(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

Public Document 



No. 12 



Elp (Hammonrnmltii nf iHaBsarlfua^ttfi 



REPORT 



ATT ORISTEY- GENERAL 



Year ending January 21, 1920 




BOSTON 

WRIGHTi & POTTER PRINTING CO., STATE PRINTERS 

32 DERNE STREET 

1920 



(Jl)e iJlomtnonroealtl) of ilTa00act)U0ett6 



Department of the Attorney-General, 
Boston, Jan. 21, 1920. 

To the Honorable Senate and House of Reyreseniatives. 

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

Very respectfully, 

HENRY A. WYMAN, 

Attorney-General. 



®l)e arommonrucaltl) of iWassacliuaetts 



DEPARTMENT OP THE ATTORNEY-GENERAL. 

State House. 



Attorney-General. 
HENRY C. ATTWILL.i 
HENRY A. WYMAN. 

Assistants. 
Wm. Harold Hitchcock. 
Arthur E. Seagrave. 
John W. Corcoran. 
Charles W. Mulcahy. 
Max L. Levenson. 
Jay R. Benton. 
Leland Powers. 
Edwin H. Abbot, Jr 
Albert Hurwitz. 

Chief Clerk. 
Louis H. Freese. 



3 



Resigned Aug. 13, 1919. 2 Resigned Nov. 15, 1919. 3 Resigned Nov. 1, 1919. 



STATEMENT OF APPROPRIATION AND EXPENDITURES, 



Appropriation for 1919, $50,000 00 

Appropriation, additional, . . . . . . . 10,000 00 

Expenditures. 

For law library, $542 22 

For salaries of assistants, 18,761 92 

For clerks, 6,426 66 

For office stenographers, 4,914 00 

For telephone operator, 673 74 

For legal and special services and expenses, . . . 6,929 92 

For office expenses, 3,693 39 

For court expenses, 10,223 36 



Total expenditures, . $52,165 21 



®I}^ fflnmrnnttUJ^altli of MuBBmiimttU 



Department of the Attorney-General, 
Boston, Jan. 21, 1920. 

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 10,872, are tabulated below: — 

Corporate franchise tax cases, 1,029 

Extradition and interstate rendition, 194 

Grade crossings, petitions for abolition of, 65 

Indictments for murder, 49 

Inventories and appraisals, 15 

Land Court petitions, 77 

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, 37 

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, 11 

Land-damage cases arising from the taking of land by the Met- 
ropolitan Park Commission, 23 

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

Commission on Waterways and Public Lands, ... 8 

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

House Building Commission, 2 

Miscellaneous cases arising from the work of the above-named 

commissions, ... - 39 

Miscellaneous cases, 868 

Petitions for instructions under inheritance tax laws, . . . 31 

Pubhc charitable trusts, 102 

Settlement cases for support of persons in State Hospitals, . 44 

All other cases not enumerated above, which include suits to 
require the fihng of returns by corporations and individuals 
and the collection of money due the Commonwealth, . . 8,269 



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: — 

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. On Dec. 19, 1918, the defendant 
retracted his former plea, and pleaded guilty to manslaughter. 
This plea was accepted by the Commonwealth, and the defend- 
ant was thereupon sentenced to State Prison for a term of 
not more than five nor less than two and one-half years. 
The case was in charge of District Attorney Joseph B. Ely. 

Isaiah E. Booth, indicted in Suffolk County, December, 
1918, for the m.urder of Fred Pullum, on Nov. 9. 1918. He 
was arraigned March 19, 1919, and pleaded guilty to man- 
slaughter. This plea was accepted by the Commonwealth, 
and the defendant was thereupon sentenced to State Prison 
for a term of not more than five nor less than two and one- 
half years. William H, Lewis, Esq., appeared as counsel for 
the defendant. The case was in charge of District Attorney 
Joseph C. Pelletier. 

WiLLARD E. Ellis, indicted in Hampden County, Sep- 
tember, 1918, for the murder of Henry M. Green, at Wil- 
braham, on June 27, 1918. He was arraigned Sept. 20, 1918, 
and pleaded not guilty. James E. Dunleavy, Esq., and 
William J. Granfield, Esq., appeared as counsel for the defend- 
ant. Later the defendant retracted his former plea, and 
pleaded guilty to murder in the second degree. This plea 
was accepted by the Commonwealth, and the defendant was 
thereupon sentenced to State Prison for life. The case was 
in charge of District Attorney Joseph B. Ely. 

DoMENico FiORAXTi, indicted in Suffolk County, Sep- 
tember, 1918, for the murder of Marie Tamburino, at Bos- 



1920.] PUBLIC DOCUMENT — No. 12. ix 

ton, on May 9, 1918. The defendant was arraigned Dec. 9, 
1918, and pleaded not guilty. Louis Cohen, Esq., and John 
W. Connolly, Esq., appeared as counsel for the defendant. 
In May, 1919, the defendant was tried by a jury before 
Callahan, J. The result was a verdict of not guilty. The 
case was 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., 
appealed as counsel for the defendant Margaret Hewitt. In 
April, 1919, the defendant Lincoln M. Grant was tried by a 
jury before Morton, J. The result was a verdict of guilty of 
murder in the second degree. The defendant Lincoln M. 
Grant was thereupon sentenced to State Prison for life. On 
July 28, 1919, the defendant Margaret Hewitt was released 
on her own recognizance. The cases were in charge of District 
Attorney Joseph B. Ely. 

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 foj the defendant. On 
March 20, 1919, the defendant retracted his former plea, and 
pleaded guilty to manslaughter. This plea was accepted by 
the Commonwealth, and the defendant was thereupon sen- 
tenced to State Prison for a term of not more than ten nor 
less than eight years. The case was in charge of District 
Attorney Joseph C. Pelletier. 

ViNCENZo 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. On Feb. 14, 1919, the defendant retracted 



X ATTORNEY-GENERAL'S REPORT. [Jan. 

his former plea, and pleaded guilty to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 
was sentenced to State Prison for a term of not more than 
fifteen nor less than thirteen years. The case was in charge 
of District Attorney Henry G. Wells. 

Giovanni Percoco, indicted in Middlesex County, March, 
1916, for the murder of Sam.uel Wolkon, at Somerville, on 
April 29, 1916. The defendant has been apprehended in 
Italy and is to be tried in that country. The case was in 
charge of District Attorney Nathan D. Tufts. 

Charles Rollins and George L. Rollins, alias, 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. Thomas L. Walsh, 
Esq., appeared as counsel for the defendant Charles Rollins. 
In December, 1919, the defendant Charles Rollins was tried 
by a jury before John F. Brown, J. The result was a 
verdict of guilty of murder in the second degree. The de- 
fendant was thereupon sentenced to State Prison for life. 
The defendant George L. Rollins was not tried on this indict- 
ment, having been found guilty of murder in the first degree 
on an indictment for the murder of Ordway R. Hall. The 
case was 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. James E. Dunleavy, Esq., 
appeared as counsel for the defendant. Later the defendant 
retracted his former plea, and pleaded guilty to manslaughter. 
This plea was accepted by the Commonwealth, and the 
defendant was thereupon sentenced to State Prison for a term 
of not more than fifteen nor less than ten years. The case 
was in charge of District Attorney 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, 



1920.] PUBLIC DOCUMENT — No. 12. xi 

and pleaded not guilty. Daniel J. Daley, Esq., appeared as 
counsel for the defendant. In June, 1919, the defendant was 
tried by a jury before Thayer, J. The result was a verdict of 
not guilty. The case was in charge of Hon. Henry C. Attwill^ 
Attorney-General, and 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. John P. Vahey, Esq., appeared as 
counsel for the defendant. On June 27, 1918, the defendant 
was committed to the Taunton State Hospital for observa- 
tion. On Feb. 11, 1919, a verdict of not guilty by reason of 
insanity was ordered by Thayer, J. The defendant was 
thereupon committed to the Bridgewater State Hospital for 
life. The case was in charge of District Attorney Frederick 
G. Katzmann. 

MiCHELE ToTOLO, indicted in Middlesex County, Jan. 1,. 
1918, for the murder of Palma Ditino, at Acton, on Jan. 3, 
1918. The defendant has been apprehended in Italy and is 
to be tried in that country. The case was in charge of 
District Attorney Nathan A. Tufts. 

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

Harry Baker and Eleanor Baker, alias, indicted in 
W^orcester County, August, 1919, for the murder of Dwight 
P. Chapman, at Westborough, on June 9, 1919. They were 
arraigned Sept, 2, 1919, and pleaded not guilty. George S. 
Taft, Esq., and Daniel W. Lincoln, Esq., appeared as counsel 
for the defendants. In December, 1919, the defendants were 
tried by a jury before Sisk, J. On Dec. 16, 1919, during the 
trial, the defendant Harry Baker retracted his former plea, 
and pleaded guilty to murder in the second degree. This 
plea was accepted by the Commonwealth, and the defendant 
Harry Baker was sentenced to State Prison for life. On Dec. 
16, 1919, a verdict of not guilty was ordered by the court in 
the case of the defendant Eleanor Baker. The cases were in 
charge of District Attorney Edward T. Esty. 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

Herman L. Barney, alias, and John F. Dillon, alias, 
indicted in Suffolk County, March, 1919, for the murder of 
Charles E. Deininger, on Feb. 13, 1919, and John Dillon, 
alias, as accessory before the fact, and Joseph F. Hurley, as 
accessory both before and after the fact, of the murder of 
Charles E. Deininger. The defendants were arraigned April 
21, 1919, and each pleaded not guilty. E. Juggins, Esq., and 
Thomas F. Murphy, Esq., appeared as counsel for the defend- 
ant Herman L. Barney, Hon. Edward P. Barry appeared for 
the defendant John Dillon, and John F. McDonald, Esq., 
appeared for the defendant Joseph F. Hurley. In June, 1919, 
the defendants Herman L. Barney and John F. Dillon were 
tried by a jury before Callahan, J. The result was a verdict 
of guilty of manslaughter in the case of the defendant Herman 
L. Barney, and a verdict of not guilty in the case of the defend- 
ant John F. Dillon. The defendant Herman L. Barney was 
thereupon sentenced to State Prison for a term of not more 
than twenty nor less than fifteen years. On June 28, 1919, 
an entry of 7iolle prosequi was made on the indictment against 
Joseph F. Hurley. The cases were in charge of District 
Attorney Joseph C. Pelletier. 

PiETRO Bruzzese, indicted in Plymouth County, February, 
1919, for the murder of Salvatore Aprile, at Hingham, on Jan. 
8, 1919. He was arraigned Feb. 13, 1919, and pleaded not 
guilty. J. E. Crowley, Esq., appeared as counsel for the 
defendant. On June 18, 1919, the defendant retracted his 
former plea, and pleaded guilty to manslaughter. This plea 
was accepted by the Commonwealth, and the defendant was 
thereupon sentenced to the Plymouth County House of 
Correction for a term of eighteen months. The case was in 
charge of District Attorney Frederick G. Katzmann. 

Ellie W. Corkins, indicted in Franklin County, July, 
1919, for the murder of Robert Lawless, at Greenfield, on 
June 4, 1919. He was arraigned July 15, 1919, and pleaded 
not guilty. William A, Davenport, Esq., and Charles Fair- 
hurst, Esq., appeared as counsel for the defendant. Later 
the defendant retracted his former plea, and pleaded guilty 
to murder in the second degree. This plea was accepted by 



1920.] PUBLIC DOCUMENT — No. 12. xiii 

the Commonwealth, and the defendant was sentenced to 
State Prison for life. The case was in charge of District 
Attorney John H. Schoonmaker. 

Peter DiZazzo, indicted in Essex Comity, May, 1918, for 
the murder of Tony Volenti, at Lawrence, on Feb. 9, 1918, 
He was arraigned May 29, 1918, and pleaded not guilty. 
Hon. W. Scott Peters and Raphael A. A. Comparone, Esq., 
appeared as counsel for the defendant. On May 1, 1919, an 
entry of nolle prosequi was made against this indictment. 
The case was in charge of District Attorney Henry G. Wells. 

Marie O. Fisher, indicted in Suffolk County, May, 1919, 
for the murder of Eugene L. Fisher, on April 21, 1919. She 
was arraigned June 2, 1919, and pleaded not guilty. John 
P. Feeney, Esq., appeared as counsel for the defendant. 
Later the defendant retracted her former plea, and pleaded 
guilty to manslaughter. This plea was accepted by the Com- 
monwealth, and the defendant was thereupon sentenced to 
one year in jail. The case was in charge of District Attorney 
Joseph C. Pelletier. 

Giuseppe Graceffa, indicted in Middlesex County, June, 
1919, for the murder of Giuseppe Cipolla, at Maynard, on 
June 15, 1919. He was arraigned Sept. 11, 1919, and pleaded 
not guilty. On Nov. 24, 1919, the indictment was placed 
on file. The case was in charge of District Attorney Joseph 
C. Pelletier. 

Alexander Krolle and Stella Archook, indicted in 
Suffolk County, April, 1919, for the murder of Peter Arch- 
ook, on Feb. 10, 1919. They were arraigned April 21, 1919, 
and pleaded not guilty. Maurice Caro, Esq., appeared as 
counsel for the defendant Alexander Krolle, and John Daley, 
Esq., appeared for the defendant Stella Archook. While 
awaiting trial the defendant Alexander Krolle committed 
suicide, and on July 9, 1919, an entry of nolle inosequi was 
made on the indictment against the defendant Stella Arch- 
ook. The cases were in charge of District Attorney Joseph 
C. Pelletier. 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

Gertrude LaCourt, indicted in Suffolk County, April, 
1919, for the murder of Louis LaCourt, on March 22, 1919. 
She was arraigned April 21, 1919, and pleaded not guilty. 
George H. Shields, Esq., appeared as counsel for the defend- 
ant. On May 20, 1919, the defendant retracted her former 
plea, and pleaded guilty to manslaughter. The defendant has 
been released on her own recognizance. The case was in 
charge of District Attorney Joseph C. Pelletier. 

JajVies F. Lyden, indicted in ^Middlesex County, June, 
1919, for the murder of Annie Wilson, at Cambridge, on May 
2, 1919. He was arraigned June 12, 1919, and pleaded not 
guilty. Edward A. Counihan, Jr., Esq., appeared as counsel 
for the defendant. On June 24, 1919, the defendant re- 
tracted his former plea, and pleaded guilty to manslaughter. 
This plea was accepted by the Commonwealth, and the 
defendant was thereupon sentenced to State Prison for a 
term of not more than eighteen nor less than fifteen years. 
The case was in charge of District Attorney Nathan A. 
Tufts. 

Elmer V. Maki, indicted in Middlesex County, June, 
1919, for the murder of Martin H. Gallagher, at Lowell, on 
June 15, 1919. He was arraigned Sept. 17, 1919, and pleaded 
guilty to manslaughter. This plea was accepted by the 
Commonwealth, and the defendant was thereupon sentenced 
to State Prison for a term of not more than twelve nor less 
than nine years. Edward J. Tierney, Esq., appeared as 
counsel for the defendant. The case was in charge of Dis- 
trict Attorney Nathan A. Tufts. 

William R. ]\IcLaxe, alias, indicted in Bristol County, 
June, 1919, for the murder of Leroy E. Thomas. He was 
arraigned June 17, 1919, and pleaded guilty to manslaughter. 
This plea was accepted by the Commonwealth, and the de- 
fendant was sentenced to the house of correction for eighteen 
months. H. E. Woodward, Esq., appeared as counsel for 
the defendant. The case was in charge of District Attorney 
Joseph T. Kenney. 



1920.]. PUBLIC DOCUMENT — No. 12. xv 

DoMiNiCK Parisi and Rosario Papia, indicted in Middle- 
sex County, March, 1919, for the murder of Luigi Graceffa, 
at Waltham, on Jan. 19, 1919. They were arraigned April 
16, 1919, and pleaded not guilty. Maurice Flynn, Esq., 
appeared as counsel for the defendant Dominick Parisi, and 
James E. Henchey, Esq., for the defendant Rosario Papia. 
On Sept. 11, 1919, the indictments were placed on file. The 
cases were in charge of District Attorney Nathan A. Tufts. 

Raffelle Rizzo, indicted in Suffolk County, March, 1919, 
for the murder of Savatore Campagno, on Jan. 8, 1919, and 
Pasquale Losanno, indicted as accessory after the fact to the 
murder of Savatore Campagno; and Pasquale Losanno, 
indicted in Suffolk County, March, 1919, for the murder of 
Savatore Campagno, on Jan. 8, 1919, and Raffelle Rizzo, 
indicted as accessory before the fact to the murder of Savatore 
Campagno. The defendants were arraigned April 21, 1919, 
and each pleaded not guilty. Thomas F. Murphy, Esq., 
appeared as counsel for the defendant Raffelle Rizzo, and 
William M. Marshall, Esq., and Felix Forte, Esq., appeared 
as counsel for the defendant Pasquale Losanno. In Sep- 
tember, 1919, the defendants were tried by a jury before 
McLaughlin, J. The result was a verdict of not guilty in 
the case of each defendant. The cases were in charge of 
District Attorney Joseph C. Pelletier. 

Michael Sadnoway, alias, indicted in Suffolk County, 
April, 1919, for the murder of Adel Sadnoway, on March 7, 
1919. He was arraigned April 21, 1919, and pleaded not 
guilty. Amos R. Little, Esq., appeared as counsel for the 
defendant. On June 24, 1919, the defendant retracted his 
former plea, and pleaded guilty to murder in the second 
degree. This plea was accepted by the Commonwealth, and 
the defendant was thereupon sentenced to State Prison for 
life. The case was in charge of District Attorney Joseph C. 
Pelletier. 

George Shields, indicted in Middlesex County, January, 
1919, for the murder of Rose Trainor, at Lowell, on Jan. 20, 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

1919. He was arraigned March 11, 1919, and pleaded not 
guilty. Edward J. Tierney, Esq., appeared as counsel for 
the defendant. On March 24, 1919, the defendant retracted 
his former plea, and pleaded guilty to murder in the second 
degree. This plea was accepted by the Commonwealth, and 
the defendant was thereupon sentenced to State Prison for 
life. The case was in charge of District Attorney Nathan A. 
Tufts. 

Manuel Teixeira, indicted in Bristol County, June, 1919, 
for the murder of Julio Fernandes. He was arraigned June 
17, 1919, and pleaded not guilty. C. N. Serpa, Esq., appeared 
as counsel for the defendant. Later the defendant retracted 
his former plea, and pleaded guilty to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 
was thereupon sentenced to the house of correction for one 
year. The case was in charge of District Attorney Joseph 
T. Kenney. 

Frank B. Wohlgemuth, indicted in Suffolk County, 
April, 1919, for the murder of Mary Wohlgemuth, on March 
30, 1919. He was arraigned April 21, 1919, and pleaded not 
guilty. E. M. Dangel, Esq;, and Daniel J. Daley, Esq., 
appeared as counsel for the defendant. In October, 1919, 
the defendant was tried by a jury before Fessenden, J. The 
result was a verdict of not guilty. The case was in charge of 
District Attorney Joseph C. Pelletier. 

Herbert Wright, indicted in Suffolk County, May, 1919, 
for the murder of James R. Europe, on May 9, 1919. He 
was arraigned May 14, 1919, and pleaded not guilty. J. W. 
Ramsey, Esq., appeared as counsel for the defendant. On 
June 9, 1919, the defendant retracted his former plea, and 
pleaded guilty to manslaughter. This plea was accepted by 
the Commonwealth, and the defendant was thereupon sen- 
tenced to State Prison for a term of not more than fifteen 
nor less than ten years. The case was in charge of District 
Attorney Joseph C. Pelletier. 



1920.] PUBLIC DOCUMENT — No. 12. xvii 

The following indictments for murder are now pending: — 

John Arzenti, indicted in Plymouth County, October, 
1919, for the murder of Frank Gentile, at Brockton, on July 
17, 1919. He was arraigned Oct. IG, 1919, and pleaded not 
guilty. W. J. Callahan, Esq., appeared as counsel for the 
defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Frederick G. 
Katzmann. 

Joseph E. Bamforth, alias, indicted in Essex County, 
May, 1919, for the murder of Minnie Bamforth and Martha 
E. Graham, at Haverhill, on Jan. 19, 1919. He was arraigned 
May 16, 1919, and pleaded not guilty. Essex S. Abbott, Esq., 
appeared as counsel for the defendant. On Oct. 24, 1919, 
the defendant was committed to the Danvers State Hospital 
for observation. The case is in charge of District Attorney 
S. Howard Donnell. 

WojciECH BiRUSZ, alias, indicted in Essex County, Janu- 
ary, 1919, for the murder of Mary B. Lavoie, at Salem, on 
Dec. 12, 1918. He was arraigned Jan. 20, 1919, and pleaded 
not guilty. William H. ]McSweeney, Esq., appeared as 
counsel for the defendant. On March 5, 1919, the defendant 
w^as committed to the Danvers State Hospital for observa- 
tion. The case is in charge of District Attorney S. Howard 
Donnell. 

NuNzio CoLELLA, indicted in Suffolk County, July, 1919, 
for the murder of Antonio DeAngelis, on June 8, 1919. He 
was arraigned July 16, 1919, and pleaded not guilty. Thomas 
J. Grady, Esq., appeared as counsel for the defendant. Later 
an entry of nolle inosequi was made against said indictment 
except so much thereof as charged manslaughter. No fur- 
ther action has been taken in this case. 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 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

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., and Melvin G. Rogers, 
Esq., appeared as counsel for Joseph Cordia, and Meyer J. 
Sawyer, Esq., and John H. Mack, Esq., for Francisco Feci. 
In March, 1919, the defendants were tried by a jury before 
Dubuque, J. The result was a verdict of not guilty in the 
case of the defendant Joseph Cordia, and a verdict of guilty 
of murder in the first degree in the case of the defendant 
Francisco Feci. The motion of the defendant Francisco 
Feci for a new trial was overruled. At the trial of the case 
the defendant Francisco Feci alleged certain exceptions, 
which are now pending before the Supreme Judicial Court. 
The case is in charge of District Attorney Nathan A. Tufts. 

Joseph DeLaurextis, indicted in Suffolk County, Decem- 
ber, 1919, for the murder of William L. Duchaine, on Nov. 
11, 1919. He was arraigned Dec. 10, 1919, and pleaded not 
guilty. Richard M. Walsh, 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. 

AxGELO DiCassio, alias, indicted in Hampden County, 
December, 1919, for the murder of Volpini Fillippo, at Spring- 
field, on Nov. 30, 1919. He was arraigned Dec. 30, 1919, and 
pleaded not guilty. Silvio "Martinelli, Esq., and Thomas F. 
Moriarty, Esq., appeared as counsel for the defendant. No 
further action has been taken in this case. The case is in 
charge of District Attorney Charles H. Wright. 

Imbrian Hassan and Suleman Hassan, indicted in Essex 
County, January, 1919, for the murder of Ali Hassan, at 
Salem, on Oct. 28, 1918. The defendants were arraigned 
Feb. 6, 1919, and pleaded not guilty. Edward J. Carney, 
Esq., and Charles A. Green, Esq., appeared as counsel for the 
defendant Imbrian Hassan, and William H. Fay, Esq., and 
Thomas R. Vahey, Esq., appeared as counsel for the defend- 
ant Sulem.an Hassan. On July 3, 1919, an entry of nolle 
'prosequi was made on so much of the indictment against 



1920.] PUBLIC DOCUMENT — No. 12. xix 

Suleman Hassan as charged murder in the first degree; and 
on Oct. 2, 1919, an entry of nolle inosequi was made on so 
much of the indictment against Imbrian Hassan as charged 
murder in the first degree. In October, 1919, the defendants 
were tried by a jury before Callahan, J. The result was a 
verdict of guilty of manslaughter in the case of the defendant 
Imbrian Hassan, and a verdict of not guilty in the case of the 
defendant Suleman Hassan, The defendant Imbrian Hassan 
was thereupon sentenced to State Prison for a term of not 
more than seven nor less than five years. At the trial of the 
case the defendant Imbrian Hassan alleged certain exceptions 
which are now pending before the Supreme Judicial Court. 
The case is in charge of District Attorney S. Howard Don- 
nell. 

Antonio Ingemi, indicted in Essex County, May, 1919, 
for the murder of Salvatore Salvo, at Salem, on March 21, 
1919. He was arraigned May 16, 1919, and pleaded not 
guilty. Edward J. Carney, Esq., and Charles A. Green, 
Esq., appeared as counsel for the defendant. No furthel* 
action has been taken in this case. The case is in charge of 
District Attorney S. Howard Donnell. 

Frank Walter Potter, indicted in Hampden County, 
May, 1919, for the murder of George A. Bills, at Palmer, on 
Feb. 24, 1919. He was arraigned May 16, 1919, and pleaded 
not guilty. Richard P. Stapleton, Esq., appeared as counsel 
for the defendant. No further action has been taken in this 
case. The case is in charge of District Attorney Charles H. 
Wright. 

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 
District Attorney Joseph C. Pelletier. 



XX ATTORNEY-GENERAL'S REPORT. [Jan. 

Henry Seipel, indicted in Plymouth County, October, 
1919, for the murder of Alfred W. Raymond, at Brockton, 
on July 1, 1919. A. F. Barker, Esq., appeared as counsel for 
the defendant. On Oct. 21, 1919, the defendant was com- 
mitted to the State Farm for observation. The case is in 
charge of District Attorney Frederick G. Katzmann. 

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 were allowed by the Supreme Judicial Court 
Nov. 22, 1919. On March 25, 1919, the defendant was 
committed to the Dan vers State Hospital for observation. 
The case is in charge of District Attorney S. Howard Donnell. 

Antonio Teregno, and Maria Cammerota, 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, which exceptions were overruled. The defendant 
Antonio Teregno was thereupon sentenced to death by elec- 
trocution during the week beginning April 4, 1920. The case 
is in charge of District Attorney Charles H. Wright. 



1920.] PUBLIC DOCUMENT — No. 12. xxi 

DoMENiCK Vass and Manuel Smith, indicted in Suffolk 
County, June, 1919, for the murder of Francis Marshall, on 
April 25, 1919. The defendants were arraigned June 11, 
1919, and each pleaded not guilty. William H. Lewis, Esq., 
appeared as counsel for the defendant Domenick Vass, and 
J. W. Schenck, Esq., appeared for the defendant Manuel 
Smith. No further action has been taken in these cases. 
The cases are in charge of District Attorney Joseph C. Pelle- 
tier. 

Victor Verier, indicted in Essex County, January, 1919, 
for the murder of Elizabeth Verier, at Lawrence, on Dec. 14, 

1918. On Oct. 24, 1919, the defendant was adjudged insane 
and was committed to the Bridgewater State Hospital until 
further order of the court. The case was in charge of Dis- 
trict Attorney Henry G. Wells. 

Jennie G. Zimmerman, indicted in Hampden County, 
September, 1919, for the murder of Henry Zimmerman, at 
Springfield, on Aug. 7, 1919. She was arraigned Sept. 15, 

1919, and pleaded not guilty. William G. McKechnie, Esq., 
appeared as counsel for the defendant. No further action 
has been taken in this case. The case is in charge of Dis- 
trist Attorney Charles H. Wright. 

Grade Crossings. 

The following is the report of the work done in connection 
with the elimination of grade crossings during the year 
1919: — 

Five hearings and conferences before special commissions 
have been attended. 

No construction work has been in progress and no state- 
ments of expenditures have been submitted during the year. 

Violations of the Law relating to Corrupt Practices 

IN Elections. 

My attention has been directed to the recent returns of 

primary and election expenses by candidates and committees, 

and 1 find many apparent violations of law relative thereto. 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 

From information I have received I am of the opinion that 
not only candidates and committees but also other persons 
have expended money in behalf of candidates or political 
parties under a misapprehension of the law. Furthermore, 
there has existed some confusion as to the law in official 
circles. This warrants the department in exercising con- 
siderable discretion in determining its action thereon now 
under consideration. 

I have already given an opinion on several phases of the 
law to the Secretary of the Commonwealth, and have sug- 
gested that that opinion be printed and mailed hereafter to 
every political committee and candidate. If this is followed, 
I apprehend that no one need unwittingly violate the law 
in the future. 

I believe it possible to amend the law slightly to make its 
meaning clearer by changing the phraseology of section 354 
of chapter 835 of the Acts of 1913, showing that this section 
does not authorize advertisements which other sections pro- 
hibit, and I recommend that the Legislature give this matter 
consideration. 

Service of Civil Process upon Corporations. 

My predecessor in office, in his report for the year ending 
Jan. 15, 1919, recommended an amendment to Revised Laws, 
chapter 167, section 36, providing the manner in which proc- 
ess shall be served upon corporations. 

The law now permits service upon the president or treas- 
urer 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 renew the recommendation that this section be amended 
by inserting the words "the president and treasurer" in the 
list of officers upon whom service may in any event be made. 

The Attorney-General is called upon to prosecute a large 
number of corporations yearly for failure to file returns re- 
quired by statute. As the law now stands service upon an 
officer of a corporation is required to be made by a deputy 



1920.] PUBLIC DOCUMENT — No. 12. xxiii 

sheriff of the county in wKich said officer resides or has his 
usual place of business. It has become in some cases almost 
impossible to secure the service of process upon said officers, 
and the work of the department is greatly interfered with. 

I recommend that the State police officers be empowered 
by law to serve such processes issued by the court upon in- 
formations filed by the Attorney-General. 

This service by deputy sheriffs involves a large expense 
annually, a small portion of which is paid by the corporation 
upon whom service is made. If the State police officers 
are permitted to perform this service, it will result in a sub- 
stantial saving to the Commonwealth. 

Workmen's Compensation Act as applied to the Com- 
monwealth. 
I renew the recommendation concerning the Workmen's 
Compensation Act as applied to the Commonwealth, as con- 
tained in the last annual report of the Department. 

Reporter of Decisions. 
The office of the reporter of decisions is one of the most 
important in the administration of our judicial procedure, 
and requires, and should command, all the time and serv- 
ices of one profoundly versed in the law. The salary of this 
office has not been changed in thirty years, and I recommend 
that it now be increased. 

Creation of Offices of Official Conveyancer and of 

Cashier. 

Under the statutes the duties of the Department of the 
Attorney-General have been very generally increased, and 
each year some additional duty or duties are imposed, as, for 
instance, the temporary duties under the Resolves of 1919, 
chapters 13, 47, 59 and 69, and the proceedings for the dis- 
barment of attorneys, under General Statutes, 1919, chap- 
ter 260. 

There is also some of the legal business of the Common- 
wealth which is performed by specially appointed assistants, 
in particular, the examination of titles of lands purchased 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

or taken by eminent domain. This I find is a very con- 
siderable item of expense, and the practice apparently does 
not result in furnishing the Department with records of 
the abstractors, that they may serve as data for use when, 
as often happens, adjacent lands are acquired. I there- 
fore suggest the creation of the office of official abstractor 
and conveyancer, to be appointed by the Attorney-General, 
whose duties shall be prescribed by him, and to include the 
work above mentioned and other similar duties. 

The collections of the Department for the year amounted 
to $876,660.35. I suggest the creation of the office of cashier 
for the Department, who shall be required to give adequate 
bond, unless, under the report of the special commission, all 
bonds of State officials are abolished. 

SaL.\RY of the ATTORNEY-GENEItiL AND ASSISTANTS. 

When I took over the administration of this department 
I found it exceptionally well equipped in all of its personnel, 
but in many instances very much underpaid. There have 
been some adjustments of salaries, but I strongly recommend 
that the salaries of all of the assistant attorneys-general be 
increased. The salary of the Attorney-General, concededly 
the office second only in importance to that of the Executive, 
has remained at the present figure for eight years. The 
salaries of the heads of various commissions, of some district 
attorneys and of the judges of the Supreme and Superior 
Courts are in excess of his salary. I recommend that the 
salary of the Attorney-General be fixed at 89,000 a year. 

Department of the Attorxey-Gexeral. 
The number of official opinions rendered by the Depart- 
ment during the year, up to Jan. 1, 1920, was 189. The 
number of cases tried in the Probate Court was 3, and 5 
cases were tried in the Land Court. The number of cases 
tried before the Municipal Court for the City of Boston was 
8. The number of cases tried in the Superior Court was 29. 
Thirty-six hearings before a single justice of the Supreme 
Judicial Court have been attended, and there have been 10 
cases argued before the Supreme Judicial Court. There 



1920.] PUBLIC DOCUMENT — No. 12. xxv 

have been 4 cases argued before the United States Supreme 
Court, 5 cases before the United States District Court for 
the District of Massachusetts, 2 cases before the United 
States Circuit Court of Appeals, and 1 case before the New 
York Supreme Court (Appellate Division). One case was 
tried before the New York Surrogate's Court. 

There have been numerous changes in the personnel of the 
Department during the year. On Aug. 13, 1919, Hon. Henry 
C. Attwill, Attorney-General, resigned, and was on the same 
day appointed a member of the Public Service Commission. 
On Sept. 1, 1919, Leland Powers, Esq., was appointed an 
assistant attorney-general; on Nov. 1, 1919, Max L. Leven- 
son, Esq., resigned from the office of assistant attorney- 
general to enter private practice, and on Nov. 15, 1919, 
Charles W. Mulcahy, Esq., who has ably served the Com- 
monwealth for five years, also resigned from the office of 
assistant attorney-general to enter private practice. Edwin 
H. Abbot, Jr., Esq., and Albert Hurwitz, Esq., were ap- 
pointed assistant attorneys-general on Nov. 21, 1919. Wm. 
Harold Hitchcock, Esq., after &ve years of faithful and 
especially efficient service as an assistant attorney-general, 
retired at the close of the present year to enter private 
practice. 

All of the assistants and employees of the Department 
have earned and are entitled to an expression of appreciation 
for the ability and fidelity with which they have severally 
served the Commonwealth. 

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 A. WYMAN, 

Attorney-General. 



OPINIONS. 



Boards of Health — Disease Dangerous to Health — Notice. 

Gen. St. 1918, c. 130, relieving cities and towns failing to give notice to the 
Commonwealth from the expense of caring for persons having a dis- 
ease dangerous to health, who reside or have no settlement in such 
city or town, is not retroactive. 

Jan. 10, 1919. 

Mr. Robert W. Kelso, Executive Director, State Board of Charity. 

Dear Sir: — I acknowledge receipt of your communication 
requesting my opinion as to whether Gen. St. 1918, c. 130, 
which amends section 52 of chapter 75 of the Revised Laws, 
is retroactive. 

Sections 52, 53 and 57 of chapter 75 of the Revised Laws 
read as follows: — 

Section 52. If the board of health of a city or town has had notice 
of a case of smallpox, diphtheria, scarlet fever or of any other disease 
dangerous to the public health therein, it shall within twenty-four hours 
thereafter give notice thereof to the state board of health stating the 
name and the location of the patient so afflicted, and the secretary 
thereof shall forthwith transmit a copy of such notice to the state 
board of charity. 

Section 53. If such board refuses or neglects to give such notice, 
the city or town shall forfeit its claim upon the commonwealth for the 
payment of expenses as provided in section fifty-seven. 

Section 57. Reasonable expenses incurred by the board of health 
in making the provision required by law for a person infected with the 
smallpox or other disease dangerous to the public health shall be paid 
by such person, his parents or master, if able; otherwise by the town 
in which he has a legal settlement. If he has no settlement, they shall 
be paid by the' commonwealth and the bills therefor shall be approved 
by the state board of charity. 

R. L., c. 75, § 52, has been amended by St. 1907, c. 480, 
§ 1, and by Gen. St. 1916, c. 55, but these amendments do 
not affect the question in issue. 



2 ATTORNEY-GENERAL'S REPORT. [Jan. 

Gen. St. 1918, c. 130, amending said section 52, reads as 
follows : — 

Section 1. The board of health of every cit}' and towTi, or in 
towns not having such a board, the board of selectmen acting as a board 
of health, shall appoint some person, who msiy or may not be a mem- 
ber of the board, whose duty it shall be to give notice to the state de- 
partment of health of diseases dangerous to the public health as pro- 
vided by section fifty-two of chapter seventy-five of the Revised Laws, 
as amended by section one of chapter four hundred and eighty of the 
acts of nineteen hundred and seven and by chapter fifty-five of the 
General Acts of nineteen hundred and sixteen, and in case of the ab- 
sence or disability of such appointee the board shall appoint another 
person to perform said duty during such absence or disability. Such 
appointments and the acceptance thereof by the persons so appointed 
shall be placed upon the records of the board. Any person who accepts 
such an appointment and who wilfully refuses or wilfully neglects or 
through gross neghgence fails to make and send the notices required by 
said section fifty-two, as amended as aforesaid, in accordance with its 
terms, shall be punished by a fine of not exceeding fifty dollars. 

Section 2. A claim of a city or town against the commonwealth 
for reasonable expenses incurred bj^ the board of health of such city or 
town, or by the board of selectmen acting as such, in making the pro- 
\ision required by law for persons infected with a disease dangerous to 
the public health shall not be defeated by reason of the failure on the 
part of its board of health, or by the board of selectmen acting as such, 
to give notice of such disease to the state department of health in ac- 
cordance with the provisions of said section fifty-two as amended as 
aforesaid, if such claim is otherwise a valid claim against the com- 
monwealth. 

The general rule is, that all statutes are prospective in their 
operation, unless an intention that they shall be retroactive 
appears b}^ necessary implication from their words, context or 
objects w^hen considered in the light of the subject-matter, the 
pre-existing state of the law and the effect upon existing 
rights, remedies and obligations. All legislation commonly 
looks to the future, not to the past, and has no retroactive 
effect unless such effect manifestly is required by unequivocal 
terms. Garfield v. Bemis, 2 Allen, 435; Bucher v. Fitchburg 
Railroad, 131 Mass. 156; Kelley v. Boston & Maine Railroad, 
135 Mass. 448; Whitman v. Hapgood, 10 Mass. 437; King 
V. Tirrell, 2 Gray, 331; Gerry v. Stoneham, 1 Allen, 319; North 
Bridgewater Bank v. Copeland, 7 Allen, 139; Commomcealth v. 
Sudbury, 106 Mass. 268. 



1920.] PUBLIC DOCUMENT — No. 12. 3 

That certain statutes retrospective in their operation may 
be passed when of a remedial character and not affecting sub- 
stantive rights regulating practice, procedure and evidence is 
not controverted, but the general rule that is applied to all 
statutes is that they are to have a prospective operation only 
unless it is otherwise distinctly expressed in them or clearly 
implied from the necessity of thus giving effect to their provi- 
sions. 

The general rule that statutes are prospective only in their 
effect has been applied to statutes respecting suits on bonds 
for breach of liberty in prison yards, Call v, Hagger, 8 Mass. 
423; evidence of an advancement. Whitman v. Hapgood, 10 
Mass. 437; limitations of actions against executors and ad- 
ministrators, Kmg V. Tirrell, 2 Gray, 331, Page v. Mehin, 10 
Gray, 208; consummation of illegal railroad location, Com^ 
monwealth v. Old Colony & Fall River Railroad, 14 Gray, 93; 
extension of equity jurisdiction, Buck v. Doidey, 16 Gray, 555; 
remedies against estates of deceased persons, Garfield v. Bcmis, 
2 Allen, 445; recovery of illegal assessments, Gerry v. Stone- 
ham, 1 Allen, 319; abolishing usury as a defence. North Bridge- 
water Bank v. Copeland, 7 Allen, 139, Whitten v. Hay den, 7 
Allen, 407; complaints for support of bastard children. Wheel- 
right V. Greer, 10 Allen, 389; validation as a corporation seal 
of a mere impression upon paper, Bates v. Boston & New York 
Ce?itral Railroad, 10 x\llen, 256; sales of intoxicating liquor, 
Hotchkiss V. Finan, 105 Mass. 86; settlements and supports 
of paupers, Somerset v. Dighton, 12 Mass. 383, Commonwealth 
V. Sudbury, 106 Mass. 268, Cambridge v. Boston, 130 Mass. 
357, Abington v. Duxbury, 105 Mass. 287, JVorcester v. Barre, 
138 Mass. 101; suits against married women as if they were 
single and exonerating husbands from liability for judgment 
in such suits, Hill v. Duncan, 110 Mass. 238, Towle v. Toivle, 
114 Mass. 167, McCarty v. DeBest, 120 Mass. 89; special judg- 
ment where the defendant has given bond to dissolve attach- 
ment, and becomes bankrupt, Fickett v. Durham, 119 Mass. 
159, Barnstable Savings Bank v. Higgins, 124 Mass. 115, 
Mosher v. Murphy, 121 Mass. 276; removal of defence in 
personal injury suits of travelling on the Lord's day, Bucher 
V. Fitchburg Railroad, 131 Mass. 156, Read v. Boston & Albany 
Railroad, 140 Mass. 199; the admission of dying declarations 
upon indictments for procuring miscarriage, Commonivealth v. 
Homer, 153 Mass. 343; restricting the number of places 
licensed for the sale of intoxicating liquors. Commonwealth v.' 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

Hayes, 149 Mass. 32; the creation of an action of tort for 
death caused by neghgence, KeUey v. Boston & Maine Railroad, 
135 Mass. 448, Holland v. Lynn d' Boston Railroad, 144 Mass. 
425, Gunn v. Cambridge Railroad, 144 Mass. 430; bonds to be 
given to probate courts, Co7iant v. Newton, 126 Mass. 105; 
statements to be filed for mechanic's liens, Pierce v. Cabot, 159 
Mass. 202; revocation of will by marriage, Swan v. Sayles, 165 
Mass. 177, Ingersoll v. Hopkins, 170 Mass. 401; divorces, 
Burt v. Burt, 168 Mass. 204, 207; damages accruing from fire 
set by locomotive, Wild v. Boston & Maine Railroad, 171 
Mass. 245; violation of building ordinances. Commonwealth v. 
Roberts, 166 Mass. 281; restrictions of time within which suit 
may be brought for assessment against policy holders of a 
mutual insurance compan}^. Sa7iford v. Hampden Paint & 
Chemical Co., 179 Mass. 10; approval by public boards, Haver- 
hill V. Marlborough, 187 Mass. 150; and deduction for good 
behavior in State Prison sentences. Murphy v. Commonwealth, 
172 Mass. 264, 267. 

The statutes considered in all these foregoing cases have 
been held to apply only to causes arising subsequent to their 
taking effect. 

The same rule prevails generally elsewhere. Reynolds v. 
Mc Arthur, 2 Pet. 417, 434; Murray v. Gibson, 15 How. 421; 
Chew Heong v. U7iited States, 112 U. S. 536, 559; Cook v. 
United States, 138 U. S. 157, 181; Herrick v. Boquillas Land 
& Cattle Co., 200 U. S. 96; Union Pacific Railroad v. Laramie, 
231 U. S. 190, 199; Cameron v. United States, 231 U. S. 710, 
720; Dash v. Van Kleeck, 7 Johns. 477, 502; Lombard, Ap- 
pellant, 88 Maine, 587; Gardner v. Lucas, 3 App. Cas. 582, 
597; The Queen v. Lpsivich Union, 2 Q. B. D. 269; Moon v. 
Burden, 2 Exch. 22; Knight v. Lee, 1 Q. B. 41. 

Until Gen. St. 1918, c. 130, went into effect the notice re- 
quired by R. L. 75, § 52, was a condition precedent to the 
right of the city or tow^n to maintain an action against the 
Commonwealth for the payment of expenses, as provided in 
section 57. There are several decisions of our Supreme Court 
on questions of law similar to the question at hand. In 
Shallow V. City of Salem, 136 Mass. 136, the plaintiff brought 
suit for personal injuries caused by a defect in a highway. 
The notice given by him under St. 1877, c. 234, was held by 
the court to be insufficient. St. 1882, c. 36, enacted subse- 
quently to the plaintiff's injur\' and to the giving of the notice 
by him, provided that " no notice shall be deemed to be in- 



1920.] PUBLIC DOCUMENT — No. 12. 5 

valid or insufficient solely by reason of any inaccuracy in 
stating the time, place or cause of the injury: provided, that 
it is shown that there was no intention to mislead, and that 
the party entitled to notice was not in fact misled thereby." 
The plaintiff contended that, inasmuch as there was no 
intention to mislead, and as the defendant was not actually 
misled by the insufficiency of the notice, St. 1882, c. 36, was 
to be construed as acting retrospectively, and thus as vali- 
dating the notice. The court in its opinion went on to say: — 

Even if it be remedial in its character, and intended to affect pro- 
cedure only, full force is given to it when it is applied to cases in which 
the time for notice had not expired, and the notice had not been given, 
although the injury might have occurred before its passage. To treat 
it as applicable to those cases where the time for notice had expired, 
and where no sufficient notice had been given, is to give it a retroactive 
character in no respect demanded by its language, . . . The language 
of the St. of 1882 appHes to notices given after the act shall take effect. 

In Dalton v. Salem, 139 Mass. 91, which was a suit for 
personal injuries caused by a defect in a highway, the prin- 
ciple of law decided in Shallow v. Salem was followed. The 
court said: — 

Under the statutes in force at the time the plaintiff received her 
injury, it was necessary for her, as a condition precedent to her right 
to maintain this action, to give to the defendant a notice in writing of 
the time, place, and cause of her injury. The St. of 1882, c. 36, does 
not apply to this case. 

In Pierce v. Cabot, 159 Mass. 202, the action was a petition 
for enforcement of a mechanic's lien. The notice in this case, 
being a condition precedent, was a statement of account, filed 
in the registry of deeds, under the section of the Public Stat- 
utes. The statement was insufficient. The statement was 
filed in September, 1891. The petitioners claimed that the 
defect was cured by St. 1892, c. 191, which law went into 
effect on April 22, 1892. The court followed the decision of 
Shalloiv v. Salem, and held that the statute could not be held 
to be applicable to statements filed before it went into effect. 

In McNamara v. Boston & Maine Railroad, 216 Mass. 506, 
the plaintiff brought an action to recover damages for injuries 
received by him upon a platform of a railroad station. No 
sufficient notice of the cause of the plaintiff's injuries was 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

given to satisfy the requirements of St. 1908, c. 305, and the 
time for giving notice had expired before the enactment of 
St. 1912, c. 221. The court said: — 

St. 1912, c. 221, ha^dng been enacted after the time expired for 
giving notice in this case, has no bearing. Statutes commonly are to 
be construed as prospective only in their operation. 

Gen. St. 1918, c. 130, is not to be distinguished as to its 
effect upon pending or past matters from those under con- 
sideration in the numerous cases cited above. There is 
nothing to show that the Legislature intended that this statute 
should be taken out of the operation of the general rule. In 
my opinion, there was no intention, either express or implied, 
that this statute should be retroactive. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Minimum Wage Commission — Powers — Minimum Wage 

Board. 

The Minimum Wage Commission has no power to qualify or to limit the 
application of any determination made by a wage board. 

Jan. 15, 1919. 
Minimum Wage Commission. 

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

A wage board in a certain occupation, in its report, states that the 
sum required to supply the necessary cost of li\ing and to m.aintain in 
health a female employee is not less than, say, $11, and, after showing 
that while the usual day's work is six hours it does vary from three 
hours in some establislnnents to eight or nine in others, it determines 
the minimum hourly wage suitable for the said employee of ordinary 
ability to be, say, 30 cents. This hourly rate in case of a six-hour day 
would not produce more than $11, but in case of an eight or nine hour 
da}^ the weekly wage.-' would exceed $11. If the Commission otherwise 
approves the determination of the wage board, can it issue a decree 
fixing an hourly rate, with a provision that ''the total pajnnent for a 
week's work need not exceed $11, with a pro rata deduction for time 
lost?" 



1920.] PUBLIC DOCUMENT — No. 12. 7 

Section 5 of the act establishing your Commission, and pro- 
viding for the determination of the minimum wages for women 
and minors, provides, in part, that "each wage board . . . 
shall endeavor to determine the minimum wage, whether by 
time rate or piece rate. . . . When a majority of the members 
of a wage board shall agree upon minimum wage determina- 
tions, they shall report such determinations to the commission, 
together with the reasons therefor and the facts relating 
thereto." 

Section 6 of the act provides, in part, that " upon receipt of 
a report from a wage board, the commission shall review the 
same, and may approve any or all of the determinations 
recommended, or may disapprove any or all of them, or may 
recommit the subject to the same or to a new wage board. 

I understand that the question has arisen as the result of a 
recommendation of the office and other building cleaners' wage 
board made to your Commission on July 18, 1918. The fol- 
lowing determinations were reported by that wage board to 
you: — 

1. The minimum wage to be paid to any female employed 
as an office or other building cleaner shall be as follows: — 

(a) Between the hours of 7 p.m. and 8 a.m., 30 cents an 
hour. 

(b) Between the hours of 8 a.m. and 7 p.m., 26 cents an hour. 
I am of the opinion that the powers given you under section 

6 of the statute referred to limit you to approving or disap- 
proving all of the determinations of the wage board or to 
approving certain of the determinations and disapproving 
others which are separable from one another. You have no 
power, in my opinion, to qualify or limit the application of 
any determination made by the board. If the determination 
without such qualifications and limitations is unsatisfactory to 
your Commission, it is your duty to disapprove the same, or 
to recommit the subject to the said wage board or to a new 
wage board. 

Yours very truly, 

Henry C. Attwill, Attorneij-General. 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

Unregistered Pharmacist — Right to do Business. 

An unregistered person lawfully actively engaged in the business of phar- 
macy as a copartner or stockholder prior to the passage of St. 1913, 
c. 720, may thereafter actively engage in the drug business if associated 
with a registered pharmacist. 

Jan. 20, 1919. 

Board of Registration in Pharmacy. 

Gentlemen : — You have made an inquiry relative to the 
right of an unregistered pharmacist w-ho was a copartner or a 
stockholder in a drug business at the time of the passage of 
St. 1913, c. 720, actively to engage in the drug business, but 
in another partnership or corporation. 

Section 1 of said chapter 720 provides : — 

No unregistered co-partner or unregistered stockholder in a cor- 
poration doing a retail drug business shall hereafter be actively engaged 
in the drug business. 

Section 2 provides an exception to the above, as follows : — 

The proA-ision of . . . section one of this act; that no unregistered 
co-partner or unregistered stockholder in a corporation doing a retail 
drug business shall hereafter be actively engaged in the drug business, 
shall not apply to those engaged in said business at the time of the 
passage of this act. 

It becomes important to determine what is meant by the 
words "shall not apply to those engaged in said business.'' 
Do they refer to the drug business generally, or to a particular 
business conducted by a particular partnership or corporation? 
Does this language exempt from the operation of the law all 
persons who at the date of passage w^ere then unregistered 
stockholders or partners, or does it merely exempt such persons 
so long as they continue to be connected with a specific cor- 
poration or partnership? The language is not at all clear. 

If a narrow interpretation is given to the exception, then a 
surviving unregistered partner cannot continue to engage in 
the drug business upon the death of one of his partners, not- 
withstanding the business is to be continued at the same place 
and by the remaining partners. St. 1913, c. 720, contains a 
penalty for its violation, and consequently is to be construed 
strictly In favor of the unregistered copartner or stockholder 
excepted from its provisions. 



1920.] PUBLIC DOCUMENT — No. 12. 9 

The provisions relating to an unregistered copartner first 
appeared in St. 1908, c. 525, § 2, where it was provided as 
follows : — 

No unregistered co-partner shall hereafter be actively engaged in 
the business of pharmacy; but this provision shall not apply to those 
engaged in the business at the time of the enactment hereof. 

In my judgment, the exception contained in this provision 
permitted a copartner then engaged in the business of pharmacy 
to continue In the business he was then in, or to engage there- 
after as a copartner with others in the business of pharmacy. 

By the passage of St. 1913, c. 720, the provision affecting 
an unregistered copartner was enlarged to include unregis- 
tered stockholders in a corporation doing a retail drug business. 
I do not think it is to be presumed that the statute of 1913 
intended to do anything more than to include unregistered 
stockholders in the exception. 

Accordingly, it is my opinion that an unregistered person 
who was lawfully actively engaged in the business of pharmacy 
prior to May 28, 1913, as a partner with a registered phar- 
macist, or a stockholder who was lawfully actively engaged 
in the business of pharmacy, may actively engage in the drug 
business as an unregistered copartner or unregistered stock- 
holder in a corporation engaged in a retail drug business. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



School Permits — Minors — Domestic Service. 

Under the provisions of R. L., c. 44, § 1, a girl between the ages of four- 
teen and sixteen must first receive a permit from the superintendent 
of schools in order legally to leave school and engage in domestic 
duties in her own home. 

Jan. 27, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion upon the 
following question: — 

Wliether, under the provisions of R. L., c. 44, § 1, a girl between the 
ages of fourteen and sixteen must receive either a permit or a certificate 
from the superintendent of schools in order that she may legally leave 
school and engage in domestic duties in her own home. 

R. L., c. 44, § 1, as amended by St. 1905, c. 320, St. 1906, 
c. 383, St. 1913, c. 779, § 1, and Gen. St. 1915, c. 81, § 1, 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

so far as it affects your question, provides that "every child 
under sixteen years of age who has not received an employ- 
ment certificate as provided in this act and is not engaged in 
some regular employment or business for at least six hours 
per day or has not the written permission of the superintendent 
of schools of the city or town in which he resides to engage in 
profitable employment at home, shall attend a public day 
school in said city or town or some other day school approved 
by the school committee, during the entire time the public 
schools are in session." The section then provides that the 
above provisions are subject to exceptions as enumerated. In 
brief, the statute requires the attendance at school of every 
child under sixteen years of age unless the child falls within 
specific excepted classes. 

A girl, under the facts stated in your question, does not 
come within any of the statutory exceptions,' and, accordingly, 
I am of the opinion that it is necessary for her to obtain 
written permission of the superintendent of schools to leave 
school and engage in dom.estic duties in her own home. The 
giving of the written permission by the superintendent is the 
proper method in a case like this, as the giving of an emploj^- 
ment certificate, in my opinion, covers cases where a child is 
permitted to work in a factory, workshop, manufacturing, 
mechanical or mercantile establishment. St. 1909, c. 514, 
§ 17, provides that the "exercise of manual labor in a private 
house or private room by the family dwelling therein or by any 
of them or if a majority of the persons therein employed are 
members of such family, shall not of itself constitute such 
bouse or room a workshop." 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Constitutional Laiv — Apjiropriation by Legislature — Private 

Institutions. 

An appropria,tion by the Legislature in furtherance of a pre-existing agree- 
ment to provide moneys for a term of years to certain private in- 
stitutions of learning is valid, under article XLVI of the Amend- 
ments to the Constitution. 

Feb. 7, 1919. 

Benja:min Loring Young, Esq., Chairman, House Committee on Ways 

and Means. 

Dear Sir: — I acknowledge your communication in which 
you request my opinion upon the following question of law: — 



1920.] PUBLIC DOCUMENT — No. 12. 11 

Are the items recommended for appropriation in favor of the Massa- 
chusetts Institute of Technology and the Worcester PoMechnic In- 
stitute, included in the Governor's Budget recommendations (House 
No. 185), items Nos. 473 and 474, valid and legal under article XLVI 
of the Amendments to the Constitution of the Commonwealth? 

I assume these items are included in the budget to carry 
out the provisions of chapter 78 of the Resolves of the year 

1911, and chapter 87 of the Resolves of the year 1912. The 
first is a resolve in favor of the Massachusetts Institute of 
Technology, and the second is in favor of the Worcester Poly- 
technic Institute. These resolves are similar in character. 

The resolve in favor of the Massachusetts Institute of Tech- 
nology provides for the payment annually, for the term of 
ten years beginning with the first day of January, 1912, of 
the sum of $100,000, to be expended under the direction 
of the corporation of said institute, for the general purposes 
of the institute; provided, however, that the last five annual 
payments are conditioned upon the presentation of satisfactory 
evidence to the Governor and Council that the institute has 
received by bequest or gift from other sources the sum of 
$1,000,000 in addition to all funds held by it on the day of the 
approval of the resolve. 

The resolve in favor of the Worcester Polytechnic Institute 
provides for the annual payment to said institute, for the 
term of ten years beginning with the first day of September, 

1912, of the sum of $50,000, to be expended under the direc- 
tion of the corporation of said institute, for the general pur- 
poses of the institute; provided, however, that the last five 
payments are conditioned upon the presentation of satis- 
factory evidence to the Governor and Council that the insti- 
tute has received by bequest or gift from other sources prop- 
erty amounting in value to $350,000 in addition to the 
property held by it on the day of the approval of the resolve. 

The resolve in favor of the Massachusetts Institute of 
Technology further provides that, in consideration of the 
payments and during the continuance thereof, the institute 
shall maintain eighty free scholarships, to be granted by the 
Board of Education to residents or minor children of residents 
of Massachusetts; while the resolve in favor of the Worcester 
Polytechnic Institute provides that, in consideration of the 
payment to it and of the grant made by chapter 57 of the 
Resolves of the year 1869, the Worcester Polytechnic Institute 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

shall maintain forty free scholarships, to be awarded to pupils 
of the public schools of Massachusetts. 

The Massachusetts Institute of Technology was chartered 
by the Legislature in 1861 for the purpose of instituting and 
maintaining a society of arts, a museum of arts and a school 
of industrial science, and aiding generally the advancement, 
development and practical application of science in connection 
with arts, agriculture, manufactures and commerce. 

The Worcester Polytechnic Institute was chartered in 1865 
under the name of the Worcester County Free Institute of 
Industrial Science, for the purpose of establishing and main- 
taining in the city of Worcester an institution to aid in the 
advancement, development and practical application of science 
in connection with arts, agriculture, manufactures, mercantile 
business and such other kindred branches of practical educa- 
tion as said corporation shall determine. 

The appropriation of money for the advancement of the 
purposes for which these institutions were chartered is un- 
doubtedly an appropriation of monej^ for a public purpose, 
and thus there is no constitutional objection to the appropria- 
tion of money in aid of these institutions, apart from article 
XVIII of the Amendments to the Constitution. 

Article XVIII of the Amendments to the Constitution 
contains an exception from its prohibitions that appropriations 
may be made for the maintenance and support of the Soldiers' 
Home in Massachusetts and for free public libraries in any 
city or town, and to carry out legal obligations, if any, already 
entered into. I assume that the legal obligations referred to 
in the exception are such obligations as would constitute a 
contract the impairment of which is prohibited by the Federal 
Constitution. 

Your question therefore resolves itself to this: Has the 
Commonwealth, by chapter 78 of the Resolves of the year 
1911 and chapter 87 of the Resolves of the year 1912, entered 
into contracts the impairment of which is prohibited by the 
terms of the Federal Constitution? 

It was stated in the opinion in the case of Gary Library v. 
Bliss, 151 Mass. 364, that it was settled by the case of Dart- 
mouth College v. Woodward, 4 Wheat. 518, that the word 
"contract," as used in the Constitution of the United States, 
"is to be interpreted broadly and liberally, so as to include all 
obligations which should be enforced and held sacred growing 



1920.] PUBLIC DOCUMENT — No. 12. 13 

out of agreements, express or implied, for which there is a 
valuable consideration.'* 

I am of the opinion that the Legislature of the year 1911 
intended by the passage of chapter 78 of the resolves of that 
year to hold out an inducement to the Massachusetts Institute 
of Technology to obtain, by solicitation or otherwise, $1,000,000 
to enable it to better carry on the purposes for which the 
institute was created, and to induce members of the public to 
give to the institute $1,000,000; and the inducement was that 
in the event the institute obtained, by gift or otherwise, 
$1,000,000, on its part the Commonwealth would appropriate 
to the institute $1,000,000 in annual payments of $100,000 each. 
If the Legislature intended to hold out an inducement of this 
character, it seems to me that it intended the inducement to 
be one of substance; that is, one legally binding the Common- 
wealth on its part to carry out its assurance given to the 
institute, if the institute on its part accepted the proposition 
contained in the resolve, and carried out the conditions 
imposed in the resolve. Nor do I think the fact that the 
action of the General Court was by resolve rather than by an 
act is important. A long-established usage seems to justify 
resolves of this character, and I am of the opinion that they 
have in the present instance the same binding effect upon the 
Commonwealth as if the action of the General Court had been 
taken by acts. Furthermore, this method seems to be recog- 
nized by article XI of section I of chapter II of part the 
second of the Constitution. 

If, therefore, the Massachusetts Institute of Technology has 
produced satisfactory evidence that it has obtained $1,000,000 
by bequest or gift from other sources, and has maintained the 
scholarships required, I am of the opinion that the institute 
has accepted the offer of the Commonwealth and has met its. 
obligations incurred by such acceptance; and thus chapter 78 
of the Resolves of the year 1911 constitutes a contract binding, 
upon the Commonwealth. What I have said in relation to the 
resolve in favor of the Massachusetts Institute of Technology 
applies to the resolve in favor of the Worcester Polytechnic 
Institute. 

Accordingly, your question is to be answered in the affirma- 
tive. 

Very truly yours, 

Henry C. Attwill, Attorney -GeneraL 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 



Street Railivays — Cancellation of Rates — Redemption of Out- 
standing Tickets. 

Unused reduced-rate tickets, after the schedule of rates under which they 
were issued has been canceled, are to be redeemed at the pro rata 
value of the unused portion. 

Feb. 7, 1919. 

Public Service Commission. 

Gentlemen : — I acknowledge your request for my opinion 
as to the rights of persons who hold partially used reduced- 
rate tickets issued by street railways and steam railroads, 
concerning the use of such tickets after the schedule of rates 
under which they were issued has been canceled and new 
rates providing for a higher fare have become effective. 

St. 1913, c. 784, § 20, requires every common carrier to file 
with your Board schedules of fares to be charged by it for 
service rendered or furnished within the Commonwealth. 
After such schedules have become effective every carrier is 
forbidden to charge any different rates from those stated in the 
schedules. This section authorizes a change to be made in any 
schedule of rates on file by a thirty days' notice to your Board 
by the carrier. By section 21 you are empow^ered to investi- 
gate the propriety of any such proposed changes, to suspend 
the taking effect of the same and to substitute new^ rates 
therefor if, in your judgment, the proposed rates are unreason- 
able. When, however, any change in a schedule of fares has 
become effective, either by the action of the carrier without 
interference by you or as a result of an order made by you 
after an investigation, it is plain that such new rates become 
the only rates which may legally be charged by the carrier. 
It is forbidden by section 20 to charge fares upon any other 
basis. 

Accordingly, in my opinion, when a schedule of rates pro- 
viding for reduced-rate tickets to be sold in books or in lots 
of a specific number has been canceled in the manner provided 
in St. 1913, c. 784, and a new schedule substituted there- 
for, eliminating such tickets or increasing the amount to be 
charged for them, a carrier is not only not required thereafter 
to accept the old tickets, but is actually forbidden by law to 
do so. Assuming that these tickets constitute a contract 
between the person purchasing them and the company issuing 
them, they are contracts subject to cancellation by a change 
of rates made effective in accordance with the provisions of 



1920.] PUBLIC DOCUMENT — No. 12. 15 

law. To hold otherwise would be in effect to discriminate in 
favor of persons who had been farsighted enough to buy up 
quantities of such tickets when there was a prospect of an 
increase in rates. Any such discrimination is directly for- 
bidden by section 20. 

I understand that the schedule under which the ticket was 
issued which gave rise to your inquiry provided that partially 
used tickets would be redeemed by the company at the differ- 
ence between the cost of the complete ticket and the full cash 
fare for the rides represented by the used portions. In my 
judgment, this provision applies only to tickets presented for 
redemption by purchasers while the rate is in force. It does 
not apply to cases where the rate under which the ticket was 
issued has been canceled by act of the carrier or of your 
Board. In such cases, in my opinion, the carrier is required 
to redeem outstanding tickets at the pro rata value of the 
unused portion. I understand that the company involved in 
the case under consideration is entirely ready to redeem upon 
this basis. 

Yours very truly, 

Henry C. Attwill, Attorney -General. 



Constitutional Law — Payments by Commomcealth — Private 
l7istitutions — '' Anti-Aid " Amendment. 

The payment of moneys to the New England Asylum for the Blind, later 
changed to the Perkins Institution and Massachusetts School for the 
Blind, under the provisions of St. 1829, c. 113, and under subsequent 
legislation, does not constitute a contractual obligation on the part of 
the Commonwealth, and as the management of the institution is not 
under the exclusive control of the Commonwealth, further payments to 
it by the Commonwealth are prohibited under the provisions of the 
*' anti-aid " amendment. 

Feb. 7, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — I acknowledge your letter in which you ask 
the following: — 

Whether article XLVI of the Amendments to the Constitution 
prohibits payments by the Commonwealth of an annual grant to the 
Perkins Institution and Massachusetts School for the Blind, in accord- 
ance with the provisions of Res. 1864, c. 56, as amended. 

The first provision made by the Legislature caUing for the 
payment of funds to the New England Asylum for the BHnd 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

appears in St. 1829, c. 113, which was the act of incorporation. 
By section 7 of said chapter it was provided that the State 
should pay to said corporation, for the maintenance and edu- 
cation of each blind person sent to the said asylum under the 
authority of the Legislature, the same compensation as by the 
by-laws of said corporation might be demanded and was 
actually received for the maintenance and education of such 
other blind persons as w^ere at that time residing in said 
asylum. 

By Res. 1830, c. 81, the Legislature allowed the unexpended 
balance of the appropriation for the deaf and dumb to be 
paid to the New England Asylum for the Blind for the current 
3'ear, and from time to time thereafter upon the Governor's 
warrant, unless other disposition thereof was made by the 
General Court. 

Res. 1833, c. 28, provided that $6,000 was to be paid 
annually to this institution during the pleasure of the Legisla- 
ture. 

Res. 1847, c. 49, allowed the payment of $9,000 at the 
pleasure of the Legislature, on condition that the asylum 
should receive forty State beneficiaries, if so many should be 
recommended. All previous grants were repealed. 

By Res. 1855, c. 62, the annual appropriation was increased 
from $9,000 to $12,000 a year, the same to continue at the 
pleasure of the Legislature. 

Res. 1861, c. 51, provided that an additional appropriation 
of $3,000 be made on condition that the trustees admit all 
such persons as the Governor might designate, and educate 
them gratuitously. Res. 1862, c. 84, and Res. 1863, c. 65, 
repeated the preceding grant. 

By Res. 1864, c. 56, the Legislature provided that the 
annual appropriation in favor of the Perkins Institution and 
Massachusetts Asylum for the Blind should be increased from 
$12,000 a year to $16,000 a year, commencing from the first 
day of April, 1864, and continuing until otherwise ordered by 
the Legislature. 

Res. 1868, c. 12, provided that $9,000 should be allowed in 
addition to the regular appropriation of $16,000 to this institu- 
tion. 

By Res. 1869, c. 19, it appears that an appropriation of 
$5,000 was made, the same to be paid annually in addition to 
the sums authorized by Res. 1864, c. 56, and Res. 1868, c. 12, 



1920.] PUBLIC DOCUMENT — No. 12. 17 

making an annual appropriation that year and thereafter of 
$30,000, subject to the conditions of Res. 1864, c. 56. This 
was to supersede the appropriation of $16,000 made by St. 
1869, c. 27. The last payment by the State of $30,000 to this 
institution was made under the authority of Spec. St. 1918, 
c. 110. After considering this and other legislation dealing 
with the payment of State funds to this school, it appears that 
all appropriations since 1869 have been made under the au- 
thority provided by Res. 1869, c. 19. 

On examining the legislation pertaining to this institution 
it is apparent that at the present time there is no existing con- 
tract between the Commonwealth of Massachusetts and the 
Perkins Institution and Massachusetts School for the Blind 
which calls for the payment of money annually to the school 
in question. In my judgment, all past appropriations by the 
Legislature must be considered as gratuities which have been 
paid subject to the pleasure of the Legislature rather than as 
the fulfilment of any contractual obligation on the part of the 
Commonwealth. 

St. 1829, c. 113, § 4, provided that the New England 
Asylum for the Blind should be under the direction and man- 
agement of twelve trustees, who were to be chosen annually 
and to remain in office until others were chosen and qualified 
in their stead. Four of the trustees were to be chosen by the 
board of visitors, and the remaining eight by the corporation 
itself. 

By St. 1864, c. 96, the Governor was granted the power 
formerly vested in the board of visitors to appoint four trustees 
to hold office for one year, or until their successors were ap- 
pointed. Such portion of St. 1829, c. 113, as authorized the 
appointment of trustees by a board of visitors was repealed. 

Res. 1869, c. 71, provided that the sum of $80,000 should be 
Appropriated for the purpose of erecting suitable buildings for 
the use of the Perkins Institution and Massachusetts Asylum 
for the Blind, provided that no portion of said sum should be 
paid until the said trustees conveyed to the Commonwealth by 
a good and suflftcient deed, free from all incumbrances, the 
land on which the buildings to be erected should stand, and so 
much adjacent thereto as the Governor and Council should re- 
quire. It appears that later the institution desired to dispose 
of the property which was conveyed to the Commonwealth in 
compliance with the provisions of Res. 1869, c. 71, and accord- 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

ingly a resolve was passed which authorized and directed the 
Treasurer and Receiver General of the Commonwealth to con- 
vey to the Perkins Institution and Massachusetts School for 
the Blind the land which was conveyed to the Commonwealth 
in compliance with the provisions of said chapter 71. See Res. 
1909, c. 90. 

It is to be noted that on Oct. 3, 1877, the name of the insti- 
tution was changed to the Perkins Institution and Massachu- 
setts School for the Blind. 

Section 2 of article XLVI of the Amendments to the Consti- 
tution provides, in part, as follows: — 

... no grant, appropriation or use of public money or propert}'' or 
loan of public credit shall be made or authorized by the commonwealth 
or any political division thereof for the purpose of founding, maintain- 
ing or aiding any school or institution of learning, whether under 
public control or otherwise, wherein any denominational doctrine is 
inculcated, or any other school, or any college, infirm^ary, hospital, 
institution, or educational, charitable or religious undertaking which is 
not publicly owned and under the exclusive control, order and super- 
intendence of public officers or public agents authorized by the com- 
monwealth. ... 

The present governing board of the Perkins Institution and 
Massachusetts School for the Blind consists of twelve trus- 
tees, eight of whom are chosen by the corporation and four of 
whom are appointed by the Governor. It is obvious that since 
the majority of the trustees of this institution are chosen by 
the corporation, it cannot be said that the management of the 
school is under the exclusive control of public officers or agents 
authorized by the Commonwealth of Massachusetts. I am 
informed by the secretary of this institution that the legal title 
to all real estate owned by it at the present time is held in the 
name of the trustees, which precludes any contention that the 
institution is publicly owned. 

Accordingly, I am of the opinion that as the school is consti- 
tuted at the present time it is prohibited from receiving further 
payments by the Commonwealth of Massachusetts. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1920.] PUBLIC DOCUMENT — No. 12. 19 



Chain Drug Stores — Central Prescription Department. 

A drug corporation operating a chain of stores may establish a central 
prescription department in one of them, provided each store is con- 
ducted in accordance with law. 

Feb. 11, 1919. 

Board of Registration in Pharmacy. 

Gentlemen: — I have your letter concerning the proposal 
of a certain drug corporation operating a number of stores in 
Boston to have a central prescription department at one of 
its present stores, to which prescriptions taken in at each of 
its other stores in Boston should be sent for compounding and 
returned by messenger for delivery at the stores where they 
were taken in. You ask: — 

Would such method affect the permit already granted by the Board 
to each of these stores whereby each store carries on its own prescrip- 
tion department in the usual way; also, under this arrangement would 
the Board be justified in refusing to issue a permit under this arrange- 
ment? 

St. 1913, c. 705, as amended, provides in substance as 
fellows: — 

Section 1. The term ''drug business" as used in this act shall 
mean the sale, or the keeping or exposing for sale of drugs, medicines, 
. . . and the said term shall also mean the compounding and dispens- 
ing of physicians' prescriptions. 

Section 2. No store shall be kept open for the transaction of the 
retail drug business unless it is registered with and a permit therefor 
has been issued by the board of registration in pharmac}^ as herein 
pro\ided. 

Section 3. The board of registration in pharmacy shall, upon 
application, issue a permit to keep open a store for the transaction 
of the retail drug business to such persons, firms and corporations as 
the board may deem qualified to conduct such a store. . . . 

Section 4. No such permit shall be issued for a corporation to 
keep open a store for the transaction of the retail drug business, unless 
it shall appear to the satisfaction of the said board that the manage- 
ment of the drug business in such store is in the hands of a registered 
pharmacist. 

Section 5. The said board may suspend or revoke a permit issued 
hereunder for any violation of the law pertaining to the drug business 
. . . ; but before suspending or revoking any such permit the said 
board shall give a hearing to the person, firm or corporation holding 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

the permit, after due notice to such person, firm or corporation of the 
charges against him or it and of the time and place of the hearing. . . . 

Section 7. Whoever violates any provision of this act shall be 
punished by a fine of not less than five nor more than one hundred dol- 
lars; or by imprisonment for not more than thirty days, or by both 
such fine and imprisonment. 

Upon examination of the above statute, as well as other 
acts pertaining to the drug business, I find nothing therein 
contained which prohibits the sending of prescriptions by one 
drug store to another which is operated by the same company, 
where both stores are being conducted in accordance with the 
requirements of the statute, and the management of each of 
said stores is in the hands of a registered pharmacist. The 
compounding of prescriptions is but one incident of the retail 
drug business. Each store, however, in view of the fact that 
it is selling drugs and dispensing physicians' prescriptions, 
must strictly comply with the provisions of the aforesaid act 
and of all acts pertaining to the drug business. Such a 
method, in my opinion, will not affect a permit already granted 
by the Board; nor do I think the Board will be justified in 
refusing to issue permits to the several stores of said corpora- 
tion solely because of this arrangement. 
Very truly 3'ours, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Public Operation of Street Raihvays. 

A law providing for the public operation of a street railway, allowing com- 
pensation to its stockholders upon the acceptance by them of terms, is 
constitutional. 

Feb. 12, 1919. 

Hon. Edwin T. McKnight, President of the Senate. 

Dear Sir: — I beg to acknowledge the receipt from the 
Honorable Senate of the following order: — 

Ordered, That the Senate request the opinion of the Attorney-Gen- 
eral as to the constitutionality of chapter one hundred and fifty-nine 
of the Special Acts of the year nineteen hundred and eighteen, entitled 
''An Act to pro\dde for the pubhc operation of the Boston Elevated 
Railway Company." 

Your question is not directed to any particular feature of 
said act. Obviously, it is impossible for me to foresee every 



1920.] PUBLIC DOCUMENT — No. 12. 21 

question that might be raised or that the Honorable Senate 
may have in mind. I have confined my attention to those 
questions which I conceive might be raised, and which to 
me seem to merit consideration. 

Said act provides for the appointment by the Governor, 
with the advice and consent of the Council, of public trustees 
to assume the control and operation of the Boston Elevated 
Railway for the period specified in the act. The Governor 
may remove said trustees, with the advice and consent of 
the Council. The act provides in section 2 that the trustees 
"shall take and have possession" of the Boston Elevated 
Railway Company and the property owned, leased or oper- 
ated by it, "in behalf of the Commonwealth, during the 
period of public operation " provided for in the act. 

In effect the act provides for the taking over by the Com- 
monwealth of the possession and control of the Boston Ele- 
vated Railway system, with its leased lines, for a period of 
ten years, and for a longer period unless the Commonwealth 
elects to discontinue its operation of the road. This is done 
upon the assent of a majority of the stockholders of the 
Boston Elevated Railway Company and a majority of the 
stockholders of the West End Street Railway Company, 
and in consideration of the payment by the Commonwealth, 
during the period of public operation, of a fixed amount upon 
the capital stock of the Boston Elevated Railway Company 
out of the receipts of the road after the payment of interest 
charges and expenses of operation; and, in the event of the 
receipts being insufficient, then the Commonwealth is to pay 
out of its own treasury the amount necessary to meet any 
deficit, such deficit to be apportioned as provided by the act 
upon the communities specially benefited by the operation of 
the system. Thus in effect it is the same as if the Common- 
wealth had taken a direct lease of the system, agreeing to 
assume the interest charges and operating expenses and to 
pay the corporation a rental; the corporation, on the other 
hand, agreeing to issue from time to time notes or certifi- 
cates of indebtedness to renew indebtedness already existing 
and properly chargeable to capital account. 

The provision of section 2 of the act, that in the manage- 
ment and operation of the company and its properties the 
trustees and their agents and employees shall be deemed to 
be acting as the agents of the company, obviously was in- 
serted in order that persons suffering damages by reason of 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 

the operation of the railway could continue to bring suits 
therefor as heretofore, thus obviating provisions which would 
otherwise have been necessary to enable them to bring their 
actions directly against the Commonwealth. 

I do not think there can be any question at this day that 
a street railway is a public utility, and that the appropria- 
tion of public funds for its construction, maintenance and 
operation is for a public purpose. In the present state of 
civilization and economic conditions the operation of means 
of transportation is of vital concern to all the people. Con- 
templation of the results of the discontinuance of the opera- 
tion of the Boston Elevated Railway and its leased lines 
graphically answers any suggestion that the welfare of the 
general public is not involved in its continued operation. 
Furthermore, a long line of decisions of the Supreme Judicial 
Court of this State seems to recognize that the construction, 
maintenance and operation of means of transportation are 
public purposes. 

Thus it was held, as far back as 1842, in the case of 
Worcester v. Westerfi Railroad Corporation, 4 Met. 564, that 
properties devoted to railroad purposes were public w^orks, 
and as such were exempt from taxation unless it was specifi- 
cally provided in the terms of the act authorizing their 
construction and maintenance that they should be taxed. 
It was there said, b}^ Chief Justice Shaw: — 

It is true, that the real and personal property, necessary to the 
establishment and management of the railroad, is vested in the corpora- 
tion; but it is in trust for the public. The compam^ have not the 
general power of disposal, incident to the absolute right of property; 
they are obhged to use it in a particular manner, and for the accomplish- 
ment of a well defined pubhc object; they are required to render fre- 
quent accounts of their management of this property to the agents of 
the pubhc . 

It is because railroads and railways are engaged in a 
pubhc purpose which the pubhc might otherwise undertake 
itself that the State may delegate to them its power of 
eminent domain. 

Furthermore, it is not novel for the Commonwealth to 
own a railroad. Thus, on Sept. 4, 1862, the Common- 
wealth took possession of the Troy & Greenfield Railroad, 
about the same time acquired title to the Southern Vermont 
Railroad by virtue of the provisions of St. 1862, c. 156, and 



1920.] PUBLIC DOCUMENT — No. 12. 23 

completed the Hoosac Tunnel and the Troy & Greenfield 
Railroad at a total expense of about $17,000,000, and opened 
them for use about June 30, 1876. 

In many instances the Legislature has granted aid to 
railroad corporations from its own treasury, Kingman, 
petitioner, 153 Mass. 566. It in many instances has author- 
ized cities and towns to furnish aid to railroads by subscrib- 
ing for stock is such railroads, and in other ways. Prince 
V. Crocker, 166 Mass. 347, 361. 

I think it is equally plain that the Commonwealth can 
operate either a railroad or street railway. Granted that the 
State may construct and own a railroad or railway, it seems 
to follow, because of its character, that the State has the 
power to make it useful by providing for its operation. 
That the State can authorize a city to operate a street rail- 
way transportation system seems to have been assumed in 
Brown v. Turner, 176 Mass. 9, 14. See also the Minnesota 
Rate Cases, 230 U. S. 352, 416; Attorney -General v. Boston, 
123 Mass. 460. 

Convinced, as I am, that there is no constitutional objec- 
tion to the Commonwealth acquiring and operating a rail- 
road or street railway, it follows, in my judgment, that the 
Commonwealth may lease a railroad or street railway or take 
over the control of the same, with the consent of its owners, 
and pay compensation to the owners while it holds it by 
lease or the exercise of such control. The determination of 
the amount and terms of compensation to be paid and the 
details of the control and operation are matters for the 
Legislature alone to determine. The provision for the pay- 
ment of dividends on the stock of the Boston Elevated Rail- 
way Company, in my judgment, is a provision for the pay- 
ment of compensation in the nature of a rental. The stock 
is taken as a convenient measure of the rent. Pennsyhania 
Steel Co. V. New York City Ry. Co., 198 Fed. Rep. 721, 763. 
This is the ordinary and usual method of measuring rentals 
where a transportation company is leased. 

Therefore, in my opinion, the provisions of said act, so far 
as they relate to the taking of possession by the Common- 
wealth of the property of the Boston Elevated Railway 
Com.pany and the control of the same, and the payment of 
compensation for such use and control, upon the acceptance 
of the terms thereof by the corporations involved, are con- 
stitutional. 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

This leaves but two other questions which, in my judg- 
ment, merit consideration: First, do the provisions of the 
act in any wa^^ impair the rights of any stockholders in 
either the Boston Elevated Railway Company or the West 
End Street Railway Company'; and second, is the method 
adopted' to meet any deficit occurring in the operation of the 
railway, and the assessment of such deficit upon the munici- 
palities in which the Boston Elevated Railway system 
operates, constitutional? 

As to the first remaining question I think that the act is 
free from objection. In my judgment, there is no ques- 
tion but that the Legislature can authorize a street railway 
company, upon the affirmative vote of a majority of its 
stockholders, to lease its property and authorize its operation 
by others. The charters of all corporations are subject to 
amendment, alteration or repeal by the General Court. It 
is true that this power is limited by the provisions of our 
own and the Federal Constitution, that no person shall be 
deprived of his propert}^ without due process of law. So 
long, however, as the amendment or alteration is not open 
to this objection, such amendment or alteration is within 
the power of the General Court to enact. The statute in 
question is not open to this objection, as it makes adequate 
provision to protect and safeguard the interests of non- 
assenting stockholders by providing for a fair return upon 
their capital invested and the return of the property of the 
corporation at the end of the period of control in good 
operating condition. I do not think it could be successfully 
contended that a regulation of rates and fares by the Com- 
monwealth of the Boston Elevated Railway System, which 
allowed a return upon the capital invested of from 5 to 
6 per cent per annum, after due allowance for operating 
expenses, taxes, rentals, interest on indebtedness and allow- 
ances for depreciation of property and for obsolescence and 
losses in respect to property, deprived the stockholders of 
property without due process of law. The act in question 
allows a return upon the capital invested of at least 5 to 
6 per cent per annum. The non-assenting stockholders 
are, therefore, under the operation of the act, in no worse 
situation than they would be under the general regulation 
of rates by the Public Service Commission, or a like body. 

Furthermore, it is to be borne in mind that at the time 
of the acceptance of the act the Boston Elevated Railway 



1920.] PUBLIC DOCUMENT — No. 12. 25 

Company was restricted by its charter from establishing and 
taking a toll of fare which should exceed 5 cents for a single 
continuous passage in the same general direction. 

So far as the stockholders of the West End Street Railway 
Company are concerned, it is to be observed that the Com- 
monwealth takes possession of the property of the West End 
Street Railway Company subject to the terms of its lease 
to the Boston Elevated Railway Company. 

The extensions and additions that the trustees are au- 
thorized to make are such as the railway itself could under- 
take, if, indeed, such extensions and additions could not be 
required by the Legislature; and consequently a majority of 
its stockholders can authorize such extensions and additions 
by the public trustees. 

As to the method adopted to meet any deficit occurring 
in the operation of the railway and the assessment of the 
same upon the municipalities in which the Boston Elevated 
Railway System operates, this is defined in sections 11 
and 14 of the act. Section 11 provides for notice by the 
trustees to the Treasurer and Receiver-General of any 
deficit existing as of the last day of June or the last day 
of December in any year, and it is therein provided that 
the Commonwealth shall thereupon pay over to the com- 
pany the amount of such deficit. It further provides that 
in order to meet any payment required of the Common- 
wealth the Treasurer and Receiver-General may borrow, in 
anticipation of assessments to be levied upon the cities and 
towns, such sums as may be necessary to make such pay- 
ments. It is also provided that, in the event of a surplus 
in the reserve fund provided for in the act as of the last day 
of any June or December, the trustees shall apply the sur- 
plus, so far as necessary, to reimburse the Commonwealth 
for any amounts which it may have paid to the company 
under the provisions of said section. The amount of reim- 
bursement thereon is to be distributed among the cities and 
towns contributing payments to meet the deficit. 

By section 14 it is provided that such deficit shall be as- 
sessed upon the cities and towns in which the company 
operates, by an addition to the State tax next thereafter 
assessed in the proportion therein set forth. 

I do not think there can be any question as to the consti- 
tutionality of section 11, which simply provides means for the 
Commonwealth meeting an obligation which it has undertaken. 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

Any objection which may be raised in relation to sec- 
tion 14, in my judgment, is answered by the case of Ki7ig- 
vian, 2:)etitioner, 153 Mass. 566. In that case it was said, 
in relation to the construction and support of a public 
utility, that — 

The Legislature may properh^ determine that the whole or a part 
of the cost shall be borne by the Commonwealth, or it may impose it 
wholly upon counties, or wholly upon tow^is, or a part upon each. 
And in doing so it is not necessarily limited by count}^ or town lines. 
. . . Absolute equality in the distribution of burdens of course is not 
to be hoped for. But with a ^dew to the nearest approach to it that is 
possible, the Constitution wisely vests a large and general power in 
the Legislature. And if at anj^ time it is found, either from a change 
of circumstances or otherwise, that the biu-den presses too hardly upon 
a particular towm or county, the Legislature may change it. Nor does 
the fact that the money has been advanced in the first instance from 
the treasury of the Commonwealth prevent the Legislature from pro- 
adding for a reimbursement from counties, cities, or to^\Tis. 

It is to be observed that if there is any constitutional 
difhculty in the method adopted of apportioning the burden 
of the cost of the operation of the railway system, it un- 
doubtedly is separable from the rest of the act. 

A further suggestion may be made that, in view of the 
fact that the charter of the Boston Elevated Railway Com- 
pany contained a condition that in the operation of its road 
it should not charge more than 5 cents for a single con- 
tinuous passage in the same general direction, at least until 
the year 1922, the effect of the legislation is to grant a 
gratuity to the stockholders. This, in my judgment, cannot 
successfully be contended, because, so far as I am aware, 
there is no way in which to compel a public service cor- 
poration to continue to operate its road when it is unable to 
pay its operating expenses. Confronted with such a situation, 
there is no doubt that the General Court may make a new 
arrangement with the corporation for the continued opera- 
tion of its road. Friend v. Gilbert, 108 Mass. 408; Abbott v. 
Doane, 163 Mass. 433. 

Accordingly, I advise you that, in my opinion, said chapter 
159 of the Special Acts of the year 1918 is constitutional. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1920.] PUBLIC DOCUMENT — No. 12. 27 



Constitutional Law — Bakers — Hours of Employment. 

A law regulating the hours of employment of bakery workers which has no 
reasonable relation to the public health, safety or morals is uncon- 
stitutional. 

Feb. 12, 1919. 

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

Dear Sir: — I am in receipt of your letter in which you 
request my opinion upon the constitutionality of House Bill 
No. 114, entitled "An Act to regulate the hours of employ- 
ment of bakery workers." 

The first two sections of the act are as follows: — 

Section 1. Except in cases of emergency as hereinafter provided, 
it shall be unlawful to make or bake bread, rolls, buns, biscuits, cake, 
pastry and crackers and all other bakery goods in any bakeshop, bakery, 
hotel, restaurant or club, between the hours of eight o'clock in the even- 
ing and four o'clock in the morning. 

Section 2. In cases of emergency where serious suffering, loss, 
damage, or public inconvenience are threatened, the police commis- 
sioner of the city of Boston, or any member of the police department 
thereof having the rank not lower than captain and designated by said 
commissioner, or the chief of police of any other city or of any town 
upon such terms and conditions as he shall impose may issue a permit 
allowing the work prohibited in the preceding section to be done in the 
prohibited hours, but such permit shall be valid only during the twelve 
hours after the time it is issued. 

In the case of Lochner v. New York, 198 U. S. 45, it was 
held that a statute of New York limiting the hours of employ- 
ment in bakeries to not more than ten hours a day was 
unconstitutional, as "an illegal interference with the rights 
of individuals, both employers and employees, to make con- 
tracts regarding labor upon such terms as they may think 
best or which they may agree upon with the other parties to 
such contracts." This decision was expressly recognized by 
our Supreme Judicial Court in the case of Commonwealth v. 
Boston & Maine R.R., 222 Mass. 206, as binding upon the 
Legislature and courts of this Commonwealth. 

It seems clear from these decisions that House Bill No. 114 
would be unconstitutional if enacted into law, unless the fact 
that the prohibition contained in this bill applies only to 
night work, and baking at night makes it distinguishable 
from these cases. If employment in the night time in a 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 

bakery, or baking at night, has any reasonable relation to the 
public health, safety or morals, acts of this character might 
be sustained as valid police regulations. The question of 
whether the prohibition contained in this bill is appropriate to 
safeguard the public health or the health of individuals who 
are following the trade of a baker is largely a question of fact, 
in the first instance at least, to be determined by the Leigs- 
lature itself. No evidence, however, has come to my attention 
which tends to show that this bill can be distinguished from 
the acts found to be unconstitutional in the cases cited, and, 
accordingly, I am constrained to advise that, in my opinion, 
House Bill No. 114 would be unconstitutional if enacted into 
law. 

Very truly yours, 

Henry C. Attwill, Attorney -General, 



Doctor — Use of Title — Degree. 

The mere use of the prefix "Dr." or "Doctor" by a person not in possession 
of a degree from an institution having the power to grant degrees is 
not a violation of R. L. c. 208, § 75. 

Feb. 20, 1919. 

Board of Registration in Medicine. 

Gentlemen : — I acknowledge the receipt of your letter 
requesting my opinion upon the following question: — 

Can the use of the prefix "Dr." or "Doctor" by a person not in 
possession of a degree conferred by a legally chartered college or other 
educational institution ha^dng power to grant degrees, be regarded 
as a violation of section 75 of chapter 208 of the Re\ised Laws? 

The word "doctor'' comes from the Latin word doctor^ 
meaning teacher, and this was derived from the Latin verb 
docere, meaning to teach. Consequently, the earliest English 
use of this word was synonymous with teacher. It later 
became the subject of degrees conferred by universities and 
colleges on men of great learning, such as doctors of divinity. 

Lexicographers define the word "doctor" to mean, in 
addition to physician, the following: — 

(1) A teacher; instructor; one who gives instruction in some branch 
of knowledge or inculcates an opinion of principles. (2) One who by 
reason of his skill in any branch of knowledge is competent to teach it 
or whose attainments entitle him to express an authoritative opinion; 
an eminently learned man. (New English Dictionar^^) 



1920.] PUBLIC DOCUMENT — No. 12. 29 

A teacher; an instructor; a learned man; one skilled in a learned 
profession. (Century Dictionary.) 

A person of great learning and qualified to instruct; literally, a 
teacher. (Standard Dictionary.) 

According to the Encyclopedia Britannica the word comes 
from the Latin for teacher, and "though the word is commonly 
used as synonymous with physician, it was not until the 
fourteenth century that the doctor's degree began to be con- 
ferred in medicine." 

R. L., c. 208, § 75 (originally St. 1893, c. 355, § 1), is as 
follows: — 

Whoever, in a book, pamphlet, circular, advertisement or advertis- 
ing sign, or by a pretended written certificate or diploma, or otherwise 
in writing, knowingly and falsely pretends to have been an officer or 
teacher, or to be a graduate or to hold any degree of a college or other 
educational institution of this commonwealth or elsewhere, which is 
authorized to grant degrees, or of a public school of this common- 
wealth, and whoever, without the authority of a special act of the gen- 
eral court granting the power to give degrees, offers or grants degrees 
as a school, college, or as a private individual, alone or associated with 
others, shall be punished by a fine of not more than one thousand dol- 
lars or by imprisonment for not more than one year, or by both such 
fine and miprisonment. 

During the next year St. 1894, c. 458, providing for the 
registration of physicians and surgeons, was passed. Sections 
10 and 11 of said chapter 458 were as follows: — 

Section 10. Whoever not being registered as aforesaid shall 
advertise or hold himself out to the public as a physician or surgeon in 
this Commonwealth, by appending to his name the letters ''M.D.," 
or using the title of doctor, meaning thereby a doctor of medicine, shall 
be punished by a fine of not less than one hundred nor more than five 
hundred dollars for each offence, or by imprisonment in jail for three 
months, or both. 

Section 11. This act shall not apply to commissioned officers of 
the United States army, navy or marine hospital service, or to a physi- 
cian or surgeon who is called from another state to treat a particular 
case, and who does not otherwise practise in this state, or to prohibit 
gratuitous services; nor to clairvoyants, or to persons practising 
hypnotism, magnetic healing, mind cure, massage methods, christian 
science, cosmopathic or any other method of healing: provided, such 
persons do not violate any of the provisions of section ten of this act.- 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

Thus, apparently, it was contemplated that persons other 
than persons holding the degree of doctor granted by a 
college authorized to confer such degree might use the prefix 
"doctor," provided they did not represent themselves as 
doctors of medicine. Applicants for registration as physicians 
were not required to have a degree of doctor of medicine or 
its equivalent from a legally chartered medical school having 
power to confer degrees, until the passage of Gen. St. 1915, 
c. 293. If it is intended by R. L., c. 208, § 75, that only a 
person who has a doctor's degree from a college authorized 
to confer such degree can use the title "doctor," obviously 
all persons registered as physicians and surgeons prior to the 
passage of Gen. St. 1915, c. 293, who have not received a 
degree of doctor from a college authorized to grant such a 
degree are not entitled to use the title "doctor." Certainly 
such a construction is not to be placed upon R. L,, c. 208, 
§ 75. 

Accordingly, I am of the opinion that merely the use of the 
prefix "Dr." or "Doctor" by a person not in possession of a 
degree from a college or other educational institution having 
the power to grant degrees is not a violation of R. L., c. 208, 
§ 75. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Constitutional Laiv — Public Buildings — Mercantile Purposes. 

A law providing for the erection of buildings by cities and towns to be 
used for both public and mercantile purposes is unconstitutional. 

March 3, 1919. 
Hon. John Halli\\'ell, Chairman, Joint Comjnittee on Munici'pal Finance. 
Dear Sir: — You have requested my opinion as to whether 
House Bill No. 30, if enacted, will be constitutional and valid. 
This bill provides: — 

Section 1. Cities and towns may issue bonds, the proceeds of 
which shall be used to purchase land and build and erect thereon build- 
ings to be used for pubHc assemblage and for the use and occupation 
of men who were in the service of the country in the German war and 
the Spanish-American war, including the use for social, educational 
and recreation purposes. 

Section 2. Such buildings shall be under the immediate control of 



1920.] PUBLIC DOCUMENT — No. 12. 31 

trustees or directors, the appointment and number of which and the 
duties of the same to be prescribed by an ordinance or by-laws. 

Section 3. The city or town avaihng itself of the provisions of 
this act may erect and maintain in said buildings stores on the ground 
floor and devote the basement of said building or a proportional part 
thereof to m.ercantile or business purposes, and the trustees or directors 
may charge a reasonable rent for the occupation of the same. 

Section 4. All income derived in any manner from the use or occu- 
pation of said building shall be used for the purposes of maintaining said 
buildings, and in the maintenance account there shall be a reasonable 
amount set apart for up-keep and depreciation, and the balance, if any, 
shall be paid each year into the city treasury and be applied to the pay- 
ment of maturing bonds. Any deficiency required in order to meet the 
maintenance and depreciation charges shall be borne by the city or 
town by annual appropriation. 

Section 5. This act shall take effect upon its passage. 

The principal question raised by your inquiry is whether or 
not the provision that a city or fown "may erect and main- 
tain in said buildings stores on the ground floor and devote 
the basement of said building or a proportional part thereof to 
mercantile or business purposes, and the trustees or directors 
may charge a reasonable rent for the occupation of the same" 
is constitutional. 

Money raised by taxation can be expended only for public 
purposes. The Legislature has no power to authorize the 
expenditure of money raised by bonds which ultimately must 
be paid, in part at least, through taxation, for other than 
public uses. In its last analysis any other principle is a 
taking of private property for a private use, which is contrary 
to the fundamental conceptions of our form of government. 

It has been decided that once a municipality has erected 
buildings, built in good faith and used for municipal purposes, 
it has the right to allow such buildings, or parts thereof, to 
be used incidentally for other purposes, either gratuitously or 
for a compensation. French v. Quincy, 3 Allen, 9; W or den v. 
New Bedford, 131 Mass. 23. 

It is equally well settled that a municipality cannot enter 
into private business by erecting and maintaining a public 
building for gain. Wheelock v. Lowell, 196 Mass. 220; Spaul- 
ding v. Lowell, 23 Pick. 71, 80; Opinion of the Justices, 182 
Mass. 605. 

The buildings contemplated under the proposed act are to 
be erected in part for mercantile purposes to aid in meeting 



32 ATTORNEY-GENERAL'S REPORT. [Jan. 

the expense of the erection and maintenance of that part used 
for pubHc purposes. This is not a case where a building is 
erected to be used in its entirety- for pubHc purposes and 
incidentally is to be let for private purposes when not required 
for the public purposes for which it is erected. In my opinion, 
the situation is the same as if on one lot two buildings were to 
be erected, one to be devoted to public purposes, the other to 
private purposes, the income derived from the one devoted to 
private purposes to be applied to meet in part the maintenance 
and cost of the building devoted to public purposes. 

In effect the proposition is to devote public funds in mer- 
cantile pursuits to enable the community better to sustain 
its public burdens, which, in my judgment, cannot be done. 

Accordingly, I advise you that, in my opinion, the bill in 
its present form would be unconstitutional if enacted. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — Alien — Eligibility to Public Office. 

A law providing that an alien who claimed exemption from military serv- 
ice during the World War shall never be eligible to hold public office 
is unconstitutional. 

March 3, 1919. 

Hon. Thomas Westox, Jr., Chairman, Committee on Constitutional Amend- 

7nenfs. 

Dear Sir: — In reply to your inquiry as to whether the 
article of amendment contained in House Resolve No. 466 
would be unconstitutional as conflicting with the provisions 
of the Federal Constitution, I submit the following. 

The proposed article of amendment is as follows: — 

No person who pleaded his alien status as an exemption from militarj^ 
service during the war against Germany shall ever be eligible to hold 
and enjoy any office of honor, trust or profit under the government of 
the commonwealth, or any county, city or town thereof. 

There is no doubt that a State may prescribe qualifications 
for the holding of office under its government. 

Mass. Const., c. I, § I, art. IV. 
Opinion of the Justices, 115 Mass. 602. 



1920.] PUBLIC DOCUMENT — No. 12. 33 

Section 10 of article I of the Constitution of the United 
States provides, in part, as follows : — 

No state shall . . . pass any bill of attainder, ex post facto law, or 
law impairing the obligation of contracts. . . . 

The question involved is whether the proposed amendment 
can be justified as establishing a qualification for office, or is 
in effect a punishment for an act already done. 

It was said by Mr. Justice Field, in Cummings v. The State 
of Missouri, 4 Wall. 277, 321, that — 

The theory upon which our political institutions rest is that all men 
have certain inalienable rights — that among these are life, liberty and 
the pursuit of happiness; and that in the pursuit of happiness all 
avocations, all honors, all positions, are alike open to every one, and 
that in the protection of these rights all are equal before the law. Any 
deprivation or suspension of any of these rights for past conduct is 
punishment, and can be in no otherwise defined. 

A provision for a qualification must have some reasonable 
relation to that purpose. Under the form of creating a quali- 
fication a State cannot evade the inhibition contained in the 
Federal Constitution. 

It seems to me obvious that the claiming of an exemption 
from military service by an alien has no such reasonable 
connection with his fitness for office, when he shall become a 
citizen, as to take such a provision out of the inhibition 
prescribed by the Federal Constitution. 

I am of the opinion, in view of the decision in Cummings 
V. The State of Missouri, already referred to, and the cases of 
Ex parte Garland, 4 Wall. 333, and Pierce v. Carskade7i, 16 
Wall. 234, that such an amendment to the Constitution must 
be viewed as inflicting a punishment upon such aliens who may 
hereafter become citizens of the United States for an act 
already done which was lawful when done. In Cummings v. 
The State of Missouri it was pointed out that "under this form 
of legislation the most flagrant invasion of private rights, in 
periods of excitement, may be enacted, and individuals, and 
even whole classes, may be deprived of political and civil 
rights." 

The principle decided in Cummings v. The State of Missouri 
and Ex parte Garla7id, supra, has been recognized by the 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

Supreme Court of the United States as late as 1912. See 
Johannesen v. United Stales, 225 U. S. 227, at 242. 

Accordingly, I beg to advise you that in my opinion the 
proposed article of amendment, if adopted, would be in 
violation of the Constitution of the United States. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Commissioner of Animal Industry — Orders and Regulations — 
Acts of Congress. 

Orders, regulations and requirements of the Commissioner of Animal 
Industry for permission to ship anti-hog cholera serum into this Com- 
monwealth, in accordance with the provisions of R. L., c. 90, and 
St. 1912, c. 608, and amendments thereof, where Congress has pre- 
scribed and authorized rules and regulations in respect to interstate 
• trade in such serums, cease to have any force and effect. 

March 6, 1919. 
Dr. Lester H. Howard, Commissioner of Animal Industry. 

Dear Sir: — You have requested my opinion on the ques- 
tion of whether or not the orders and regulations relative to 
the distribution, sale and use of anti-hog cholera virus or serum 
and the regulations for serum companies, promulgated by you 
in accordance with the provisions of R. L., c. 90, and St. 1912, 
c. 608, and acts in amendment thereof and addition thereto, 
are in conflict with the acts of Congress or with the authority 
of Congress to regulate interstate commerce. 

Under the provisions of our statutes, you have the power to 
make orders and regulations relative to the prevention, sup- 
pression and extirpation of contagious diseases among domestic 
animals, and those orders and regulations have to be approved 
by the Governor and Council. 

Under the provisions of the statutes cited, you made the 
following order on Oct. 28, 1914: — 

To all persons ichom it may concern. 

Wliereas, the disease known as hog cholera, which is a contagious 
disease and is so recognized under the laws of this Commonwealth, 
prevails extensively among swine in this Commonwealth, and whereas 
it has become necessary to adopt measures for the prevention of the 
spread of said contagious disease; 

Now, therefore, acting under and by \drtue of the authority vested 
in me by the provisions of chapter 90 of the Revised Laws, and chapter 



1920.] PUBLIC DOCmiENT — No. 12. 35 

608 of the Acts of 1912, and all acts and amendments thereof and in 
addition thereto, and all other authorit}^ me hereto enabling, I do 
hereby make the following order and regulation: — 

No person, firm or corporation shall distribute, sell or use in the 
Commonwealth of Massachusetts virulent blood from hog-cholera- 
infected hogs, or ''virus," or anti-hog cholera serum, unless written 
permission has been obtained from the Commissioner of Animal In- 
dustry for such distribution, sale or use, which written permission will 
be granted persons deemed proper by the Commissioner of Animal 
Industry. 

This order shall take effect upon its approval. 

This order shall be published by sending a copy to each inspector 
of animals in the Commonwealth, and by distribution to known 
breeders of swine, to commercial houses known to be dealing in the 
aforesaid commodity, and to veterinarians registered under the laws of 
the Commonwealth. 

On Sept. 15, 1915, you made the following order: — 

To all persons whom it may concern. 

Whereas, the Department of Animal Industry is now actively 
engaged in the control and eradication of hog cholera, which is 
a contagious disease, and is so recognized under the laws of tliis 
Commonwealth ; 

And whereas, successful control of this disease has been accom- 
plished only in those States which have regulated and restricted the 
sale, distribution, possession and administration of various commercial 
products known as anti-hog cholera serum, and virulent blood or virus, 
which products, while designed to prevent or cure hog cholera, in the 
bands of untrained men tend to create and cause an epidemic of this 
disease ; 

Now, therefore, acting under and by virtue of the authority vested 
in me by the provisions of chapter 90 of the Revised Laws, and chapter 
608 of the Acts of 1912, and all acts and amendments thereof and in 
addition thereto, and all other authority me hereto enabling, I do 
herebj' make the following order and regulation: — 

No person, firm or corporation shall, directly or indirectly, ad- 
minister or procure, or cause to be administered, or have in possession 
with intent to have administered, directly or indirectly, within the 
Commonwealth of Massachusetts, anti-hog cholera serum, virulent 
blood or virus, or any other preparation of a similar composition under 
whatever name, and administered in a similar way for the prevention 
and cure of hog cholera, unless written permission has been obtained 
from the Commissioner of Animal Industry for such administration or 
possession. 

This order shall take effect upon its approval. 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

This order shall be published by sending a copy to each inspector of 
animals in the Commonwealth, and by distribution to known breeders 
of swine, to commercial houses known to be dealing in the aforesaid 
products, and to veterinarians registered under the laws of the Com- 
monwealth. 

You have also made the following regulations for the issuing 
of a permit to ship anti-hog cholera serum or hog cholera virus 
to be used within the Commonwealth: — 

Section 1. A permit shall be obtained from the Commissioner of 
Animal Industry for each individual shipment of either anti-hog 
cholera serum or hog cholera virus to be used within the State of Massa- 
chusetts, which permit shall be inoperative until the provisions men- 
tioned in section 3 hereof have been complied with. 

Section 2. All anti-hog cholera serum and hog cholera virus to be 
used in Massachusetts, permit for the shipment of which has been 
granted, shall be shipped in care of the Department of Animal In- 
dustrj^ to such place as the Commissioner shall designate. 

Section 3. Every person, firm or corporation which receives a 
permit to ship anti-hog cholera serum or hog cholera virus to be used 
in Massachusetts shall build, equip and maintain a building suitable 
for the purpose of testing these products, the plans and location for 
this building to be approved by the Commissioner of Animal Industry 
before the buildings are constructed. 

Section 4. The entire expense of testing anti-hog cholera serum 
and hog cholera virus, and for storing the same before and after testing, 
shall be borne by the company submitting the same for test. 

Section 5. Every lot of anti-hog cholera serum shall be tested by. 
a veterinarian registered in Massachusetts who shall be approved by 
the Commissioner of Animal Industry, and in a manner prescribed 
by said Commissioner. 

Section 6. If any anti-hog cholera serum fails to pass the pre- 
scribed test, the entire lot within the State of Massachusetts bearing 
the same serial number shall be sealed and returned to the company 
holding the permit, or shipped to any other addreso outside of the 
State of Massachusetts furnished by said company; shipment in either 
case to be at the expense of said company. 

Section 7. Anti-hog cholera serum and hog cholera virus, after 
passing tests approved by the Commissioner of Animal Industry, shall 
be held under conditions prescribed by him, and cannot leave the 
custody of the Department except for immediate use by its authorized 
agents. 

Section 8. If it becomes necessary, while \drus is being tested, to 
use the same in order to prevent it reaching the date of expiration, and 
it is later found that this virus has not passed the required test, all 
such product an^'vvhere in the State which bears the same serial number 



1920.] PUBLIC DOCUMENT — No. 12. 37 

shall be condemned and destroyed. All animals upon which a portion 
of said virus has been used shall receive whatever treatment the Com- 
missioner of Animal Industry deems necessary, the same to be done at 
the expense of the company producing said virus. 

Section 9. Copies of records of the physiological, bacteriological 
and microscopical tests to which anti-hog cholera serum and hog 
cholera virus have been subjected shall be furnished the Commissioner 
of Animal Industry with each shipment of these products, or as often 
as in his opinion may be necessary. 

Section 10. Any person, firm or corporation applying for a permit 
under above regulations must satisfy the Commissioner of Animal 
Industry that their products shipped to Massachusetts are not pro- 
duced in a plant located within one-half mile of a public stockyard or 
within any district under quarantine by order of the Bureau of Animal 
Industry of the United States Department of Agriculture. 

Section 11. Each company which applies for a permit to ship 
anti-hog cholera serum or hog cholera virus to the Department of 
Animal Industry agrees to observe all present and future orders which 
the Commissioner may consider to be necessary for the proper control 
of hog cholera in Massachusetts. 

The shipment of such serum from state to state is a branch 
of interstate commerce, and any specified rule or regulation in 
respect of such transportation, which Congress may lawfully 
prescribe or authorize and which may properly be deemed a 
regulation of such commerce, is paramount throughout the 
Union. So that when the entire subject of the shipment of 
such a serum from one state to another is taken under direct 
national supervision, and a system devised by which contami- 
nated and dangerous serum may be excluded from interstate 
commerce, all local or State regulations in respect of such 
matters and covering the same ground will cease to have any 
force, whether formally abrogated or not; and such rules and 
regulations as Congress may lawfully prescribe or authorize 
will alone control. Gibbons v. Ogden, 9 Wheat. 1, 210; Morgan 
V. Louisiana, 118 U. S. 455, 464; Hennington v. Georgia, 163 
U. S. 299, 317; N. Y., N. H. & H. R.R. Co. v. New York, 165 
U. S. 628, 631; Missouri, Kansas & Texas Ry. Co. v. Haber, 
169 U. S. 613, 626; Rasmussen v. Idaho, 181 U. S. 198, 200. 
The power which the States might thus exercise may in this 
way be suspended until national control is abandoned and the 
subject is thereby left under the police power of the States. 

It has been held that where Congress has not by any 
statute covered the whole subject of transportation of certain 
articles, a wide field is left for the exercise by the States of 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

their power, by appropriate regulations, to protect their do- 
mestic animals against contagious, infectious and communi- 
cable diseases. Reid v. Colorado, 187 U. S. 137; Rasmussen 
V. Idaho, supra; Adams y. Lytic, 154 Fed. 876; Kansas City 
Ry. Co. V. State, 90 Ark. 343. But the difficulty in this case, 
in my opinion, is that Congress has prescribed and authorized 
rules and regulations in respect to interstate trade in such 
serums which are param.ount throughout the Union. 

Chapter 145 of the act of Congress of March 4, 1913, pro- 
vides, in part: — 

That from and after July first, nineteen hundred and thirteen, it 
shall be unlawful for any person, firm, or corporation to prepare, sell, 
barter, or exchange . . . , or to ship or deliver for shipment from one 
State ... to any other State . . . any worthless, contaminated, 
dangerous, or harmful virus, serum, toxin, or analogous product in- 
tended for use in the treatment of domestic animals, and no person, 
firm, or corporation shall prepare, sell, barter, exchange, or ship as 
aforesaid any virus, serum, toxin, or analogous product manufactured 
within the United States and intended for use in the treatment of 
domestic animals, unless and until the said virus, serum, toxin, or 
analogous product shall have been prepared, under and in compliance 
with regulations prescribed by the Secretary of Agriculture, at an 
establishment holding an unsuspended and unrevoked license issued 
by the Secretary of Agriculture as hereinafter authorized. . . . That 
the Secretar}^ of Agriculture be, and hereby is, authorized to make and 
promulgate from time to time such rules and regulations as may be 
necessary to prevent the preparation, sale, barter, exchange, or ship- 
ment as aforesaid of any worthless, contaminated, dangerous, or harm- 
ful virus, serum, toxin, or analogous product for use in the treatment 
of domestic animals, and to issue, suspend, and revoke licenses for the 
maintenance of establishments for the preparation of viruses, serums, 
toxins, and analogous products, for use in the treatment of domestic 
animals, intended for sale, barter, exchange or shipment as aforesaid. 
... All licenses issued under authority of this Act to establishments 
where such viruses, serums, toxins, or analogous products are prepared 
for sale, barter, exchange, or shipment as aforesaid, shall be issued on 
condition that the licensee shall permit the inspection of such establish- 
ments and of such products and their preparation; and the Secretary 
of Agriculture may suspend or revoke any permit or license issued 
under authority of this Act, after opportunity for hearing has been 
granted the licensee or importer, when the Secretarj^ of Agriculture is 
satisfied that such license or permit is being used to facilitate or effect 
the preparation, sale, barter, exchange or shipment as aforesaid, . . . 
of any worthless, contaminated, dangerous, or harmful virus, serum, 
toxin, or analogous product for use in the treatment of domestic 
animals. 



1920.] PUBLIC DOCUMENT — No. 12. 39 

The act then goes on to provide that any officer of the De- 
partment of Agriculture may inspect any estabhshment Ucensed 
under this act at any hour during the daytime or night time, 
and that any person, firm or corporation violating any of the 
provisions of the act shall be punished by a fine not exceeding 
$1,000 or by imprisonment not exceeding one year, or by both 
such fine and imprisonment. 

In my judgment, the provisions of this act of Congress and 
the regulations of the Department of Agriculture made there- 
under cover the whole subject of the preparation, sale and 
shipment of the hog cholera serum in question. The entire 
subject has been taken under direct national supervision, and 
under the act and regulations worthless, contaminating, dan- 
gerous or harmful serums may be excluded from interstate 
commerce. This being the case, local and State regulations in 
respect of the matter cease to have any force, and the rules 
and regulations made in accordance with the act of Congress 
alone control. 

Accordingly, I am of the opinion that the orders and regula- 
tions and the requirements for permission to ship hog cholera 
serum into this Commonwealth made by you are in conflict 
with the act of Congress of March 4, 1913, and with the au- 
thority of Congress to regulate interstate commerce. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Co-operative Banks — Matured Shares — Dues Capital. 

Matured shares of a co-operative bank held by it under the provisions of 
St. 1914, c. 646, § 6, are to be treated as "dues capital." 

March 17, 1919. 
Hon. AuGUSTtJS L. Thorndike, Bank Commissioner. 

Dear Sir: — You have requested my opinion as to wdiether 
any portion of matured shares continued in a co-operative 
bank, under the provisions of St. 1914, c. 643, § 6, is to be 
treated as "dues capital." "Dues capital" is referred to in 
St. 1912, c. 623, §§ 35 and 36, having to do with the guaranty 
fund and the surplus account. 

By St. 1913, c. 264, a co-operative bank may "invest a sum 
not exceeding its surplus account in the purchase of a suitable 
site and the erection or preparation of a suitable building for 
the convenient transaction of its business, but in no case ex- 
ceeding two per cent of its dues capital." 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

A co-operative bank holding a number of matured shares 
desires to purchase a bank building, and the question arises 
as to whether any part of the matured shares is to be con- 
sidered as "dues capital." 

Under the provisions of law relating to co-operative banks, 
capital has always been considered as consisting of (1) dues 
capital, — that part of the funds of the bank that has been 
paid in by members thereof as dues; and (2) profits capital, — 
that part consisting of interest which the bank has received 
from loans made by it from the savings of its members and 
from other minor sources of income. 

I see no reason why matured shares, which, by the provi- 
sions of St. 1914, c. 643, § 6, may be continued under certain 
conditions, should be considered as a new form of capital. I 
assume it is possible at any time to ascertain that portion of 
the matured shares which is made up of dues capital and that 
portion which is made up of profits capital. 

Obviously, the capital applicable to the matured share is the 
same the moment after the share matures as the moment be- 
fore, and thus it continues to be made up of part dues capital 
and part profits capital, and I think must continue to be 
treated as such unless the Legislature has expressed an inten- 
tion that it should be treated otherwise. 

It has been suggested that if any portion of the capital 
applicable to matured shares can be treated as dues capital the 
nature of co-operative banks is seriously changed, because of 
the provisions of law providing for the reservation of an 
amount of the profits as a guaranty fund until it amounts to 5 
per cent of the dues and profits capital. There is much force 
in this suggestion. However, I am of the opinion that it 
cannot be assumed that the Legislature, in passing the provi- 
sion authorizing continued matured shares, did not give this 
subject consideration. I find nothing in the act which indi- 
cates an intention upon the part of the Legislature that the 
capital applicable to matured shares should be treated other- 
wise than the other capital of the bank. 

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

Very truly yours, 

Henky C. Attwill, AUorncy-Gcncral. 



1920.] PUBLIC DOCUMENT -No. 12. 41 

Property of the Commonwealth — Sidewalk Assessment. 
The Commonwealth is not liable for a sidewalk assessment levied by a 
town for a sidewalk constructed in front of an armory owned by the 
Commonwealth in that town. 

March 26, 1919. 
Mr. George Howland Cox, Secretary, Armory Commissioners. 

Dear Sir: — I acknowledge your letter in which you ask 
my opinion on the following matter: — 

^ I have a biU from the town of Stoneham, dated Dec. 28, 1914 for a 
sidewalk assessment, State armory. Main Street, $160 79 Will you 
kindly advise me if the Commonwealth is Hable for such an assessment. 

^^ St. 1909, c. 490, pt. I, § 5, cl. 2, expressly provides that 
the property of the commonwealth, except real estate of 
which the commonwealth is in possession under a mortgage 
for condition broken," shall be exempt from taxation. The 
words "the property of the commonwealth" mean the same 
as "all the property of the commonwealth," as decided in the 
case of Corcoran v. Boston, 185 Mass. 325. 

The property of the Commonwealth is exempt from taxation because 
as the sovereign power, it receives the taxation through its officers or 
through the municipahties it creates, that it may from the means thus 
furmshed, discharge the duties and pay the expenses of government 
Its property constitutes one of the instrumentalities by which it per- 
forms its functions. As every tax would to a certain extent diminish 
Its capacity and ability, we should be unwilling to hold that such 
property was subject to taxation in any form, unless it were made so 
by express enactment or by clear implication. 

Inhabitants of Worcester County v. Mayor and Aldermen of 
Worcester, 116 Mass. 193, 194. 

Accordingly, I am of the opinion that the Commonwealth 
is not hable for this assessment. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 



Commonicealth — Cities and Toivns — Troy JVcight. 

Under the provisions of R. L., c. 62, §§11 and 12, as amended, the Com- 
monwealth is not obhged to furnish standard troy weights and meas- 
ures to cities and towns. 

March 27, 1919. 

Mr. Thure Hanson, Commissioner of Standards. 

Dear Sir: — You have requested niy opinion as to "whether 
or not it is incumbent upon this State to furnish cities and 
towns with standard troy weights, or shall the town or city, 
upon designation by this office, furnish these weights at their 
own expense?" 

The original act in this connection was St. 1890, c. 426, 
which is as follows: — 

Section 1. The standard weights, measures and balances which 
shall be kept by the counties, cities and towns of the Commonwealth, 
except as hereinafter pro\dded, shall be the following: . . . 

Section 2. In addition to the standards mentioned above, each 
shire town, and each cit}^ not a shire town, shall keep the metre and 
kilogram, and also such standard troj'-weights as the treasurer and 
receiver-general may designate. . . . 

Section 3. Any county, city or town which has not received from 
the Commonwealth a complete set of the standard weights, measures 
and balances, as pro^dded in section one, shall at once make applica- 
tion to the treasurer and receiver-general for the weights, measures and 
balances which such county, city or town has not received, and the 
same shall be furnished to such county, city or town at the expense of 
the Commonwealth. 



It will be noted that by section 3, above quoted, it was the 
intent of the statute that the Commonwealth should furnish to 
each county, city or town a set of the standard weights, meas- 
ures and balances as provided in section 1, and that no pro- 
vision is made for the furnishing by the Commonwealth of 
standard troy weights, mentioned in section 2. 

R. L., c. 62, § 11 (since amended by St. 1907, c. 534, § 3, 
and by St. 1909, c. 310), provided as follows: — 

The treasurer shall pro^dde each county, city and town with a com- 
plete set of the standard weights, measures and balances named in the 
following section. 

R. L., c. 62, § 12 (since amended by St. 1909, c. 310), pro- 
vided: — 



1920.] PUBLIC DOCUMENT -No. 12. 43 

Counties, cities and towns shall keep the following standard weights 
measures and balances: ... and each city and each shire town shall 
keep the meter and kilogram and such standard troy weights as the 
treasurer and receiver general may designate. 

The commissioners, when revising the laws and statutes for 
the purpose of incorporating them in the Revised Laws, were 
given authority to omit enactments which were redundant 
By virtue of this authority St. 1890, c. 426, § 2, was omitted 
as redundant, and the following was added to section 12 in 
place thereof: — 

Each city and each shire town shall keep the meter and kilogram 
and such standard troy weights as the treasurer and receiver general 
may designate. 

It is apparent, therefore, that it was not intended that the 
meaning and purposes of St. 1890, c. 426, should be changed. 
It being clear that under sections 1, 2 and 3 of said chapter 
426 it was not incumbent upon the Commonwealth to furnish 
each city and town standard troy weights, it is my opinion 
that R. L., c. 62, §§ 11 and 12, as amended, do not make it 
incumbent upon the Commonwealth to furnish each city and 
town standard troy weights and measures. 
Yours very truly, 

Henry C. Attwill, Attorney -General. 



Insurance — Inducement not specified in. Policy ~ Loans and 

Insurance. 

A provision by an insurance company that the issuance of a policy should 
be dependent upon the policyholder making a loan, or the making of 
a loan dependent upon the borrower taking out a policy, is a violation 
of the provisions of St. 1907, c. 576, § 69. 

TT TT TT Tx ^^^^^ 30, 1919. 

Hon. JHRANK H. Hardison, Insurance Commissioner. 

Dear Sir: — I have considered your inquiry as to whether 
the method of the conduct of business by the Morris Plan 
Insurance Society, if conducted in this Commonwealth as set 
forth in a brief submitted by its counsel, would constitute a 
violation of that part of section 69 of chapter 576 of the Acts 
of 1907 which reads as follows: — 

... or give, sell or purchase or offer to give, sell or purchase as 
inducement to insurance or in connection therewith, any stocks, bonds 



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

or other securities of any insurance company or other corporation, 
association or partnership, or any di\ddends or profits accrued thereon, 
or anything of value whatsoever not specified in the policy. 

The words "or in connection therewith" are, I think, to be 
construed as meaning something in addition to inducement. It 
is not to be assumed that the Legislature makes use of idle 
words. It is my view that the w^ords mean that as a part of 
the transaction of insuring there shall be no sale, gift or pur- 
chase of anything other than that set forth in the policy. I 
do not think that the section prohibits an insurance agent 
selling stocks, bonds or securities or other like things at the 
same time he writes insurance, but the sale must not be con- 
nected in any way with the insurance; that is, they must be 
independent transactions. 

It is claimed by the Morris Plan Insurance Society that the 
provisions of the statute are not violated by requiring one who 
desires a loan to take out an insurance policy, nor by agree- 
ment made by a borrower to give his insurance exclusively to 
the lender, and that it has been so held in other jurisdictions. 
I do not concur in this view^, and I am of the opinion that 
such transactions would be held in this Commonwealth to be 
in violation of said section. 

Your question therefore resolves itself to this: Does the 
lending of money and the taking of a note therefor, with in- 
dorsers, co-makers or sureties, involve a gift, sale or purchase 
of anything of value, within the terms of the statute; and if 
so, is the gift, sale or. purchase in connection with insurance? 

The notes taken by the Morris Plan Insurance Society at 
the time the loans are made are more than mere evidences of 
the debt created by the loan, and I think the transactions con- 
stitute purchases of the notes. This being so, if tile loans are 
made in connection with insurance there is a violation of the 
provisions of the statute. Furthermore, it may well be con- 
tended that the society gives a privilege of securing a loan. 
Whether there is a violation of the statute is largely a question 
of fact. If the insurance is in any way made dependent upon 
the policyholder making a loan, or if the loan is made de- 
pendent upon the borrower taking out a policy of insurance, 
then, in my opinion, the transaction is in violation of the 
statute; otherwise, not. 

As to the suggestion made by the company that the terms 



1920.] PUBLIC DOCUMENT — No. 12. 45 

of the statute will be complied with if the company indorses 
on each policy where a loan is made that such loan has been 
made, I do not concur in the suggestion. The statute provides 
that that which is given, sold or purchased of value shall be 
specified in the policy. It seems to me it contemplates that it 
shall be incorporated as one of the provisions of the policy, and 
applicable to each holder thereof in the class. 

Furthermore, I am of the opinion that there is a limit upon 
that which may be offered, sold or purchased in connection 
with the insurance transaction. I do not feel that our laws 
contemplate that in connection with the insurance business 
companies can carry on businesses foreign to insurance. St. 
1907, c. 576, § 26, specifically provides that domestic com- 
panies shall not engage in any other business than the business 
for which the insurance company is incorporated. 

Moreover, grave practical difficulties will arise if the pro- 
visions of the section are held to authorize insurance companies 
to specify and undertake obligations which are foreign to in- 
surance. The Commissioner passes upon the premiums, and 
it is difficult to see how he can pass intelHgently upon the 
premium required if insurance companies are authorized to 
undertake any and all kinds of obligations, the cost of which it 
is impracticable to determine. 

Accordingly, I am of the opinion that the provisions of the 
statute will not be satisfied by such an indorsement. 

The form of policy submitted to me seems to indicate that 
the manner in w^hich the business is being transacted in other 
states by the Morris Plan Insurance Society is done in con- 
nection with the lending of money. The last condition on the 
second page of the policy is as follows: — 

Payment of Premiums. — If the insured be indebted to the first 
beneficiary named in said schedule the insured agrees not to allow this 
policy to lapse for the non-payment of premiums. 

Obviously, this is a condition required by the insurance com- 
pany, not for its own benefit but for the benefit of the loan 
company, which under the arrangement is named as the first 
beneficiary. If you should determine as a matter of fact that 
the lending of the money by the Morris Plan Insurance Society 
and the doing of the insurance business by the Morris Plan 
Insurance Society are to be conducted as separate and distinct 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

businesses, although undertaken, for the most part, by an 
agent representing both, it is obvious that the last condition 
named on the second page should be eliminated from the 
policy. 

Very truly yours, 

Henry C. Attwill, Aftorney-General. 



Supervisor of Plans — Regulations — Fireproof Construction, 

Under St. 1913, c. 655, § 15, the supervisor of plans may require fireproof 
construction in the lower portions of apartment buildings of extreme 
height, so long as the requirement is made in good faith, is not dis- 
criminatory, and applies to all buildings of the same class thereafter 
to be constructed. 

May 2, 1919. 

Mr. John H. Pldnkett, Chief, Massachusetts District Police. 

Dear Sir: — I acknowledge your communication in which 
you request my opinion as to whether the provision in St. 
1913, c. 655, § 15, that the supervisor of plans may require 
" that proper fire stops shall be provided in the floors, walls, 
partitions and stairways of such building," is sufficiently 
elastic to be so construed that the supervisor of plans may 
require fireproof cons-truction in the lower portions of certain 
apartment buildings of extreme height, where he feels that 
extra precaution should be taken for the safety of the occu- 
pants thereof. 

It may be that this provision, standing alone, would not 
justify requiring fireproof construction in the lower portion of 
an apartment building of extreme height, but I think that, 
taken in connection with the sentence following, the supervisor 
of plans would be justified in making such a requirement. The 
sentence following is as follows: — 

He may make such further requirements as may be necessary to 
prevent the spread of fire, or its communication from any steam boiler 
or heating apparatus therein. 

Said section 15 was originally enacted in 1888 as section 1 of 
chapter 316 of the Acts of 1888, and as first enacted read, in 
part, as follows: — 

Such inspector may require that proper fire stops shall be provided 
in the floors, walls and partitions of such buildiugs and may make such 



1920.] PUBLIC DOCUMENT — No. 12. 47 

further requirements as may be necessary or proper to prevent the 
spread of fire therein or its communication from any steam boiler or 
heating apparatus. 

The only changes made since that time in this provision are 
the elimination of the words "or proper," the elimination of 
the word "therein" after the word "fire" and the substitution 
of a comma therefor, and the addition of the word "therein" 
after the word "apparatus." The meaning of the provision 
has not been changed. 

It is to be borne in mind that section 15 is a provision to 
require buildings to be so constructed as to insure the safety 
of the occupants thereof in the event of fire, and the provision 
in the section that the inspector may make such further re- 
quirements as may be necessary to prevent the spread of fire 
therein, in my opinion, gives to the inspector authority to re- 
quire such provisions as he may deem reasonably necessary to 
prevent the spread of fire in the building. This necessarily in- 
volves the power to require walls, floors and partitions to be of 
such construction and such material as the inspector may deem 
necessary to prevent the spread of fire in the building. 

Accordingly, I am of the opinion that the inspector has the 
power to require such fireproof construction in the lower por- 
tions of apartment buildings of extreme height as may be 
necessary, in his judgment, to prevent the spread of fire in the 
buildings, so long as the requirements are made in good faith 
and are not discriminatory, and apply to all buildings of the 
same class and character thereafter to be constructed. The 
inspector's judgment in the first instance as to what is neces- 
sary is controlling, and I doubt if the requirements can be con- 
sidered unreasonable so long as they require no more than 
have been established by the Legislature as reasonable provi- 
sions in relation to buildings in the city of Boston of a like 
character to those enumerated in section 15. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 



Governor — Return of BUI to Legislature — Resubmission. 

Under the provisions of article LVI of the Amendments to the Constitu- 
tion a bill returned to the General Court by the Governor with recom- 
mendations of amendment cannot be resubmitted to him without 
re-enactment by both branches of the General Court. 

May 12, 1919. 

Hon. Edwin T. McKnight, President of. the Senate and Chairman of the 
Committee on Rules. 

Sir: — I acknowledge your communication in which you 
request my opinion upon the following questions: — 

"Wlien, in accordance with the provisions of article LVI of the 
Amendments to the Constitution, a bill is returned by the Governor 
with a recommendation that amendments specified by him be made 
thereir , and the branch to which the bill has been returned fails to 
amend it, what procedure must follow in that branch, or in both 
branches, in order that the s?id bill may again be laid before the 
Governor for his approbation? 

If the branch to which the bill is so returned fails to amend it, can 
that branch thereupon proceed to re-enact the bill, and return it to the 
Governor, without first gi^dng the co-ordinate branch opportunity to 
consider the bill with reference to any amendment to which it may be 
subject, under the provi^sions of the said article LVI? 

Article LVI of the Amendments to the Constitution reads as 
follows: — 

The governor, within five daj^s after any bill or resolve shall have 
been laid before him, shall have the right to return it to the branch of 
the general court in which it originated with a recommendation that 
any amendment or amendments specified by him be made therein. 
Such bill or resolve shall thereupon be before the general court and 
subject to amendment and re-enactment. If such bill or resolve is 
re-enacted in any form it sliall again be laid before the governor for 
his action, but he shall have no right to return the same a second time 
with a recommendation to amend. 

When a bill or resolve is returned under the provisions of 
this article to the branch of the General Court in which it 
originated, it is before the General Court and subject to 
amendment and re-enactment. If it is re-enacted in any form 
it shall again be laid before the Governor for his action. 

I am of the opinion that the General Court is not restricted 



1920.] PUBLIC DOCUMENT — No. 12. 49 

to the amendments proposed by the Governor in amending a 
bill returned. The suggestions of the Governor may entail 
further amendments, or other amendments may better secure 
the purposes his suggested amendments are designed to accom- 
plish. That this was contemplated by the framers of the 
amendment seems plain from the third sentence of the amend- 
ment, which provides that if the *'bill or resolve is re-enacted 
in any form it shall again be laid before the governor for his 
action." Furthermore, this provision of the article, in my 
judgment, requires re-enactment by both branches of the 
General Court of a bill returned. It is to be observed that 
there is no provision for again laying the bill before the Gov- 
ernor without re-enactment. It may be that one branch may 
be of the view that a bill as to which the Governor suggests an 
amendment should not be re-enacted without amendment. 
Mass. Const., pt. 2d, c. I, § I, art. I, provides that each 
branch shall have a negative on the other. Thus, it would 
seem to follow that a bill returned may be amended in such 
manner as the General Court may determine, or may be re- 
jected; but before it can again be laid before the Governor for 
his action it must be re-enacted by the General Court, that is, 
by both branches thereof. 

Accordingly, I am of the opinion that the answer to your 
first question is that the bill must be re-enacted by both 
branches of the General Court in order that it may again be 
laid before the Governor. The order in which it may be re- 
enacted by the Senate and House is a matter to be determined 
by the General Court. 

Your second question is to be answered in the negative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



State Board of Labor and Industries — Employment of Nurses — 
Factories and Shops. 

Under Gen. St. 1918, o. 110, the State Board of Labor and Industries has 
no authority to require persons, firms and corporations operating a 
factory or shop, in which machinery is used, to furnish a nurse or 
other person in attendance on its employees. 

May 24, 1919. 

State Board of Labor and Industries. 

Gentlemen : — I acknowledge your communication of 
recent date, in which you request my opinion as to whether 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

the provisions of Gen. St. 1918, c. 110, authorize your Board 
to make the following requirement contained in Bulletin No. 
14 issued by your Board, viz.: — 

Such room shall be placed under the charge of a qualified nurse or 
other person trained ir and competenl to administer first aid, who shall 
be employed on the premises and on call when necessary to administer 
first aid only, unless further advised by a physician, and who shall 
keep a record of all cases of accident and sickness treated at the first- 
aid room, such records to be open to the mspection of the state board 
of labor and industries or its representatives. 

Said chapter 110 is an amendment of St. 1909, c. 514, § 104, 
as amended by St. 1914, c. 557, and by Gen. St. 1915, c. 216. 
The section as originally enacted is contained in St. 1907, 
c. 164, entitled "An Act to provide for the keeping of medical 
and surgical appliances in factories." As originally enacted it 
required every person, firm or corporation operating a factory 
or shop in which machinery was used for manufacturing pur- 
poses, and certain other purposes, at all times to keep and 
maintain, free of expense to the employees, such a medical and 
surgical chest as should be required by the local board of 
health of any city or town where such machinery was used. 
By St. 1914, c. 557, certain changes in the statute were made, 
one of which was the requiring of a medical or surgical chest, 
or both, as might be required by the State Board of Labor 
and Industries. This act w^as entitled "An Act relative to the 
providing of medical and surgical chests in factories and ma- 
chine shops." By Gen. St. 1915, c. 216, the act was further 
amended by providing as follows: — 

Every such person, firm or corporation, emplojdng one hundred or 
more persons, shah, if so required by the state board of labor and 
industries, pro\dde accommodations, satisfactory to said board, for the 
treatment of persons injured or taken ill upon the premises. 

The title of the act was as follows: "An Act to require 
manufacturing establishments to provide rooms and equipment 
for the treatment of injured or sick employees." 

By Gen. St. 1918, c. 110, the act was further amended by 
providing that the persons, firms and corporations governed by 
the act should also provide "suitable and sanitary facilities for 
heating or warming food to be consumed by those employees of 
the factory or shop who so desire," the act being entitled "An 
Act to require certain manufacturing and mechanical estab- 



1920.] PUBLIC DOCUMENT — No. 12. 51 

lishments to provide for their employees facilities for heating 
or warming food." 

The specific question raised by your inquiry is this: Can the 
persons, firms and corporations coming within the provisions of 
the act be compelled, if required by the State Board of Labor 
and Industries, to provide a qualified nurse or other person 
trained in and competent to administer first aid in charge of 
the so-called first-aid room, who shall be employed on the 
premises and on call when necessary to administer first aid, 
and who shall keep a record of all cases of accident and sick- 
ness treated at the first-aid room? 

This depends upon the interpretation to be given the words 
"accommodations for the treatment of persons," as used in the 
act. 

It is to be borne in mind that the statute is a criminal 
statute, and therefore is to be construed strictly against the 
Commonwealth, and unless it is reasonably clear that the term 
"accommodations" includes a nurse or other person who per- 
forms the duties of a nurse, such a requirement cannot be 
made by your Board. 

It is to be noted that the accommodations which your Board 
may require are accommodations for the treatment of persons 
injured or taken ill upon the premises. You are not specifically 
authorized to require the treatment of persons injured or taken 
ill on the premises, or the furnishing of such treatment. Re- 
quirements by implication are not favored in criminal law. 

Such light as can be obtained from the title of Gen. St. 1915, 
c. 216, seems to negative the idea that your Board can require 
anything other than physical accommodations. That chapter 
is entitled " An Act to require manufacturing establishments to 
provide rooms and equipment for the treatment of injured or 
sick employees." While the word "equipment" may at times 
be used to include human beings, ordinarily it is used to 
signify supplies and apparatus for a special service. 

Accordingly, I am constrained to advise you that it is my 
opinion that persons, firms and corporations cannot be re- 
quired, under the provisions of Gen. St. 1918, c. 110, to fur- 
nish a nurse or other person in attendance as required by said 
bulletin. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



52 ATTORNEY-GENERAL'S REPORT. [Jan. 



Gas Companies — Net Maximum Rates — Gross Rates. 

A gas company may, after the lawful establishment of a net maximum 
rate, establish a reasonable gross rate, in excess of such net rate, to 
be paid by all customers who do not, prior to a specified date, pay the 
net rate. 

May 26, 1919. 

Hon. Edwin T. McKnight, President of the Senate. 

Dear Sir: — I have the horxor to acknowledge the receipt 
of a copy of the following order passed by the Honorable 
Senate: — 

Ordered, That the Senate request the opinion of the Attorne}'- 
General as to whether a gas company, as defined in section 1 of chapter 
742 of the Acts of 1914, may lawfully, after the estabhshment by the 
Board of Gas and Electric Light Commissioners or otherwise of a net 
maximum rate to be charged by such companj^, establish a gross rate, 
in excess of said net rate, w^hich shall be paid by all customers who do 
not, prior to a specified date, pay the net rate. 

I assume that the question presented by the order arises 
from a practice, w^hich I am informed by the chairman of the 
Board of Gas and Electric Light Commissioners has prevailed 
for many years, of fixing in the orders of said Board, issued 
under the provisions of St. 1914, c. 742, § 162, a net price that 
may be charged by the company affected by the order. It is 
provided by said section 162 that upon the complaint in 
writing of the mayor of a city or the selectmen of a town, or of 
twenty customers, either as to the quality or price of the gas 
or electricity sold and delivered, the Board, after a hearing, 
may order any reduction in the price of gas or electricity or an 
improvement in the quality thereof; and it is further provided 
that the maximum price fixed by such order shall not there- 
after be increased by the company except as provided in the 
following section. The following section (§ 163) provides for a 
revision of orders relative to the price and quality of gas or 
electricity made by the Board, upon application by the com- 
pany. 

Apart from these two sections, and except in so far as by 
reason of the nature of the business the rates must be reason- 
able, there are no provisions of general law that restrict a gas 
or electric light company as to the charges it may make for the 
service it furnishes, or as to the regulations it may adopt to 



1920.] PUBLIC DOCUMENT — No. 12. 53 

insure prompt payment in accordance with the terms upon 
which it sells gas or electricity. Thus, a gas or electric light 
company as to which no order has been made may increase the 
price of gas or electricity without regard to said sections. 

As I understand it, therefore, the question presented is this: 
Where a gas compan}' has been charging a net price to those 
paying their bills promptly when due, and a larger price to 
those failing to pay when due, and the Board orders a re- 
duction in or a revision of the net price, does the action of the 
Board in fixing a net price prohibit the charging thereafter of 
a gross price to the users of gas who do not pay the charges 
when due? 

Assuming that the Board is authorized to make such an 
order, which I deem it unnecessary to determine, as otherwise 
it would seem no order binding upon the company is made, I 
am of the opinion that in such a case the company may charge 
a gross rate. A long-continued practice, acquiesced in by the 
public, is not lightly to be disturbed. But for the last sentence 
of section 162 there would be no doubt, as the only order 
made by the Board is in relation to the net price, leaving the 
company free to charge, as before, a gross price in excess of the 
net price to those not paying their bills promptly. The last 
sentence of the section provides that "the maximum price 
fixed by such order shall not thereafter be increased by said 
company except as provided in the following section." This 
provision originally appeared as a part of St. 1888, c. 350. 
The other provisions of that act are now contained in said 
section 163. The purpose of the provision seems to have been 
to insure that a price once fixed by an order of the Board 
should not thereafter be increased except as provided in said 
chapter 350. It is a reasonable view to take that it was not 
intended by this provision to interfere with the conduct of the 
business of a company other than as ordered by the Board. 
It is to be noted that apparently the provision has no applica- 
tion to an order made under the provisions of said section 163. 
The intent was to prohibit a company. from increasing the 
price fixed by an order of the Board. When, by order, the 
Board deals solely with a net price, it contemplates that a 
gross price in excess will be charged, and impliedly author- 
izes such a charge. Obviously, the gross rate must be reason- 
able, and the difference between the gross and net rates must 
have relation to the expense to which the company is put by 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 

the failure of the users of gas to pay the net rate when due. 
Assuming, therefore, that the gross rate charged is a reason- 
able rate, the question of the Honorable Senate is to be 
answered in the affirmative. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Street Railway — Puhlic Trustees — Limitation of Stock Issue. 

Under Spec. St. 1918, c. 188, § 4, the public trustees of the Eastern Massa- 
chusetts Street Railway Company are not restricted to the issuance 
of stocks, bonds and other evidences of indebtedness to the total 
amount mentioned therein as "the entire capitalization" plus or 
minus the adjustments to be made. 

May 29, 1919. 

His Excellency Calvin Coolidge, Governor of the Commonwealth. 

Sir: — I acknowledge your communication in which you re- 
quest my opinion as to what the amount of the capital of the 
Eastern Massachusetts Street Railway Company properly 
should be under the provisions of Sp. St. 1918, c. 188. Since 
receiving your communication I have ascertained from the 
trustees that what they really desire is my opinion as to 
whether the new company maj^ under the provisions of sec- 
tion 4 of the act, issue stock, bonds and other evidences of 
indebtedness to a total amount in excess of $40,282,340 plus 
or minus such amount as shall be added thereto or deducted 
therefrom in accordance with the determination of the Public 
Service Commission, as provided in said section. 

Said chapter 188 provides for the purchase of the property 
and franchises of the Bay State Street Railway Company by 
a new company to be organized as provided in the act. Sec- 
tion 1 of the act provides that "the new company, upon the 
acquisition of the railway's, property and franchises of the 
company may, subject to the provisions of this act, exercise 
all the powers and privileges of a street railway company 
organized under general laws, so far as the same are applicable, 
. . . and shall be subject to all the duties, restrictions and 
liabilities imposed upon street railway companies, except as 
otherwise provided." Special provisions are made for the in- 
corporation of the new company. I think it obvious that in 
the organization of the company the general laws apply only 
to a limited extent; that is, in so far as they are not incon- 
sistent with the specific provisions of said act. 



1920.] PUBLIC DOCUMENT — No. 12. 55 

The trustees appointed under the provisions of the act are 
to co-operate with the holders of the shares and securities of 
the Bay State Street Railway Company, and with the receiver 
operating the properties of said company, in arranging for the 
transfer of the railways, property and franchises of the Bay 
State Company to the new company. 

It is provided in section 4 that the new compan}^ for the 
purpose of paying for the railways, property and franchises of 
the company, may issue stock, bonds and other evidences of 
indebtedness in such amounts and proportions, with such par 
values and preferences, as may be approved by the directors 
and by the trustees. 

Thus, it would seem that in the issuing of stock, bonds and 
other evidences of indebtedness for the purpose of paying for 
the property and franchises of the old company the provisions 
of general law have little if any application, and the determi- 
nation of the amounts and proportions of such stock, bonds 
and evidences of indebtedness are matters left entirely to the 
discretion of the directors and the trustees, subject only to the 
limitations thereafter prescribed. It is thereafter provided 
that — 

The entire capitaHzation of the new company, including stock, 
bonds and other evidences of indebtedness which may be issued to 
pay for, or which shall remain outstanding in respect of, the railways 
and property owned, leased or operated by the company which were 
included in the computation of investment value contained in the de- 
cision of the public service coimnission, dated the thirty-first day of 
August, nineteen hundred and sixteen, shall not represent a capital 
bearing an annual interest and dividend charge (common dividends 
being computed at the rate of six per cent per annum) which will ex- 
ceed six per cent upon the sum of forty million two hundred eightj^-two 
thousand three hundred and forty dollars, etc. 

As I interpret the section, the words "the entire capital- 
ization" refer to the entire initial capitalization required to 
purchase the railways, property and franchises of the old 
company, and in the creation of this capitalization the com- 
pany is not restricted to the issuance of stock, bonds and other 
evidences of indebtedness to a total amount of $40,282,340 
plus or minus the adjustments to be made. I think it plain 
from the language of the section that such a limitation was 
not intended. 

Light is thrown upon the provisions of section 4 by a con- 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 

sideration of the other provisions of the act. The act provides 
for what is known as a service at cost plan of operation, which 
in substance provides that the rates of fare shall not be in 
excess of those required to meet operating expenses and fixed 
charges and to pa}^ 6 per cent per annum upon the common 
stock. I assume that it was intended by the Legislature to 
give the directors and the trustees latitude in effecting the 
organization of the new company and the acquisition of the 
property of the old, restricting, however, the creation of an 
initial capital to such an extent that the public will not be re- 
quired to pay by way of fares more than 6 per cent upon the 
investment value of the property acquired, as determined by 
the Public Service Commission, as provided in said section, 
and relying upon the requirement of the approval of the 
trustees appointed under the provisions of the act, within the 
limitation prescribed, to safeguard the public interests. In 
this connection it is to be borne in mind that at the time of 
the passage of the act the Bay State Street Railway Company 
was in the hands of a receiver, that it was in default in the 
payment of interest on its bonds and the property was subject 
to foreclosure under the mortgage securing the bonds, and 
that public service corporations w^ere experiencing great diffi- 
culty in raising capital for their needs. That it was generally 
recognized that public service corporations were experiencing 
difficulty in raising capital is indicated by Sp. St. 1918, c. 159, 
wherein the Boston Elevated Railway Company w^as author- 
ized to issue preferred stock entitled to dividends at 7 per cent 
per annum, and by Sp. St. 1917, c. 366, which authorized the 
New York, New Haven & Hartford Railroad Company to 
issue preferred stock entitled to dividends at 7 per cent per 
annum. 

Accordingly, I beg to advise you that I am of the opinion 
that so long as the initial capitalization created for the purpose 
of paying for the railways, property and franchises of the old 
company is not of such an amount and character as to subject 
the new company to the payment of interest and dividend 
charges (dividends on common stock computed at 6 per cent 
per annum on the par value thereof) to an amount in excess of 
6 per cent of the investment value of the property as found 
under the provisions of said section, and is approved b}' the 
directors and by the trustees, it is authorized by the act. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



1920.1 PUBLIC DOCUMENT — No. 12. 57 



Constitutional Law — Class Legislation — Delivery Vehicles. 

A law regulating the dimensions of motor vehicles, with their loads, operated 
upon the public highways, exempting vehicles owned by manufacturers 
or dealers in boxes or barrels, is unreasonable class legislation, denies 
equal protection of the laws, and is, therefore, unconstitutional. 

June 2, 1919. 
Hon. Edwin T. McKnight, President of the Senate. 

Dear Sir: — I acknowledge the receipt of an order from 
the Honorable Senate in the following form: — 

Ordered, That the Senate request the opinion of the Attorney- 
General on the question whether exempting from the provisions of 
Senate Bill No. 547, entitled ''An Act to regulate the dimensions of 
commercial vehicles and motor trucks and their trailers," so far as 
they restrict the height of motor vehicles and their loads, delivery 
vehicles owned by manufacturers and dealers in boxes or barrels, 
would render the bill unconstitutional. 

Section 1 of the proposed bill is as follows: — 

No commercial vehicle, motor truck, or motor-drawn vehicle shall 
be operated on an}^ way in this commonwealth, as defined in section 
one of chapter five hundred and thirty-four of the acts of nineteen 
hundred and nine, and amendments thereof, the outside width of 
which is more than ninety-six inches, the height of which exceeds 
thirteen feet, or the extreme over-all length of which exceeds twenty- 
eight feet; except that such vehicle may be operated exceeding thirteen 
feet in height when a special permit so to operate is secured from the 
superintendent of streets, selectmen or local road authorities having 
charge of the repair and maintenance of highways in the several cities 
and towns: provided, however, that where more than one vehicle or 
trailer is operated the length of such vehicles may exceed twenty-eight 
feet, but in no event shall all such vehicles or trailers so drawn or 
operated exceed eighty feet in length, over all. All of the aforesaid 
dimensions shall be inclusive of the load. 

Section 2 provides for the granting of permits also by the 
Massachusetts Highway Commission and by the county com- 
missioners, and section 3 establishes a penalty for violation of 
the act. 

I am informed that an amendment has been proposed by 
which, if it is adopted, an additional section will be added to 
the bill as follows: — 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

In so far as it restricts the height of motor vehicles and their loads, 
this act shall not apply to delivery vehicles owned by manufacturers 
or dealers in boxes or barrels. 

The order of the Senate appears to relate merely to the 
question whether this amendment will render the bill uncon- 
stitutional if enacted with the proposed amendment incor- 
porated therein. 

An exemption of special classes of persons from the burden 
of general police regulations always requires a clear explana- 
tion. It is fundamental that there can be no unreasonable or 
arbitrary distinctions in the application of such a statute. 
Either it must apply equally to all, or any classification which 
it attempts must be based upon some reasonable ground con- 
nected with the nature and purpose of the regulation or the 
general public interest. That a regulation may cause special 
inconvenience to persons in certain kinds of business is not 
alone a reasonable ground for exempting them. Such exemp- 
tions and distinctions must be based upon public interest, not 
upon private inconvenience. 

The purpose of the proposed bill appears to be merely' to 
regulate and limit in the interest of public safety and con- 
venience the dimensions of motor vehicles, with their loads, 
which are operated upon the public highwa\^s. The bill 
appears to have no relation to the weight of the vehicle or its 
load. Presumably manufacturers or dealers -in boxes or barrels 
often have occasion in transporting empty boxes and barrels to 
carry loads of unusual height over the public highw^ays, but so 
do manufacturers and dealers in other bulky articles of light 
weight. This bill, if enacted, will prove as inconvenient to all 
such manufacturers and dealers as to those especially exempted 
by the proposed amendment. Furthermore, this amendment 
completely exempts motor vehicles owned by the manufac- 
turers and dealers specified, wheth^f used in transporting boxes 
or barrels or any other articles or material. Then, others than 
manufacturers and dealers in boxes or barrels have occasion to 
transport them on motor vehicles. A motor truck and its load 
exceeding thirteen feet in height is precisely as great a danger 
or inconvenience to the public, whether operated by a person 
of the exempted class or by any other person. 

No sound distinction for the classification proposed by this 
amendment in any way related to the purpose of this bill or 
the general public interest has been suggested to me, and none 



1920.] PUBLIC DOCUMENT — No. 12. 59 

occurs to me. I must advise you that the bill would, in my 
judgment, be unconstitutional if enacted with the proposed 
amendment incorporated therein, on the ground that in that 
form it would be unreasonable class legislation, and that it 
would deny to persons operating motor vehicles within the 
Commonwealth the equal protection of the laws, in violation 
of the Fourteenth Amendment to the Constitution of the 
United States. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Toums — Joint Employment of Superintendent of Schools — 
Termination of Agreement. 

Where two towns continue to employ jointly a superintendent of schools 
after they are no longer required by law so to do, either town can 
terminate such arrangement whenever it sees fit. 

June 3, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You ask my opinion as to whether the town 
of Wareham has the right to terminate the arrangement 
whereby the towns of Wareham and Marion jointly employ a 
superintendent of schools. In 1900 these towns formed a 
union under the provisions of St. 1898, c. 466, and they have, 
until April, 1919, employed jointly a superintendent of schools. 
The school committee of Wareham has since notified the school 
committee of Marion that the arrangement would no longer be 
continued. In 1910 the valuation of both these towns had ex- 
ceeded $3,500,000, and under the then existing law the towns 
were no longer required to continue the union. They did, 
however, continue to employ a superintendent as before, 
through the agency of the joint school committee, although not 
in the manner provided in R. L., c. 42, § 42, which was by a 
committee consisting of the chairman and secretary of the two 
committees. 

This arrangement was in effect when St. 1911, cc. 384 and 
399, were enacted. Chapter 384 provided that in towns operat- 
ing under the act relative to the forming of unions for the 
purpose of electing a superintendent of schools, said superin- 
tendent should be elected for a three-year term. Chapter -399 
provided that such unions could not be dissolved except by a 
vote of a majority of the towns constituting the union, and 
with the consent of the Board of Education. The towns in 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 

question did not choose the superintendent for three years, but 
continued to elect one from year to year. In other words, 
these towns, prior to the passage of the statutes of 1911, had 
outgrown the necessity for continuing the union estabhshed in 
1900, but were by common consent employing a superintendent 
through the instrumentalities previously created. 

Your question, therefore, really is whether St. 1911, c. 399, 
prohibits a dissolution of the original union unless there is a 
majority vote of the towns and the consent of the Board of 
Education is given. It is my opinion that the original union 
had been dissolved by operation of law before 1911, and that 
the continuation of a similar arrangement was a matter of con- 
venience and not of legal necessity. Had St. 1911, c. 399, been 
enacted previous to the time when the towns reached a valua- 
tion of $3,500,000, and when they were operating under the 
original statute, said chapter would have changed the situation 
entirely. Under the facts above stated, however, it is my 
opinion that the towns were no longer subject to the control 
of the then existing law, and that the statutes of 1911 did not 
revive the original union or curtail the rights of the towns if 
either saw fit to discontinue the convenient arrangement of 
choosing a joint superintendent. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Constitutional Law — General Court — Delegation of Powers. 

The Legislature cannot delegate to cities and towns the powers granted to 
it by Art LX of the amendments to the Constitution, limiting the 
use or construction of buildings to specified districts. 

June 25, 1919. 
Hon. Edwin T. McKnight, President of the Senate. 

Dear Sir: — I acknowledge the receipt of an order from 
the Honorable Senate in the following form: — 

Ordered, That the Senate request the opinion of the Attorney-Gen- 
eral on the question whether article LX of the Amendments to the 
Constitution empowers the General Court to authorize cities and towns 
to hmit buildings according to their use and construction to specified 
districts thereof, and more especially whether House Bill No. 635 would 
be constitutional if enacted into law. 

Article LX of the Amendments to the Constitution provides 
as follows: — 



1920.] PUBLIC DOCUMENT — No. 12. 61 

The general court shall have power to limit buildings according to 
their use or construction to specified districts of ci Jes and towns. 

House Bill No. 635 is entitled "An act to authorize cities 
and towns to limit buildings according to their use or con- 
struction." Its essential provision is as follows: — 

Section 1. A city or town maj^ by ordinances or by-laws not in- 
consistent with law and applicable throughout the whole or any defined 
part of its territory limit buildings according to their use or construc- 
tion except such as are owned or occupied by the United States or by 
the commonwealth and may prescribe penalties not exceeding one 
hundred dollars for each violation of such ordinances or by-laws. 

The phraseology of this section seems somewhat incomplete, 
in that it does not clearly state the nature of the limitation 
which is to be imposed upon "buildings according to their use 
or construction." I assume that the purpose of the bill is 
merely to authorize cities and towns "to limit buildings 
according to their use or construction" to specified districts 
thereof. 

The bill of itself imposes no limitation whatever upon the 
use or construction of buildings in any specified district of any 
city or town. It in no way establishes any general principle to 
be applied in imposing limitations of this character. It is 
merely a complete delegation to each of the cities and towns 
within the Commonwealth of the entire power granted to the 
General Court by article LX of the Amendments. Thus, the 
sole question presented by the order is whether such a delega- 
tion of legislative power is authorized by the Constitution of 
the Commonwealth. 

The principles of law applicable to the determination of such 
a question were clearly stated by the Supreme Judicial Court 
in Brodbine v. Revere, 182 Mass. 598, 600: — 

It is well established in this Commonwealth and elsewhere that the 
Legislature cannot delegate the general power to make laws conferred 
upon it by a constitution like that of Massachusetts. Opinion of the 
Justices, 160 Mass. 589; Larcum v. Olin, 160 Mass. 102; Stone y. 
Charlestown, 114 Mass. 214; State v. Hayes, 61 N. H. 264; Barto v. 
Himrod, 4 Seld. 483; Gloversville v. Howell, 70 N. Y. 287; Locke's 
Appeal, 72 Penn. St. 491; State v. Morris County, 7 Vroom, 72; Harbor 
Com7nissioners v. Excelsior Redwood Co., 88 Cal. 491; People v. Hurl- 
but, 24 Mich. 44. This doctrine is held by the courts almost universally. 

There is a well-known exception to it, resting upon conditions exist- 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

ing from ancient times in most of the older States of the Union, wliich 
the constitutions of the States generally recognize, namely, the existence 
of town or other local governmental organizations which have always 
been accustomed to exercise self-government in regard to local police 
regulations and other matters affecting peculiarly the interests of their 
own inhabitants. On this account the determination of matters of this 
kind has been held to be a proper exercise of local self-government 
which the Legislature m.ay com.mit to a city or town. Coiyimomvealth 
V. Bennett, 108 Mass. 27; Stone v. Charlestoivn, 114 Mass. 214; Opinion 
of the Justices, 160 Mass. 586, 589; People v. Albertson, 55 N. Y. 50; 
Glover sville v. Howell, 70 N. Y. 287; State v. Morris Countxj, 7 
Vroom, 72. 

In my judgment, the proposed bill does not deal merely 
w^ith local police regulations or other matters affecting pe- 
culiarly the interests of the inhabitants of the various cities 
and tow^ns of the Commonwealth. It rather purports to 
delegate the whole power and duty to determine what restric- 
tions shall be placed upon the use and construction of build- 
ings in specified districts without establishing any general 
policy whatever as to the purposes of such regulation or the 
standards to be applied in connection therewith. The legis- 
lation authorized by this amendment was obviously intended 
to be something more than police regulations in the interests 
of the public health, safety or morals. The amendment was 
entirely unnecessary to authorize such regulations. The 
determination of the question as to how far legislative power 
under this amendment can or should be exercised presents 
grave questions both of constitutional powder, in view of the 
provisions of the Federal Constitution, and of legislative 
policy. Are certain kinds of business to be restricted to 
specified districts? Are manufacturing and mercantile build- 
ings, and, perhaps, even apartment houses, to be excluded 
entirely from specified districts? Is the character or construc- 
tion of buildings, even of those devoted merely to residential 
purposes, to be regulated as to their height, size, location with 
reference to public highways or to other buildings or as to their 
artistic or architectural qualities? All these matters, so far as 
they are permissible matters of legislation under this amend- 
ment, are left by the proposed bill entirely to the determination 
of cities and towns. Such general considerations of policy in 
a new field of legislation cannot, in my judgment, be said to 
be mere matters of local self-government. 

Of course, the acceptance or rejection of a general scheme 



1920.] PUBLIC DOCUMENT — No. 12. 63 

of regulation may often be left to individual municipalities. 
This is merely leaving to the local community the determi- 
nation of the question whether the conditions there existing 
make it desirable to put in force therein a definite regulation. 
Then, too, the fitting of the administrative details of such a 
regulation into the particular conditions of a given community 
may be left to local authorities or to general administrative 
boards. Doubtless much could be left to local determination 
in this manner in definite legislation enacted under this amend- 
ment, but this subject need not now be discussed, since 
nothing of that sort is attempted by the bill under con- 
sideration. 

Accordingly, I must advise you that, in my judgment, the 
General Court cannot completely delegate to cities and towns 
the powers granted to it by article LX of the Amendments to 
the Constitution and that House Bill No. 635 would be 
unconstitutional if enacted into law. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Police Power — Applicability to State histitutions — Hours of 

Labor. 

Gen. St. 1919, c. 113, reducing the hours of labor of women and children, 
does not apply to the industrial department of the Reformatory for 
Women. 

June 28, 1919. 

Mr. Edward C. R. Bagley, Director, Bureau of Prisons. 

Dear Sir: — You request my opinion as to whether Gen. 
St. 1919, c. 113, amending the law with reference to the hours 
of employment for women and children, and reducing the 
period of such employment to forty-eight hours a week, applies 
to the industrial department of the Reformatory for Women. 

The act in question applies only to women and children 
"employed in laboring in any factory or workshop, or in any 
manufacturing, mercantile, mechanical establishment, tele- 
graph office or telephone exchange, or by any express or trans- 
portation company." 

Assuming that the matrons employed in the industrial de- 
partment of this institution can be said to be "employed in 
laboring," within the meaning of the statute, I have grave 
doubts as to whether such an industrial department can be 



64 ATTORNEY-GENERAL'S REPORT. [Jan. 

said to be a factory, workshop or manufacturing establishment 
within the meaning of this statute, or otherwise to come within 
its terms. Such a department is carrying on a part of the 
work of a penal or reformatory institution. Its primary pur- 
pose is not the employment of persons in the manufacture of 
goods. 

It is, however, a well-established principle that a police 
regulation of the general character of the statute under con- 
sideration is not to be construed as applying to activities con- 
ducted by the State unless it clearly appears from its terms 
that it was intended to be so applicable. I find no indication 
whatever in this statute that the General Court intended it to 
appl}^ to any State institutions of any sort, least of all to State 
penal institutions. 

Accordingly, I feel required to construe this statute as not 
applicable to women employed at the Reformatory for Women. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



Nurses' Corps — State Benefits — World War. 

Under Gen. St. 1918, c. 92, members of the nurses' corps who saw active 
service in the World War are entitled to the benefits provided for by 
Gen. St. 1917, cc. 211 and 332. 

June 28, 1919. 

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

Dear Sir: — You have asked my opinion as to whether 
members of the nurses' corps, organized in connection with the 
medical department of the army of the United States, who 
saw active service in the war with the German Empire, are en- 
titled to the benefits of Gen. St. 1917, cc. 211 and 332, as 
interpreted and extended by Gen. St. 1918, c. 92. 

The language of the two chapters first mentioned plainly 
cannot refer to women, and therefore the rights of these nurses 
must depend upon the statute of 1918. Section 1 of that 
statute provides that the two earlier statutes "shall be con- 
strued to apply to all persons, male or female, voluntarily en- 
listed in the military or naval service of the United States 
since the beginning of the present war with the German Em- 
pire as defined by said chapter three hundred and thirty-two, 
or drafted into the military forces under the provisions of the 
federal selective service act, whether a part of the quota of 
this commonwealth or not, provided that such persons, at the 



1920.] PUBLIC DOCUMENT — No. 12. 65 

time of their entry into said service, were residents of this 
commonwealth." 

The terms of the Federal statutes and the practice of the 
War Department thereunder seem to make it clear that these 
nurses are not "enlisted" in the military service, in the ordi- 
nary technical sense of that term. They are appointed to their 
positions by the Secretary of War, and do not go through the 
formalities of an enlistment as do the enlisted men in the 
military service. 

It is apparent, however, that, by the use of the word "fe- 
male" in connection with persons in the military service, the 
General Court intended to extend the rights under these 
statutes to some persons who heretofore did not come within 
their terms. So far as I can perceive, there are no women in 
the military service, or to whom these words could possibly 
apply, except members of the nurses' corps. I am inclined to 
think, therefore, that the General Court intended by the use 
of these words to extend Gen. St. 1917, cc. 211 and 332 so as 
to include the members of the nurses' corps while in active 
service. I accordingly advise you that, in my opinion, the 
members of this corps while in such active service, if they 
otherwise come within the terms of these statutes, are entitled 
to their benefits. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Highway Commission — Purchase of Land — Construction of 

Highway. 

The Massachusetts Highway Commission may purchase and take land in 
addition to that portion of the highway wrought for travel, when it is 
essential in order to insure the safety of persons traveling thereon. 

July 10, 1919. 

Massachusetts Highway Commission. 

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

Chapter 213 of the Acts of 1916 directs the Massachusetts Highway 
Commission to construct and maintain a certain highway in the town 
of Hingham, and provides that the Commission is "authorized to pur- 
chase or take such land and buildings as may be deemed necessary in 
the laying out and construction of said highway." 

At one point where this highway intersects an existing highway a 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

very dangerous condition exists, due to the obstruction of the view by- 
two buildings on land of the Beale estate, and it seems to the Com- 
mission quite necessan^ that the land on which these buildings are 
located should be purchased or taken in order to get rid of the present 
buildings and msure that no buildings shall hereafter be erected on 
said land. 

The Commission desires to know if in your opinion it can purchase 
this land, which is outside of the portion that is necessary for travel. 

It is my view that your Commission is not restricted in the 
purchase and taking of land which is necessary for travel. 
Very often it is necessary to take land outside of the portion 
that is constructed, for the purpose of grading and draining, in 
order to make that portion of the road which is to be wrought 
for travel safe and convenient for travel. The width of the 
road at its intersection with other roads, within reasonable 
limits to insure the safety of travelers, is a matter properly 
within the discretion of the Commission. If, therefore, a situa- 
tion is presented wherein your Commission deems it necessary 
to purchase land in addition to that which is to be wrought for 
travel, in order to insure the safety of persons traveling on that 
portion of the highw^ay that is wrought for travel, I am of the 
opinion that it can be purchased. Obviously, it must appear 
that the additional land is reasonably necessarj^ for the con- 
venience and safety of the use of the traveled portion of the 
road, in order to justify such action by your Commission. 
This, in the first instance, is largely a question of fact for the 
determination of your Commission. Such being the fact, I am 
of the opinion that you are authorized to purchase such land. 
Very truly yours, 

Henry C. Attwill, Attorney -General. 



Public Service Commission — Motor Vehicles — Rules and 
Regulations — Cities and Towns. 

Under the provisions of Gen. St. 1918, c. 226, the Public Service Com- 
mission, upon an appeal, is limited in its power relative to the operation 
of motor vehicles either to approving or disapproving the orders, 
rules and regulations adopted by local cities and towDS. 

July 14, 1919. 
Hon. Frederick J. IMacleod, Chairman, Public Service Commission. 

Dear Sir: — You request my opinion "as to whether Gen. 
St. 1918, c. 226, which provides for an appeal to the Public 



1920.] PUBLIC DOCUMENT — No. 12. 67 

Service Commission from the orders, rules and regulations pre- 
scribed by the local authorities relative to the operation of jit- 
neys, so called, limits the authority of the Commission to the 
approval or disapproval of the orders, rules and regulations 
from which an appeal is taken, or whether it empowers the 
Commission, in case it disapproves such orders, rules and regu- 
lations, to prescribe by order the just and reasonable rules and 
regulations thereafter to be in force, and, specifically, as to 
whether and in what respect, if any, the Commission exceeded 
its lawful authority in issuing its order of April 3, 1919 
(P. S. C. 2151), relative to regulations governing the operation 
of jitneys in the cities of Lawrence, Haverhill, Maiden, Lynn, 
Salem and Brockton, and the towns of Swampscott and 
Nahant." 

Your question involves an interpretation of section 2 of the 
act. Said section provides, in part, as follows: — 

Every person, firm or corporation, including street railway com- 
panies, operating any such motor vehicle upon any public street or 
way for the carriage of passengers for hire in such a manner as to 
afford a means of transportation similar to that afforded by a street 
railwaj^, by indiscriminately receiving and discharging passengers along 
the route on which the vehicle is operated or may be running, is hereby 
declared to be a common carrier, and shall in respect to the operation 
of such vehicle be subject to such orders, rules and regulations as have 
been or may from time to time be prescribed or adopted 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. 

So far the section is little more than a re-enactment of the 
provisions of Gen. St. 1916, c. 293, as under that act cities and 
towns could make orders, rules and regulations, and the opera- 
tion of motor vehicles was subject thereto. The section then 
provides that — 

Any petitioner, or any street railway company aggrieved by such 
orders, rules or regulations, may appeal to the public service commis- 
sion whose decision, after notice to said licensing authorities and a 
hearing thereon if requested by such authorities, shall be final. Such 
appeal may be taken within thirty days from the time such orders, 
rules or regulations become effective or in case the same have already 
become effective, within thirty days after the passage of this act. 

I assume that the petitioner referred to in this provision 
refers to some person who is operating a motor vehicle or de- 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

sires to operate a motor vehicle. It is difficult to see how any 
other petitioner would be aggrieved by any orders, rules or 
regulations made under the provisions of Gen. St. 1916, c. 293, 
and I doubt the intention of the Legislature to give any mem- 
ber of the public who is affected by the rules and regulations 
only to the extent that all members of the public are affected a 
right to appeal to the Public Service Commission. This, it 
seems to me, throws light upon the meaning of the section. 
Neither a petitioner nor a street railway company can be said 
to be aggrieved unless the rules and regulations adopted appear 
to be unreasonable and to unduly restrict their power to 
operate motor vehicles. This being so, it would seem to follow 
that the cause of their grievance is eliminated by the action of 
the Public Service Commission in disapproving the rules, or so 
much thereof as appears to the Public Service Commission to 
be unreasonable. Certainly, up to the time of the passage of 
this act it could not be said that street railway companies 
were aggrieved by the adoption of rules regulating the opera- 
tion of motor vehicles. They had no peculiar rights under the 
law to be protected against competition, and there is nothing 
in the present statute to indicate that the Legislature intended 
to adopt another policy, unless it is derived by implication 
from the provisions of section 3. On the other hand, there is 
no provision for an appeal by a street railway company be- 
cause of the failure of a municipality which has accepted the 
provisions of Gen. St. 1916, c. 293, to adopt rules and regula- 
tions. The purpose of the appeal, it seems to me, is to correct 
the alleged grievance. It is a grievance that is the foundation 
for the action of the Public Service Commission. The grievance 
is not corrected by allowing the rule or regulation appealed 
from to stand and adding additional rules and regulations to it. 

The section provides that persons operating motor vehicles 
shall be subject to such orders, rules and regulations as may 
from time to time be adopted by the licensing authorities of 
the city or town. This is inconsistent with the view that the 
Public Service Commission has the power to originate and 
make rules and regulations upon appeal, in addition to those 
already adopted b}- the city or town, and finally to dispose of 
the whole matter. 

Nor do I think that the declaration in the section, that the 
persons operating such motor vehicles are common carriers, 
adds much to the section, as, obviously, persons operating 
such vehicles are common carriers. I do not think it can 



1920.] PUBLIC DOCUMENT — No. 12. 69 

soundly be contended, merely from this declaration, that the 
Public Service Commission was given jurisdiction of such 
vehicles under the provisions of St. 1913, c. 784. That chapter 
relates to common carriers of persons or property by railroads, 
street railways, electric railroads and steamships. It is true 
that clause h of section 2 provides that the Commission shall 
have general supervision and regulation of the operation of all 
conveniences, appliances, facilities or equipment utilized in 
connection with or appertaining to the transportation or car- 
riage of persons or property by railroads, street railways, 
electric railroads and steamships, by whomsoever owned or by 
whomsoever provided, whether the service be common carriage 
or merely in facilitation of common carriage. 

But for the provisions of section 2 of said chapter 226 it 
may be that it could be contended with some force that street 
railway companies using motor vehicles for the purpose of 
facilitation of common carriage by street railways were subject 
to the regulations of the Public Service Commission, under the 
provisions of said chapter 784, as to the operation of such 
motor vehicles. Doubtless in some respects street railways in 
the operation of motor vehicles are subject to the control of 
the Public Service Commission. However, it is going to great 
length to sa}^ that the operation of a motor bus in no way 
connected with the street railway company is a convenience, 
appliance, facility or equipment utilized in connection with or 
appertaining to the transportation or carriage of persons or 
property by street railways or in facilitation of such trans- 
portation or carriage. 

Section 3 of said chapter 226 provides: — 

In cities or towns that have not accepted the provisions of said 
chapter two hundred and ninety-three wherein a street railway exists, 
and wherein a line of motor vehicles has been established under the 
provisions 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 vest in the cit}^ or 
town, subject to appeal to the public service commission as provided 
in section two. 

I take it that this section gives to the Public Service Com- 
mission the power to establish rules and regulations in relation 
to automobiles, motor vehicles and the operation of motor 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

vehicles in cities and towns that have not accepted the provi- 
sions of said chapter 293, wherein a street railway exists, or 
wherein a line of motor vehicles has been established under the 
provisions of section 1 of the act. Some argument might 
possibly be advanced under this section that by implication 
the power is given to the Public Service Commission, on ap- 
peal, under the provisions of section 2, to prescribe rules and 
regulations in addition to those adopted by the local com- 
munity. The use of the w^ords "original jurisdiction," it may 
be said, indicates that on appeal it has the same power that it 
has when exercising original jurisdiction under the provisions 
of section 3, and that it has the right to pass rules and regula- 
tions in any community w^here a street railway exists, whether 
a line of motor vehicles has been established or not, or whether 
the street railway is operating a line of motor vehicles in the 
community; and consequently, it follows that the Legislature 
was of the opinion that a street railway might be aggrieved by 
the operation of a line of motor buses in a community where it 
operated a street railway, although it did not operate a line 
itself. On the other hand, under section 3 the Public Service 
Commission has no jurisdiction whatever over motor vehicles 
operated by others than street railway companies in a com- 
munity where no street railway exists, as the application of 
section 3 is limited to towns wherein a street railway exists and 
towns wherein a line of motor vehicles has been established 
under the provisions of section 1, which relates entirely to 
street railway companies. Thus the original jurisdiction of the 
Public Service Commission is limited in its extent, and does 
not embrace all communities which have not accepted the pro- 
visions of said chapter 293. Furthermore, it is given original 
jurisdiction over the persons, firms and corporations mentioned 
in section 2. The section does not use the words "original 
jurisdiction" in connection with its power to prescribe rules 
and regulations. 

However, in my judgment, whatever force the provisions of 
section 3 may have in supporting the view that the Commis- 
sion, on appeal, may add to the regulations adopted by the 
city or town is controlled by the provisions of section 2 and 
the conclusions to be drawn from its provisions. 

The provision in section 2, that all orders, rules or regula- 
tions made, established or prescribed hereunder shall be en- 
forced in the manner provided in St. 1913, c. 784, § 28, is of 
no assistance in determining the question involved. If the pro- 



1920.] PUBLIC DOCUMENT — No. 12. 71 

vision is restricted to such rules and regulations as are affirmed, 
on appeal, by the Public Service Commission, then it leaves 
those as to which no appeal is taken to be enforced as provided 
in Gen. St. 1916, c. 293. If it applies to all rules and regula- 
tions referred to in the section, then it necessarily relates to 
rules and regulations which may never come before the Public 
Service Commission for action. 

Accordingly, I am of the opinion that it was not the inten- 
tion to interfere with the power of the local communities 
accepting the provisions of said chapter 293 to regulate in such 
manner as they may determine the operation of motor vehicles 
coming within the provisions of the act, provided such regula- 
tions are not found to be unreasonable by the Public Service 
Commission upon appeal; and that your Commission is limited 
to either approving or disapproving the orders, rules and regu- 
lations adopted by such communities. 
Ver}^ truly yours, 

Henry C. Attwill, Attorney-General. 



Board of Registration in Pharmacy — Certificate of Fitness — 
War Prohibition. 

The Board of Registration in Pharmacy may, after the war prohibition 
act becomes effective, continue to grant certificates of fitness author- 
izing the sale of intoxicating liquors on prescriptions of registered 
physicians. 

July 14, 1919. 

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

Dear Sir: — My opinion is requested upon the following 
question: — 

Has the Board the right to issue a certificate of fitness (St. 1913, 
c. 413) to druggists in cities and towns which voted to grant the first 
five classes of licenses, which licenses were rendered ineffective on 
July 1 by war prohibition? 

St. 1913, c. 413, provides:^ 

In any city or town in which licenses for the sale of intoxicating 
liquors of the first five classes are not granted, registered pharmacists 
to whom a certificate of fitness has been issued as provided for by 
section two of this act, may sell pure alcohol for medicinal, mechanical 
or chemical purposes without a physician's prescription, such sales to 
be recorded in the manner provided for in section twenty-six of chapter 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

one hundred of the Revised Laws, and may sell intoxicating liquors 
upon the prescription of a registered physician practising in such city 
or town, provided that the prescription is dated, contains the name of 
the person prescribed for, and is signed by the physician. 

I am of the opinion that your Board may continue to grant 
such certificates of fitness, and that such certificates will au- 
thorize the sale of intoxicating lic^uors upon the prescription of 
a registered physician to the extent authorized by said chapter 
413, provided such sale does not violate the provisions of the 
Federal statutes. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Unlaicjul Combination — Fixing of Wages by Minimum Price 

Scale. 

Agreements between employer and employee to establish minimum prices 
as a means of fixing wages are unlawful. 

July 16, 1919. 
Hon. Edwin T. McKnight, President of the Senate. 

Dear Sir: — I am in receipt of a copy of an order adopted 
by the Honorable Senate, as follows: — 

Ordered, That the Senate request the opinion of the Attorney-Gen- 
eral on the following question of law: — 

Would it be contrary to the laws of the United States or of this 
Commonwealth for a combination of fishermen to enter into an agree- 
ment with dealers purchasing their product fixing minimum prices 
for such product as a method of fixing the wages of such fishermen? 

The order does not state to whom the product upon which 
the price is to be fixed belongs, but apparently it is assumed 
to belong to the fishermen. Upon this assumption it is not 
possible for me to give an opinion, for the reason that the 
answer W'ould depend upon facts which are not stated; for 
example, whether the purpose of the combination of fishermen 
and dealers is to advance the price of fish, or whether the 
combination w^ould be of such size as to give substantial 
price-making power. 

I apprehend, however, that the purpose of the Honorable 
Senate in passing the order was to obtain an opinion which 
w^ould be applicable to the situation in the fish industry in 



1920.] PUBLIC DOCUMENT — No. 12. 73 

this Commonwealth, and therefore submit the following 
answer. 

It is my understanding that the fishermen employed on 
vessels landing fish at Boston and other points in this Common- 
wealth are in general paid an amount equal to a certain 
proportionate part of the proceeds of the cargo, the proportion 
varying from 7-1000 in the case of a fisherman on a steam 
trawler to a much larger percentage in the case of fishermen 
employed on sailing vessels, the variation being due principally 
to the fact that the trawler fishermen receive a definite salary 
in addition to their share in the proceeds. 

As a general rule, the fish caught does not belong to the 
fishermen. While the pay received by the fisherman depends, 
at least in part, upon the value of the cargo, he cannot be 
considered the owner of such cargo, but still remains an 
employee. Baxter v. Rodman, 3 Pick. 435; Camhra v. Santos, 
233 Mass. 131. 

In this situation it is difficult to see how the fishermen may, 
by arrangement with dealers to whom the fish may be sold, 
fix a minumum price thereon, when, as above pointed out, 
the fish is not owned by them. 

It is too well recognized to require the citation of authorities 
that employees have a right, both under the laws of this 
Commonwealth and of the United States, to combine and 
contract with their employer as to what wages they shall 
receive. 

This right on the part of the employees, however, does not 
include the right to dictate to their employer as to the manner 
and terms upon which the product of the employees' labor 
shall be sold, and a combination to effect this, in my judgment, 
would be an unlawful combination. While it is true that 
combinations of workmen by collectively bargaining as to the 
wages they shall receive necessarily affect the price of the 
product of their labor, this is an incident necessarily flowing 
from the exercise of this right. When, however, a combi- 
nation of workmen, under the guise of collective bargaining as 
to wages, attempts to fix the price at which the product of 
their labor shall be sold by their employer, they exceed their 
lawful rights, and the combination becomes unlawful. And I 
think it is equally plain that it is unlawful for such a com- 
bination to enter into agreements with the purchasers of the 
product, by which it is agreed that the product shall be 
bought only on certain terms. 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

I do not mean to intimate that I am of the opinion that 
an agreement may not legally be effected between the fisher- 
men and their employer, by which the wages to be paid are 
fixed upon the basis that the fish caught is of a certain mini- 
mum value. 

Assuming, therefore, that the facts are as I understand them, 
your question is to be answered in the affirmative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Recess Committee — Appropriation for Services. 

The Legislature may lawfully appropriate money to pay members of a 
recess committee appointed to consider the work being done by a 
commission to revise the laws of the Commonv/ealth. 

July 19, 1919. 
His Excellenc}^ Calvin Coolidge, Governor of the Commonwealth. 

Sir : — I beg to acknowledge your communication in which 
you request my opinion as to whether or not you can sign an 
appropriation bill providing money for the payment of the 
members of a proposed recess committee to consider the work 
being done by the commission to revise the laws of the Com- 
monwealth. 

I assume that the appropriation arises by reason of the 
passage of chapter 11 of the Resolves of the present year, 
which extends to Oct. 15, 1919, the time within which the 
Commissioners for Consolidating and Arranging the General 
Laws of the Commonwealth, under authority of chapter 43 of 
the Resolves of 1916, are required to make their final report to 
the General Court. 

The resolve provides that the commissioners shall complete 
the said consolidation and arrangement and present their 
final report in print on or before Oct. 15, 1919, and file the 
same with the clerk of the Senate. 

Article LXV of the Amendments to the Constitution 
provides as follows: — 

No person elected to the general court shall during the term for 
which he was elected be appointed to anj^ office created or the emolu- 
ments whereof are increased during such term, nor receive additional 
salary or compensation for ser^dce upon any recess committee or com- 
mission except a committee appointed to examine a general revision of 
the statutes of the commonwealth when submitted to the general court 
for adoption. 



1920.] PUBLIC DOCUMENT — No. 12. 75 

The sole question involved, therefore, is what is meant by 
the words "when submitted to the General Court for adop- 
tion," as used in said amendment. 

I am of the opinion that a reasonable construction should be 
given to these words, and that, accordingly, they are to be 
construed as including a report made to the clerk of the 
Senate by direction of the General Court, under an order 
which extends the time of the filing of the report of the com- 
missioners with the General Court, and provides for the filing 
of said report with the clerk of the Senate. 

Considering the filing with the clerk of the Senate under the 
provisions of the order as a submission to the General Court, 
it is clear that the amendment does not prohibit the payment 
of members of a committee appointed to examine the revision 
of the statutes, after the report is so submitted, for services 
performed after it is submitted. 

In any event, in so far as the appropriation is concerned I 
am of the opinion that you may properly approve it, as it is 
made simply in anticipation of the receipt of the report by the 
General Court, and no question will arise until it is proposed 
to expend money under authority of the appropriation. If the 
report then is before the General Court the expenditure will be 
lawful. 

Accordingly, I answer your question in the affirmative. 
Very truly yours, 

Henry C. Attwill, Attorney-General. 



Commission on Waterways and Public Lands — Great Pond — 
Islands — Title. 

Any pond of more than 10 acres is a great pond unless there was a grant 
of such pond prior to the enactment of the Colonial Ordinances. Title 
in it and to the islands therein is in the Commonwealth. 

The Commission on Waterways and Public Land has authority to con- 
vey or lease islands in a great pond. 

July 21, 1919. 

Commission on Waterways and Public Lands. 

Gentlemen: — You request my opinion as to whether or 
not Swan Pond, in the town of Dennis, is a great pond be- 
longing to the Commonwealth, and whether or not your Com- 
mission has authority, under St. 1904, c. 379, or any other 
provision of law, to sell and convey or lease two islands located 
in the northerly part of the pond. 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

Your question really divides itself into three parts: first, 
whether or not Swan Pond is a great pond belonging to the 
Commonwealth; second, whether or not the islands located in 
the pond belong to the Commonwealth; and third, whether or 
not your Commission has authority to sell and convey or lease 
the islands in the pond. 

In the memorandum submitted by you in your letter you 
state that — 

Swan Pond is a body of water situated in the town of Dennis and 
has an area of about 157 acres. There are two islands in the northerly 
part of the pond, and there are no buildings on either island. 

Unless there was a grant of Swan Pond prior to the enact- 
ment of the Colonial Ordinances of 1641-47, the title is in the 
Commonwealth. 

The Colonial Ordinances contain the following provision: — 

Pro\ading that no town shall appropriate to any particular person 
any great pond containing more than ten acres. 

It is clear, therefore, that any pond of more than 10 acres is 
a great pond, and is owned by the State, Attorney-General v. 
Herrick, 190 Mass. 307; // Op. Attij.-Gen., 307; Auburn v. 
Vnion Water Poicer Co., 9 Me. 376. 

So far as I am aware, there was no grant of Swan Pond 
before the Colonial Ordinances were enacted. Accordingly, I 
am of the opinion that Swan Pond is a great pond, the title to 
which is in the Commonwealth. 

The second question is whether the islands in Swan Pond are 
owned by the Commonwealth. The only case in Massachu- 
setts dealing with the subject is Attorney-General v. Herrick, 
190 Mass. 307, 313, in which the court states that — 

Ordinarily a grant of a pond as a piece of real estate would include 
the entire area within its borders. . . . 

While there are grounds for an argument that the ordinance of 
1641-47 had reference only to the waters of the great ponds and the 
land under them, there is much force in the suggestion that the ex- 
pressions "great pond, containing more than ten acres of land,'' and 
"great ponds lying in common, though within the bounds of some 
town," refer to great ponds as physical features of the countrj^, in- 
cluding any islands within them. 



1920.] PUBLIC DOCUMENT — No. 12. 77 

It is my opinion that the islands in Swan Pond are the 
property of the Commonwealth. 

As to the third part of your question, as to the right of 
your Commission to sell or lease the islands in Swan Pond, 
St. 1904, c. 379, § 1, provides as follows: — 

The board of harbor and land commissioners may, under the au- 
thority and subject to the approval of the governor and council, sell 
and convey or lease any of the islands owned by the Commonwealth in 
the great ponds. 

By St. 1916, c. 288, the Board of Harbor and Land Com- 
missioners was abolished, and all the powers, duties and obli- 
gations conferred and imposed by law on said Board were 
transferred to, and were to be exercised by, the Commission on 
Waterways and Public Lands. Accordingly, I am of the 
opinion that your Commission is authorized to convey or lease 
said islands, as provided in St. 1904, c. 379, § 1. 
Yours very truly, 

Henry C. Attwill, Attorney-General 



Paupers — Loss of Settlement — Domicile. 
Absence of paupers from cities or towns in which they have a residence, 
in order to constitute a loss of settlement, must be for five consecutive 
years and of such a character as to constitute a change of domicile. 

Jm.Y 22, 1919. 
Mr. Robert W. Kelso, Executive Director, State Board of Charity. 

Dear Sir: — You have requested my opinion upon the 
question arising out of the following facts: — 

A cercain woman was born in Ireland May 1, 1878. Her parents 
never came to the United States. She married in Brighton, on April 8, 
1908. Her husband came to the United States about 1897, and resided 
in Boston until he removed to Revere, Dec. 27, 1913, where he con- 
tinued to reside until his death Aug. 17, 1917. He never gained a 
settlement. At the date of his death his wife had a legal settlement in 
Boston, gained through her own residence. 

After the death of the husband, the wife went to her sister's home in 
Boston, where she remained until June 29, 1918, and then returned to 
Revere. When she went to her sister's home she had no fixed idea or 
purpose of living there, but decided to remain there until she became 
reconciled to her husband's death. She was also in poor health, and 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

decided she would make her home with her nsier until she felt able to 
return to her home in Revere and care for her home and children. 
Meantime, she had an offer to rent her home to advantage for the 
winter, which she accepted. She returned to Revere as soon as her 
home was vacated. 

The question upon which you have asked my opinion is 
whether the woman, on Dec. 27, 1918, had been absent from 
Boston five consecutive years, w^ithin the meaning of St. 1911, 
c. 669, § 4, as amended. 

This statutory provision, so far as applicable to this case, 
reads as follows: — 

A person who, after the passage of this act, is absent for five con- 
secutive years from the city or town in which he had a settlement shall 
thereby lose his settlement. 

I assume from your facts that the woman had gained her 
settlement in Boston prior to Dec. 27, 1913. 

Absence, within the meaning of the statute relating to the 
laws of settlement of paupers, in my opinion, must be of such 
a character and with such intent as to constitute a change of 
domicil. From the facts as given by you, it is manifest that 
this w^oman intended to regard Revere, and made it, her home 
from the date she went there to live with her husband, and 
that her domiciliary residence from Dec. 27, 1913, has been in 
Revere. 

The woman referred to has therefore, in my judgment, lost, 
within the meaning of St. 1911, c. 669, § 4, as amended, the 
settlement which she had in Boston. 
Yours very trul}^, 

Henky C. Attavill, Attoiiiey-General. 



Initiative and Refercnduvi — Acts of the Legislature — WheJi in 

Efect. 

Gen. St. 1919, c. 112, increasing the compensation and mileage to be paid 
to traverse and grand jurors, is not a law the operation of which is 
restricted to a particular political division, district or locality of the 
Commonwealth, and cannot, therefore, take effect earlier than ninety 
days after it becomes a law by approval of the Governor 

July 28, 1919, 
Mr. Frank L. Dean, Controller of County Accounts. 

Dear Sir: — You have requested my opinion as to when 
chapter 112 of the General Acts of 1919, increasing and es- 



1920.] PUBLIC DOCUMENT — No. 12. 79 

tablishing the rate of compensation and mileage to be paid 
traverse and grand jurors, becomes effective. This act applies 
to all jurors in attendance upon any court within the Com- 
monwealth. 

The initiative and referendum amendment to the Constitu- 
tion, in the first article under the heading "The Referendum," 
contains the following provision : — 

I. When Statutes shall take Effect. 
No law passed by the General Court shall take effect earlier than 
ninety days after it has become a law, excepting laws declared to be 
emergency laws and laws which may not be mxade the subject of a 
referendum petition, as herein provided. 

The statute under consideration is not declared to be an 
emergency measure, and therefore it cannot take effect earlier 
than ninety days arter it has become a law, unless it is a 
statute which may not be the subject of a referendum petition. 

Article III of this division of the amendment under con- 
sideration is, in part, as follows: — 

///. Referendum Petitions. 

Section 1. Contents. — A referendum petition may ask for a 
referendum to the people upon any law enacted by the General Court 
which is not herein expressly excluded. 

Section 2. Excluded Matters. — No law that relates to religion, 
religious practices or rehgious institutions; or to the appointment, 
qualification, tenure, removal or compensation of judges; or to the 
powers, creation or abolition of courts, or the operation of which is 
restricted to a particular town, city or other political division or to 
particular districts or localities of the commonwealth, or that appro- 
priates money for the current or ordinary expenses of the common- 
wealth or for any of its departments, boards, commissions or institu- 
tions shall be the subject of a referendum petition. 

The only item of excluded matters within which it has been 
suggested this statute may come is that of laws "the operation 
of which is restricted to a particular town, city or other po- 
litical subdivision or to particular districts or localities of the 
commonwealth." The suggestion is made that as the General 
Court might have dealt with the matter of jurors' compensa- 
tion by statutes applicable only in one or more counties and 
not throughout the Commonwealth, and thus by a series of 
statutes covering the several counties of the Commonwealth in 
succession, this statute must be regarded as the equivalent of 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

such a series of statutes, and as coming within the matters 
excluded from the referendum by the clause under considera- 
tion. 

By precisely the same reasoning, any statute dealing with a 
subject of legislation which it is within the power of the Gen- 
eral Court to make applicable to less than the entire Common- 
wealth could be similarly regarded as the equivalent of several 
statutes applicable to districts or divisions of the Common- 
wealth. The real question, therefore, is whether the referen- 
dum is by the terms of the amendment limited to matters 
which are of such a character that they cannot constitutionally 
be restricted in their application to "a particular town, city or 
other political subdivision or to particular districts or localities 
of the commonwealth." The same language as that above 
quoted is used in defining the matters excluded from the 
operation of the initiative (The Initiative, art. II, § 2). So 
this suggestion also raises the question whether only those 
matters may be made the subject of the popular initiative as 
are required by the Constitution to be made applicable 
throughout the Commonwealth. 

The history of the adoption of the initiative and referendum 
amendment is too recent to require stating. It was the result 
of a popular desire of considerable strength to provide the 
people with a more effective means of controlling the exercise 
of legislative power. Its opening article, defining the scope of 
the amendment, is as follows: — 

/. Definition. 
Legislative power shall continue to be vested in the general court; 
but the people reserve to themselves the popular initiative, which is 
the power of a specified number of voters to submit constitutional 
amendments and laws to the people for approval or rejection; and the 
popular referendum, which is the power of a specified number of voters 
to submit laws, enacted by the General Court, to the people for their 
ratification or rejection. 

Both expressly and by implication it is indicated throughout 
the amendment that both the initiative and the referendum 
shall be applicable to all exercises of legislative power except 
those dealing with matters excluded from their operation. The 
various exclusions are based upon different grounds of policy. 
That under consideration seems plainly to be founded on a 
desire not to burden the people of the whole Commonwealth 



1920.] PUBLIC DOCUMENT — No. 12. 81 

with the duty of passing upon matters of only local or limited 
application in which they are not as a whole interested; but 
unless a matter is excluded on other grounds, it is the obvious 
purpose of the amendment to enable the people directly to 
consider, enact, approve or reject all matters of legislation 
which affect the people of the Commonwealth as a whole. 
Thus there are many matters which are ordinarily dealt with 
by general legislation applicable throughout the Common- 
wealth which conceivably might in a proper case be restricted 
to particular localities or districts. It cannot be said that all 
such matters are excluded from the initiative and referendum 
merely because the General Court might have dealt with them 
locally. It must be said that if it chooses to treat a matter as 
one of general application, and to deal with it as such by a 
general statute applicable to all the people of the Common- 
wealth who come within its scope, it is not excluded from the 
initiative and referendum. Such a statute is in fact made 
applicable to the entire Commonwealth, and therefore cannot 
be said to be a law "the operation of which is restricted to a 
particular town, city or other political subdivision or to par- 
ticular districts or localities of the commonwealth." To con- 
strue the amendment otherwise would be to overlook its real 
character of a far-reaching reservation of power to the people, 
and thereby to thwart by a narrow construction the will of the 
people as expressed therein. 

Accordingly, in my opinion, the statute to which you refer 
does not deal with a matter expressly excluded from the 
operation of the referendum by the provisions of the Constitu- 
tion, and therefore, in my judgment, it cannot take effect 
earlier than ninety days after it became a law by approval by 
the Governor on April 18, 1919. 

• Very truly yours, 

Henry C. Attwill, AUoniey-General. 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 



HigJnvay Commission — Operators of Motor Vehicles — Revo- 
cation and Renewal of Licenses. 

Under Gen. St. 1916, c. 290, the Massachusetts Highway Commission may, 
within one year of the time of conviction of an operator of a motor 
vehicle for violation of a law which provides for the sm-render and 
revocation of a license, issue a new license where, on appeal, the 
district attorney has made an entry of nol. pros., but may not do so 
where, on appeal, a plea of nolo contendere is accepted by the court 
and the case is placed on file. 

July 28, 1919. 

William D. Sohier, Esq., Chairman, Massachusetts Highway Commission. 
Dear Sir: — You have requested m}' opinion as to the 
following: — 

Assuming that the holder of an operator's license has been con\dcted 
in the lower court of operating a motor vehicle while under the influence 
of intoxicatiDg liquor, and that such conviction has been followed by 
the surrender and revocation of the license, has this Commission the 
power, after an investigation or upon hearing, to issue a new license to 
such operator under the following circumstances, viz.: — 

(a) Within one year from such conviction in the lower court, in the 
event that in the Superior Court the entry of nol. pros, is-made by the 
district attorney. 

(b) Within one 3^ear from such conviction in the lower court, in the 
event that in the Superior Court the plea of nolo contendere is accepted 
and the case placed on file. 

Gen. St. 1916, c. 290, provides: — 

Wlioever upon any way operates an automobile or motor cycle, 
recklessly, or while under the influence of intoxicating liquor, or so that 
the lives or safety of the public might be endangered, or upon a bet, 
wager or race, or whoever operates a motor vehicle for the purpose of 
making a record and thereby violates any pro\dsion of sections sixteen 
and seventeen of this act, or whoever without stopping and making 
known his name, residence, and the number of his motor vehicle goes 
away after knowingly colliding with or otherwise causing injury to any 
other vehicle or property, or whoever uses a motor vehicle without 
authority, shall be punished [as therein pro\dded]. 

The statute further provides: — 

A conviction of a violation of this section shall be reported forth- 
with by the court or magistrate to the commission which may in any 
event and shall, unless the court or magistrate recommends otherwise, 



1920.] , PUBLIC DOCUMENT — No. 12. 83 

revoke immediately the license of the person so convicted, and no 
appeal from the judgment shall operate to stay the revocation of the 
license. . . . The commission in its discretion may issue a new license 
to any person acquitted in the appellate court, or after an investiga- 
tion or upon hearing may issue a new license to a person convicted in 
any court: provided, that no new license shall be issued by the com- 
mission to any person convicted of operating a motor vehicle while 
under the influence of intoxicating Hquor until one year after the date 
of final conviction, if for a first offence, or five years after any subse- 
quent conviction, and to any person convicted of violating any other 
provision of this section until sixty days after the date of final con- 
viction if for a first offence, or one year after the date of any subsequent 
conviction. 

It follows that upon a conviction in the lower court of 
operating a motor vehicle while under the influence of intoxi- 
cating liquor the license then held by the person so operating 
a motor vehicle is to be forthwith revoked, unless the court or 
magistrate recommends otherwise; and that no appeal from 
the judgment in the lower court shall operate to stay the rev- 
ocation of the license. The person so convicted cannot again 
receive a new license unless he is acquitted in the appellate 
court, or until one year has expired after the date of final con- 
viction. 

The questions which you raise, therefore, are dependent 
upon whether what is done in the Superior Court amounts to 
an acquittal or a conviction. 

The words of the statute are to be given a reasonable con- 
struction. I am of the opinion that the word "acquittal," as 
used in the statute, includes more than ah acquittal by a jury. 
I do not think it could have been intended by the Legislature 
that where a complaint in the Superior Court is quashed by 
the court, or an entry of nolle prosequi is made by the district 
attorney, and no new complaint is brought, the person charged 
is to be forever barred from receiving a new license. This re- 
sult will follow if the word "acquittal" is to be construed in 
its strict sense. 

In the case of Lizotte v. Dloska, 200 Mass. 327, it was said 
by Chief Justice Rugg, at page 329, that "the entry of a nolle 
prosequi is final so far as the particular case is concerned." 
While it is true that in some jurisdictions a 7iolle prosequi may 
be removed upon order of the court, and that that question 
has not been determined in this Commonwealth, yet it has 
always been considered, so far as other proceedings were con- 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

cerned, that the entry of a 7ioUe prosequi was to be considered 
as a final determination of the case. As was said by the chief 
justice in Lizotte v. Dloska: — 

The district attorney had the absolute power to enter a nolle prosequi 
upon his official responsibility, without the approval or intervention of 
the court. He alone is answerable for the exercise of his discretion in 
this respect. It is presumed that he will act under such a heavy sense 
of obhgation for enforcement of the law and sensitive consciousness of 
important public duty that no wrongful act will be committed. 

It was said in Commonwealth v. Lockivood, 109 Mass. 323, 
that — 

The ordmary legal m.eaning of ''con\qction," when used to designate 
a particular stage of a criminal prosecution triable by a jury, is the 
confession of the accused in open court, or the verdict returned against 
him by the jury, which ascertains and publishes the fact of his guilt. 

And this meaning of the word "conviction" was followed in 
the case of Munldey v. Hoyt, 179 Mass. 108. 

I am of the opinion that the meaning of the word "con- 
viction," as used in the statute, is the ordinary legal meaning, 
and that the expression "final conviction," as used in the 
statute, refers to that stage of the case where nothing is left to 
be done other than the imposition of the judgment or sentence. 

In the case of White v. Creamer, 175 Mass. 567, it was said 
that a sentence imposed after a plea of 7wlo contendere amounts 
to a conviction in the case in which the plea is entered, al- 
though such record could not be used in another judicial pro- 
ceeding to show that the defendant was guilty. It is my 
opinion, therefore, that where a plea of nolo contendere is 
accepted, and the case is then placed on file, your Commission 
is authorized, after the expiration of one year from such plea, 
to issue a new license to the person entering the plea, but not 
before. 

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

Very truly yours, 

Henry C. Attwill, Attorney-General. 



1920.1 PUBLIC DOCUMENT — No. 12. 85 



Inmate of Public Institution — Acquiring a Settlement. 

Under the provisions of St. 1911, c. 669, the time spent by a pauper as an 
inmate in any pubhc institution at pubHc expense, irrespective of the 
source from which the public funds come, is to be counted in com- 
puting the time for acquiring a settlement unless he tenders reim- 
bursement within two years of the time of receiving such relief. 

July 29, 1919. 
Mr. Robert W. Kelso, Executive Director, State Board of Charity. 

Dear Sir: — You have requested my opinion as to whether 
aid rendered to a poor person in a city or town hospital, which 
is supported in whole or in part by an appropriation other than 
that granted the overseers of the poor or board of health, pre- 
vents the gaining or acquiring of a settlement if such aid is 
not paid for by the overseers of the poor, by the board of 
health or by the State Board of Charity. 

I assume by the use of the words "poor person" you have 
reference to a pauper. 

St. 1911, c. 669, § 4, reads, in part, as follows: — 

... But the time during which a person shall have been an inmate 
of any public hospital, public sanatorium, almshouse, jail, prison, or 
other public institution, within the commonwealth, or of a soldiers' or 
sailors' home whether within or without the commonwealth, shall not 
be counted in computing the time either for acquiring or for losing a 
settlement, except as provided in section two. 

This provision of law applies to an inmate of any of the 
public institutions referred to, irrespective of the source from 
which the public funds come. 

St. 1911, c. 669, § 2, referred to, reads as follows: — 

No person shall acquire a settlement, or be in process of acquiring a 
settlement, while receiving relief as a pauper, unless, within two years 
after the time of receiving such relief, he tenders reimbursement of the 
cost thereof to the commonwealth, or to the city or town furnishing 
the same. 

Accordingly, I am of the opinion that under the provisions 
of section 4, above referred to, irrespective of the source of the 
aid rendered to a pauper in a city or town hospital, the time 
spent there is not to be counted in computing the time for 
gaining or acquiring a settlement, except as provided in section 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

2, by which, if he shall tender reimbursement of the cost to 
the city or town furnishing the same, he shall be in the process 
of acquiring a settlement. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



Town Treasurer — Woinen — Eligibility to hold Office. 

Under the provisions of St. 1913, c. 835, § 400, a woman is ineligible to 
election to the oflSce of town treasurer. 

July 30, 1919. 
Mr. Charles F. Gettemy, Director, Bureau of Statistics. 

Dear Sir: — You have requested my opinion as to whether 
a woman may fill the position of town treasurer. 
St. 1913, c. 835, § 400, provides: — 

Ever}'' town at its annual meeting shall in ever\' year, except as is 
otherwdse pro^dded in the following sections, choose from the in- 
habitants thereof the following named town officers, who, except as 
otherwise provided in the following sections, shall serve during the 
year: . . . 

Among the officers so to be chosen, as specified in the sec- 
tion, is a town treasurer. It is also provided, at the end of the 
section, that — 

Women shall be eligible as overseers of the poor and school com- 
mittee. 

This provision grew oat of the provision of St. 1874, c. 389, 
§ 1, that "no person shall be deemed to be ineligible to serve 
upon a school committee by reason of sex;" and from the 
provision of St. 1886, c. 150, that "no person shall be ineligible 
for the office of overseer of the poor by reason of sex." 

The language used in said section 400 is substantially the 
same as that contained in R. L., c. 11, § 334. The expression 
that the town shall choose from the inhabitants thereof the 
various town officers enumerated appears in R. S., c. 15, § 33; 
Gen. Sts., c. 18, § 31; and P. S., c. 27, § 78. 

The word "inhabitant," as used in these various statutes, in 
my opinion, does not include women unless specific provision 
is made therefor by the Legislature. This view is confirmed by 
the action of the Legislature in 1874 and in 1886, wherein 
women were made eligible to serve as members of a school 



1920.] PUBLIC DOCUMENT — No. 12. 87 

committee and as overseers of the poor. It is also confirmed 
by the views expressed by the justices of the Supreme Judicial 
Court in an opinion rendered to the House of Representatives 
Feb. 6, 1811 (7 Mass. 523). See also Opinions of the Justices, 
122 Mass. 594; 115 Mass. 602; 165 Mass. 599. 

Accordingly, I am of the opinion that a woman is ineligible 
to be elected town treasurer, under the provisions of St. 1913, 
c. 835, § 400. 

Very truly yours, 

Henry C. Attwill, Attorney-General. 



Co-operative Banks — Rigid to borroiv Money. 

A co-operative bank has no right to borrow money from national banks or 
trust companies for any purpose other than to meet an unusual de- 
mand by its depositors for withdrawals. 

Aug. 2, 1919. 

Hon. Augustus L. Thorndike, Bmik Commissioner. 

Dear Sir: — You have requested my opinion as to whether. 
a co-operatiA^e bank may borrow money from a national bank 
or trust company in order to meet the demands of its borrow- 
ers. 

Sections 1 and 19 of chapter 623 of the Acts of 1912 provide 
only for loaning accumulations of a co-operative bank, and do 
not provide for loaning borrowed money. The only provision 
of our statutes giving power to a co-operative bank to borrow 
is found in section 4 of chapter 643 of the Acts of 1914, which 
reads in part as follows: — 

.... On any occasion when there is an unusual demand by de- 
positors for withdrawal from the funds of any co-operative bank . . . 
such co-operative bank by a vote of at least three-fifths of its directors 
and with the consent of the bank commissioner, may borrow from any 
national bank, savings bank, co-operative bank or trust company. . . . 

I am of the opinion that the Legislature, by passing this 
statute, intended that co-operative banks in this Common- 
wealth should be allowed to borrow only for the purpose set 
forth, namely, to meet an unusual demand by its depositors 
for withdrawals, and that by implication a co-operative bank 
has no right to borrow money for any other purpose. 
Yours very truly, 

Henry C. Attwill, Attorney-General. 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 



Life Insurance Companies — Loans to Policyholders — Home 
Purchase Plan. 

A life insurance company may constitute the taking out of a policy of 
insurance a condition precedent to the making of a loan, provided 
such condition is stated in the policy and made available to all policy 
holders of the same class. 

Aug. 5, 1919. 

Hon. Frank H. Hardison, Insurance Commissioner. 

Dear Sir: — You have requested my opinion as to whether 
a plan, called the Home Purchase Plan, proposed by the 
Equitable Life Assurance Society, will be in violation of the 
provisions of St. 1907, c. 576, § 69. You state, in brief, that 
it is an arrangement whereby the Equitable Life Assurance 
Society will make a loan to a person desiring to build a home, 
a condition of the loan being that the borrower shall take out 
a policy of life insurance in the company. The premium on 
the policy, interest on the loan and a certain agreed amount 
to be paid periodically on the principal of the mortgage are 
paid in monthly instalments, so graduated that at the end of 
ten years the property is free from encumbrance and the life 
insurance policy is reassigned to the borrower. 

The part of said section 69 involved is as follows: — 

. . . nor shall any such company or agent pay or allow, or offer to 
pay or allow as inducement to insurance, any rebate of premium 
payable on the policy, or any special favor or advantage in the divi- 
dends or other benefit to accrue thereon, or any valuable consideration 
or inducement not specified in the policj^ contract of insurance; or 
give, sell or purchase or offer to give, sell or purchase as inducement to 
insurance or in connection therewith, any stocks, bonds or other se- 
curities of any insurance company or other corporation, association or 
partnership, or any dividends or profits accrued thereon, or any tiling 
of value whatsoever no' specified in the policy. 

In an opinion given to you April 30, 1919, in relation to the 
method of the conduct of business by the Morris Plan Insur- 
ance Society, I expressed doubt as to whether the provisions of 
said section 69 authorized an insurance company to make any 
inducement it saw fit so long as the inducement was set out in 
the policy, and stated that if the section were held to author- 
ize insurance companies to specify and undertake obligations 
foreign to insurance, grave practical difficulties would arise in 
carrying out the provisions of the insurance law. 



1920.] PUBLIC DOCUMENT — No. 12. 89 

But the investment of the money paid to insurance com- 
panies by policyholders is not foreign to insurance; in fact, it 
is a part of the business of the companies. In effect, it is 
simply preferring the policyholders in the investment of the 
companies' funds. Thus the privilege of obtaining a loan from 
a company upon a mortgage of residential property, the privi- 
lege and the terms thereof being stated in the policy as a part 
of the contract of insurance, and made available to all policy- 
holders in the same class, does not, it seems to me, contravene 
the provisions of said section 69. 

Accordingly, I beg to advise you that if the privilege of 
obtaining the loan is stated as one of the privileges enuring 
to the benefit of the assured under the policy, I am of the 
opinion that it will not be in violation of the provisions of said 
section 69. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



State and Federal Military Service — Computation of Time — 
Service Medal. 

The time of service of one who was lawfully drafted into the service of the 
United States while a member of the organized militia of the Com- 
monwealth is to be computed in measuring the time of honorable 
service required for a State Long Service Medal. 

Aug. 5, 1919. 

Col. Jesse F. Stevens, Adjutant General. 

Dear Sir: — You ask me the following questions in relation 
to section 191 of chapter 327 of the General Acts of 1917: — 

1. Can the words "honorable service," as contained in said section, 
be construed to mean any service other than service in the Massa- 
chusetts Volunteer Militia or the Massachusetts National Guard? 

2. Can Federal service subsequent to the 5th of August, 1917, be 
allowed in computing the time required for a State Long Service 
Medal, under the provisions of said section? 

Section 191 is as follows: — 

To each officer or enlisted man who completes nine years of honorable 
service, continuous or otherwise, there shall be issued a medal, and, 
for each additional five years of like service, a clasp to be affixed thereto. 
Active, retired or honorably discharged officers and enhsted men who 
have served in the military or naval service of the United States in 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

time of war and have been honorably discharged therefrom, shall 
receive an additional clasp indicative of such service, to be affixed to 
the medal herein provided for. 

I understand the questions arise in relation to the applica- 
tion of a private of Co. B, 9th Regiment Infantry, for a State 
Long Service Medal. You state in your letter that he was 
drafted into the service of the United States under a proclama- 
tion of the President, published July 12, 1917, in accordance 
with the act of Congress of May 18, 1917. The question arises 
because of the following provision in the proclamation: — 

Par. III. All persons hereby drafted shall on and from the 5 August 
1917, stand discharged from the militia, . . . 

I am of the opinion that the service of the private under the 
draft is to be computed as a part of the service required under 
the provisions of section 191. The section provides that "to 
each officer or enlisted man who completes nine years of 
honorable service, continuous or otherwise, there shall be 
issued a medal." It further provides that "active, retired or 
honorably discharged officers and enlisted men who have served 
in the military or naval service of the United States in time of 
war and have been honorably discharged therefrom, shall re- 
ceive an additional clasp indicative of such service, to be 
affixed to the medal herein provided for." 

It is my view that the statute contemplates that all service 
which is directly connected w^ith his enlistment in the organ- 
ized militia of the Commonwealth is to be computed, and if, 
as a part of the obligation he entered into when he enlisted, he 
is called upon to act in the service of the United States govern- 
ment, it is to be deemed a part of his service within the pro- 
visions of the section. 

I question the authority of the President to discharge any 
private who is enlisted in the organized militia of a State from 
service which he is under obligation to perform for the State, 
except for the time that the President of the United States 
deems it necessary to draft his services for Federal purposes. 
However, for the reasons stated above, I think it unnecessary 
to determine this question. 

Accordingly, your questions are to be answered in the 
affirmative. 

Yours very truly, 

Henry C. Attwill, Attorney-General. 



1920.1 PUBLIC DOCUMENT — No. 12. 91 



City of Boston — Police Commissioner — Duties — City Council. 

The Boston city council has no power to impose duties upon the PoHce 
Commissioner of its city other than those which incidentally arise from 
his responsibility to enforce the law. 

Aug. 12, 1919. 

Hon. Edwin U. Curtis, Police Commissioner for the City of Boston. 

Dear Sir: — You have requested my opinion as to whether, 
assuming that the city council of Boston has the power to 
regulate by ordinance the operation of motor vehicles used for 
the carriage of passengers for hire in the city of Boston, it may 
properly delegate to you or impose upon you the duty of 
licensing the operators of such vehicles and of inspecting such 
vehicles. 

While there is some doubt as to whether the Attorney- 
General is required to advise you in relation to your duties, I 
have heretofore taken the position that, in relation to State 
offices of a similar nature to yours, I would advise so far as 
such advice related to the construction of the statutes creating 
and governing such offices, and, accordingly, to that extent I 
answer your inquiry. 

The office of police commissioner for the city of Boston was 
created by St. 1906, c. 291. That statute provides that he is 
to be appointed by the Governor, with the advice and consent 
of the Council. Section 10 of said chapter provides that, 
except as otherwise provided therein, all the powers and duties 
that were conferred or imposed by law upon the board of 
police of the city of Boston at the time of the passage of that 
act are conferred and imposed upon said police commissioner. 
The powers and duties that were conferred and imposed by 
law upon the board of police of the city of Boston at the time 
of the passage of said chapter 291 are defined in St. 1885, 
c. 323, § 2, as follows: — 

The board of police shall have authority to appoint and establish 
and organize the police of said city of Boston, and make all needful 
rules and regulations for its efficiency. All the powers now vested 
in the board of police commissioners in said city of Boston, by the 
statutes of the Commonwealth or by the ordinances, by-laws, rules 
and regulations of said city, except as otherwise hereby provided, are 
hereby conferred upon and vested in said board of poHce. 

By St. 1878, c. 244, § 2, it was provided that all the powers 
vested by the statutes of the Commonwealth in the board of 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

aldermen of the city of Boston in relation to the administration 
of police and the appointment of watchmen and policemen in 
said city should be vested in the board of police commissioners. 

Thus, it becomes the duty of the police commissioner to have 
charge of and direct the activities of the police of the city of 
Boston in the maintenance of order and in the enforcement of 
law, and to perform such other duties as are imposed upon 
him by the statute by which the office w^as created. By the 
provisions of that statate the salary of the police commissioner 
is established, and, subject to the approval of the Governor 
and Council, he is to be provided with rooms, suitably fur- 
nished, and convenient and suitable for the performance of his 
duties, the expense of wdiich is to be borne by the city of 
Boston. He is also authorized to employ such clerks, stenog- 
raphers and other employees as he may deem necessary for the 
proper performance of the duties of his office, and to appoint, 
establish and organize the police of said city, and to make all 
needful rules and regulations for its efficiency, subject only to 
the provision that he shall not appoint a greater number of 
police than the number authorized at the time of the passage 
of the act, nor change the compensation of such police except 
with the approval of the mayor: provided, hoicever, that he is 
authorized, without such approval, to fix the salary of the 
police superintendent, which shall not exceed five thousand 
dollars per annum. There is no intimation in said statute that 
the police commissioner is to be in any way subject to the 
direction or control of the city council or the mayor in the per- 
formance of his duties. 

I think it plain from the provisions of the statute creating 
the office and defining the duties of the Police Commissioner 
that he is a State official, responsible only to the Governor and 
to the Legislature, and that only by statute can additional 
duties be imposed or conferred upon him. Furthermore, it is 
my opinion that he is not w^arranted in assuming any duties 
other than those imposed upon him by statute. 

Accordingly, I am of the opinion that it is beyond the power 
of the city council of Boston to impose any duties upon you 
other than those which incidentally arise from the responsi- 
bility that you are under to enforce the law, which necessarily 
includes the enforcement of valid ordinances to which penalties 
are attached. 

Yours very truh% 

Henry C. Attwill, Attorncy-GcneraL 



1920.1 PUBLIC DOCUMENT — No. 12. 93 



Bureau of Statistics — Certification of Toum Notes — Repairs. 

Cities and towns are prohibited by law from issuing notes in payment for 
work in a schoolhouse unless it is for an addition to the building which 
increases its floor space. 

Sept. 3, 1919. 

Mr. George A. Bacon, Director, Bureau of Statistics. 

Dear Sir: — You have requested an opinion as to your 
authority to certify notes* of the town of Provincetown under 
the following article and vote: — 

To act upon the report of the committee appointed at the last annual 
town meeting to consider the matter of heating and ventilating the 
Governor Bradford Schoolhouse. 

It was voted that the report of the committee recommending an 
appropriation of $6,000 be accepted. 

It was voted that $2,000 of this money be paid in 1920, $2,000 in 
1921 and $2,000 in 1922. 

The report of the committee referred to in said vote shows 
that no work was contemplated except to make changes in 
sanitary conditions, heating and ventilation. The report does 
not refer to any addition to the building, although it is con- 
tended that additional floor space would be secured by reason 
of the changes in equipment. 

The laws on municipal indebtedness are found in St. 1913, 
c. 719. Clause 4 of section 5 of said chapter 719, which 
applies to the case at hand, reads as follows: — 

Cities and towns may incur debt, within the limit of indebtedness 
prescribed in this act, for the following purposes, and payable within 
the periods hereinafter specified : — 



(4) For the construction of additions to schoolhouses or buildings 
to be used for any municipal purpose, including the cost of original 
equipment and furnishings, where such additions increase the floor 
space of said buildings to which such additions are made, twenty years. 

It would appear that neither an addition to a municipal 
building nor an increase in floor space in such building, alone, 
comes within the provisions of the statute, but that there 
must be an addition as well as an increased floor space in order 
to come within the provisions of the law. This statute was 
obviously enacted in an attempt to prevent increasing town 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

debts for incidental or ordinary expenses, such as alterations 
and repairs, it evidently being deemed to be sound business 
policy to pay for such expenses out of the tax levy. This 
might possibly be accomplished by other language which 
would permit changes in equipment of an expensive or unusual 
nature, but in case language in the statute of a more general 
character were used, the purpose of the law might more easily 
be defeated. The Legislature having specifically expressed 
that additions are essential in order to entitle a town to the 
provisions of the *' borrowing statute," it is my opinion that 
you may not properly certify the notes in question. 
Very truly yours, 

Henry A. Wyman, Attorney-General. 



City of Boston — Mayor — Police Commissioner — Police. 

St. 1885, c. 323, § 6, is still in force and applicable to the Police Commis- 
sioner for the city of Boston, In case of action by the mayor under 
its provisions, the internal administration and personnel of the police 
force remain solely under the direction and control of the Commis- 
sioner. 

The mayor of Boston has no authority to direct the reinstatement of any 
police officer removed by the Commissioner. 

Under the provisions of Gen. St. 1919, c. 1.50, a war veteran is eligible to 
appointment to the police force of the city of Boston if he is a resident 
of this Commonwealth. 

Sept. 11, 1919. 

Hon. Edwin U. Curtis, Police Commissioner for the City of Boston. 

Dear Sir: — I have your letter requesting my opinion upon 
certain questions of law, and in reply thereto I beg to submit 
the following opinion. 

In answer to your first inquiry, namely, whether the pro- 
visions of St. 1885, c. 323, § 6, are in force and applicable to 
the Police Commissioner, I am of the opinion that they are 
still in force and applicable to the Police Commissioner. 

Your second question is whether the powers of the mayor 
and the duties of the Police Commissioner, as provided by St. 
1885, c. 323, § 6, empower the mayor to control, direct or pro- 
vide for the internal administration of the police force or its 
personnel under established regulations. In reply to this ques- 
tion I beg to advise you that in my opinion the internal 
administration of the police force of the city of Boston and its 
personnel remain under the control and direction of the Police 



1920.] PUBLIC DOCOIENT — No. 12. 95 

Commissioner alone, in case of action by the mayor under 
authority of this statute. 

In reply to your further specific question as to whether the 
mayor may direct the reinstatement of officers removed from 
the poKce force by the Commissioner, in accordance with exist- 
ing rules and regulations of the police department, I am of 
opinion that the mayor is without power to direct such rein- 
statement. 

You ask my opinion as to whether, under the provisions of 
Gen. St. 1919, c. 150, a veteran, to be eligible for appointment 
to the police force of the city of Boston, must be a resident of 
that city, or whether he may be so appointed if a resident of 
the Commonwealth. I am of opinion that it is not necessary, 
in order for a veteran to be eligible for such appointment, that 
he be a resident of said city, but that it is sufficient if he is a 
resident of this Commonwealth. 

In my opinion, your last request presents a question of fact 
which, in the first instance, at least, is to be determined by 
you. 

Very truly yours, 

Hexry a. Wyman, Atiorney-General. 



Constitutional Law — RigJit to withdraw Petition for Referendum. 

A completed petition for a referendum on Gen. St. 1919, c. 116, after it 
has been filed with the Secretary of the Commonwealth cannot be 
withdrawal by one of its signers. 

Sept. 16, 1919. 

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

Dear Sir: — You have requested my opinion upon the 
question of whether a petition asking for a referendum on Gen. 
St. 1919, c. 116, and requesting that the operation of such law 
be suspended, may now be withdrawn by one of the signers of 
such petition. 

It appears from your communication and a copy of a letter 
which you enclosed therewith that this petition has been com- 
pleted by filing at your office the signatures of not less than 
15,000 qualified voters within the time prescribed by the Con- 
stitution. The filing of these signatures had the effect of sus- 
pending the operation of this law, and made it the duty of the 
Secretary of the Commonwealth to submit the law to the 
people at the next State election. There is no provision in our 



96 ATTORNEY- GENERAL'S REPORT. [Jan. 

Constitution which provides for the withdrawal of a referen- 
dum petition after it has been completed, except where the law 
on which a referendum is asked has been repealed. The law 
under consideration, while it was modified in some respects by 
chapter 326 of the General Acts of the present year, has not 
been repealed. 

Accordingly, I beg to advise that the answer to your ques- 
tion must be in the negative. 

Very truly yours, 

Henry A. Wyinian, Attorney-General. 



Fish and Game Laws — Conviction for Violation — Surrender 

of Certificate. 

Under Gen. St. 1819, c. 296, § 12, the imposition of a fine on a plea of 

nolo contendere constitutes a conviction. 
The filing of a case, with or without costs, upon a plea of nolo contendere^ 

or upon a plea of guilty, or while an appeal from a conviction in a 

lower court is pending, does not constitute a conviction within the 

meaning of said statute. 

Sept. 22, 1919. 

Mr. William C. Adams, Chairman, Commissioners on Fisheries and Game. 

Dear Sir: — You request my opinion as to the interpreta- 
tion of Gen. St. 1919, c. 296, § 12. 

This section reads, in part, as follows: — 

The certificate of any person who shall be convicted of a violation 
of any of the fish and game laws or of any pro\dsion of this act shall be 
void, and his certificate shall immediate^ be surrendered to the oflScer 
who secures such conviction, and the officer shall forthwith forward 
the same to the commissioners, who shall cancel it and notify the 
clerk in whose city or town the certificate was recorded, of its cancella- 
tion ; and no person shall be entitled to receive a certificate during the 
period of one year after the date of such con\action. A certificate 
issued to any person within one year after such a con\'iction shall be 
void, and shall be surrendered on demand of any officer authorized to 
enforce the fish and game laws. 

The specific questions upon which you request my opinion 
are whether the following sets of facts amount to convictions, 
within the meaning of the law above quoted. The situations 
stated bv 30U are as follows: — 



1920.] PUBLIC DOCUMENT — No. 12. 97 

1. Where the defendant pleads nolo contendere and the case is placed 
on file. 

2. Where the defendant pleads nolo contendere and the court imposes 
a fine. 

3. Where the defendant (in the Superior Court) pleads nolo conten- 
dere and upon payment of costs the case is placed on file. 

4. Where the defendant pleads guilty and the case is placed on file. 

5. Where the defendant pleads not guilty and is found guilty in the 
lower court and fined, and the defendant appeals to the Superior Court 
so that he will be allowed to retain his license pending the disposition 
of the case in the Superior Court. 

In Commonwealth v. Kiley, 150 Mass. 325, it was held that 
the word "conviction," in St. 1887, c. 392, providing that "the 
conviction by a court" of competent jurisdiction of a licensee 
for violating any of the provisions of the laws relating to in- 
toxicating liquors "shall of itself make the license of such 
person void," implied a final judgment of the court, and that 
the filing of a case by the court after a verdict of guilty did 
not amount to such a conviction. 

A contrary conclusion was arrived at by our Supreme Ju- 
dicial Court in the case of Munldey v. Hoyt, 179 Mass. 108, 
where the term "conviction," in a somewhat different statute, 
was held to include a situation where the defendant pleaded 
guilty and his case was placed on file. 

I am of opinion that, so far as your questions involve a de- 
termination of whether the placing of a case on file after a 
plea or a verdict amounts to a conviction, within the meaning 
of the instant statute, they are to be governed by the decision 
in Commonwealth v. Kiley, supra, and, accordingly, I beg to 
advise that the facts stated in your first, third and fourth 
questions do not amount to a conviction, within the meaning 
of the statute. 

In regard to the second question, namely, where a fine is 
imposed after a plea of nolo contendere, I am of opinion that 
this amounts to a conviction, within the meaning of this 
statute. While it is well recognized that a plea of nolo con- 
tendere cannot be used in any other proceedings as an admis- 
sion of guilt {Olszewski v. Goldberg, 223 Mass. 27), it amounts, 
when accepted by the court, to a plea of guilty for the pur- 
poses of the particular case. Commonwealth v. higersoll, 145 
Mass. 381. In White v. Creamer, 175 Mass. 567, the court, in 
considering the effect of this plea, said: "We do not doubt 
that a sentence imposed after a plea of nolo contendere amounts 
to a conviction in the case in which the plea is entered." 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

It follovvs from the foregoing authorities that if it were 
necessary to institute further proceedings to secure the forfei- 
ture of the defendant's license under our statute, a sentence 
imposed after a plea of nolo contendere could not be used as a 
basis for such proceedings. This is the conclusion arrived at 
by my predecessor in office, Hon. Henry C. Attvvill, in an 
opinion rendered by him to the Board of Registration in 
Medicine under date of Dec. 9, 1915, in which he ruled that 
the imposition of a fine upon the defendant after acceptance 
by the court of a plea of nolo contendere did not warrant that 
Board in revoking any certificate held by him or in cancelling 
his registration as a physician, under R. L., c. 76, § 3, which 
provides that the Board, "after hearing, may by unanimous 
vote revoke any certificate issued b}^ it and cancel the registra- 
tion of any physician who has been convicted of a felony or of 
any crime in the practice of his profession." Under the statute 
with which we are concerned, however, no further proceedings 
are required in order to effect a forfeiture of the defendant's 
certificate. Such forfeiture automatically takes effect upon the 
conviction of the holder, and is in fact an additional punish- 
ment imposed upon conviction in the particular case. 

Accordingly, I am of opinion that, as above stated, the facts 
set forth in our second question constitute a conviction, within 
the meaning of the statute in question. 

Your fifth question is whether a conviction is had, within 
the meaning of this statute, where the defendant, pleading not 
guilty but being found guilty in the lower court and fined, 
appealed to the Superior Court. This question is, in my judg- 
ment, disposed of by an opinion rendered to the State Board 
of Health under date of Feb. 25, 1914, by former Attorney- 
General Thomas J. Boynton, to the effect that the term "con- 
viction" in a similar statute implied a final judgment, and did 
not apply while an appeal was pending from a lower court. 
IV Op. Atty.-Gen. 157. It results from this that in the situa- 
tion set forth in your fifth inquiry the defendant cannot be 
considered as having been convicted while his appeal is still 
pending. 

To recapitulate, the answers to your questions are as fol- 
lows: No. 1, no; No. 2, yes; No. 3, no; No. 4, no; and No. 
5, no. 

Very truly yours, 

Henry A. AVyman, Attorney-General. 



1920.1 PUBLIC DOCUMENT — No. 12. 99 



Secretary of the Commomvealth — Petition for Referendum — 
Public Opinion — Printing on Ballot. 

Under the provisions of St. 1913, c. 819, the Secretary of the Common- 
wealth must, on a petition properly signed and filed with him, place 
on the official ballot, for submission to the voters of a senatorial or 
representative district, instructions to the senators and representa- 
tives of such districts to vote for certain legislation, if in the opinion 
of the Secretary it is a question of public policy. 

Sept. 27, 1919. 

Mr. Herbert H. Boynton, Deputy, Acting Secretary of the Commonwealth. 
Dear Sir: — I have your letter in which you state that 
there have been filed in the office of the Secretary of the Com- 
monwealth, under the provisions of St. 1913, c. 819, petitions 
for the submission of the following question in certain sena- 
torial and representative districts, namely: — 

Shall the senator and representatives from this district be instructed 
to vote for legislation to regulate and license the manufacture and 
sale of beverages containing not over four per cent of alcohol by weight 
and to define same to be non-intoxicating? 

You request my opinion as to whether this question should 
be placed upon the official ballot in said districts at the next 
State election. 

St. 1913, c. 819, § 1, provides as follows: — 

On an application signed by twelve hundred voters in any senatorial 
district, or by two hundred voters in any representative district, asking 
for the submission to the voters of that senatorial or representative 
district of any question of instructions to the senator or representatives 
from that district, and stating the substance thereof, the secretary of 
the commonwealth shall determine if such question is one of public 
polic}^, and if he shall so determine shall draft it in such simple, une- 
quivocal and adequate form as he shall deem best suited for presentation 
upon the ballot. Upon the fulfilment of the requirements of this act 
the secretary shall place such question on the oflLicial ballot to be used 
in that senatorial or representative district at the next state election. 

I beg to advise that, in my opinion, there is nothing con- 
tained in the question which is proposed to be submitted 
which, as a matter of law, would prevent the Secretary of the 
Commonwealth from determining the question to be one of 
public policy. Whether the proposed question is, as a matter 
of fact, one of public policy is for the Secretary of the Com- 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

monwealth alone to determine. If the Secretary should de- 
termine that it is a question of public policy, it of course fol- 
lows that the question should be placed on the official ballots, 
as provided in said act. 

Very truly yours, 

Henry A. Wyman, Attorney-General. 



JVar Bonus — Draftee — Discharge for Physical Disqualification 
or Bad Coiiduct. 

The provisions of Gen. St. 1919, c. 283, granting a war bonus to men hon- 
orably discharged from the service of the United States in the World 
War, do not apply to drafted men who were passed by the draft board, 
sent to army camps and there discharged because physically disquali- 
fied, or to men discharged on account of bad conduct or similar ground. 

Oct. 9, 1919. 
Hon. Charles L. Burrill, Treasurer and Receiver-General. 

Dear Sir: — You have asked my opinion with reference to 
several questions which have arisen as to the application of 
Gen. St. 1919, c. 283, entitled "An Act to provide suitable 
recognition for those residents of Massachusetts who served in 
the army and navy of the United States during the war with 
Germany." The purpose of this statute is plainly set forth in 
its first section, and the remainder of the act must in each 
instance be construed in the light of this purpose. That sec- 
tion is as follows: — 

In order to promote the spirit of patriotism and loyalty, in testi- 
mony of the gratitude of the commonwealth, and in recognition of the 
services of certain residents of Massachusetts in the armj^ and navy 
of the United States during the war vnih. Germany, to the full extent 
of the demands made upon them and of their opportunity, the pay- 
ments hereinafter specified are hereby authorized. 

Your first question is whether men who were summoned in 
the draft, passed by the draft boards, sent to one of the army 
camps and there found physically disqualified, and given a dis- 
charge from the draft, are entitled to the benefits of this act. 
I understand that in each instance these men received no dis- 
charge from the army, but merely a discharge from the obliga- 
tions of the selective service law. Apparently, they never 
became sufficiently members of the army to be discharged 
therefrom. 



192D.] PUBLIC DOCUMENT -No. 12. 101 

That portion of section 2 of the statute which specifies the 
persons who are to receive the benefit of the act is as fol- 
lows: — 

Upon application, as hereinafter provided, there shall be allowed 
and paid out of the treasury of the commonwealth, to each commis- 
sioned officer, enlisted man, field clerk and army or navy nurse duly 
recognized as such by the war or navy department, who was mustered 
into the federal service and reported for active duty subsequently to 
February third, nineteen hundred and seventeen and prior to November 
eleventh, nineteen hundred and eighteen, and to each commissioned 
officer, warrant oflficer, nurse and enlisted man, who enlisted or was 
enrolled in, or was mustered into the federal service and who has been 
called and reported for active duty in the United States Navy, United 
States Naval Reserve Forces, United States Marine Corps, United 
States Coast Guard, or the National Navy Volunteers, subsequently 
to said February third, and prior to said November eleventh, and to 
every man who served during the war in the regular army, navy or 
marine corps, or to the dependents or heirs at law of the persons above 
■enumerated, as provided in section three, the sum of one hundred 
dollars: ... 

^ In my judgment, construing the language just quoted in the 
light of the purpose of the act as specified in section 1, it 
cannot be said that the class of men to which you refer was 
enlisted in or had been enrolled in or had been mustered into 
the Federal service, within the meaning of this statute. These 
men were never in the army of the United States to a sufficient 
extent to be discharged from it. In my opinion, it cannot be 
said that they performed "services ... in the army ... of 
the United States" of the character intended by this statute to 
be recognized. Accordingly, I must advise you that men of 
the class to which you refer are not entitled to the benefits of 
the statute. 

You also request my opinion as to whether men who actually 
entered the Federal service during the period specified in the 
statute, but who subsequently received discharges not declared 
by their terms to be either honorable or dishonorable, but 
specified to be given on account of bad conduct or some similar 
ground, are entitled to the benefits of this act. 

Section 5 of the statute provides in part as follows: — 

No person shall be eligible for any benefit accruing under this act 
who (1) shall have received a dishonorable discharge from the service 
of the United States, . . . 



102 ATTORNEY-GENERAL'S REPORT. [Jan. 

In my judgment, this provision, when read in the light of 
the purpose of the act as declared in section 1, must not be 
strictly construed as referring only to persons who receive dis- 
charges expressly declared by their terms to be dishonorable. 
It should, rather, in my judgment, be given a broader con- 
struction and be held to exclude from the benefits of the act 
all persons discharged for causes other than dishonorable. It 
was the purpose of the statute, as declared in section 1, to 
recognize all services rendered in the army or navy by citizens 
of Massachusetts "to the full extent of the demands made 
upon them and of their opportunity." I cannot persuade my- 
self that the services rendered by a man who so conducted 
himself as a member of the army of the United States that it 
became necessary to discharge him therefrom for misconduct 
were services of the character intended to be recognized. I am 
unwilling to assume that the General Court intended thus to 
reward any man who so failed to perform his duties that he 
was discharged for misconduct. 

Yours very truly, 

Henry A. Wyman, Attorney-General. 



** Anti-Aid " Amendment — Americanization Classes — Bureau 
of Immigration. 

By virtue of the " anti-aid " amendment, article XLVI, the provisions of 
Gen. St. 1919, c. 295, would not apply to educational classes for adult 
immigrants organized in factories, taught by private instructors and 
supervised by a supervisor employed and paid for by a city or town. 

The State Board of Education, under the power granted it by Gen. St. 1919, 
c. 295, may train and employ teachers for naturalization classes con- 
ducted by the Bureau of Immigration. 

Oct. 11, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion relative to 
certain questions which have been raised in connection with 
Gen. St. 1919, c. 295, which provides for the promotion of 
Americanization through education of adult persons unable to 
use the English language. 

Your first question is based upon the following circum- 
stances: The school authorities in a city vote to accept the 
provisions of chapter 295. In this city there are several 
classes for adult immigrants, which have been organized in 



1920.] PUBLIC DOCUMENT — No. 12. 103 

factories and which are taught by factory foremen or superin- 
tendents. These instructors are not in the employ of the 
school committee. The school committee and the factory em- 
ployers both wish, however, to have these classes conducted 
according to public school requirements. To bring this to pass, 
the school committee plans to engage a supervisor who will 
visit these classes periodically and exercise general professional 
authority over them. Your first question is "whether or not 
such classes are to be considered under the control of public 
school authorities to the extent that this department will be 
enabled to recommend reimbursement for the salary of this 
supervisor." 

My answer to this question is in the negative because of the 
so-called " anti-aid " amendment to our Constitution, being 
article XLVI, which provides, in part, that no grant, appro- 
priation or use of public money or property or loan of public 
credit shall be made or authorized by the Commonwealth for 
the purpose of maintaining or aiding any school or any educa- 
tional undertaking which is not publicly owned and under the 
exclusive control, order and superintendence of public officers 
or public agents authorized by the Commonwealth. The pro- 
visions of chapter 295 do not, therefore, apply to classes organ- 
ized in factories, as set forth by you, nor to supervisors over 
such classes. 

Your second question is raised on the following facts: The 
Bureau of Immigration engages in the recruiting of naturaliza- 
tion classes. The Bureau requests your Board, under the 
power bestowed upon it by chapter 295, to supply teachers for 
these classes. You ask my opinion as to whether or not the 
phrase "to provide teachers and supervisors in Americaniza- 
tion work" is to be interpreted as meaning that under the pro- 
visions of this act the Board may train teachers and employ 
them for the above purpose. 

In my opinion, by the provisions of section 1 of chapter 295 
it was intended by the Legislature that the Board of Educa- 
tion, acting through the Department of University Extension, 
should be empowered to promote Americanization, in the first 
place by co-operation with cities and towns, and secondly by 
co-operation with other proper agencies of the Commonwealth, 
as is indicated by the general provision at the end of section 1, 
which empowers you "to provide teachers and supervisors in 
Americanization work." 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 

Accordingly, I am of the opinion that your Board may train 
teachers and employ them, under the provisions of said chapter 
295, for the naturalization classes of the Bureau of Immigra- 
tion. 

Very truly yours, 

Henry A. Wyman, Attorney -General. 



Constitutional Law — Public Operation of Street Railway — 
Service at Cost — Zones. 

Spec. St. 1918, c. 159, providing for the fixing of such rates by the public 
trustees operating the Boston Elevated Railway Company as will 
reasonably insure a sufficient income to meet the cost of service, con- 
stitutes a contract binding upon the Commonwealth; any departure 
therefrom would be unconstitutional unless assented to by the stock- 
holders. 

Rates fixed on the "cost of service" principle may be determined on a 
zone basis. 

By the term "cost of service" as used in connection with Spec. St. 1918, 
c. 159, is meant the cost to the Boston Elevated Railway Company, 
exclusive of its expense to other agencies. 

The General Court may authorize the taking of the Boston Elevated Rail- 
way Company in the exercise of the right of eminent domain. 

Oct. 29, 1919. 
Street Railway Commission. 

Gentlemen: — Replying to the oral questions submitted to 
me for an opinion by you, which, as noted at the time, are as 
set out below, I beg to advise you as follows. 

1. The first question is whether any departure from the 
service at cost principle prescribed by Spec. St. 1918, c. 159, 
would need to be assented to by the Boston Elevated Railway 
Company. 

Section 18 of that act provides as follows: — 

None of the provisions of this act shall be construed to constitute 
a contract binding upon the commonwealth other than the provisions 
which define the terms and conditions under which, during the period 
of public management and operation, the property owned, leased or 
operated by the Boston Elevated Railway Company shall be managed 
and operated by the said trustees, and the pro^dsions of section thirteen, 
which provisions shall constitute a contract binding upon the common- 
wealth. 

Section 6 of that act provides, in part, as follows: — 



1920.] PUBLIC DOCUMENT — No. 12. 105 

The trustees shall from time to time, in the manner hereinafter pro- 
vided, fix such rates of fare as will reasonably insure sufficient income 
to meet the cost of the service, . . . 

It seems to me that the provision last above quoted, as to 
the manner in which the rates of fare are to be fixed, is a term 
and condition under which the property is to be managed and 
operated by the trustees, within the meaning of said section 18, 
and therefore constitutes a contract binding upon the Com- 
monwealth, as provided in said section. It would seem to 
follow from this that any departure from the service at cost 
principle as prescribed by this act would be impairing the 
obligation of this contract, contrary to the provisions of the 
Constitution of the United States. It is my opinion, therefore, 
that this cannot legally be done without the assent of the 
stockholders of the Boston Elevated Railway Company. 

The justices of our Supreme Judicial Court, in an opinion 
given to the Senate under date of April 2, 1919 (231 Mass. 
603), held that Senate Bill No. 54, which provided a maximum 
fare of 5 cents on the lines of the Boston Elevated Railway 
Company, was constitutional; but it is to be noted that sec- 
tion 6 of that bill provided that it should not take effect until 
it was accepted by a majority of the stockholders of the 
Boston Elevated Railway Company. 

2. As to the second query, I beg to advise that I can see no 
reason why the system of the Boston Elevated Railway Com- 
pany cannot be divided into zones for the purpose of deter- 
mining rates of fare, and different rates of fare applied to the 
various zones: provided, however, that such rates insure suffi- 
cient income to meet the cost of service, within the meaning of 
section 6 of said chapter 159. 

3. If the Boston Elevated Railway Company is legally freed 
from its obligation to pay rental for the use of its subways, the 
rental of which it is so relieved should not be included in de- 
termining the cost of the service, and the fact that an amount 
equal to this rental is assessed upon the metropolitan district 
would not change this conclusion. It seems to me that the 
cost of service means the cost to the Boston Elevated Railway 
Company, and in determining this cost the expense which it 
involves to other agencies should not be included. 

Replying to the question submitted in your letter of October 
24, namely, "as to whether the State can take the property of 
the Boston Elevated Railway Company by condemnation to 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 

effect public ownership of the railway," I have to advise you 
as follows. 

Under the Constitution and the decisions of our court there 
can be no question but that, if "the public exigencies" require 
the property of the Boston Elevated Railway Company to 
"be appropriated to public uses," it is within the constitu- 
tional power of the General Court to authorize such taking by 
eminent domain, making provision at the same time for the 
payment of reasonable compensation to the owners of said 
property. 

Very truly yours, 

Henry A. Wyman, Attorney -Geiieral. 



Huntirig License — Conviction — Forfeiture. 

Under Gen. St. 1919, c. 296, a hunting license is automatically forfeited 
upon the conviction of the holder thereof, regardless of whether or 
not the officer procuring the conviction has obtained a surrender of the 
license, as required by law. 

Oct. 29, 1919. 

Mr. Walter C. Adams, Chairman, Commissioners on Fisheries and Game. 

Dear Sir: — I have your letter in which you state that 
upon a plea of nolo contendere a defendant was fined SIO upon 
a complaint for killing a mourning dove, and that at the time 
of conviction he was not required to surrender his hunting 
license, as prov-ided in Gen. St. 1919, c. 296. You request my 
opinion as to whether "this disposition of the case bars us 
from proceeding against him for the surrender of his license," 
and " if it does not, will you kindly indicate to us what action 
should be taken by this Board." 

I beg to advise you that, in accordance with the opinion 
rendered to you September 22, upon such conviction no further 
proceedings are required in order to effect a forfeiture of the 
defendant's certificate. Such forfeiture automatically takes 
effect upon the conviction of the holder, and is in fact an 
additional punishment imposed upon conviction in the par- 
ticular case. 

The statute expressly states that "the certificate of any 
person . . . shall be void, and his certificate shall immediately 
be surrendered to the officer who secures such conviction, and 
the officer shall forthwith forward the same to the commis- 
sioners, who shall cancel it and notify the clerk in whose city 
or town the certificate was recorded, of its cancellation." 



1920.] PUBLIC DOCUMENT — No. 12. ' 107 

It would appear that the officer securing this particular con- 
viction failed to carry out the duties imposed upon him by the 
statute. There would appear to be, however, no reason why 
the officer should not now require the defendant to surrender 
his certificate and forward it to you in accordance with the 
terms of the statute. I doubt not that upon the proper de- 
mand, if a person so convicted fails to comply forthwith, 
proper proceedings may be instituted to compel the delivery of 
the certificate. Furthermore, there would appear to be no 
objection to your notifying the city or town granting the cer- 
tificate that the same is void, and order its cancellation. The 
failure of the officer to fulffil the duties imposed upon him by 
the statute cannot change the force and effect of the statute in 
making the certificate void, and under the circumstances set 
out in your letter the person holding such certificate is without 
any authority of law to act under it. 
Very truly yours, 

Henry A. Wyman, Attorney-General. 



Co7istitutional Law ~ Capital Stock of Street Railway Com- 
paiiy — Eminent Domain. 

The Legislature may authorize the taking of shares of the capital stock of 
a street railway company in the exercise of the right of eminent 
domain. 

Oct. 31, 1919. 

Street Railway Commission. 

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

If public exigencies require, can the stock of the Boston Elevated 
Railway Company be taken by condemnation proceedings? 

I assume your inquiry to involve the question whether it is 
within the constitutional right of the Legislature to provide for 
the taking by condemnation proceedings of the capital stock 
of said railway company. 

I do not find any constitutional provision. Federal or State, 
which in anywise restricts the exercise of the right of eminent 
domain as affecting the question at issue. 

In an early case in Massachusetts, in an opinion by Chief 
Justice Shaw, the right of eminent domain is referred to as 
follows: — 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is fully conceded that the right of eminent domain, the right of 
the sovereign, exercised in due form of law, to take private property for 
public use, when necessitj^ requires it, of which the govermnent must 
judge, is a right incident to every government, and is often essential 
to its safety. And property is nomen generalissimiim, and extends to 
every species of valuable right and interest, and includes real and per- 
sonal property, easements, franchises and incorporeal hereditaments. 
Even the term ''taking," which has sometimes been relied upon as 
impljdng something tangible or corporeal, is not used in the Massachu- 
setts Declaration of Rights; but the pro\dsion is this: ''Whenever the 
public exigencies require that the property of any indi\ddual should be 
appropriated to public uses, he shall receive a reasonable compensation 
therefor." Declaration of Rights, art. 10. Here again the term "ap- 
propriate" is of the largest import, and embracers every mode by which 
property may be applied to the use of the public. Whatever exists, 
which public necessity demands, may be thus appropriated. 

Boston & Lowell R.R. Co. v. Salem & Lowell R.R. Co., 2 
Gray, 1, 35. 

In a New Jersey case decided in 1873 it was said by the 
court: — 

In the exercise of the right of eminent domain, the Legislature may 
authorize shares in corporations, and corporate franchises, to be taken 
for public uses upon just compensation. The title to this specie j. of 
property is no more secure against invasion, when the public uses re- 
quire it, than is the ownership of real estate. Under this paramount 
right in the public, subject to which all private property is held, the 
franchises of one corporation have been, and may be, taken and be- 
stowed upon another. 

Black V. Delaware & Raritan Canal Co., 9 N. J. Eq., 455, 468. 

It has been held that "even contracts and legislative grants, 
which are beyond the reach of ordinary legislation, are not 
exempt." Neiv York, Housatonic & Northern R.R. Co. v. 
Boston, Hartford & Erie R.R. Co., 36 Conn. 196, 198. 

In the case of Neiv York, New Haven & Hartford R.R. Co. 
V. Offield, 77 Conn. 417, in which the right to take two shares 
of stock of a railroad corporation was involved, and in which 
it was contended that one railroad corporation could not take 
the stock of another railroad corporation, it was said: — 

The record shows the credit of the New Haven and Derby Railroad 
Company to be such that if it could pro\dde the means for the projected 
improvement of its property at all, it must be by contracting loans at 



1920.] PUBLIC DOCUMENT — No. 12. 109 

a higher rate of interest than would be paid by the plaintiff for similar 
assistance. This being so, the public interest would be better served by 
having the plaintiff do the work. That it is a necessary work in order 
to make the railroad of the greatest service to the public is admitted 
by the demurrer. It will therefore promote the use for which the line 
was originally constructed. Whatever in the nature of a property 
interest stands in the way of such promotion the State can put aside. 
Any kind of property can be taken for public use on making just com- 
pensation. The whole franchise of a corporation may be so taken. . . . 
Its whole property may be likewise taken. . . . Shares of stock rep- 
resent an undivided interest in such franchises and property, and for 
the same reason can be taken, if to take them seems to the State 
necessary in furtherance of public uses. 

This case was taken to the Supreme Court of the United 
States, and affirmed by a decision reported in 203 U. S. 372. 
See also Contributors of the Pennsylvania Hospital v. City of 
Philadelphia et al., 245 U. S. 20; City of Cincinnati v. Louis- 
ville & Nashville R.R. Co., 223 U. S. 390. 

The right of the State to authorize the appropriation of 
every description of property, including every contract, 
whether between the State and an individual or between indi- 
viduals only, for a public use, is one of its inherent powers, 
provided there be due process of law. The capital stock of the 
Boston Elevated Railway Company clearly falls within the 
sweep of this sovereign authority of the Commonwealth, and 
I therefore answer your question in the affirmative. 
Very truly yours, 

Henry A. Wyman, Attorney-General. 



Constitutional Law — Secretary of the Commonwealth — Liquor 
License — Printing on Ballot. 

Under the provisions of St. 1913, c. 835, § 419, the Secretary of the Com- 
monwealth is bound to place on the ballots sent to towns the question, 
"Shall licenses be granted for the sale of intoxicating liquors in this 
town?" as nothing therein contained is in violation of the prohibi- 
tion amendment or the national prohibition act. 

Nov. 7, 1919. 

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

Dear Sir : — You have requested my opinion upon the 
question of whether it is your duty to place upon the ballots 
which are sent to the town clerk of each town not using 
official ballots the question, "Shall licenses be granted for the 



no ATTORNEY-GENERAL'S REPORT. [Jan. 

sale of intoxicating liquors in this town?" in view of the so- 
called prohibition amendment to the Constitution of the 
United States and the acts of Congress passed for the enforce- 
ment of said amendment. 

It is fundamental in our system of jurisprudence that the 
Constitution of the United States, and the laws made in pur- 
suance thereof, is the supreme law of the land. It follows 
from this that if the law of this Commonwealth commanded 
the doing of that which is forbidden by the Constitution and 
laws of the United States the State law would be nugatory and 
of no effect. But so long as the performance of the duty im- 
posed by the law of the State is not contrary to or prohibited 
by the Federal Constitution and the laws made thereunder, it 
is incumbent upon the person upon whom such duty is im- 
posed to obey the law of the State. Changes in the paramount 
law of the land may create need for changing the law of the 
State. Indeed, it may create an imperative necessity, as a 
practical matter, that the law of the State be repealed or 
altered in such a manner as to work consistently and in har- 
mony with the mandates of Federal authority. In all cases, 
however, where the law of the State is not in direct conflict 
with Federal law, the question of the wisdom, expediency or 
practical necessity of altering the law^s of the State to conform 
more nearly with the provisions of Federal law is a matter for 
the legislative branch of the Commonwealth alone to deter- 
mine, and officers of the State charged with the execution of 
its laws are bound to carry out the provisions thereof until 
they are repealed or changed by the General Court. 

Upon applying these general principles to the instant ques- 
tion, the answer to your question seems plain, for by St. 1913, 
c. 835, § 419, a positive duty is imposed upon you in relation 
to placing upon the ballots hereinbefore referred to the ques- 
tion of granting licenses for the sale of intoxicating liquors. 
That statute is as follows: — 

The secretary of the commonwealth shall at least seven days before 
the annual meeting send to the town clerk of each town not using offi- 
cial balloto, ballots upon the question of granting licenses for the sale 
of intoxicating liquors therein, which shall contain the words: ''Shall 
licenses be granted for the sale of intoxicating hquors in this town?" 
''Yes" or "No," and no other words. Ballots of each kind shall be pro- 
Yided in number equal at least to the number of registered voters in 
such town. They shall be distributed to the voters at the polling place 
under the direction of the town clerk. 



1920.] PUBLIC DOCUMENT — No. 12. Ill 

The material parts of the recent amendment to the Consti- 
tution of the United States, commonly known as the "pro- 
hibition amendment," are as follows: — 

Sect. 1. After one year from the ratification of this article the 
manufacture, sale, or transportation of intoxicating liquors within, the 
importation thereof into, or the exportation thereof from the United 
States and all territory subject to the jurisdiction thereof for beverage 
purposes is hereby prohibited. 

Sect. 2. The Congress and the several States shall have concurrent 
power to enforce this article bj^ appropriate legislation. 

Pursuant to this amendment an act of Congress has lately 
been passed, under the title of The National Prohibition Act. 
Part II of this act, which is to take effect from and after the 
date w^hen the Eighteenth Amendment to the Constitution of 
the United States goes into effect, prohibits the manufacture, 
sale and transportation of intoxicating liquor, and defines the 
term "intoxicating liquor" to include alcohol, brandy, whisky, 
rum, gin, beer, ale, porter and wine, and in addition thereto 
any spirituous, vinous, malt or fermented liquors containing 
one-half of 1 per cent or more of alcohol, by volume, which are 
fit for beverage purposes. 

It is clear that if this act remains in force on and after the 
date upon which licenses might be granted in cities and towns 
of this Commonwealth, the placing of this question upon the 
ballot and the voting thereon at the city or town elections will 
have little, if any, practical effect. It is equally clear, on the 
other hand, that nowhere in the constitutional amendment or 
the acts of Congress passed thereunder is there any prohibition 
or restriction which prevents the question in issue being placed 
upon the ballots, as required by section 419, above quoted. 
That section is not in violation of the Federal Constitution or 
Federal laws. It is not either expressly or by necessary impli- 
cation repealed or annulled, but remains in force and effect as 
the law of this Comm^onwealth until repealed or amended by 
our General Court. The question is not the value, or lack 
thereof, or the practical effect resulting from your act, but the 
legal duty imposed upon you by the statute. 

Accordingly, I beg to advise you that for the foregoing 
reasons I am of opinion that it is your duty to place upon the 
ballots sent to the town clerk of each town not using official 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

ballots the question, "Shall licenses be granted for the sale of 
intoxicating liquors in this town?" as provided by St. 1913, 
c. 835, § 419. 

Very truly yours, 

Henry A. Wyman, Attorney-General. 



Mechanic's Lien — Laborers — Weekly Wages. 

A lien filed in due season by a laborer for work performed either prior to 
the recording of a mortgage or in connection with the erection, altera- 
tion, repair or removal of a building or structure, which erection, al- 
teration, repair or removal was begun prior to the recording of the 
mortgage, takes precedence over the mortgage. 

Where the erection, alteration, repair or removal of a building or structure 
is commenced after the recording of the mortgage, the only remedy of 
a workman who has done work in connection with such erection, alter- 
ation, repair or removal is against the contractor, either civilly for 
wages owed or criminally for failure to pay weekly. 

Nov. 28, 1919. 
Mr. Edwin Mulready, Commissioner of Labor. 

Dear Sir: — You have asked my opinion as to whether 
Gen. St. 1918, c. 265, affects the weekly payment law, as pro- 
vided in St. 1909, c. 514, § 112, as amended; and also whether 
there is any legal procedure by which a workman may obtain 
certain wages he has earned, on a particular set of facts stated 
in your letter. 

Section 112, aforesaid, was last amended by Gen. St. 1918, 
c. 87, and under the statute as amended the contractor is 
liable criminally for failure to pay wages weekly. Gen. St. 
1918, c. 265, does not affect this liability in any way. Section 
1 of chapter 265 enlarges the lien of material men who do work 
after the date of the original contract. Section 2 provides for 
dissolution of the lien by notice from the person who holds the 
lien. Section 3 also relates to dissolution of liens, and section 
4 to the rights of an attaching creditor, but there is nothing 
therein which restricts the rights of a laborer as created by 
prior laws. 

The law relative to liens for labor and materials is contained 
in Gen. St. 1915, c. 292, and numerous amendments thereto, 
particularly Gen. St. 1916, c. 306. Section 6 of the 1915 act, 
as amended, reads as follows: — 



1920.] PUBLIC DOCUMENT — No. 12. 113 

No lien, except under the provisions of section one, shall avail as 
against a mortgage actually existing and duly registered or recorded 
prior to the filing or recording in the registry of deeds of the notice 
required by the provisions of this act, and no lien under section one shall 
avail as against such a mortgage unless the work or labor performed is 
in the erection, alteration, repair or removal of a building or structure, 
which erection, alteration, repair or removal was actually begun prior 
to the recording of the mortgage. 

Section 1 therein referred to provides for the labor lien. 

The effect, then, of section 6 is as follows: Where a work- 
man does work before a mortgage is recorded he has a lien for 
the work if he files his claim in due season, and this lien has 
precedence over the mortgage. He also has a similar lien if 
the erection, alteration, repair or removal of a building or 
structure on which he was working was begun prior to the 
recording of the mortgage, even though he does not do his in- 
dividual work until after the recording of the mortgage. If, 
however, he does not start his work until after the mortgage is 
recorded, and the mortgage was recorded before the erection, 
alteration, repair or removal of the building or structure was 
begun, the mortgage has precedence over his lien. 

Assuming, then, that the laborers referred to in your letter 
filed their claims in due season and started their work either 
before the mortgage was recorded or did work on the altera- 
tion, repair or removal of a building or structure wiiich was 
begun prior to the recording of the mortgage, they have a lien 
on the land ahead of the mortgage. If, however, the mortgage 
was recorded before the job of erection, alteration, repair or 
removal of the building was begun, and they did no work 
prior to the recording of the mortgage, then they are shut out 
from their lien, as a practical matter, because the mortgage 
takes precedence over their lien, and their only remedy is 
against the contractor, which remedy can be pursued civilly 
for wages owed, and criminally for failure to pay weekly. 
Very truly yours, 

Henry A. Wyman, Attorney -General. 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 



Public Service Commission — Limitation of Grade Crossings — 
Public and Private Railroads. 

St. 1890, c. 382, and St. 1892, c. 228, as amended, authorizing the Public 
Service Commission to limit crossings at grade for a specified time, 
apply to private crossings on all railroads. 

Nov. 29, 1919. 

Public Service Commission. 

Gentlemen: — You have asked my opinion as to whether 
the position taken by the attorneys for the Fore River Rail- 
road Corporation and the Fore River Shipbuilding Corpora- 
tion, in regard to their right to maintain private freight tracks 
across highways, at grade, in Qaincy and Braintree, is correct. 

In the first place, it is my opinion that Spec. St. 1918, 
c. 138, authorizing the Fore River Shipbuilding Corporation to 
sell and convey its private property to any domestic railroad 
corporation, does not lessen in any way the obligations of the 
Fore River Railroad Corporation, which took over the prop- 
erty in question, and that all laws now or hereafter in force 
which controlled the shipbuilding corporation in its manage- 
ment of the railroad are equally applicable to the railroad cor- 
poration, except as such laws may be modified by section 3, 
relating to the expense of abolishing the grade crossing. 

There are two statutes relating specifically to the question 
at hand. The first is St. 1890, c. 382, as finally amended by 
St. 1912, c. 375, and the other is St. 1892, c. 228,^ as last 
amended by St. 1906, c. 463, § 22. A first reading of the 1890 
statute would indicate that it was intended to apply to private 
railroads, and apparently the Legislature, when making its 
amendment in 1912, took this view; but an investigation of 
the report of the Railroad Commissioners for 1889, particularly 
at pages 30 and 33, indicates very strongly that the 1890 
statute was passed for the purpose of safeguarding private 
crossings on all railroads rather than public crossings on private 
railroads, and that the words "for private use'' modify, not 
the word "railroad" but the word "crossing." 

The necessity for an act giving the commissioners super- 
vision over public grade crossings, general in its character, is 
referred to in the report of the Railroad Commissioners of 
1889, at page 33, and by draft of legislation in regard to grade 
crossings, at page 137, and again in their report of 1891, at 
page 95. The act of 1892, apparently passed for the reasons 
set forth in the reports cited, enumerated specifically the 



1920.] PUBLIC DOCUMENT — No. 12. 115 

various types of public crossings that might exist, including 
the one in question. There is nothing in any statute that I 
can find which indicates that the word "railroad," as used in 
the 1892 statute, does not include a private railroad. 

It is my opinion, therefore, that the Fore River Railroad 
Corporation is subject to the 1892 statute, as amended, under 
which the Board has the power to limit a public crossing at 
grade for a specified length of time. It seems unnecessary to 
decide whether the same result might be reached under St. 
1890, c. 382, as amended by St. 1912, c. 375. 
Very truly yours, 

Henry A. Wyman, Attorney -General. 



Referendum — Existing Laiv — Effect of Ratification on Subse- 
quent Amendment. 

A petition for referendum on an existing law, subsequently amended, 
suspends operation both of the law and the amendment thereto, 
pending action thereon by the voters; and its approval by them carries 
with it the approval of the amendment. 

Nov. 29, 1919. 

Hon. Augustus L. Thorndike, Bank Commissioner. 

Dear Sir: — I acknowledge the receipt of your letter in 
which you ask the following question : — 

As the question has been raised whether savings banks and trust 
companies having savings departments may pay dividends or interest 
monthly or semi-annually, I respectfully ask your opinion whether 
chapter 116 of the General Acts of 1919, which was suspended by a 
petition for a referendum, and which I understand was afterwards rati- 
fied by the referendum vote, is the rule, or whether chapter 326 of the 
General Acts of 1919, which is an amendment of said chapter 116, is 
the rule? 

The effect of the petition for the referendum on chapter 116 
of the General Acts of 1919 was to suspend the operation of 
the law pending the action of the voters thereon. They having 
acted, and, as I understand, approved the law, it takes effect 
thirty days after such approval. 

This law had not in the meantime been repealed. Gen. St. 
1919, c. 326, amended it. Suspending the operation of the 
original act suspended the operation of the amendment. The 
approval of the original act carried with it the approval of the 
amendment. 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 

The legislative control of the enactment or amendment of 
laws is not affected by the referendum provisions of the Con- 
stitution; the operation of a given law is alone affected by the 
referendum. It may or may not become effective, as the 
voters act. When they do act, the status of the law is fixed, 
unless and until the Legislature, as it may, again acts with 
reference to the same subject-matter. 

Gen. St. 1919, c. 116, as amended by Gen. St. 1919, c. 326, 
will be in force Dec. 4, 1919. 

Very truly yours, 

Henry A. Wyman, Attorney-General. 



Joint School Committee — Election of Superintendent — Length 

of Term. 

Under R. L., c. 42, § 44, as amended by St. 1911, c. 384, § 1, a superin- 
tendent of schools elected by a joint school committee of a school miion 
must be employed for a three-year term, regardless of when the em- 
ployment begins. 

Dec. 3, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested an opinion on the follow- 
ing propositions: — 

Can a joint school committee, acting in December of this year, 
elect a superintendent of schools for a three-year term to begin July 
1, 1920? 

Can said committee elect a superintendent of schools to serve tempo- 
rarily; that is, from Jan. 1, 1920, to July 1, 1920? 

The law relating to this subject is incorporated in R. L., 
c. 42, § 44, as amended by St. 1911, c. 384, § 1, and is as 
follows: — 

The joint committee shall annually, in April, meet at a day and 
place agreed upon by the chairman of the committees of the several 
towns comprising the union, and shall organize by the choice of a 
chairman and secretary. They shall employ a superintendent of 
schools, determine the relative amount of service to be performed by 
him in each town, fix his salary, apportion the amount thereof to be 
paid by the several towns and certify it to each town treasurer. Such 
superintendent of schools shall be employed for a term of three years, 
and his salary shall not be reduced during such term. 



1920.] PUBLIC DOCUMENT — No. 12. 117 

This law relates to the selection of a superintendent of 
schools by joint school committees of school unions, and is not 
specific on the points about which you inquire. 

It is my opinion that a superintendent must be employed 
for a three-year term, regardless of when the employment 
begins. 

Yours very truly, 

Henry A. Wyman, Attorney -General, 



Minors — Hazardous Employment — Manual Training in 
Educational Institution. 

Under St. 1913, c. 831, § 27, the Board of Education or the school com- 
mittee of a city or town must, on an application of the Co-operative 
School of Engineering of Northeastern College for approval of the 
manual training or industrial education in that school, give its ap- 
proval or disapproval. 

Dec. 5, 1919. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion upon the fol- 
lowing set of facts: The Co-operative School of Engineering of 
Northeastern College conducts courses in which pupils are 
alternately in school and in employment. Minors are thus 
sometimes engaged in hazardous employments forbidden except 
as specially provided for in St. 1913, c. 831. You have directed 
my attention to section 27 of chapter 831 of the Acts of 1913, 
which provides, in part, that ''nothing in this act shall be con- 
strued ... to prev^ent minors of any age from receiving manual 
training or. industrial education in or in connection with any 
school in the commonwealth which has duly been approved 
by the school committee or by the board of education." You 
have asked the three following questions: — 

1. Are pupils in the co-operative courses of the Co-operative School 
of Engineering of Northeastern College receiving manual training or 
industrial education in or in connection mth a school, as contemplated 
by said section 27? 

2. Is said Co-operative School of Engineering the type of school con- 
templated by section 27, and therefore one which either school com- 
mittees or the Board of Education could approve as such, thereby 
waiving the provisions of the child labor law? 

3. Is approval of such a school as the said co-operative school, for 
the purposes of said section 27, a responsibility imposed by the statutes 
upon the Board of Education? 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 

Your three questions are all to be answered in the affirma- 
tive. In my opinion, the provisions of section 27 require that 
when an educational institution makes application to a school 
committee or to the Board of Education for approval of its 
manual training or industrial education in that institution, it is 
incumbent upon the school committee or the Board of Educa- 
tion, as the case may be, to give its approval or disapproval. 
Yours very truly, 

Henry A. Wyman, Attorney-General. 



Cities and Towns — Sale of Intoxicating Liquors — Payment of 
Part License Fee to Commonwealth. 

Under the provisions of R. L., c. 100, § 2, malt liquors, cider and light 
wines containing more than 1 per cent, alcohol by volume at 60° F. 
are intoxicating liquors, and under section 45 of said chapter the treas- 
urer of a town issuing a license for the sale of such liquors is obliged 
to pay one-fourth of all of the moneys received for said licenses to the 
Treasurer and Receiver-General of the Commonwealth. 

Dec. 9, 1919. 
Hon. Charles L. Burrill, Treasurer and Receiver-General. 

Dear Sir: — You have requested my opinion on a question 
as to the application of R. L., c. 100, § 45, under which cities 
and towns have paid into the treasury of the Commonwealth 
one-fourth of the amount received for licenses for the sale of 
intoxicating liquors. You state that the town treasurer of 
Maynard has paid one-fourth of a certain license under protest, 
and has forwarded to you a copy of a license issued by the 
board of selectmen of that town, the town claiming that it 
is not a license for the sale of intoxicating liquors within the 
language of section 45. 

The license issued reads as follows: — 

Thig is to certify that the board of selectmen of the town of Maynard, 
Mass., have granted a license to , doing business 

at , to sell or expose or keep for sale malt liquors, 

cider and light wines (containing not niore than 15 per cent of alcohol) 
to be drunk on the premises. 

You desire to know whether treasurers of cities and tov/ns 
are now obliged to pay to the Treasurer and Receiver-General 
one-fourth of the amount of money received for licenses for the 
sale of intoxicating liquors. 



1920.] PUBLIC DOCmiENT — No. 12. 119 

Section 45 of chapter 100 of the Revised Laws is as follows: — 

The treasurer of a city or town shall, within thirty days after the 
receipt of money for licenses for the sale of intoxicating liquors, make a 
return of the amount thereof to the treasurer and receiver general and 
at the same time shall pay to him one-fourth of the amount so received, 
and for neglect thereof he shall pay interest at the rate of six per cent 
per annum on the amount of such receipts from the time they become 
due until they are paid. 

Section 2 of said chapter provides: — 

Ale, porter, strong beer, lager beer, cider, all wines, any beverage 
which contains more than one per cent of alcohol, by volume, at sixty 
degrees Fahrenheit, and distilled spirits, shall be deemed to be intoxi- 
cating liquor within the meaning of this chapter. 

In view of the fact that these provisions of law still stand 

upon our statute books, treasurers of cities and towns are 

obliged, under section 45, to pay to you one-fourth of all 

money received for licenses for the sale of intoxicating liquors. 

Yours very truly, 

Henry A. Wyman, Attorney-General. 



Private Detective — Definition of Term. 

By the words ''private detective," as used in Gen. St. 1919, c. 171, is meant 
any person who generally engages in or solicits the business of seeking 
out and discovering evidence for use in civil or criminal proceedings. 

Dec. 9, 1919. 
Mr. John H. Plunkett, Chief of Inspections, Department of Public Safety. 

Dear Sir: — You have asked me for a definition of the 
words "private detective" as used in Gen. St. 1919, c. 271, 
which forbids any person, firm or corporation "to engage in 
the business of, or solicit business as, a private detective, or 
the business commonly transacted by a private detective," 
without first obtaining a license as provided in said act. 

The popular conception of a detective is a person whose 
occupation it is to seek out and discover, more or less secretly, 
evidence concerning the character or conduct of third persons. 
The popular conception of a private detective is a person en- 
gaged unofficially in this occupation. The act apparently uses 
the words "private detective" in their popular sense. The 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

language of the act, however, lays stress on engaging in or 
soliciting such business. I am of opinion that a mere sporadic 
seeking of such evidence or information should not be held to 
be within its terms. This view is strengthened by the con- 
siderable license fee required (§ 5, $100), and further by the 
fact that a person who desires to obtain a license must have 
had three years' experience as an inv^estigator (§ 2). Gen. St. 
1919, c. 271, repeals and replaces R. L., c. 108, §§ 35 and 36. 
Section 35 authorizes certain municipal officials to license a 
private citizen *' to act as a private detective for the detection, 
prevention and punishment of crime." In view of the broader 
language used in Gen. St. 1919, c. 271, the definition of de- 
tective can no longer be restricted to the collection of informa- 
tion "for the detection, prevention or punishment of crime." 
It extends to civil proceedings. 

For a practical rule of thumb, but by no means as an ex- 
haustive and conclusive definition, I suggest that any person 
who generally engages in or solicits the husiness of seeking out 
and discovering evidence for use in civil or criminal proceedings 
will usually be found to be within the act. I do not feel, how- 
ever, that a cast-iron rule can be laid down. 
Yours very truly, 

Henry A. Wyman, Attorney-General. 



Fire Insurance Companies — Right to do more than One Class of 
Business — Reinsurance. 

Under St. 1907, c. 576, § 34, a foreign insurance company, admitted to 
this Commonwealth since the date mentioned therein, is not permitted 
to carry on more than one class or combination of classes of business 
mentioned therein. 

A purely mutual fire insurance company may not qualify to issue policies 
by a contract of reinsurance by it of the business of another existing 
company. Before such a company may issue policies it must have sub- 
scriptions for at least four hundred separate risks of direct insurance 
upon property located within the Commonwealth, and amounting to 
not less than $1,000,000. 

Dec. 23, 1919. 

Hon. Clarence W. Hobbs, Insurance Commissioner. 

Dear Sir: — You request my opinion upon certain ques- 
tions which have arisen in the administration of the statutes 
relating to insurance companies. 

You call attention to the classes of business established by 
St. 1907, c. 576, § 32, with its amendments, and to the various 



1920.] PUBLIC DOCUMENT — No. 12. 121 

combinations of those classes permitted in the case of foreign 
insurance companies by section 34. You state that, — 

An appHcation has been filed by a company to transact business 
specified in clauses 5, 6, 8 and 11 of section 32. This combination is 
not set forth in section 34, and the questions are: — 

(1) Are the combinations set forth in section 34 the only combina- 
tions of classes of business which a foreign company may be admitted 
to transact? 

(2) Is the specific combination which the company in question de- 
sires to be admitted to transact permissible under the law? 

Section 34 contains the following provision: — 

No domestic insurance company shall transact any business other 
than that specified in its charter or agreement of association and no 
foreign insurance company admitted to this commonwealth prior to 
May thirty-first, eighteen hundred and eighty-seven, shall transact 
any other kind of business than it had been authorized to transact 
prior to that date, and no foreign insurance company admitted since 
said date shall transact more than one class or kind of business herein, 
except that a domestic company and, if its charter permits, and not 

herwise, any admitted foreign company may transact. 

There then follow numerous specifications of combinations of 
classes of business permitted to such companies, with a state- 
ment of the authorized capital to be required in certain 
instances. 

The provision of this section that "no foreign insurance 
company admitted since said date shall transact more than one 
class or kind of business herein, except that ... if its charter 
permits, and not otherwise, any admitted foreign company 
may transact" the specified combinations of classes of business, 
plainly limits the permissible combinations to those thus speci- 
fied. The combination to which you refer is not authorized by 
this section, and therefore a foreign company may not be ad- 
mitted to transact such business in this Commonwealth. 

You further inquire if, in determining whether a purely 
mutual fire insurance company has complied with the condi- 
tions established by St. 1907, c. 576, § 42, so as to permit it to 
issue policies, consideration can be given to the reinsurance by 
it of the business of another existing company. This section 
provides in part as follows: — 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

No policy shall be issued bj^ a purely mutual fire insurance company 
organized subsequent to the twenty-third day of April in the year 
eighteen hundred and ninety-four, nor by a mutual fire insurance com- 
pany with a guaranty capital of less than one hundred thousand dollars, 
until not less than one million dollars of insurance, in not less than four 
hundred separate risks upon property located in this commonwealth, 
has been subscribed for and entered on its books. No policy shall be 
issued under the provisions of this section until a list of the subscribers 
for insurance, with such other information as the insurance commis- 
sioner may require, shall have been filed at the insurance department, 
nor until the president and secretary of the company shall have certi- 
fied under oath that every subscription for insurance in the list so filed 
is genuine and made with an agreement with every subscriber for insur- 
ance that he will take the policies subscribed for by him within thirty 
days of the granting of a license to the company by the insurance com- 
missioner to issue policies. If such officers shall take a false oath relative 
to such certificate they shall be guilty of perjury. 

A contract of reinsurance is not a contract of insurance upon 
property. See II Op. Attys.-Gen. 157. It is rather a contract 
to insure; in whole or in part, the contractual risk assumed by 
the ceding company. It is merely an agreement to indemnify 
that company against loss upon its contracts. Thus it cannot 
be said that a contract for the reinsurance of the business of 
another company consisting of various separate risks of direct 
insurance assumed by it is a contract covering "separate risks 
upon property." Nor is an arrangement with another com- 
pany for the reinsurance of its business in any proper sense of 
the term a "subscription for insurance" within the meaning of 
this section. In my opinion, this statute contemplates that the 
subscriptions for insurance which must be obtained before a 
mutual company may issue policies shall be subscriptions for 
four hundred separate risks of direct insurance upon property 
located within the Commonwealth. Thus, in my judgment, a 
company may not qualify to issue policies by a contract of 
reinsurance of the character stated by you. 
Yours very truly, 

Henry A. Wyman, Attorney-General. 



1920.] PUBLIC DOCUMENT — No. 12. 



123 



Taxation — Exemption — Merchant Marine ~ Arrest for Non- 
payment of Taxes -- Administrator, Executor, Trustee in 
Bankruptcy. 

Gen. St. 1919, c. 9, exempting inhabitants of this Commonwealth who have 
served in the military and naval forces of the United States in the 
World War from the payment of poll taxes, does not apply to members 
of the merchant marine. 

A trustee in bankruptcy is an officer in the bankruptcy court. He cannot 
be arrested for the non-payment of a tax due from the estate. 

Neither an executor nor an administrator can be arrested for non-payment 
of a tax assessed in the estate or to him as said executor or said admin- 
istrator, except as provided for in St. 1909, c. 490, pt. II, § 34. 

Dec. 24, 1919. 
Hon. William D. T. Trefry, Commissioner of Corporations and Taxation. 

Dear Sir: — You have asked my opinion upon certain 
questions with reference to which you have been requested to 
advise local assessors and collectors of taxes. 

Your first question is as follows: — 

Under Gen. St. 1919, c. 9, do those who served in the merchant 
marine and coast guard come within its provisions as to exemption 
from payment of poll taxes; and also, if any poll taxes have been paid 
by those who are entitled to an exemption, must a refund be made, 
and from what money may it be repaid? 

The statute to which you refer exempts from the payment of 
poll taxes assessed for 1917 and a certain period thereafter 
"inhabitants of this commonwealth who were engaged in the 
military or naval service of the United States in the present 
war before the passage of this act, and those who hereafter en- 
gage in said service daring said war." 

The question is, therefore, whether persons who served in 
the merchant marine and coast guard were in the military or 
naval service of the United States. 

It is plain that those who served in the merchant marine 
were not in such service. They were not connected with the 
military or naval forces of the United States, but were engaged 
in purely merchant marine service under the United States 
Shipping Board. They have not been regarded as in the mili- 
tary or naval service for the purposes of Gen. St. 1919, c. 283, 
granting the so-called $100 bonus or gratuity. They therefore 
do not come within the provisions of this act. At the beginning 
of the war the coast guard was in the service of the Treasury 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

Department, but during the war it was taken over by the 
Navy Department, and therefore its members must be re- 
garded as in the naval service of the United States. They 
have been so considered in the administration of the bonus or 
gratuity statute above referred to. In my opinion, they come 
within the exemption from poll taxes established by the statute 
under discussion. If poll taxes have been assessed upon, and 
paid by, any persons entitled to exemption under this statute, 
their remedy seems to be the ordinary one granted by the 
statutes for the abatement of taxes. They must apply to the 
local assessors, and their applications must be dealt with in 
the same manner and subject to the same conditions as all 
other applications for abatement. 

Your second question is as follows: — 

Can an administrator, executor or assignee or trustee in bankruptcy 
be arrested for a tax assessed directly to them in their capacity as such 
administrator, etc.? 

A trustee in bankruptcy is an officer of the courts of the 
United States. In my opinion, it is not within the power of a 
collector of taxes to arrest him for non-payment of taxes nor 
in any other way to interfere with his performance of the 
duties entrusted to him by the court. The rights of the tax 
collector must be enforced by appropriate proceedings in the 
bankruptcy court. In re Tyler, 149 U. S. 164. 

So far as your question relates to the right to arrest execu- 
tors and administrators, it depends solely upon the interpreta- 
tion of our statutes. The right to arrest is, of course, an 
extraordinary remedy, and is not regarded as granted unless 
the grant clearly appears by the terms of the statute. An 
executor or administrator acts purely in a representative 
capacity, and, in the eyes of the law, is an entirely different 
person from himself individually. He is not personally liable 
for taxes assessed upon the estate or to him as executor or ad- 
ministrator, except under the conditions prescribed in St.. 
1909, c. 490, pt. II, § 34, but if those conditions are satisfied 
he "is personally liable therefor as for his own tax." The 
question is not free from doubt, but I am of opinion that this; 
provision for personal liability would be construed by the court 
to bring an executor or administrator in a proper case within 
the scope of section 27 of the same act, provided, of course, 
the conditions of section 27 are also clearly satisfied. It seems; 



1920.1 



PUBLIC DOCUMENT — No. 12. 



129 



INDEX TO OPINIONS. 



Alien, eligibility to public office, ...... 

Animal Industry, Commissioner of; regulations; acts of Congress, 
"Anti-aid" amendment; application to education of immigrants. 

Payments to New England Asylum for Blind, 
Appropriation by Legislature; private institutions, 
Bakers; regulation of hours of labor, ..... 
Ballots; instructions to vote; referendum; prohibition, 

Liquor licenses thereon; prohibition amendment, . 
Blind, New England Asylum; payments of money by Commonwealth 
Chain drug stores; prescription department, 
Conviction for violation of game laws; nolo contendere, . 
Co-operative banks; matured shares; dues capital, 

Right to borrow money, ...... 

Delegation of powers of General Court to cities and towns, 
Disease dangerous to health; notice to Board of Charity, 
"Doctor," legal right to use, ...... 

Eminent domain; applicable to capital stock of a street railway. 
Fees for license for sale of intoxicating liquor; payment to Common 
wealth, ....... 

Fire insurance companies; class of business, 

Fireproof construction; supervisor of plans, 

Fish and game laws; conviction; surrender of certificate, 

Gas companies; net and gross rates, .... 

Governor; return of bill; resubmission, ... 

Grade crossings; limitations, ..... 

Great Ponds; islands, sale of, .... . 

Highway; layout; taking of land not used for travel, . 
Hours of labor in industrial departments of State institutions, 
Hunting licenses; forfeiture, . . . . 

Immigrants, education of; "anti-aid" amendment. 
Jurors; compensation and mileage; when law takes effect. 
Life insurance ; loans to policyholders ; home purchase plan 
Liquor license ; printing of question on ballots sent to towns. 
Manual training schools; hazardous employment of minors. 
Mechanic's lien; weekly wages, ..... 

Military service; service medal; computation of time, . 
Minimum Wage Commission; powers, 
Minors; hazardous employment; manual training schools, 
Morris plan; loans and insurance, .... 

Motor vehicles; limitation of dimensions; class legislation. 

Operators ; revocation and renewal of licenses, 

Rules and regulations of cities and towns; jurisdiction of Public 
Service Commission, ..... 
Nolo contendere; conviction, ..... 

Notice; disease dangerous to health; boards of health, . 



130 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



Nurses in factories and shops, 

War service; State benefits, 
Parole; prisoners in houses of correction, 
Pauper; inmate of pubHc institution; settlement. 
Paupers; loss of settlement; domicile, 
Pharmacist, unregistered; right to do business, 
Pharmacists; certificate of fitness; sale of intoxicating liquor. 
Police Commissioner of Boston; authority of mayor; war veteran, 

Power of city council to impose duties, .... 
Private detective; definition of term, ..... 
Public buildings; mercantile purposes, .... 

Railroads, public and private; limitation of grade crossings, . 
Recess committee; lawful appropriation of money to pay members 
Referendum; existing law; suspension of operation. 

Petition filed with Secretary of Commonwealth; right to withdraw 

Public opinion; proliibition, .... 

School permits; domestic service, .... 

School union; superintendent; term of office. 
Schools, joint superintendent of; termination. 
Settlement of inmate of public institution, . 
Sidewalk assessments ; liability of Commonwealth, 
Stock issue by public trustees of a street railway, . 
Street railway capital stock; taking by eminent domain. 

Public operation of ...... . 

Public operation of; service at cost. 

Public trustees; stock issue, .... 

Tickets, redemption of, .... . 

Taxation; exemption; arrest for nonpayment of taxes, . 
Tenure of office of superintendent of schools; school union, 
Tickets, street railway; redemption of, 
Town notes for repairs to buildings, 
Town treasurer, women ineligible, 
Wages, minimum prices as a means of fixing. 
War bonus; discharges for certain reasons, . 

Veteran; eligibility to appointment to police force of Boston, 
Weekly wages; mechanic's lien, . 
Weights and measures for cities and towns, . 
Women not eligible to office of town treasurer. 



PAGE 

49 
64 

125 
85 
77 
8 
71 
94 
91 

119 
30 

114 
74 

115 

95 

99 

9 

116 
59 
85 
41 
54 

107 
20 

104 
54 
14 

123 

116 
14 
93 
86 
72 

100 
94 

112 
42 
86 



1920.1 PUBLIC DOCUMENT — No. 12. 131 



GRADE CROSSINGS. 



The following petitions for the abolition of grade crossings 
are pending: — 

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. Directors of Boston & Maine Railroad, peti- 
tioners. Petition for abolition of grade crossing between 
Washington Street and tracks of Boston & Maine Rail- 
road. Pending. 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

Haverhill, Mayor and Aldermen of, petitioners. Petition for 
abolition of Washington Street and other crossings in 
Haverhill. George W. Wiggin, William B. French and 
Edmund K. Turner appointed commissioners. Commis- 
sioners' report filed. Fred E. Jones appointed auditor. 
E. A. McLaughlin appointed auditor in place of Fred E. 
Jones, deceased. Auditor's seventeenth report filed. 
Disposed of. 

Lawrence, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossing at Merrimac and other streets in 
Lawrence. Robert O. Harris, Edmund K. Turner and 
Henry V. Cunningham appointed commissioners. Pend- 
ing. 

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 eighth 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. 

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. 



1920.] PUBLIC DOCUMENT — No. 12. 133 

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. 

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 Water 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. 

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. 



134 ATTORNEY-GENERAL'S REPORT. [Jan 

Framingham, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Willis Crossing. Pending. 

Lowell, Mayor and Aldermen of, petitioners. Petition foi 
abolition of grade crossings at Middlesex and Fletchei 
streets and Western Avenue. George F. Swain, Patrick 
H. Cooney and Nelson P. Brown appointed commissioners. 
Commissioners' report filed. Pending. 

Marlborough, Mayor and Aldermen of, petitioners. Petition 
for abolition of Hudson Street crossing in Marlborough. 
Walter Adams, Charles A. Allen and Alpheus Sanford ap- 
pointed commissioners. Commissioners' report filed. 
Pending. 

Newton, Mayor and Aldermen of, petitioners. Petition for 
the abolition of Concord Street and Pine Grove Avenue 
crossings in Newton. George W. Wiggin, T. C. Menden- 
hall and Edmund K. Turner appointed commissioners. 
Pending. 

Somerville, Mayor and Aldermen of, petitioners. Petition for 
abolition of Park Street, Dane Street, and Medford Street 
crossings in Somerville. George W. Wiggin, George F. 
Swain and James D. Colt appointed commissioners. 
Commissioners' report filed. James D. Colt appointed 
auditor in place of Patrick H. Cooney deceased. Auditor's 
thirteenth report filed. Pending. 

Somerville, Mayor and Aldermen of, petitioners. Petition for 
abolition of Somerville Avenue crossing in Somerville. 
George W. Wiggin, George F. Swain and James D. Colt 
appointed commissioners. Commissioners' report filed. 
James D. Colt appointed auditor in place of Patrick H. 
Cooney deceased. Auditor's tenth report filed. Disposed 
of. 

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. 



1920.] PUBLIC DOCUMENT — No. 12. 135 

Watertown, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Cottage, Arlington, School, Irving 
and other streets in Watertown. Pending. 

Wayland, Selectmen of, petitioners. Petition for abolition of 
grade crossing at State Road. George F. Swain, Harvey 
N. Shepard and Arthur W. DeGoosh appointed commis- 
sioners. Pending. 

Weston, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Central Avenue, Conant Road, Church 
and Viles streets. P. H. Cooney, Louis A. Frothing- 
ham and Andrew M. Lovis appointed commissioners. 
Pending. 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W. 
Wiggin, George F. Swain and Arthur Lord appointed com- 
missioners. Commissioners' report filed and recommitted. 
Pending. 

Norfolk County. 

Braintree, Selectmen of, petitioners. Petition for the abolition 
of the Pearl Street crossing at South Braintree. Patrick 
H. Cooney, Frank N. Nay and George F. Swain ap- 
pointed commissioners. Pending. 

Braintree. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
grade crossing at School, Elm, River and Union streets in 
Braintree. John L. Bates, Winfield S. Slocum and Arthur 
H. Wellman appointed commissioners. Commissioners' 
report filed. Pending. 

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- 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

pointed commissioners. Commissioners' report filed and 
recommitted. Joseph B. Lyons appointed commissioner 
in place of Winfield S. Slocum, deceased. Commissioners' 
second report filed. 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. 

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. Disposed 
of. 

Boston, Mayor and Aldermen of, petitioners. Petition for 
abolition of Freeport, Adams, Park, Mill and Walnut 
streets and Dorchester Avenue crossings. James R. 
Dunbar, Samuel L. Powers and Thomas W. Proctor ap- 
pointed commissioners. Commissioners' report filed. 
Arthur H. Wellman appointed auditor. Auditor's twenty- 
second report filed. Disposed of. 

Boston, Ma^'or 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. Disposed of. 

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. 



1920.] PUBLIC DOCUMENT — No. 12. 137 



Worcester County. 

Auburn. Boston & Albany Railroad Company, petitioner. 
Petition for abolition of Cemetery Road, a private way. 
The Public Service Commission appointed commissioners. 
Pending. 

Clinton, Selectmen of, petitioners. Petition for abolition of 
Sterling, Water, Main, High and Woodlawn streets cross- 
ings. George W. Wiggin, William E. McClintock and 
James A. Stiles appointed commissioners. Commissioners' 
report filed. David F. Slade appointed auditor. Frederic 
B. Greenhalge appointed auditor in place of David F. 
Slade deceased. Auditor's thirteenth report filed. Pend- 
ing. 

Harvard. Boston & Maine Railroad, petitioner. Petition for 
abolition of a grade crossing near Harvard station. 
Pending. 

Hubbardston, Selectmen of, petitioners. Petition for abolition 
of Depot Road crossing in Hubbardston. Pending. 

Leominster, Selectmen of, petitioners. Petition for abolition of 
Water, Summer, Mechanic and Main streets crossings. 
George W. Wiggin, George F. Swain and Charles D. 
Barnes appointed commissioners. Commissioners' report 
filed. Recommitted. Pending. 

Southborough, Selectmen of, petitioners. Petition for aboli- 
tion of crossing on road from Southborough to Framing- 
ham. 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. 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossings at Exchange, Central and Thomas 
and other streets. Arthur Lord, George F. Swain and 
Fred Joy appointed commissioners. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of Grafton Street crossing and eight other cross- 
ings, including alterations of Union Station. James R. 
Dunbar, James H. Flint and George F. Swain appointed 
commissioners. Commissioners' report filed. James A. 
Stiles appointed auditor. Auditor's seventy-third report 
filed. Pending. 



1920.1 PUBLIC DOCUMENT — No. 12. 139 



EULES OF PRACTICE 

In Interstate Rendition. 



Every application to the Governor for a requisition upon the 
executive authority of any other State or Territory, for the de- 
livery up and return of any offender who has fled from the 
justice of this Commonwealth, must be made by the district or 
prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original 
papers, or certified copies thereof. 

The following must appear by the certificate of the district 
or prosecuting attorney : — 

(a) The full name of the person for whom extradition is 
asked, together with the name of the agent proposed, to be 
properly spelled. 

(6) That, in his opinion, the ends of public justice require 
that the alleged criminal be brought to this Commonwealth 
for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the 
conviction of the fugitive. 

(d) That the person named as agent is a proper person, and 
that he has no private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisi- 
tion for the same person growing out of the same transaction, 
it must be so stated, with an explanation of the reasons for a 
second request, together with the date of such application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or crim- 
inal arrest in the State or Territory to which he is alleged to 
have fled, the fact of such arrest and the nature of the pro- 
ceedings on which It Is based must be stated. 

(g) That the application is not made for the purpose of en- 
forcing the collection of a debt, or for any private purpose 
whatever; and that, if the requisition applied for be granted, 
the criminal proceedings shall not be used for any of said 
objects. 



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 dulv certified. 



1920.] PUBLIC DOCUMENT — No. 12. Ml 

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.