

Section 3 of that act provides, in part: — 

Any person in the military or naval service of the United States 
who is a qualified voter in any city or town of this commonwealth 
may apply, in writing, to the secretary of the commonwealth for regis- 
tration as an absent voter not later than September first in the year 
preceding the election. 

It w^ould seem that the insertion of the date mentioned in 
this sentence could have been intended only for the purpose 
of fixing a time limit before which applications for registration 
must be made, in order to insure ample time for completing 
the lists of qualified absent voters before the election day. 
Any other interpretation would result in rendering the last 
eleven words of the sentence of no practical effect. The mere 
filling out of an application, without presenting the same to 
the Secretary of the Commomvealth, would not constitute 
applying "to the secretary of the commonwealth," and any 
interpretation which held that to be the only act required to 
be done before September 1 w r ould also result in nullifying 
any purpose which the insertion of the time limit could have 
been intended to fulfil. 

I am of the opinion that in order to entitle the applicant 

to vote in the coming election, applications for registration 

must be received by the Secretary of the Commonwealth, 

or in his office, not later than September 1 of the current year. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919; 



PUBLIC DOCUMENT — No. 12. 85 



Eight-hour Law for State Employees — Extra Work — 
Emergency. 

The employment of an engineer and janitor at a State normal school in 
doing cleaning work, in addition to the regular employment, is a 
violation of the eight-hour law, unless the dirt to be removed is of 
such a character as to endanger public health or public safety. 

Sept. 9, 1918. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion as to whether 
the employment of an engineer and janitor at a State normal 
school in doing cleaning work, in addition to the regular 
employment, is in violation of the eight-hour law. 

The provisions of law which apply are found in St. 1911, 
c. 494, as amended, sections 1 and 4 of which are as follows: — 

Section 1. The service of all laborers, workmen and mechanics, 
now or hereafter employed by the commonwealth or by any county 
therein or by any city or town which has accepted the provisions of 
section twenty of chapter one hundred and six of the Revised Laws, 
or of section forty-two of chapter five hundred and fourteen of the 
acts of the year nineteen hundred and nine, or by any contractor or 
sub-contractor for or upon any public works of the commonwealth 
or of any county therein or of any such city or town, is hereby restricted 
to eight hours in any one calendar day, and to forty-eight hours in any 
1 one week, and it shall be unlawful for any officer of the commonwealth 
or of any county therein, or of any such city or town, or for any such 
contractor or sub-contractor or other person whose duty it shall be 
to employ, direct or control the service of such laborers, workmen or 
mechanics to require or permit any such laborer, workman or mechanic 
to work more than eight hours in any one calendar day, or more than 
forty-eight hours in any one week, except in cases of extraordinary 
emergency. Danger to property, life, public safety or public health 
only shall be considered cases of extraordinary emergency within the 
meaning of this section. In cases where a Saturday half holiday is 
given the hours of labor upon the other working days of the week may 
be increased sufficiently to make a total of forty-eight hours for the 
week's work. Threat of loss of employment or to obstruct or prevent 
the obtaining of employment or to refrain from employing in the future, 
shall each be considered to be "requiring" within the meaning of this 
section. Engineers shall be regarded as mechanics within the meaning 
of this act. 

Section 4. This act shall not apply to the preparation, printing, 
shipment and delivery of ballots to be used at a caucus, primary, state, 
city or town election, nor during the sessions of the general court to 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

persons employed in legislative printing or binding; nor shall it apply 
at any time to persons employed in any state, county or municipal 
institution, on a farm, or in the care of the grounds, in the stable, in 
the domestic or kitchen and dining room service or in store rooms or 
offices, nor to persons employed by the trustees of the Massachusetts 
nautical school, on boats maintained by the district police for the 
enforcement of certain laws in the waters of the commonwealth, or in 
connection with the care and maintenance of state armories. 

Apparently, this employment does not come within any of 
the exceptions found in the statute, unless within the one "in 
cases of extraordinary emergency. Danger to property, life, 
public safety or public health only shall be considered cases 
of extraordinary emergency within the meaning of this sec- 
tion." 

The work of cleaning up the buildings to which extensive 
repairs have been made could hardly be said, in my opinion, 
to come within this definition, unless the dirt to be removed 
was of such a character as to endanger public health or, 
because of its highly inflammable nature, to endanger public 
safety. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Fraternal Benefit Societies — Reserve Requirement — Financial 
Condition — Surrender Values and Withdrawal Equities. 

A fraternal benefit society whose rates are based upon a table of mortality 
lower than the American Experience Table is not authorized to 
grant paid-up protection or cash surrender values, even though at 
a particular moment its reserve may equal that required by the Amer- 
ican Experience Table. 

The requirement of 'St. 1911, c. 628, as to accumulating and maintaining 
a reserve by a fraternal benefit society, refers to the general financial 
strength and permanent system of the organization, and not to a 
financial condition which may be temporary. 

Sept. 9, 1918. 

Hon. Frank H. Hardison, Insurance Commissioner. 

Dear Sir: — You have requested my opinion as to w T hether 
a fraternal benefit society whose rates are based upon a table 
of mortality lower than the American Experience Table and 
4 per cent interest may grant to its members extended or 
paid-up protection or cash surrender values if, as a matter of 
fact, on the date of its annual report the reserve thereby shown 



1919.] PUBLIC DOCUMENT — No. 12. 87 

equals that required by the American Experience Table of 
Mortality. 

St. 1911, c. 628, § 5, subsection 2, as amended by Gen. St. 
1917, c. 108, provides: — 

Any society which shall show by the annual valuation hereinafter 
provided for that it is accumulating and maintaining the full reserve 
required by a table of mortality not lower than the American Experience 
Table and four per cent interest, may grant to its members such 
extended or paid-up protection or such withdrawal equities as its con- 
stitution and laws may provide: provided, that such grants shall be 
equitable, and shall in no case exceed in value the portion of the reserve 
derived from the payments of the individual members to whom they 
are made. 

The annual valuation referred to is dealt with in section 22. 
This section, briefly stated, requires an annual statement, 
under oath, of the financial condition of the society and its 
transactions for the year. Subdivision b thereof provides: — 

In addition to the annual report herein required, every society on 
the lodge system and authorized to pay benefits in this commonwealth 
upon the death of its members, . . . shall annually report to the 
insurance commissioner a valuation of its certificates providing for 
death benefits in force on December thirty-first last preceding: . . . 
The said report of valuation shall show, as contingent liabilities, the 
present mid-year value of the death benefits promised in the outstanding 
contracts of the society, and, as contingent assets, the present mid-year 
value of the future net mortuary contributions provided in the consti- 
tution and laws as the same are in practice actually collected, not 
including therein any value for the right to make extra assessments. 

. . . The legal minimum standard of valuation shall be the National 
Fraternal Congress Table of Mortality, as adopted by the National 
Fraternal Congress, August twenty-three, eighteen hundred and 
ninety-nine; or, at the option of the society, any higher mortality 
table; or, at its option, it may use a mortality table based on the 
society's own experience of at least twenty years, and covering not 
less than one hundred thousand lives, with interest assumption not 
higher than four per cent per annum, whichever mortality table is 
adopted. Every such valuation report shall set forth clearly and fully 
the mortality and interest bases and the method of valuation. . . . 

It is to be noted that the language of section 5, quoted 
above, is not that the society has accumulated the full reserve 
required by the American Experience Table, but is accumu- 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

lating and maintaining such full reserve. It by no means 
follows that because at a particularly advantageous moment 
a society happens to have a reserve which satisfies the Ameri- 
can Experience Table it can be said that the society is accu- 
mulating such reserve. Many situations can be imagined 
where for a short time such a condition might exist, although 
because of the company's lower rates, it could not reasonably 
be predicted that such a state would continue; for example, 
a new society recently organized might, by reason of an actual 
experience for a few years of a lower rate of mortality than 
that upon which its dues were based, have a reserve equal to 
that required by the American Experience Table. 

On the other hand, a sudden large withdrawal of members 
from a particular society, whereby the withdrawing members 
forfeited the reserves which their previous payments had pro- 
vided for their policies, might result in momentarily doubling 
the reserve, and such society might find that it had at that 
particular moment reserves in excess of those required by the 
American Experience Table. 

It does not seem that the Legislature could have intended 
that the right of a society to grant the benefit specified in this 
section should depend upon such fluctuations. A society can 
hardly be said to he accumulating a reserve required by a 
particular table of mortality unless the rates charged to its 
members are based upon that or a higher table, or its reserves 
have been maintained at the required figure over a period of 
time sufficiently long to warrant the inference that it is a 
continuing condition. 

I am of the opinion that a fraternal benefit society is not 
entitled to avail itself of the privileges granted by section 5, 
subsection 2, referred to above, unless its rates are based upon 
the American Experience Table and 4 per cent interest, and it 
has the full reserve required thereby, or such a reserve has 
been maintained over a sufficient number of years so that it 
can be inferred to be a continuing accumulation. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.1 PUBLIC DOCUMENT -No. 12. 



89 



Vital Statistics - Transmission of Returns by City or Town 

Clerks to the Secretary of the Commonwealth more often than 

Once a Year. 
The Secretary of the Commonwealth may permit, but cannot require 

clerks of cities or towns to transmit copies of records of births and 

marriages at intervals of less than one year. 

Sept. 10, 1918. 

Hon. Albert P. Langtry, Secretary of the Commonwealth. 

Dear Sir- — You have requested my opinion as to whether, 
under the provisions of R. L., c. 29, § 18, as amended by St 
1903 c 305, and St. 1906, c. 415, you can permit city and 
town clerks to transmit copies of the records of births and 
marriages at intervals of less than one year. 

This statute reads, in part, as follows: — 

The clerk of each town and of each city . . . shall annually ... 
transmit to the secretary of the Commonwealth certified copies of the 
records of births and marriages recorded therein during the preceding 
calendar year, with certified copies, upon blanks provided by the 
secretary, of all such records and corrections m records of births and 
marriages as may not have been previously returned. 

This statute also fixes the particular day on or before which 
such action shall be taken. 

This statute, taken literally, requires an annual return, 
but the act clearly is designed to bring it to pass that the 
records in the office of the Secretary of the Commonwealth 
shall be full and complete. 

While under its terms you could not require city and town 
clerks to make returns more often than once a year, if they 
voluntarily do so the full intent and purpose of the act are 
accomplished if, subsequent to the end of a particular year, 
and before the date fixed by the statute, a return is made 
transmitting any records which have not previously been 
forwarded to the Secretary of the Commonwealth. 

I am of the opinion that you are authorized to permit town 
and city clerks to transmit copies of the records of births and 
marriages at intervals of less than one year. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



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



Boston Elevated Railway — Public Service Commission — Filing 
of Schedule of Fares. 

The trustees of the Boston Elevated Railway Company are not subject 
to the provisions of St. 1913, c. 784, requiring every common carrier 
to file its schedule of fares and transfer privileges with the Public Serv- 
ice Commission. 

The act providing for the public operation of the Boston Elevated Railway 
Company (Spec. St. 1918, c. 159) removes the control and regulation 
of its fares from the Public Service Commission. 

Sept. 30, 1918. 
Public Service Commission. 

Gentlemen: — You have requested my opinion as to 
whether the trustees of the Boston Elevated Railway Com- 
pany are required to file with the Public Service Commission 
the schedules of fares put in force or which may be adopted 
by them. 

You have called my attention to the provisions of St. 1913, 
c. 784, § 20, in part, as follows: — 

Every common carrier shall file with the commission and shall 
plainly print and keep open to public inspection, schedules showing 
all rates, joint rates, fares, telephone rentals, tolls, classifications and 
charges for any service, of every kind rendered or furnished, or to be 
rendered or furnished, by it within the commonwealth, . . . No com- 
mon carrier shall, except as otherwise provided in this act, charge, 
demand, exact, receive, or collect a different rate, joint rate, fare, 
telephone rental, toll or charge for any service rendered or furnished 
by it, or to be rendered or furnished, from that applicable to such 
service as specified in its schedule filed with the commission and in 
effect at the time. 

St. 1913, c. 784, §§ 20 and 21, provide a comprehensive 
scheme for regulation of rates by and through the Public 
Service Commission. Briefly summarized, they require the 
filing of schedules of all rates, fares, etc., and forbid the collec- 
tion of any rates or fares not shown upon the schedule filed 
with the Commission and in effect at the time. They forbid 
putting into effect new rates unless the proposed new schedule 
has been on file a specified number of days, or unless such 
action is especially permitted by the Commission, and permit 
the suspension by the Commission of any proposed schedules 
pending investigation as to the reasonableness of the rates 
involved. 

Spec. St. 1918, c. 159, entitled "An Act to provide for the 



1919.] PUBLIC DOCUMENT — No. 12. 91 

public operation of the Boston Elevated Railway Company," 
provides for the appointment of a board of public trustees to 
take over the management and operation of the railway 
system owned and operated by that company. By section 2 
it is enacted that the trustees " shall have the right to regulate 
and fix fares, including the issue, granting and withdrawal of 
transfers, and the imposition of charges therefor, and shall 
determine the character and extent of the service and facilities 
to be furnished, and in these respects their authority shall be 
exclusive and shall not be subject to the approval, control or 
direction of any other state board or commission." 

Sections 6 to 10, inclusive, of that act provide a detailed 
method for fixing rates upon the Boston Elevated Railway 
system. It is provided that the trustees shall "from time to 
time ... fix such rates of fare as will reasonably insure suffi- 
cient income to meet the cost of the service. " They are 
required within sixty days after their appointment and quali- 
fication to "fix and put in operation rates of fare which in 
their judgment will produce sufficient income to meet the cost 
of the service . . . , " and within sixty days thereafter to — 

adopt and publish a schedule of eight different grades of fare, of which 
four shall be below and four above the rate of fare first established; 
and whenever by reason of any change in the existing rate of fare 
there are less than four grades, either above or below the rate then in 
force, the trustees shall forthwith adopt and publish a schedule of 
additional grades of fare so that there shall always be not less than 
four grades of fare above and below the existing rate of fare. 

If at any time the trustees shall be of opinion that said rates of fare 
or schedule should be changed, either with regard to the method or basis 
upon which the fares and transfer privileges are established, or because 
the steps between the different grades are too small or too great, or for 
any other reason, the trustees may adopt, publish, and put in effect 
new schedules or rates of fare to take the place of the existing schedule 
or rates of fare. 

The trustees are required, if the reserve fund created has 
upon certain days increased or decreased above or below 
established amounts, to put in effect the next lower or higher 
grade of fare under the schedules made and published as 
provided above, and to do this "within one month." 

It is obvious from the provisions of the special act that the 
method of fixing fares therein provided is entirely inconsistent 
with the system established by the Public Service Commission 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

act, and that it was the intention of the Legislature to remove 
the matter of fares upon the Boston Elevated system from the 
operation of that act. The provision of section 2, that the 
authority of the trustees "shall be exclusive and shall not be 
subject to the approval, control or direction of any other state 
board or commission," is conclusive as to this. 

If the requirement of the Public Service Commission law as 
to filing of schedules were an independent provision of law, 
there might be some basis for the contention that such filing 
was for the purpose of public information, and consequently 
would continue in force after the passage of the special act 
with reference to the Boston Elevated Railway Company; 
but it appears that this provision is but one step in the system 
provided by the Public Service Commission law for the control 
and regulation of rates. Inasmuch as that control and regula- 
tion with reference to this company have been taken out of 
the hands of the Public Service Commission, it does not seem 
to me that any portion of that law dealing with the regulation 
of rates is longer applicable to the Boston Elevated Railway 
Company. 

The provision of the special act that the trustees shall 
"publish" the schedules adopted by them indicates that 
public information is to be given in that manner rather than 
by filing with any commission. 

Accordingly, I am of the opinion that the trustees of the 
Boston Elevated Railway Company are not required to file 
with the Public Service Commission the schedules of fares and 
transfer privileges which have been or may be adopted by 
them. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Insurance — Criminal Law — Aiding Unlicensed Agent. 

An insurance company does not incur criminal liability under the insurance 
law (St. 1907, c. 576) by issuing a contract of insurance with knowledge 
that it has been negotiated through the efforts of a person not licensed 
to act as an insurance agent or broker. 

A statute which fully regulates certain transactions, and in terms imposes 
a penalty upon one party to such transactions if carried on without 
a license, is not to be construed as creating a criminal responsibility 
upon other parties to such transactions who are not specifically men- 
tioned. 



1919.] PUBLIC DOCUMENT — No. 12. 93 

Oct. 1, 1918. 
Hon. Frank H. Hardison, Insurance Commissioner. 

Dear Sir: — You have requested my opinion as to whether 
under varying circumstances tending to show knowledge or 
reasonable ground for knowledge on the part of an insurance 
company or its general agent that a contract of insurance 
issued by the company had been negotiated through the efforts 
of a person not licensed to act either as an insurance agent or 
broker, the insurance company or general agent could be held 
guilty of aiding and abetting the unlicensed person in the 
offence committed by him. 

Such action on the part of the unlicensed person constitutes 
a violation of the following provisions of the insurance law: — 

St. 1907, c. 576, §§ 92 (as amended), 9S, 107 a?id 120. 
Section 92. ... Whoever shall assume to act*as such agent or, 
unless a licensed broker, shall, in any manner, for compensation, aid 
in negotiating contracts of insurance on behalf of such corporation 
for a person other than himself, prior to the issuing of a license as 
aforesaid, or after receiving notice of such finding of unsuit ability, or 
after the determination of the license or renewal, shall be subject to the 
penalties of section one hundred and twenty. 

Section 98. Whoever, for compensation, not being the appointed 
agent or officer of the company in which any insurance or reinsurance 
is effected, acts or aids in any manner in negotiating contracts of insur- 
ance or reinsurance or placing risks or effecting insurance or reinsurance 
for a person other than himself, shall be an insurance broker, and no 
person shall act as such broker, except as provided in section ninety- 
five. 

A person not a duly licensed insurance broker, who for compensation 
solicits insurance on behalf of any insurance company, or transmits 
for a person other than himself an application for or a policy of insurance 
to or from such company, or offers or assumes to act in the negotiation 
of such insurance, shall be an insurance agent within the intent of 
this act, and shall thereby become liable to all the duties, requirements, 
liabilities and penalties to which an agent of such company is subject. 

Section 107. A person who assumes to act as an insurance agent 
or insurance broker without license therefor as herein provided, or 
who acts in any manner in the negotiation or transaction of unlawful 
insurance with a foreign insurance company not admitted to do business 
in this commonwealth, or who, as principal or agent, violates any 
provision of this act relative to the negotiation or effecting of contracts 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

of insurance, shall be punished for each offence by a fine of not less 
than one hundred nor more than five hundred dollars. 

Section 120. Whoever violates any provision of this act, the 
penalty whereof is not specifically provided for herein, shall be punished 
by a fine of not more than five hundred dollars. 

Violation of these provisions would constitute a misde- 
meanor, and it is familiar law that as to most misdemeanors 
a person w T ho aids and abets another in the commission of the 
offence, or does acts which, if the offence were a felony, would 
render him liable to prosecution as an accessory, is subject to 
prosecution as a principal. 

This statement, however, is not true as applied to all misde- 
meanors, as there are certain offences in which persons who 
merely solicit, aid or abet the principal are not subject to 
prosecution. The dividing line between the two classes is 
decidedly indefinite, and the courts have supplied no rule of 
general application by which it can be said with certainty that 
an offence falls clearly in one class or the other. 

Certain writers have attempted to draw a line between 
things regarded as mala prohibita as opposed to things mala in 
se, and further, to create a class of so-called "police" offences 
as to which it is said that in general accessories are not indict- 
able. See Wharton, Criminal Law, §§ 223, 239. 

Such line of distinction can hardly be said to prevail in this 
jurisdiction. For example, in the case of Commonwealth v. 
Sherman, 191 Mass. 439, violation of speed laws with reference 
to an automobile was held to render a man who aided and 
abetted liable to prosecution as principal offender. 

Nevertheless, it has been said by one of the greatest judges 
of this State that "one consideration, however, is manifest in 
all the cases, and that is, that the offence proposed to be 
committed, by the counsel, advice or enticement of another, 
is of a high and aggravated character, tending to breaches of 
the peace or other great disorder and violence, being what are 
usually considered mala in se, or criminal in themselves, in 
contradistinction to mala prohibita, or acts otherwise indifferent 
than as they are restrained by positive law." Commonwealth 
v. Willard, 22 Pick. 476, 478. In that case a person purchas- 
ing intoxicating liquors from an unlicensed person was held not 
to be guilty of an offence. The real ground of the decision 
seems to be set forth in the following quotation: — 



1919.] PUBLIC DOCUMENT — No. 12. 95 

There is another view of the subject, which we think has an important 
bearing on the question, if it is not indeed decisive. The statute 
imposes a penalty upon any person who shall sell. But every sale 
implies a purchaser; there must be a purchaser as well as a seller, 
and this must have^been known and understood by the Legislature. 
Now, if it were intended that the purchaser should be subject to any 
penalty, it is to be presumed that it would have been declared in the 
statute, either by imposing a penalty on the buyer in terms, or by ex- 
tending the penal consequences of the prohibited act to all persons 
aiding, counselling or encouraging the principal offender. There being 
no such provision in the statute, there is a strong implication that 
none such was intended by the Legislature. 

Ace. Lott v. United States, 205 Fed. Rep. 28; see also, Com- 
monwealth v. Churchill, 136 Mass. 148. 

In the present case the offence consists in aiding in the 
negotiation of an insurance contract without being licensed as 
an agent or broker. Every such contract, of course, must have 
as one party an insurance company represented by some 
individual as its duly authorized officer or agent. The same 
reasoning that was applied in the case of Commonwealth v. 
Willard would seem to be decisive of the present case. 

A statute as complete and comprehensive as the law of this 
Commonwealth with reference to insurance would seem to 
make doubly valid the reasoning that if the Legislature had 
intended to penalize the company or its officer or agent acting 
for it they would have been specifically mentioned. 

By St. 1907, c. 576, as amended and supplemented, there is 
the most detailed regulation of the transaction of insurance 
business in this Commonwealth. 

By section 3 it is made unlawful "for a company to make a 
contract of insurance upon or relative to any property or 
interests or lives in this commonwealth, or with any resident 
thereof, or for any person as insurance agent or insurance 
broker to make, negotiate, solicit or in any manner aid in the 
transaction of such insurance," except as authorized by 
certain statutes of this Commonwealth. 

There is a detailed provision for the organization and man- 
agement of insurance companies incorporated under the laws 
of this Commonwealth in the many recognized branches of 
insurance. There is a provision for the admission and licensing 
of foreign companies, and they are required to "make con- 
tracts of insurance upon lives, property or interests therein, 
only by lawfully constituted and licensed resident agents." 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

There are many provisions in which the prohibition and pen- 
alty for committing a prohibited act are specifically applied to 
both the companies and their officers and agents, or persons 
purporting to act as such. For example, sections 29, 74, 114, 
118; St. 1912, c. 401; St. 1913, c. 474, § 2. 

Taking into consideration these detailed provisions, I am of 
the opinion that if the Legislature had intended that the 
company or its officers or licensed agents should be liable to 
any penalty by reason of issuing a contract in the negotiation 
of which an unlicensed person had aided, it would have specifi- 
cally so provided, and, accordingly, that neither the company 
nor its licensed agents issuing such a contract are liable to 
the penalty prescribed for an unlicensed person who aids in 
the negotiation of an insurance contract. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Public Defence — Authority of Governor to incur Expense in 
combating Influenza Epidemic. 

The power of the Governor to incur emergency expenses incident to the 
war, under Gen. St. 1918, c. 278. authorizes incurring expenses to 
combat the influenza epidemic. 

Oct. 5, 1918. 

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

Sir: — You have requested my opinion as to whether Gen. 
St. 1918, c. 278, entitled "An Act authorizing the governor to 
incur emergency expenses incident to the existing state of 
war," authorizes the incurring of expenses for the purpose of 
combating the epidemic of influenza now prevailing in the 
Commonwealth. 

Section 1 of this statute provides: — 

Expenditures are hereby authorized not exceeding one million 
dollars, to be incurred under the direction of the governor, subject 
to the approval of the council, to meet any emergency which may 
arise during the recess of the general court by reason of the exigencies 
of the existing state of war. . . . 

In my opinion, this statute is not to be interpreted as merely 
authorizing expenditures to meet an emergency directly caused 
by the war. As its title declares, it authorizes "emergency 
expenses incident to the existing state of war." In my judg- 



1919.] PUBLIC DOCUMENT — Xo. 12. 97 

ment, it must be interpreted as authorizing expenditures to 
meet conditions which, because of the exigencies of the existing 
state of war, may be said to constitute an emergency. I am 
of opinion that the prevailing epidemic clearly is such an 
emergency. The presence of a large military cantonment 
w T ithin the Commonwealth, the fact that many citizens of the 
Commonwealth will soon be summoned to military service 
under the latest draft, and, in general, the disastrous effect 
which this epidemic, if not checked, will have in limiting the 
ability of the people of the Commonwealth to aid in the 
successful prosecution of the war, all make it plain that this 
epidemic, viewed in the light of existing war conditions, is 
a real war emergency. In my opinion, the suggested expend- 
itures are authorized by the statute. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Civil Service Commission — Power to revoke Certification obtained 
by Fraud or Misrepresentation. 

The Civil Service Commission has the power to revoke its certification 
of a person as eligible to appointment to a position in the classified 
civil service, even after such person has been appointed to the position, 
if such certification was obtained from the Commission through fraud 
or misrepresentation. 

Oct. 7, 1918. 
Civil Service Commission. 

Gentlemen: — It appears from information furnished to 
this department by your Commission that on Sept. 7, 1916, 
an applicant was given an examination for an appointment to 
the position of engineer at the Beverly pumping station, which 
is a second-class plant, and classified under clause 26 of rule 6 
of the Civil Service Rules then in effect. In consequence of 
this examination the applicant was certified by your Commis- 
sion to the commissioner of public works of Beverly as a per- 
son eligible to be appointed to that position, which appoint- 
ment was subsequently made. The commissioner of public 
works of Beverly having now requested that the certification 
of this employee as an eligible person to be appointed to this 
position be revoked, on the ground that it was obtained by 
the employee through fraud or misrepresentation, you have 
requested my opinion upon the question of whether your 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commission has the power to revoke such a certification after 
an appointment has been made. 

The laws relating to the civil service and the rules and regu- 
lations made thereunder provide in effect that no appoint- 
ments shall be made to positions classified under said rules 
except from a list of persons who shall be certified by the 
Civil Service Commission as eligible to fill such positions. 
After a valid appointment has once been made, the appointee 
cannot be removed from his position except for just cause. 

It is true that, as a general rule, after an appointment has 
once been made from a certified eligible list your Commission 
has no jurisdiction over the tenure of the appointee, but it 
seems quite plain to me that if your Commission has, through 
mistake or fraud, erroneously placed a person on an eligible 
list from which he is subsequently appointed, you may, upon 
discovery of the error or fraud, revoke your action in placing 
his name upon such list. Suppose, for example, that your 
Commission, intending to certify as eligible a particular per- 
son, should make a mistake in writing the name, so that it 
appeared as the name of another person, and that the latter 
person was appointed to the position — it is impossible to 
suppose that your Commission has lost its power to revoke 
its certification. If so, the person wrongfully appointed would 
be secure in his position. Or suppose that one should fraudu- 
lently take an examination in the name of another, and that 
that other should subsequently be appointed in consequence 
of having been certified by the Commission as an eligible 
person on the basis of such examination; or suppose that an 
applicant should, through fraud or misrepresentation practiced 
upon the Commission, secure his certification as an eligible 
person — the appointing officer could hardly contend that the 
fraud practiced upon the Commission, or the error or mistake 
on its part, constituted just cause, within the meaning of the 
statute protecting the tenure of office in a civil service position, 
for the reason that it is difficult to see how he would have the 
power to determine whether the Civil Service Commission had 
been deceived or had made a mistake. It seems to me that 
such a matter is within the sole jurisdiction of the Civil Serv- 
ice Commission, and that if it should determine, even after 
an appointment had been made, that its action in relation 
thereto had been taken through error or mistake, it has the 
power to revoke or rescind such action. 



1919.] PUBLIC DOCUMENT — No. 12. 99 

In my opinion, the revocation by your Commission of its 
action in certifying a person as eligible to a position classified 
under the Civil Service Rules would place him in the same 
position as if he had never been certified, and hence would 
render his continued employment in that position illegal. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Credit Unions — Who can be Members — Loans. 

A credit union must confine its membership to individuals, and cannot 
include corporations or associations, and must limit its loans to its 
own members. 

Oct. 7, 1918. 
Hon. Augustus L. Thorndike, Bank Commissioner. 

Dear Sir: — You request my opinion as to whether a 
credit union can make a loan either to a corporation or an 
association, and whether a corporation or an association can 
be a member of a credit union; also, whether a credit union 
can loan to persons, corporations or associations located out- 
side the Commonwealth. 

Gen. St. 1915, c. 268, §§ 2, 5, 6, 11 and 24, provide: — 

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, with the consent of the board of bank 
incorporation, become a corporation. . . . 

Section 5. A credit union may receive the savings of its members 
in payment for shares or on deposit; may lend to its members at 
reasonable rates, or invest, as hereinafter provided, the funds so accu- 
mulated. . . . 

Section 6. The by-laws shall prescribe the name of the corpora- 
tion, the purposes for which it is formed, the conditions of residence or 
occupation which qualify persons for membership, ... the fines, 
if any, which shall be charged for failure to meet obligations to the 
corporation punctually. . . . 

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 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

capital, deposits or surplus funds in excess of the amount for which 
loans shall be approved by the credit committee ... in any securities 
which are at the time of their purchase legal investments for savings 
banks in this commonwealth. . . . 

Section 24. The board of directors may expel from a credit union 
any member who has not carried out his engagements with the credit 
union, or who has been convicted of a criminal offence, or who neglects 
or refuses to comply with the provisions of this act or of the by-laws, 
or whose private life is a source of scandal, or who habitually neglects 
to pay his debts, or who shall become insolvent or bankrupt, or who 
shall have deceived the corporation or any committee thereof with 
regard to the use of borrowed money; but no member shall so be 
expelled until he has been informed in writing of the charges against 
him, and an opportunity has been given to him, after reasonable 
notice, to be heard thereon. . . . 

From a general observation of this statute it clearly appears 
to have been framed with the main purpose of promoting 
thrift among members of a credit union, and of assisting mem- 
bers for provident purposes. In my opinion, it was the inten- 
tion of the Legislature that membership in credit unions 
should be limited to individuals, and should not include cor- 
porations or associations. The fact that the word " resident " 
is used in section 2 and "residence" in section 6 would imply 
that individuals were meant and not corporations. The word 
"resident" occurring in a statute ordinarily means an individ- 
ual or a citizen, and does not mean a corporation. People v. 
Schoonmaker, 63 Barbour's, 44, 51; Farmers Loan & Trust 
Co. v. Chicago, 27 Fed. Rep. 50. Then, again, the phraseology 
of section 24 would imply that it was the intention that the 
membership be made up of individuals and not of corpora- 
tions or associations. 

Your second question is as to whether a credit union can 
make a loan to a corporation or association. In an opinion 
rendered to you on April 3, 1917, I expressed the view that 
credit unions were restricted in making loans to the members 
thereof. It follows that, as it is my opinion that a corpora- 
tion or association cannot be a member of a credit union, 
loans by credit unions to corporations and associations are 
unauthorized. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 101 

County Officers and Employees — Increase in Compensation — ■ 
Salaries of Clerks and Justices increased during Year — 
Court Stenographers. 

Where the justice and clerk of a local court were given additional salary 
by Gen. St. 1918, c. 173, readjusting their salaries to correspond with 
an enlargement of their district, they are not entitled to the 10 per 
cent temporary increase provided by Gen. St. 1918, c. 260. 

A court stenographer whose salary is $2,500 is entitled to this temporary 
increase, although there is a possibility of additional compensation 
from extra work done as such stenographer in behalf of the county. 

Oct. 7, 1918. 
Frank L. Dean, Esq., Controller of County Accounts. 

Dear Sir: — You have requested my opinion as to whether 
the justices, clerks and assistant clerks of the district courts 
whose salaries were affected by Gen. St. 1918, c. 173, are 
entitled to the temporary increase in salary authorized by 
Gen. St. 1918, c. 260. By its terms the latter statute applies 
only to persons "whose salaries have not been increased by act 
of the general court passed during the current year," and the 
sole question is as to whether Gen. St. 1918, c. 173, is to be 
regarded as having granted such an increase in salary within 
this provision. 

By Gen. St. 1917, c. 302, the territorial jurisdiction of 
various district and police courts was enlarged by annexing 
thereto one or more towns. This statute took effect on 
Oct. 1, 1917, but contained no provision relating to the sala- 
ries of the justices or clerks of those courts. The various 
police, district and municipal courts of the Commonwealth 
had been classified, and the salaries of their justices and clerks 
established on the basis of population, by St. 1904, c. 453, 
and this statute, with its various amendments, is still in force. 

St. 1910, c. 501, provided that these salaries shall be read- 
justed on the first day of July in the year in which a national 
or State census is taken, so that thereafter the salaries shall be 
based upon the population of the district as shown by the 
latest enumeration. 

As the statute of 1917, increasing the territorial jurisdiction 
of the courts in question, contained no provision increasing 
the salaries of the justices and clerks to correspond to the 
added population, it is plain that without further legislation 
they were not entitled to an increase in salary based on such 
added population until a readjustment should take place, in 



102 ATTORNEY-GENERAL'S REPORT. [Jan. 

accordance with the statute of 1910, on the first day of July 
of the year in which the next national or State census is taken. 
This being the situation, the General Court this year enacted 
Gen. St. 1918, c. 173, § 1 of which is as follows: — 

The salaries of the justices, clerks and assistant clerks of the district, 
police and municipal courts whose judicial districts were enlarged by 
the provisions of chapter three hundred and two of the General Acts 
of nineteen hundred and seventeen, and the classes into which said 
courts are distributed under the provisions of chapter four hundred 
and fifty-three of the acts of nineteen hundred and four and the 
amendments thereof, shall be readjusted, by the officer paying said 
salaries, so as to correspond with the classes and salaries prescribed 
by said chapter four hundred and fifty-three and the amendments 
thereof. The readjustment shall be made as of October first, nine- 
teen hundred and seventeen, and all increases of salary hereunder 
shall take effect as of that date. 

In view of the statutes relating to salaries in the courts in 
question at the date of the enactment of this statute, it is my 
opinion that it can be regarded as having no other effect than 
granting an increase in salary to the justices, clerks and assist- 
ant clerks specified, and providing for the payment of the 
increase from Oct. 1, 1917. In my judgment, this is an increase 
in salary granted by act of the General Court passed during 
the year 1918, and, accordingly, these justices and clerks do 
not come within the provisions of chapter 260 of the acts of 
this year. 

You also ask my opinion as to whether court stenographers 
who receive an annual salary of S2,500 are entitled to the 
benefits of Gen. St. 1918, c. 260. 

This question arises from the fact that these stenographers 
are required by R. L., c. 165, § 85, at the request of the pre- 
siding justice, to provide him with a transcript of such portion 
of their notes as he may require, payment for such transcript 
to be made by the county. The result is that in cases where 
a stenographer is requested to perform any such additional 
work by the presiding justice he receives compensation from 
the county in excess of .^2,500. The habits of the various 
presiding justices with regard to making such requests vary 
greatly, and it is impossible to determine in advance whether 
any particular stenographer during any year will receive 
compensation for such work, and, if so, to what extent. 

Gen. St. 1918, c. 260, applies only to persons "whose annual 
compensation in full for all services rendered does not exceed 



1919.] PUBLIC DOCUMENT — No. 12. 103 

twenty-five hundred dollars." The temporary increase in 
salary granted is "equal to ten per cent of the salaries received 
by them on the first day of July in the year nineteen hundred 
and seventeen." This appears to make the basis of the 
increase the rate of regular compensation received on that 
date. It does not permit the consideration of occasional extra 
compensation paid for additional work performed out of regu- 
lar hours. 

Regular salaries paid these stenographers appear to be 
compensation for the services rendered by them in taking 
notes and performing other incidental services during the 
sessions of the court. The furnishing of transcripts of evidence 
to presiding justices of necessity requires work out of regular 
court hours and frequently beyond regular business hours. 
Though it is not entirely free from doubt, it seems to me, on 
the whole, that it must be regarded as work performed in 
addition to the regular duties of the office. Because of the 
uncertainty of its extent, it is paid for in the manner above 
indicated. I am inclined to the opinion, therefore, that 
amounts received on account of such additional work are not 
to be considered in determining the annual compensation of 
such stenographers for the purpose of the application of Gen. 
St. 1918, c. 260. 

Accordingly, in my judgment, stenographers who merely 

receive additional compensation for furnishing transcripts of 

their notes to presiding justices are not debarred thereby from 

the temporary increase authorized by Gen. St. 1918, c. 260. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



State Employees — Military Service — Extra Compensation — 
Permanent or Temporary Employment. 

Gen. St. 1917, c. 301, providing certain compensation for employees of the 
Commonwealth in the military service of the United States, applies 
to all persons engaged in the regular, permanent service of the Common- 
wealth, regardless of the date of their original employment, but does 
not apply to persons rendering only temporary, limited, or casual 
services to the Commonwealth. 

The provisions of Gen. St. 1917, c. 301, practically provide a leave of absence, 
with pay, for persons indefinitely employed in the regular, permanent 
service of the Commonwealth. 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 

Oct. 17, 1918. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — You have requested my opinion as to whether 
payments under Gen. St. 1917, c. 301, can be made, first, to 
persons who entered the service of the Commonwealth after 
that statute was enacted and subsequently were mustered into 
the military service of the United States; and second, to 
persons who were mustered into that service while only 
temporarily in the employ of the Commonwealth for a brief 
period of time. 

Section 1 of the statute in question 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, anel 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. 

This section is broad in its application " 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." It applies to persons who have been so 
mustered in before the enactment of the statute, and I find in 
it no limitation restricting its application to persons subse- 
quently entering the regular service of the Commonwealth and 
thereafter mustered into the military service. In the absence 
of any such limitation, it seems to me that it must be held to 
apply to all persons mustered into the military or naval service 
of the United States, who, at the time of such " mustering in, " 
were employees of the Commonwealth, as hereinafter defined. 

Your second question is a much more difficult one to deter- 
mine. As already stated, the language of this statute is very 
broad, and in terms applies "to every employee of the com- 
monwealth." By the latter part of the section, however, it 
is provided that "said payments shall continue so long as he 
continues in the military or naval service of the United States, 



1919.] PUBLIC DOCUMENT — No. 12. 105 

but shall cease one month after the termination of the war. 
In case of his death in the said service his widow, minor chil- 
dren, parents or dependents shall receive the said sum until 
the termination of the war." 

It is difficult to assume that the General Court intended 
that such payments should be made to or on account of a 
person in the service of the Commonwealth who had entered 
that service for a brief temporary period of time, or for a few 
weeks or months, or to perform a temporary limited service 
which could take but a short time. 

In dealing with this statute on other occasions I have 
suggested that in many respects it was to be regarded as 
granting a leave of absence with pay. In an opinion rendered 
the Board of Retirement on July 13, 1917, I stated: — 

It seems to me that, at least for the purposes of the administration 
of the retirement system, Gen. St. 1917, c. 301, should be interpreted 
as granting a leave of absence, 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 present 
war. The employee is required to credit against his salary merely such 
compensation as he receives on account of his military services. 

Again, on Oct. 16, 1917, in an opinion rendered the Super- 
visor of Administration with reference to the status of persons 
in the classified public service who have been drafted into the 
military service of the United States, referring to the statute 
now under consideration I said: — 

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 absence, 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. 

Thus regarding the statute, it seems to me entirely incon- 
sistent with its general purport that a person temporarily 
employed by the Commonwealth for a few months should, in 
the event that he is mustered into the military service during 
the period of his employment, receive the equivalent of his 
pay from the Commonwealth, after deducting his military pay, 
long after the period that he would have remained in the 
employ of the Commonwealth if he had not been mustered into 
the military service. In the absence of a clear provision 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 

requiring such a result, I am of the opinion that the statute is 
not to be given that construction. Looking at this statute as 
a whole, it seems to me that the persons whom the General 
Court intended to benefit were those employees of the Com- 
monwealth who were in its permanent and regular service, 
and who would, in the ordinary course of events, have indefi- 
nitely continued in that employment if they had not been 
mustered into the service of the United States. To such per- 
sons the General Court granted a leave of absence, with pay, 
until one month after the termination of the war. 

Accordingly, in my judgment, the benefits of this statute 
are to be restricted to such persons as were in the regular and 
permanent employment of the Commonwealth at the time of 
their mustering into the United States service, and no pay- 
ments are thereby authorized to persons who at the time of 
such mustering in were in the employment of the Common- 
wealth only for a brief definite period of time, or for the 
purpose of performing a service which was not a part of the 
regular activities of the Commonwealth, or required but a 
brief time for its performance. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Health Itispcctors — Slaughtering at County Training Schools. 

A county training school may lawfully slaughter animals belonging to it 
without inspection by a health inspector, and may serve the meat 
of such animals to the inmates of the school. 

Oct. 17, 1918. 

Eugene R. Kelley, M.D., Commissioner of Health. 

Dear Sir: — I acknowledge receipt of your letter requesting 
my opinion on the following questions : — 

1. Is it lawful or proper for slaughtering to be done at a county 
training school without inspection by an inspector? 

2. Is it lawful to have the meat of such carcass served to the inmates 
of said institution? 

The particular section of the statute which is involved in 
your request appears to be R. L., c. 75, § 105, as amended by 
Gen. St. 1916, c. 139, which reads as follows: — 

The provisions of the six preceding sections shall not apply to a 
person not engaged in such business, who, upon his own premises 



1919.] PUBLIC DOCUMENT — No. 12. 107 

and not in a slaughter house, slaughters his own neat cattle, sheep or 
swine, but the carcass of any such animals, intended for sale, shall 
be inspected, and, unless condemned, shall be stamped or branded 
according to the provisions of section one hundred and three of chapter 
seventy-five of the Revised Laws, as set forth in chapter two hundred 
and twenty of the acts of the year nineteen hundred and three, and as 
amended by chapter four hundred and seventy-one of the acts of the 
year nineteen hundred and nine and by section five of chapter two 
hundred and ninety-seven of the acts of the year nineteen hundred 
and eleven, by an inspector at the time of slaughter. 

The six preceding sections referred to relate to certain 
requirements regarding the slaughtering of cattle and the 
inspection of the same at slaughterhouses. 

The first inquiry raises the question as to whether or not 
a county is a "person," within the meaning of said chapter 
139. R. L., c. 20, § 1, provides as follows: — 

Each county shall continue a body politic and corporate for the 
following purposes: to sue and be sued, to purchase and hold, for the 
use of the county, personal estate and land lying within its limits, 
and to make necessary contracts and do necessary acts relative to its 
property and affairs. 

R. L., c. 9, § 16, provides that the word "person" may be 
extended and applied to bodies politic or corporate. It has 
been held to apply to counties. 30 Cyc, p. 1527. A county 
training school is operated by, and is a part of, the county. 
Consequently, it is my opinion that a county is a "person," 
within the meaning of the statute. 

Nor do I think the application of said chapter 139 is restricted 
to slaughtering by the owner of the premises himself. In my 
judgment, such owner may do such slaughtering by or with 
the assistance of others. 

Assuming, therefore, that the slaughtering of neat cattle, 
sheep or swine belonging to the county is done by the county 
training school on the premises of the county training school, 
and that the meat is not intended for sale, I am of the opinion 
that your first question is to be answered in the affirmative. 

It is manifest that such meat, when served to the inmates 
of the institution, is not "being offered for sale," within the 
meaning of the statute, and, accordingly, your second inquiry 
is to be answered in "the affirmative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

Public Officers — Trustees of the New Bedford Textile School — 

Corporation. 

The trustees of the New Bedford Textile School, appointed under 
Gen. St. 1918, c. 246, have the same duties and obligations as 
those previously exercised by the original corporation, but are a 
board of public officers and not a legal corporation. 

Oct. 21, 1918. 

Mr. William E. Hatch, President, Trustees of the New Bedford Textile 

School. 

Deae Sir: — I acknowledge your request for my opinion as 
to whether the trustees of the New Bedford Textile School, 
appointed under the provisions of Gen. St. 1918, c. 246, are 
to be regarded as constituting a corporation. 

The New Bedford Textile School was established under the 
provisions of St. 1895, c. 475, now appearing as R. L., c. 125, 
§§ 20 to 22, inclusive. A corporation known as the "trustees 
of the New Bedford Textile School" was formed under the 
provisions of that statute, and this corporation continued to 
operate and manage the school until the 1st of July last. On 
or about that date, in accordance with the provisions of Gen. 
St. 1918, c. 246, this corporation transferred all its property 
to the Commonwealth, and thereupon a board of seventeen 
trustees was constituted and appointed in accordance with the 
provisions of section 2 of that act. This section provided: — 

Upon their qualification, said trustees shall be vested with all the 
powers, rights and privileges and shall be subject to all the duties, 
of the existing trustees of the New Bedford Textile School, except 
that the title to all the property of said school shall be vested in the 
commonwealth. 

Accordingly, since the transfer of its property to the Common- 
wealth this school has been, and hereafter will be, operated and 
managed by a board of seventeen trustees thus appointed. 
The corporation which originally established the school under 
the earlier statute will have no further functions to perform 
with relation to the school, and very likely may be said no 
longer to exist. 

In my opinion, it was the intention of the General Court 
that this new board of trustees should be merely a board of 
public officers to manage the school in and upon property 
owned by the Commonwealth. In my judgment, in vesting 
them "with all the powers, rights and privileges" and subject- 



1919.] PUBLIC DOCUMENT — No. 12. 109 

ing them to "all the duties" of the old board of trustees, it 
was intended merely to give them the same powers and to 
impose upon them the same obligations with reference to the 
maintenance and management of the school as had heretofore 
been granted to and imposed upon the original corporation. 
In the absence of an express provision declaring that this new 
board of trustees shall constitute the corporation, it does not 
seem to me to be consistent with the policy of the General 
Court, as declared in this statute and in similar statutes 
relating to other textile schools enacted this year, and also 
expressed in Gen. St. 1918, c. 262, dissolving the corporation 
of the Massachusetts Agricultural College, to construe the act 
under which your Board is established as constituting it a 
corporation. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



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

Civil engineers employed by the Commonwealth are not "laborers, work- 
men and mechanics" within the meaning of St. 1913, c. 807, providing 
for the payment of compensation to certain employees of the Common- 
wealth. 

Oct. 23, 1918. 

Massachusetts Highway Commission. 

Gentlemen: — I have your letter in which you state that 
in several instances engineers, while in the discharge of their 
duties or assisting laborers at work on State highways, have 
been injured and have filed claims for compensation under the 
Workmen's Compensation Act, and you request my opinion 
upon the question of whether the provisions of the Workmen's 
Compensation Act apply to engineers in the employ of your 
Commission. I assume that by the word "engineers" you 
mean civil engineers, and not those who work around an 
engine or boiler. 

St. 1913, c. 807, as amended, extends the provisions of the 
Workmen's Compensation Act to no persons in public employ- 
ment other than "laborers, workmen and mechanics." 

The above-quoted phrase has been interpreted by our Supreme 
Judicial Court, in Devney's Case, 223 Mass. 270, as not includ- 
ing a hoseman in the fire department of the city of Boston; in 
White's Case, 226 Mass. 517, as including a janitor who did 



110 ATTORNEY-GENERAL'S REPORT. [Jan. 

manual labor, but not one who acted only as a superintendent 
over others; and in Lesuers Case, 227 Mass. 44, as not includ- 
ing an instructor in a vocational school, although he occasionally 
gave practical demonstrations involving manual labor. 
In the last case the court said: — 

The word "mechanic" as used in the statute connotes a manual 
occupation, — a performance of mechanical labor, or work at one of 
many constructive trades, as a principal means of livelihood. 

In Devney's Case, supra, the court defined these words as 
follows : — 

A " laborer" ordinarily is a person without particular training who 
is employed at manual labor under a contract terminable at will, while 
"workmen" and "mechanics" broadly embrace those who are skilled 
users of tools. . . . And the framers of the statute undoubtedly in- 
tended that the words "laborers, workmen and mechanics" should 
be taken in their ordinary lexical sense. 

^Yhile it is difficult to lay down any hard and fast rule for 
determining whether any particular employment falls within 
or outside of this class, as each case depends largely upon its 
own facts, it seems to me reasonably clear that civil engineers 
employed by your Commission are not entitled to the benefits 
of the Workmen's Compensation Act on account of injuries 
sustained by them arising out of and in the course of their 
employment, and I beg to advise you accordingly. It is 
perhaps needless to add that this is a question which the 
injured employee is entitled to have adjudicated by the 
Industrial Accident Board, subject to appeal to the Supreme 
Judicial Court. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Savings Banks — Bonds of Railroads taken over by the United 
States Government — Legal Investments. 

Under St. 1908, c. 590, § 68, with certain exceptions, the bonds of railroad 
corporations which have been taken over by the United States govern- 
ment are not legal investments for savings banks. 

Oct. 23, 1918. 
Hon. Augustus L. Thorndike, Bank Commissioner. 

Dear Sir: — I acknowledge the receipt of your communi- 
cation in which you ask my opinion on the following ques- 
tions: — 



1919.] PUBLIC DOCUMENT — No. 12. Ill 

1. Whether the bonds of railroad corporations that were legal invest- 
ments for savings banks at the time the government took over the 
roads would still be legal investments if they are operated by the govern- 
ment, as at present. 

2. Whether the " gross earnings" are to be determined by their 
returns, as formerly, or by the rentals from the United States Railroad 
Administration. 

You refer to the provisions of St. 1908, c. 590, § 68, which 
govern the investment by savings banks in bonds and notes of 
railroads. I am of opinion that the provisions of this section, 
with the exception of subdivisions b, c and d of clause 3, 
contemplate that the railroad property shall be operated by 
the railroad corporation owning such property. Said subdivi- 
sions b, c and d authorize the investment in certain New 
England railroads which may be leased to another railroad 
corporation. 

The Act of Congress approved March 21, 1918, relative to 
the Federal control of railroads, recites, in the first paragraph 
thereof — 

That the President, having in time of war taken over the possession, 
use, control, and operation (called herein Federal control) of certain 
railroads and systems of transportation (called herein carriers), is 
hereby authorized to agree with and to guarantee to any such carrier 
making operating returns to the Interstate Commerce Commission, 
that during the period of such Federal control it shall receive as just 
compensation, . . . 

I think it plain that at the present time the United States 
government is operating the railroads that have been taken 
over by the President; and it is my opinion, accordingly, that 
your first inquiry is to be answered in the negative. 

The answer to your first inquiry makes it unnecessary for 
me to answer your second inquiry. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Rides and Regulations issued by State Boards and Commissions 
— General Scope. 

Rules and regulations of State boards and commissions are general in 
scope, within the meaning of Gen. St. 1917, c. 307, when they apply 
to all the citizens of the State, although they prohibit the doing of 
an act only in a certain locality. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

Nov. 5, 1918. 

Commissioners on Fisheries and Game. 

Gentlemen: — You have requested my opinion upon the 
question of whether certain rules and regulations made by your 
Commission are to be considered "general in scope," within 
the meaning of Gen. St. 1917, c. 307. Section 1 of that act is 
as follows : — 

Every commission, board or official vested by law with the power 
to make and issue rules and regulations general in scope, and to be 
observed or performed under penalty for the violation thereof, shall 
file attested copies thereof, together with a citation of the law by author- 
ity of which the same purport to have been issued with the secretary 
of the commonwealth, and such rules and regulations shall not take 
effect until so filed. Nothing herein contained shall be deemed to 
apply to rules and regulations issued by commissions, boards or officials 
of cities or towns, or to municipal ordinances or by-laws, or to rules and 
regulations affecting solely the internal management or discipline of 
a commission or board, nor to orders or decrees made in specific cases 
within the jurisdiction of a commission, board or official. 

Section 3 requires the Secretary of the Commonwealth to 
publish as a public document all orders, rules and regulations 
filed with him under the provisions of this act. 

The difficulty in interpreting this act lies in defining the 
phrase "general in scope." Viewed from different angles, this 
phrase might be interpreted with reference either to the area 
over which, or the time during which, the rules and regula- 
tions were effective, or as referring to the persons whose 
actions were thereby restricted. "What was meant by the 
expression "general law" as contrasted with "special law" 
was considered in State v. Corson, 67 N. J. L., 178, where the 
court said: — 

A statute is not special or local merely because it authorizes or pro- 
hibits the doing of a thing in a certain locality. It is, notwithstanding 
this fact, a general law if it applies to all the citizens of the State and 
deals with a matter of general concern. Doughty v. Conover, 13 Vroom, 
193. The application of this principle led this court, in the case cited, 
to the conclusion that a statutory provision which made it unlawful 
for any person to net fish during certain periods of the year "in the 
waters of Burlington and Atlantic" was not special or local but general. 
The act before us, tested by this rule, is also general. 

Notwithstanding the use of the words "in scope" in connec- 
tion with the word "general" in this statute, I have come to 



1919.] PUBLIC DOCUMENT — No. 12. 113 

the conclusion that the statute is to be construed as if it read 
"general rules and regulations." I have reached this conclusion 
the more readily because it seems to me that this interpreta- 
tion serves more adequately to carry out the apparent purpose 
for which the act was passed, namely, that of giving notice to 
the public generally of acts of boards or commissions by which 
it was bound under penalty. 

Accordingly, I beg to advise that, in my opinion, a rule or 
regulation is "general in scope," within the meaning of this 
statute, when it applies to all the citizens of the State, although 
it prohibits the doing of a thing only in a certain locality. 

You have further requested my opinion on certain specific 
rules and regulations made by your Commission, which are 
stated by you as follows: — 

1. Under chapter 410, Acts of 1911, the commissioners order a 
close season on certain areas of land for a definite period of time. The 
public as a whole is prohibited from hunting and performing certain 
other acts within these areas. 

2. Under chapter 285, Acts of 1911, the Commissioners on Fisheries 
and Game, on petition, stock certain great ponds and specify the 
times and methods of taking fish in those particular ponds for a definite 
period of time. The regulations apply to the public in general, in so 
far as relates to that particular pond. 

3. Under section 5, chapter 91, Revised Laws, the Commissioners 
on Fisheries and Game, on petition, stock certain brooks and specify 
the times and methods of taking fish in those brooks for a definite 
period of time. The regulations apply to the public in general, in so 
far as relates to those particular brooks. 

4. Under chapter 401, Acts of 1914, the Board of Commissioners 
on Fisheries and Game declare an open season on pheasants between 
certain specified dates, within certain counties, requiring that hunters 
shall observe a certain bag limit and make certain reports. 

5. Under sections 113 and 114, R. L., c. 91, the Commissioners 
on Fisheries and Game, on the request of the State Department of 
Health, issue orders prohibiting the taking of shellfish from certain 
areas. These regulations apply to the public as a whole, in so far as 
relates to that particular area. 

These rules and regulations are "to be observed or per- 
formed under penalty for the violation thereof." 

It is my opinion that all of the above rules and regulations 
are to be construed as general in scope, within the meaning 
of Gen. St. 1917, c. 307, and that copies thereof are required 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

by that statute to be filed with the Secretary of the Com- 
monwealth in accordance with the provisions of the act. 

Other specific rules and regulations upon which you have also 
requested my opinion are as follows : — 

6. In numerous cases the statutes extend protection to a certain 
bird or animal. The statute applies to the public in general. The 
Board of Commissioners on Fisheries and Game, however, are author- 
ized to issue permits, exempting the holders from the observance of 
the statute. While this permit may carry with it certain rules and 
regulations to be observed by the holder, these permits and rules apply 
only to the holder and not to the public in general. 

7. Under chapter 460, Acts of 1910, the Commissioners on Fisheries 
and Game issue orders in writing to the owner or tenant of a sawmill, 
manufacturing or mechanical plant, dwelling house, stable or other 
building, prohibiting or regulating the discharge or escape of sawdust 
or certain other materials therefrom, into the brook or stream on which 
it is located. 

8. Under chapter 365, Acts of 1904, the Commissioners on Fisheries 
and Game issue orders to owners of dams and fishways concerning 
changes, repairs, building of new fishways, and times when same shall 
be kept open. 

9. Under chapter 529, Acts of 1910, the Board of Commissioners 
on Fisheries and Game may lease Tisbury Great Pond from time to 
time until Jan. 1, 1920. These leases contain such rules and regulations 
for the taking of fish thereunder as the Commissioners deem expedient. 
The regulations, however, apply to the lessees only, and not to the 
public in general. 

The orders made by your Commission, as above specified 
in Nos. 7 and 8, seem to me clearly to be excluded from the 
operation of this act by the last sentence of section 1, which pro- 
vides that "nothing herein contained shall be deemed to apply 
... to orders or decrees made in specific cases within the 
jurisdiction of a commission, board or official." 

The rules and regulations above specified under Nos. 6 and 
9 are, in my opinion, not general in scope, within the meaning 
of this statute, and, accordingly, need not be filed with the 
Secretary of the Commonwealth in accordance with the pro- 
visions of the act. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1919.] PUBLIC DOCUMENT — No. 12. 115 

Local Boards of Health — Physician Member in Towns of over 
5,000 Inhabitants. 

In a town of more than 5,000 inhabitants, where the selectmen do not them- 
selves act as the board of health, one member of such board must be 
a physician, and the selectmen cannot appoint a layman, under Gen. 
St. 1918, c. 185, if the board would thereby be left without a physician 
member. 

Nov. 9, 1918. 

Eugene R. Kelley, M.D., Commissioner of Health. 

Dear Sir: — You have requested my opinion as to whether 
the selectmen of a town of more than 5,000 inhabitants, acting 
under the provisions of Gen. St. 1918, c. 185, can appoint a 
layman to perform the duties of the physician member of the 
board of health of such town, who is absent in the military or 
naval service of the United States. 

Said chapter 185, in my opinion, is to be read in connection 
with the statutes relating to boards of health existing at the 
time of its passage. It is not to be presumed that the Legis- 
lature intended by the passage of the act to change the 
existing requirements with reference to the personnel of boards 
of health. By St. 1913, c. 835, § 405, it is provided that in 
towns having more than 5,000 inhabitants, as determined by 
the latest national or State census, unless composed of the 
selectmen, one member of the board of health shall be a 
physician. Where there is only one physician upon a board 
of health in such town, and he is absent temporarily in the 
military service of the United States, and it is desired to 
appoint a person to perform his duties in his absence, under 
the provisions of said chapter 185, I am of the opinion that 
such appointee must be possessed of the qualifications of the 
person whose position he is to fill. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Alien Enemy — Eligible for Certificate to practice Dentistry. 

A person who has passed an examination satisfactory to the Board of Dental 
Examiners, and has been found to possess the requisite qualifications 
and to be of good moral character, is not debarred from obtaining 
a certificate to practice dentistry because of being an alien enemy. 

Nov. 18, 1918. 
Board of Dental Examiners. 

Gentlemen: — I am in receipt of your request for an 
opinion as to the issuance to an alien enemy resident in this 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 

Commonwealth of a certificate to practice dentistry within the 
Commonwealth. 

Having passed an examination satisfactory to the Board 
and been found to possess the requisite qualifications and to 
be of good moral character, the mere fact that a person is an 
alien enemy does not prevent the issuing of a certificate to 
him. This is pointed out in the case of Hutchinson v. Brock, 
11 Mass. 118, at page 122, which states that "the citizen or 
subject of a foreign country or sovereign, against whom we 
declare war, who is residing with us when war commences, and 
who is permitted afterwards to reside, and be at large, under 
the protection of our laws, is enabled by his residence and by 
virtue of this protection, to maintain civil actions, notwith- 
standing the war, and any supposed duty of natural alle- 
giance." 

Therefore, on the facts stated, an alien enemy resident in 
this Commonwealth is entitled to the protection and advan- 
tages of the laws of this Commonwealth. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Salaries of Employees of the Commonwealth — Effect of Classifi- 
cation by Supervisor of Administration upon those fixed by 
Statute. 

Gen. St. 1918, c. 228, providing for the classification by the Supervisor 
of Administration of certain offices and positions in the government 
of the Commonwealth, has no effect upon salaries established by 
statute. 

Nov. 19, 1918. 
Mr. Thomas W. White, Acting Supervisor of Administration. 

Dear Sir: — You have asked my opinion as to whether the 
provisions of Gen. St. 1918, c. 228, relative to classifications, 
have the effect of repealing the specific salary rates which have 
from time to time been established by statute. 

Section 1 of said chapter provides: — 

All appointive offices and positions in the government of the common- 
wealth, except those in the judicial and legislative branches, shall be 
classified by the supervisor of administration, subject to the approval 
of the governor and council, in services, groups and grades according 
to the duties pertaining to each office or position. 



1919.] PUBLIC DOCUMENT — No. 12. 117 

In so far as classification is concerned, the section, in my 
judgment, applies to all such positions. Such classification, 
however, can have no effect upon salaries fixed by statute. 
Indeed, there are no provisions in the statute controlling the 
action of the head of a department in determining the salaries 
of officials and employees not established by law except those 
contained in section 3. The classification has no effect, of 
itself, upon the salaries of officers and employees. It is speci- 
fically provided in section 6 that the provisions of the act 
shall not effect a reduction in any salary, and there is no 
provision in the act by which the classification increases any 
salary. 

It would seem that the classification is for the assistance of 
the Legislature in making appropriations, and of the Governor 
and Council in determining whether to approve increases in 
salaries subject to their approval. Where a salary is specifi- 
cally fixed by statute, it cannot be increased or reduced except 
by act of the Legislature. Where it is not so fixed, it cannot 
be increased except in the manner provided by law, which is, 
ordinarily, by the head of a department, with the approval of 
the Governor and Council; and, since the passage of said 
chapter 228, in no event unless an appropriation sufficient to 
cover such increase has been granted by the General Court in 
pursuance of a specific recommendation in the estimates filed 
as required by law. 

Accordingly, I am of the opinion that said chapter has no 
effect upon salaries established by statute. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Supervisor of Administration — Disclosure of Fees by Sheriffs 
and Deputy Sheriffs. 

The Supervisor of Administration has authority, under chapter 86 of the 
Resolves of 1918, to require a disclosure of the amount of fees received 
by the various sheriffs and deputy sheriffs of the several counties. 

Dec. 18, 1918. 

Mr. Thomas W. White, Acting Supervisor of Administration. 

Dear Sir: — You have requested my opinion as to whether, 
under the provisions of chapter 86 of the Resolves of 1918, 
your department is authorized to require a disclosure of the 



US ATTORNEY-GENERAL'S REPORT. [Jan. 

amount of fees received by the various sheriffs and deputy 
sheriffs of the several counties. 

The resolve in question authorizes and directs the Super- 
visor of Administration "to investigate the working conditions 
of the judicial and all other officials and employees, appointive 
or elective, of the commonwealth, except in the department of 
legislation, and the several counties thereof, other than those 
included in senate document number three hundred and 
seventy of the present year, and the duties of such officials 
and employees, and their salaries, fees, allowances and other 
compensations." It then provides: — 

For the purposes of this resolve the supervisor shall have and may 
exercise in regard to all officials, employees and activities to which 
this resolve applies, the powers granted by chapter two hundred and 
ninety-six of the General Acts of nineteen hundred and sixteen, and 
amendments thereto, relating to employment in the service of the 
commonwealth. 



Senate Document Xo. 370, referred to in this resolve, was 
subsequently enacted as Gen. St. 1918, c. 228. 

The offices of sheriffs and of deputy sheriffs plainly do not 
come within the scope of this last-mentioned statute, but do, 
without doubt, come within the broad language of chapter 
86 of the Resolves of 1918. In my opinion, there can be no 
question but that, under this resolve, it is your duty to inves- 
tigate "the working conditions" and "the duties of such 
officials . . . and their salaries, fees, allowances and other 
compensations." 

Gen. St. 1916, c. 296, referred to in this resolve, abolished 
the Commission on Economy and Efficiency and created your 
department, giving to it "all the rights, powers, duties and 
obligations" of its predecessor, except as limited in the act. 
Section 8 provided as follows : — 

Unless authorized as provided by section six of chapter seven hundred 
and nineteen of the acts of the year nineteen hundred and twelve, 
the supervisor shall not exercise the powers conferred by section nine 
of said chapter without first obtaining the approval of the governor 
or of the committee on finance of the council, except that in making 
any examination he may require the production of books, papers, 
contracts and documents relating to any matter within the scope of 
the investigation. 



1919.] PUBLIC DOCUMENT — No. 12. 119 

St. 1912, c. 719, § 6, is as follows: — 

On request of either branch of the general court or of the ways and 
means committee of either branch, or of the governor, or of the com- 
mittee on finance of the governor's council, the commission shall make 
a special examination of any matter affecting the management or 
finances of any department, institution, board, undertaking or com- 
mission mentioned in section three, and on request shall give any infor- 
mation in its possession to either branch of the general court or to the 
ways and means committee of either branch or to the governor. 

Section 9 granted the following powers: — 

For the purpose of this act and in order to provide information 
which shall serve as a basis for legislation, the commission shall have 
the power to require the attendance and testimonjr of witnesses and 
the production of all books, papers, contracts and documents relating 
to any matter within the scope of any investigation authorized by this, 
act. 

In my judgment, the provisions of chapter 86 of the Re- 
solves of 1918 are to be regarded as an authorization, under 
St. 1912, c. 719, § 6, of the use of the powers above stated, 
granted by section 9 of the last-mentioned statute. Accord- 
ingly, your department is authorized to require the attendance 
and testimony of witnesses and the production of books and 
papers relating to the amount of fees received by the various 
sheriffs and deputy sheriffs, in connection with such investi- 
gations as you are making under the provisions of chapter 86 
of the Resolves of 1918. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



State Employees — Liability Insurance in Connection with the 
Operation of Motor Vehicles — Expense. 

The cost of liability insurance carried by an employee of the Massachu- 
setts Highway Commission, who is required to operate a motor vehicle 
in connection with his work, cannot properly be paid by the Common- 
wealth, since it is merely to provide indemnity to the insured against 
the possible results of his own negligence. 

Dec. 23, 1918. 
Massachusetts Highway Commission. 

Gentlemen: — ; You have requested my opinion as to whether 
the cost of liability insurance carried by certain of your em- 
ployees, who, because of the nature of their duties, are required 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

to operate motor vehicles in connection with their work, can be 
paid by the Commonwealth as a part of the expense of operat- 
ing your department. 

In my opinion, such items cannot properly be paid by the 
Commonwealth. The purpose of liability insurance in cases 
of this character is merely to provide indemnity to the insured 
for damages and expenses which he may be required to pay as 
the result of his own acts. If he is required to pay damages, 
it is because he has been found to be negligent. It seems to 
me that such insurance must be regarded as a personal protec- 
tion of the employee, taken out solely for his interest, and 
thus, that it cannot properly be charged against the Common- 
wealth. It differs only slightly from a policy of personal 
accident insurance which an employee might feel it desirable 
to carry because of the hazardous nature of his occupation. 
It may also be compared to a policy of fire insurance upon the 
home or property of an employee, which costs him more 
because of the fact that his duties require him to live in a 
neighborhood of extra hazard. 

In any case where the duties of an employee subject him 
to a substantial risk of losses of the character covered by 
liability insurance, it is, of course, well within the power of 
your Commission to take that matter into consideration in 
determining the compensation of the employee. In my opinion, 
the matter under consideration should be dealt with in this 
manner, and not by the allowance of liability insurance pre- 
miums as an expense of your department. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Public Service Cormnission — Jurisdiction over a Street Railway 
Company in the Hands of a Receiver appointed by a Federal 
Court — Discontinuance of Service. 

The receiver of a street railway company appointed by a Federal court 
has no greater rights with reference to the discontinuance of service 
upon the lines of such company than the company itself would have 
in operating its own property, and although he may discontinue service 
in certain cases, he can do so only subject to the investigation and 
control of the Public Service Commission. 

In case of such investigation by the Public Service Commission, the court 
appointing the receiver would undoubtedly direct him to present his 
side of the case, and if not satisfied with the order of the Commission, 
to appeal to the Supreme Judicial Court, under St. 1913, c. 784, § 27. 



1919.] PUBLIC DOCUMENT — No. 12. 121 

Dec. 26, 1918. 

Public Service Conmiission. 

Gentlemen: — You have asked my opinion with reference 
to certain questions of law relative to the powers and duties 
of your Commission, suggested by the petition of the receiver 
of the Bay State Street Railway Company, appointed by the 
United States District Court, asking that court for instructions 
as to a proposal that he shall discontinue service upon certain 
lines of that company. 

Your first question is as follows : — 

In what respect, if any, does the right of a street railway company, 
organized and operated in this Commonwealth but in the hands of 
a receiver appointed by a Federal court, to discontinue service on all 
or a portion of its lines differ from the right of a similar company which 
is not in a receiver's hands? 

In my opinion, a receiver of the property of such a street 
railway company, appointed by a Federal court, who is oper- 
ating those properties by virtue of a decree of the court 
appointing him, has no greater rights with reference to the 
discontinuance of service upon the lines of such company than 
the company itself would have in operating its own property. 

The Supreme Court of the United States has declared "that 
it is the duty of a receiver, appointed by a Federal court to 
take charge of a railroad, to operate such road according to 
the laws of the State in which it is situated. " Erb v. Morasch, 
111 U. S. 584, 585. "For in so far as he transports passengers 
and property he is a common carrier with rights and civil 
responsibilities as such." United States v. Nixon, 235 U. S. 
231, 234. 

As the last-cited case points out, he may be even subject to 
penal provisions of statutes directed against common carriers. 
When this liability, whether civil or criminal, is a statutory 
one, the question may arise whether the language of the stat- 
ute is broad enough to impose its liability upon receivers. 
Wall v. Piatt, 169 Mass. 398; United States v. Harris, 111 
U. S. 305; United States v. Nixon, supra. But, as these decisions 
indicate, this is merely a question of statutory construction. 
If the statute indicates a clear intention to impose a liability 
upon a receiver of a railroad, he cannot escape its burden. 

The right of street railways in this Commonwealth to dis- 
continue the use of their tracks was fully considered and 
discussed by the Supreme Judicial Court in Selectmen of Ames- 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

bury v. Citizens Electric Street Railway Co., 199 Mass. 394. 
It was there held that, subject to the provisions of its charter 
or other specific statutes, a street railway might at any time 
voluntarily discontinue, in whole or in part, the use of its 
tracks. Reference was made to St. 1891, c. 216, now codified 
as St. 1906, c. 463, pt. Ill, § 97, which is as follows: — 

If, in the opinion of the board of railroad commissioners, additional 
accommodations for the travelling public are required upon any street 
railway, it may, after due notice to the compairy and a hearing, make 
an order requiring such additional accommodations as it determines 
are just, and may alter, renew or revoke the order. A street railway 
company which, for more than one week after receiving notice in writing 
of such order, neglects to comply therewith, shall forfeit to the use of 
the city or town for which such additional accommodations are ordered, 
or if they are ordered for more than one city or town, to the use equally 
of such cities or towns, one hundred dollars for each day thereafter 
during which such neglect continues. 

The court declared: — 

After the enactment of this statute and under the provisions of 
Pub. Sts. c. 112, §§ 14, 17, either the municipal officers or twenty or 
more legal voters of a city or town within which part of any street 
railway was located could, if the public accommodation so required, 
obtain an order from the Board that the railway company should furnish 
such additional accommodations as were needed upon its railway, in- 
cluding of course any part thereof of which the company had chosen to 
discontinue the operation; for we cannot doubt that, so long at least 
as the tracks remained in the street, they were still a part of the com- 
pany's street railway. One effect accordingly of this statute was to 
make the company's discontinuance of the use of any portion of its 
tracks subject to the investigation and control of the Board of Railroad 
Commissioners in the manner provided for; but otherwise the power 
of the companj'- remained unaffected. 

As the statute quoted is directed against street railway 
companies only, and as the only provision for its enforcement 
is the imposition of a penalty upon a street railway company 
which neglects to comply with such an order, it may be 
argued with considerable force that this section is not to be 
construed as applicable to receivers of the property of street 
railway companies operating the same under decrees of court. 
If this were the only provision of law applicable to the situa- 
tion, I should hesitate to say that such a receiver could not 
discontinue the use of any tracks without interference from 



1919.] PUBLIC DOCUMENT — No. 12. 123 

your Commission, provided no charter or other specific statu- 
tory provision stood in the way. But the language of the Pub- 
lic Service Commission act (St. 1913, c. 724) is much broader. 
Section 23 provides : — 

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

In my opinion, this statute, being applicable to "any 
common carrier," must be construed as authorizing your Com- 
mission to make an order upon any subject-matter coming 
within its scope, directed to the receiver of the property of 
any street railway company who is operating the same within 
the Commonwealth as a common carrier. In my judgment, 
the discontinuance of service upon any existing line of tracks 
by any such common carrier, whether proposed or accom- 
plished, is a subject placed within the jurisdiction of your 
Commission by this section. 

It follows, in my opinion, that the receiver of the Bay State 
Street Railway Company has the right to discontinue service 
upon any lines of that company, provided he can do so with- 
out violating any specific charter or other statutory require- 
ments or any previous orders of your Commission or its 
predecessors. He has taken the property subject to all existing 
obligations and duties imposed upon it by law, and he may 
operate it only subject thereto. However, if he does so 
discontinue service, he must do so subject to the investigation 
and control of your Commission, under the authority given it 
by the section last quoted. In this respect he is subject to 
the same obligations and limitations as any street railway 
company operating its own property. 

Your second question is as follows: — 

If the discontinuance of service on all or a portion of its lines by a 
street railway company, organized and operated in this Commonwealth, 
but in the hands of a receiver appointed by a Federal court, is ordered 
or approved by said court, in what respect, if any, is the authority of 
this Commission over said service affected? 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

So far as this question relates to the authority of your 
Commission to enter orders requiring the receiver to re-estab- 
lish, in whole or in part, upon existing lines or tracks service 
discontinued by him, it is fully considered by me in dealing 
with your first question. So far as this question relates to 
the manner in which any such order would be enforced by or 
in behalf of your Commission, it need not be fully considered 
until such question arises. 

It is proper to suggest, however, that in case your Commis- 
sion institutes proceedings to determine the reasonableness or 
propriety of any such discontinuance by the receiver, or the 
adequacy of the service resulting therefrom, it can hardly be 
doubted that the court by which he was appointed would 
direct him to present the matter fully before your Commission, 
and, if not satisfied by any order entered by you, to appeal to 
the Supreme Judicial Court for a revision thereof, under St. 
1913, c. 784, § 27. Such a practice has been suggested by the 
United States Supreme Court to be an appropriate one in 
somewhat analogous cases. In re Tyler, 149 U. S. 164. By 
such a procedure all questions as to the operation and effect 
of the State statutes would be determined by our courts. 
If any Federal question or any question of general law arising 
in connection with the receivership proceedings then remained, 
it could be decided in the Federal courts in connection with 
the determination as to what order should be given to the 
receiver, if and after your order had been sustained by the 
Supreme Judicial Court. The Federal courts might possibly 
then be in a position where they must choose between direct- 
ing the receiver to obey the order of your Commission or 
requiring him to cease operating the railway. At best, in 
such cases, the court appointing the receiver is acting only 
in the interest of the creditors of the corporation, and has no 
authority to direct or permit violations of State laws for their 
benefit. 

Your third question, after stating the statutory provisions 
hereinbefore discussed, is as follows : — 

In view of these provisions of the statutes, does this Commission 
have power to. order a street railway company to restore service where 
it has been discontinued, and if so, what, in general, are the limitations 
upon this power? The commission has in mind questions such as 
these : — 

(a) Is a street railway company justified in discontinuing service 
upon a portion of its railway because it yields little or no return on 



1919.] PUBLIC DOCUMENT — No. 12. 125 

investment, although the patronage is sufficient to meet running 
expenses? 

(b) Is a street railway company justified in discontinuing service 
during the winter months upon a portion of its railway because the 
patronage is not sufficient in such months to meet running expenses, 
although it is sufficient on the average throughout the year to meet 
such expenses? 

(c) Is a street railway company justified in discontinuing service 
upon a portion of its railway because the patronage is not sufficient 
to meet running expenses, when such portion is located in a city where 
the lines of the company, taken as a whole, not only meet such expenses, 
but yield a return upon investment? 

As I have already pointed out, your Commission has author- 
ity to order a street railway company to restore service where 
it has been discontinued, at least so far as the tracks still re- 
main in the streets or upon the locations; but apart from the 
facts of particular cases, the limitations upon this power can 
be stated only in a most general way. I feel that it will prove 
much more satisfactory for me to leave the discussion of this 
matter until your Commission has before it questions relating 
to the restoration of service upon specific lines. I can then 
consider the questions which you raise in their relation to the 
facts of the individual cases. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Teachers' Retirement Association — Teachers in Private Schools 
— Forty -sixth Amendment — State Aid. 

Teachers in schools which are privately owned cannot be members of the 
Teachers' Retirement Association since the adoption of the Forty- 
sixth Amendment to the Constitution, forbidding the expenditure 
of public money for aiding such schools, although such schools may 
be conducted under the order and superintendence of a school com- 
mittee and are "public schools," within the meaning of the retirement 
law (St. 1913, c. 832). Teachers in these schools previously enrolled 
as members of the Teachers' Retirement Association are entitled only 
to the rights of withdrawing members of the association. 

Dec. 27, 1918. 
Teachers' Retirement Board. 

Gentlemen: — You have called my attention to the fact 
that there are within the Commonwealth a number of schools 
and academies which are privately owned but conducted under 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

the order and superintendence of duly elected school commit- 
tees. You' point out that, in view of the Forty-sixth Amend- 
ment to the Massachusetts Constitution, which became 
effective Oct. 1, 1918, no expenditure of the public money can 
hereafter be made for the purpose of maintaining or aiding 
such schools, since they are undertakings which are not 
publicly owned. In view of these conditions, you ask me the 
following questions relative to the administration of the 
Teachers' Retirement Act: — 

1. Should the teachers who have entered the service of these private 
schools since October 1 be members of the Retirement Association — 

(a) If they were formerly members of the Retirement Association, 
having formerly been employed in a public school? 

(6) If they are just commencing their service as teachers? 

2. Should teachers who have been employed in these academies and 
who have been enrolled as members of the association be continued 
as members of the retirement association? 

Assuming that these schools are conducted under the order 
and superintendence of the school committee of the particular 
town where they are located, they come within the definition 
of "public school" set forth in the retirement law (St. 1913, 
c. 832, § 1, par. 5). Prior to the adoption of said amendment 
to the Constitution, the public moneys could legally be ex- 
pended in maintaining and aiding these schools, and thus 
teachers therein could be given the benefit of the Teachers' 
Retirement Act. It seems plain, however, that making pro- 
vision for the payment of a pension out of public funds upon 
the retirement from service of a teacher in one of these schools 
is a proposal for the expenditure of public money in aid of 
such a school, and is, therefore, forbidden by said amendment 
to the Constitution. Thus, to the extent that the Teachers' 
Retirement Act authorizes membership in the Teachers' 
Retirement Association for teachers in these schools, it is in 
violation of this amendment, and, since Oct. 1, 1918, to that 
extent void. Membership in the association must hereafter be 
limited to teachers in schools which are "publicly owned" 
as well as " under the exclusive control, order and superintend- 
ence of public officers" (Forty-sixth Amendment). 

Thus, in answer to your first question, it must be said that 
no teacher who has entered the service of any of the schools 
to which you refer since Oct. 1, 1918, can be a member of the 
Teachers' Retirement Association. It is immaterial whether 



1919.] PUBLIC DOCUMENT — No. 12. 127 

such teachers were previously members of the association or 
not. They are plainly excluded from future membership by 
the fact that they have entered the service of a school which 
is no longer a public school. 

A similar answer must be made to your, second question. 
Since Oct. 1, 1918, these schools have ceased to be schools 
in the aid of which the public moneys may be appropriated. 
By the adoption of the Forty-sixth Amendment any authority 
for the maintenance of these schools as public institutions 
was revoked, and thus they were required to be returned to 
private control. Accordingly, teachers employed therein 
ceased to be teachers in the public schools, and the public 
moneys cannot thereafter be used to provide pensions for 
them. 

This result is not, in my judgment, affected by the exception 
in the amendment that " appropriations may be made ... to 
carry out legal obligations, if any, already entered into." 
The Commonwealth has entered into no legal obligation bind- 
ing it to maintain these schools as public institutions, or 
restricting its right in any way to modify their character. 
It has not bound itself not to abolish the positions of these 
teachers as public employees. The establishment of a pension 
system cannot limit the right of the Commonwealth thereafter 
to abandon or abolish any department or branch of the public 
service. This is all that has been done in the instance under 
consideration. Public schools maintained upon private prop- 
erty have been abolished as public institutions. 

It follows, in my opinion, that teachers in these schools who 
have been enrolled as members of the Teachers' Retirement 
Association can no longer be continued in its membership. 
By continuing in the service of these schools after Oct. 1, 1918, 
they must be regarded as having withdrawn from service in the 
public schools and entered the service of a private institution. 
They are, of course, as withdrawing members of the association, 
entitled to all the rights granted upon such withdrawal by sec- 
tion 7 of the Teachers' Retirement Act. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 



INDEX TO OPINIONS. 



Alien enemy, eligible for certificate to practice dentistry, 
Aliens, registration of; fees, . . . . . . 

Apples, grading and branding of, ...... 

Assessors of towns, power to fill vacancies, ..... 

Automobile Legal Association, attorney's services; guarantee of credit 
insurance, ......... 

Births and marriages, returns to Secretary of the Commonwealth, . 
Boards of health, one member a physician, ..... 

Bond and note issue of city and town, temporary loan, . 
Bonds of railroad corporations under control of United States; savings 
bank investments, ....... 

Boston Elevated Railway Company, trustees of; duty to file with Public 
Service Commission schedule of fares, ..... 

Capital stock, filing fee for increase of, ..... 

Charitable corporation, election of officers; voting by proxy, . 
Cities and towns, bond and note issue, temporary loan, 
City council, size of; power to regulate; Legislature, 

Civil engineers employed by Highway Commission; Workmen's Compen- 
sation Act, ......... 

Civil service, certificate of merit; probation; promotion, 

Height of firemen, ........ 

Civil Service Commission, authority to revoke certificate obtained by fraud 
Conciliation and arbitration, penalty for violation of award, 
Constitutional law, necessaries of life; distribution of, by State; cities and 
towns, ......... 

Delegation of power of Legislature; size of city council, . 

Education; tuition; appropriation, ..... 

Registration of aliens, ........ 

Corporations, increase of capital stock; filing fee, 

County officers and employees, increase in compensation; how determined 

Temporary increase of salary, court stenographers, 
Credit unions, membership; loans, ...... 

Dentistry, certificate to practice; alien enemy, .... 

District attorneys, power and duties in inferior courts, . 
Eight-hour law; State employee; extra work, .... 

Employees of institutions taken over by Commonwealth, retirement; pen 
sion, .......... 

Firemen, height of; statutory requirement, ..... 

Fisheries and Game, Commissioners on, licenses to catch lobsters, 
Fraternal benefit societies, surrender values and withdrawal equities, 
Governor and Council, right to erect and remove buildings on State prop 
erty, .......... 

Health boards, one member a physician, ..... 

Industrial school of shoemaking, payment for establishment and equip 
ment, ........•• 



PAGE 

115 
44 



18 



1919.] PUBLIC DOCUMENT — No. 12. 129 



Influenza epidemic, authority of Governor to incur expense, 

Insurance, Automobile Legal Association, attorney's services; guarantee 

credit, ......... 

Insurance company accepting business of unlicensed agent, liability of 
Intoxicating liquor, medicated alcohol, ..... 

License fees from clubs, to whom paid, ..... 

Justice of peace, jurisdiction of, . 

Kindling wood, sale of, without measure, ..... 

Labor and Industries, Board of, authority over war emergency industrial 

committee, ......... 

Legal advisory board, members of, not officers of the United States, . 
Liability insurance for State employees, expense, .... 

Lobsters, licenses to catch; authority given, .... 

Massachusetts School Fund, distribution of income, 

Military service, absent voter; year of election, .... 

Registration of absent voter, . . . . - . 

State employee, extra compensation, ..... 

Minimum Wage Commission, special license to women physically defec- 
tive, .......... 

Minors, employment of, in street trades, ..... 

Necessaries of life, distribution of, by State, cities and towns, 
Notary public, jurisdiction of, ...... 

Officers in prison service, classification; compensation, . 

Officers of United States, who are, ...... 

Parole Board, release of prisoners on expiration of minimum term of sen 

tence, .......... 

Pension to retired teacher elected to General Court; effect, . 

Permits to be at liberty; inmate of State Prison transferred to Prison 

Camp and Hospital, ....... 

Pharmacist, suspension or revocation of certificate of fitness, 

Prisoners' release after expiration of minimum term of sentence ; duty of the 

warden, ......... 

Probation officer, temporary; how paid, ..... 

Public Service Commission, jurisdiction of appeal by street railway com 

pany from city regulation, ...... 

Duty of trustees of Boston Elevated Railway Company to file sched 

ule of fares, ......... 

Records of births and marriages; returns to Secretary of Commonwealth 
Retirement, Board of, employees of institutions taken by Commonwealth 

pensions, ......... 

Retirement Association, member; transfer; non-contributory pension, 

Retirement of State employees; removal; refund; pension, . 

Rules and regulations issued by State boards general in scope, 

Salaries of county officers and court stenographers; temporary increase 

Salaries of employees fixed by statute; Supervisor of Administration, 

Savings bank investments, bonds of railroads under United States control 

Schools, tuition; appropriation of funds, ..... 

Sheriffs' fees, disclosure of, to Supervisor of Administration, . 
Sidewalk assessment, taxation of property of Commonwealth, 
Slaughtering in county training schools, inspection, 
State employees, expense of liability insurance, .... 

State employees in military service, extra compensation; permanent and 

temporary employment, ...... 

State Guard, general orders, execution of, .... 

Advances from treasury for camp duty, .... 



PAGE 

96 



40 
92 

6 
25 

2 
23 

57 
1 

119 
17 
13 
58 
84 

103 



29 
2 

60 

1 

67 
81 



51 

67 
22 

82 

90 

89 

55 

63 

26 

111 

101 

116 

110 

39 

117 

36 

106 

119 

103 
50 
64 



130 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



Street railway company in hands of receivers; jurisdiction of Public Serv- 
ice Commission, ........ 

Supervisor of Administration; salaries of employees fixed by statute, 

Sheriffs' fees, disclosure of, . 
Taxation, school tax, definition of, .... . 

Taxes of persons in military service, collection, 
Teacher retired on pension; member of General Court; effect, 
Teachers' Retirement Association; teachers in private schools, 
Textile school, trustees of, public officers, .... 
Trust companies, loans in excess of one-fifth capital stock, 
Tuition, appropriation of funds; academy, .... 
United States Guard, eligibility to State benefits, . 
Voter, absent ; year of election, ...... 

Registration, ........ 

War measure; influenza epidemic; authority of Government to 
expense, ........ 

War service, dependents of State employees; payment by State, 

Selective Service Act, classification of clerk of district court, 

State aid; dependents; relatives of half blood, 

State benefits to United States Guards, 

Useful occupation; registration, ..... 
Weights and measures, kindling wood, sale of; without measure, 



PAGE 

120 

116 

117 

13 

47 

81 

125 

108 

52 

39 

2 

58 

84 

96 
43 
12 
24 
2 
69 
23 



1919.1 PUBLIC DOCUMENT — No. 12. 131 



GKADE CROSSINGS. 



Notices have been served upon this department of the riling 
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. 
Taunton, Mayor and Aldermen of, petitioners. Petition for 
abolition of grade crossings at Danforth and other streets 
in Taunton. Thomas M. Babson, George F. Swain and 
Edwin U. Curtis appointed commissioners. Charles H. 
Beckwith appointed commissioner in place of Thomas M. 
Babson, deceased. Commissioners' report filed. James 
A. Stiles appointed auditor. Pending. 

Essex County. 
Gloucester. Boston & Maine Railroad, petitioner. Petition 
for abolition of crossings at Magnolia Avenue and Brays 
crossing. Arthur Lord, Moody Kimball and P. H. Cooney 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

appointed commissioners. Commissioners' report filed. 
A. W. DeGoosh appointed auditor. Auditor's third re- 
port filed. Disposed of. 

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. 
Pending. 

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. 

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. 



1919.] PUBLIC DOCUMENT — No. 12. 133 

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. Commis- 
sioners' 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 abolition 
of grade crossings at Lane's and Lee's crossings in West- 
field. Patrick H. Cooney, Richard W. Irwin and Franklin 
T. Hammond appointed commissioners. Chas. E. Hib- 
bard appointed commissioner in place of Richard W. 
Irwin, resigned. Commissioners' report filed. Walter F. 
Frederick appointed auditor. Auditor's third report filed. 
Disposed of. 

Hampshire County. 
Amherst, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Whitney, High and Main streets. Rail- 
road Commissioners appointed commissioners. Pending. 

Middlesex County. 

Acton, 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 r ater streets. Pending. 

Belmont, Selectmen of, petitioners. Petition for abolition of 
crossings at Waverley station. Thomas W. Proctor, 
Patrick H. Cooney and Desmond FitzGerald appointed 
commissioners. Pending. 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 

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 crossings at Willis Crossing. Pending. 

Lowell, Mayor and Aldermen of, petitioners. Petition for 
abolition of Middlesex and Thorndike streets crossing's. 
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. Disposed of. 

Lowell, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossing at Western Avenue and Fletcher 
Street. Pending. 

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. 



1919.] PUBLIC DOCUMENT — No. 12. 135 

Swain and James D. Colt appointed commissioners. 
Commissioners' report filed. James D. Colt appointed 
auditor in place of Patrick H. Cooney deceased. Auditor's 
thirteenth report filed. Pending. 

Somerville, Mayor and Aldermen of, petitioners. Petitipn 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 Wakefield. Pending. 

Waltham, Mayor and Aldermen of, petitioners. Petition for 
abolition of South Street crossing in Waltham. Geo. F. 
Swain, and Geo. A. Sanderson appointed com- 
missioners. Pending. 

Waltham, Mayor and Aldermen of, petitioners. Petition for 
abolition of Moody Street, Main Street, Elm Street, River 
Street, Pine Street, Newton Street and Calvary Street 
crossings in Waltham. Arthur Lord, Patrick H. Cooney 
and George F. Swain appointed commissioners. Pending. 

W T atertown, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Cottage, Arlington, School, Irving 
and other streets in Watertown. Pending. 

Wayland, Selectmen of, petitioners. Petition for abolition of 
grade crossing at State Road. George F. Swain, Harvey 
N. Shepard and Arthur W. DeGoosh appointed commis- 
sioners. Pending. 

Weston, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Central Avenue, Conant Road, Church 
and Viles streets. P. H. Cooney, Louis A. Frothing- 
ham and Andrew M. Lovis appointed commissioners. 
Pending. 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W. 
Wiggin, George F. Swain and Arthur Lord appointed com- 
missioners. Commissioners' report filed and recommitted. 
Pending. 



136 ATTORNEY-GENERAL'S REPORT. [Jan, 



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. 

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. 

Needham, Selectmen of, petitioners. Petition for abolition of 
Charles River Street crossing in Needham. Pending. 

Quincy. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Saville and Water streets crossings in Quincy. John L. 
Bates, Winfield S. Slocum and Arthur H. Wellman ap- 
pointed commissioners. Commissioners' report filed and 
recommitted. Joseph B. Lyons appointed commissioner 
in place of Winfield S. Slocum, deceased. Pending. 

Westwood. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Green Lodge Street crossing in Westwood. Samuel L. 
Powers, Stephen S. Taft and Wm. Jackson appointed com- 
missioners. Commissioners' report filed. Recommitted. 
Pending. 

Plymouth County. 
Rockland, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Union and other streets in Rockland. 
Pending. 



1919.1 PUBLIC DOCUMENT — No. 12. 137 



Suffolk County. 

Boston, Mayor and Aldermen of, petitioners. Petition for abo- 
lition of Dudley Street crossing in Dorchester. Thomas 
Post, Fred Joy and Edmund K. Turner appointed com- 
missioners. Commissioners' report filed. James D. Colt 
appointed auditor. Auditor's tenth report filed. Pending. 

Boston, 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. 

Boston. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Petition for abolition of grade crossing 
at West First Street. William B. Thompson, Philip 
Nichols and H. Heustis Newton appointed commis- 
sioners. Commissioners' report filed. Pending. 

Revere, Selectmen of, petitioners. Petition for abolition of 
Winthrop Avenue crossing in Revere of the Boston, 
Revere Beach & Lynn Railroad. Pending. 

Worcester Comity. 

Clinton, Selectmen of, petitioners. Petition for abolition of 
Sterling, Water, Main, High and Woodlawn streets cross- 
ings. George W. W'iggin, 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. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. A. W. DeGoosh, 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. Commissioners' report filed. 
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 crossing. 
Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossings at Exchange, Central and Thomas 
and other streets. Arthur Lord, George F. Swain and 
Fred Joy appointed commissioners. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of Grafton Street crossing and eight other cross- 
ings, including alterations of Union Station. James R. 
Dunbar, James H. Flint and George F. Swain appointed 
commissioners. Commissioners' report filed. James A. 
Stiles appointed auditor. Auditor's seventy-third report 
filed. Pending. 



1919.1 PUBLIC DOCUMENT — No. 12. 139 



BULES OF PRACTICE 

In Interstate Rendition. 



Every application to the Governor for a requisition upon the 
executive authority of any other State or Territory, for the de- 
livery up and return of any offender who has fled from the 
justice of this Commonwealth, must be made by the district or 
prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original 
papers, or certified copies thereof. 

The following must appear by the certificate of the district 
or prosecuting attorney: — 

(a) The full name of the person for whom extradition is 
asked, together with the name of the agent proposed, to be 
properly spelled. 

(b) That, in his opinion, the ends of public justice require 
that the alleged criminal be brought to this Commonwealth 
for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the 
conviction of the fugitive. 

(d) That the person named as agent is a proper person, and 
that he has no private interest in the arrest of the fugitive. 

(e) If there has been any former application for a 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. 



140 ATTORNEY-GENERAL'S REPORT. [Jan. 

(h) The nature of the crime charged, with a reference, when 
practicable, to the particular statute defining and punishing 
the same. 

(i) If the offence charged is not of recent occurrence, a satis- 
factory reason must be given for the delay in making the ap- 
plication. 

1. In all cases of fraud, false pretences, embezzlement or 
forgery, when made a crime by the common law, or any penal 
code or statute, the affidavit of the principal complaining wit- 
ness or informant that the application is made in good faith, 
for the sole purpose of punishing the accused, and that he does 
not desire or expect to use the prosecution for the purpose of 
collecting a debt, or for any private purpose, and will not di- 
rectly or indirectly use the same for any of said purposes, shall 
be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 
the Executive that the alleged criminal has fled from the jus- 
tice of the State, and is in the State on whose Executive the 
demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged 
crime was committed at the time of the commission thereof, 
and is found in the State upon which the requisition was 
made, shall be sufficient evidence, in the absence of other 
proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in dupli- 
cate, must accompany the application. 

4. If an indictment has not been found by a grand jury, the 
facts and circumstances showing the commission of the crime 
charged, and that the accused perpetrated the same, must be 
shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) 
It must also be shown that a complaint has been made, copies 
of which must accompany the requisition, such complaint to 
be accompanied by affidavits to the facts constituting the 
offence charged by persons having actual knowledge thereof, 
and that a warrant has been issued, and duplicate certified 
copies of the same, together with the returns thereto, if any, 
must be furnished upon an application. 

5. The official character of the officer taking the affidavits 
or depositions, and of the officer who issued the warrant, must 
be duly certified. 



1919.] PUBLIC DOCUMENT — No. 12. 141 

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.