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

EXECUTIVE OFFICE OF 
\ HUMAN SERVICES 

Office of the Secretary 
I Room 904 

^ 100 Cambridge Street 
Boston, Massachusetts 02202 



Public Document 



No. 12 



^\)t ^JIcmmDnrocaltl) of itlaesactjuectta 



REPORT 



ATTORNEY- GENERAL 



FOR THE 



Year ending January 19, 1921 



^ 




BOSTON 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS 

32 DERNE STREET 



^l)t CommoniDealtl) nf itlaasacbuBctta 



Department of the Attorney-General, 
Boston, Jan. 19, 1921. 

To the Honorable Senate and House of Representatives. 

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

Very respectfully, 

J. WESTON ALLEN, 

Attorney-Genera I . 



®[)e Comtnonruealtl) of iltasaacljUBettB 



DEPARTMENT OF THE ATTORNEY- GENERAL. 
State House. 



Attorney-General. 
J. WESTON ALLEN. 

Assistants. 
Edwin H. Abbot, Jr. 
Alex-\nder Lincoln. 
Arthur E. Seagrave. 
John W. Corcoran.^ 
Jay R. Benton. 
Leland Powers. 2 
Albert Hurwitz, 
Maynard C. Teall. 
Charles R. Cabot. 

Chief Clerk. 
Louis H. Freese. 



Resigned April 15, 1920. 2 Resigned Sept. 1, 1920. 



STATEMENT OF APPROPRIATION AND EXPENDITURES. 



Appropriation for 1920, S53,000 00 

Appropriation, additional, 20,000 00 

Appropriation, special, 10,000 00 

Expenditures. 

For law library, $1,001 73 

For salaries of assistants, 20,698 14 

For clerks, 7,200 00 

For oflB.ce stenographers, 5,702 40 

For telephone operator, 794 00 

For legal and special services and expenses, . . . 13,916 24 

For office expenses, 3,768 90 

For court expenses, . 1,553 42 

Total expenditures, . $54,634 83 



®l)e CcmmonrDealtl) of iHasBactiiiaetts 



Department of the Attorxey-General, 
Boston, Jan. 19, 1921. 



To the Honorable Senate and House of Representatives. 

Pursuant to the provisions of section 11 of chapter 12 of 
the General Laws, I herewith submit my report for the year 
ending this day. 

The cases requiring the attention of this department dur- 
ing the year, to the number of 9,797, are tabulated below: — 

Corporate franchise tax cases, 918 

Extradition and interstate rendition, 203 

Grade crossings, petitions for abolition of, 60 

Indictments for murder, 4& 

Inventories and appraisals, 23 

Land Court petitions, 86 

Land-damage cases arising from the taking of land by the De- 
partment of Public Works, 41 

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

pohtan District Commission, 29 

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, 18 

Miscellaneous cases, 606 

Petitions for instructions under inheritance tax laws, ... 25 

Public charitable trusts, 114 

Settlement cases for support of persons in State hospitals, . . 36 
All other cases not enumerated above, which include suits to 
require the filing of returns by corporations and individuals 
and the collection of money due the Commonwealth, . . 7,590 



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: — 

John Arzenti, indicted in Plymouth County, October, 
1919, for the murder of Frank Gentile, at Brockton, on July 
17, 1919. He was arraigned Oct. 16, 1919, and pleaded not 
guilty. W. J. Callahan, Esq., appeared as counsel for the 
defendant. In February, 1920, the defendant w^as tried by 
a jury before Thayer, J. The result was a verdict of guilty 
of murder in the second degree. The defendant was there- 
upon sentenced to State Prison for life. The case was in 
charge of District Attorney 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 w^as committed to the Danvers State 
Hospital for observation. On Oct. 7, 1920, he was adjudged 
to be insane, and was committed to the Bridgewater State 
Hospital. The case was 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. In April, 1920, the defendant 
was tried by a jury before Callahan, J. The result was a 
verdict of guilty of murder in the second degree, and the 
defendant was thereupon sentenced to State Prison for life. 
The case was 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 



1921.] PUBLIC DOCUMENT — No. 12. ix 

was arraigned July 16, 1919, and pleaded not guilty. Thomas 
J. Grady, Esq., appeared as counsel for the defendant. On 
July 16, 1919, an entry of nolle prosequi was made against 
said indictment except as to so much thereof as charged 
manslaughter; and on Jan. 15, 1920, an entry of nolle prose- 
qui was made against the remainder of said indictment. Tlie 
case was in charge of District Attorney Joseph C. Pelletier. 

Joseph Cordia, alias, and Francisco Feci, alias, indicted 
in Middlesex County, November, 1918, for the murder of 
Louis Fred Soulia, at Billerica, on Oct. 31, 1918. The de- 
fendants were arraigned Nov. 19, 1918, and pleaded not 
guilty. Daniel J. Donahue, Esq., 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 denied, and his exceptions were 
overruled by the Supreme Judicial Court. The defendant 
w^as thereupon sentenced to death by electrocution during 
the week beginning Aug. 15, 1920, which sentence was car- 
ried out on Aug. 16, 1920. The case was in charge of Dis- 
trict Attorney Nathan A. Tufts. 

Joseph DeLaurentis, 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. In March, 1920, the defendant was tried by 
a jury before John F. Brown, J. The result was a disagree- 
ment by the jury, and an entry of 7ioUe prosequi was made 
against said indictment. The case was in charge of District 
Attorney Joseph C. Pelletier. 

Angelo DiCassio, alias, indicted in Hampden County, 
December, 1919, for the murder of Volpini Fillippo at Spring- 



X ATTORNEY-GENERAL^S REPORT. [Jan. 

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. 
Later the defendant retracted his former plea, and pleaded 
guilty to manslaughter. This plea was accepted by the Com- 
monwealth, and the defendant was thereupon sentenced to 
State Prison for a term of not more than fifteen nor less than 
twelve years. The case was 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 Suleman Hassan. On July 3, 1919, an entry of nolle 
prosequi was made on so much of the indictment against 
Suleman Hassan as charged murder in the first degree; and 
on Oct. 2, 1919, an entry of nolle prosequi 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. The exceptions of 
the defendant Imbrian Hassan were overruled by the Su- 
preme Judicial Court. The case was in charge of District 
Attorney S. Howard Donnell. 

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. On April 20, 

1920, the defendant retracted his former plea, and pleaded 



1921.] PUBLIC DOCUMENT — No. 12. xi 

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 eight nor less 
than six years. The case was 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. 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 Charles 
H. Wright. 

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. On Feb. 19, 1920, 
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. 

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- 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

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. On April 
9, 1920, the defendant's motion for a new trial was allowed, 
and execution of the sentence upon him w^as stayed. On 
May 17, 1920, 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 Charles H. Wright. 

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. Wihiam H. Lewis, Esq., 
appeared as counsel for the defendant Domenick Vass, and 
J. W. Schenck, Esq., appeared for the defendant Manuel 
Smith. In January, 1920, the defendants were tried by a 
jury before Aiken, C.J. The result was a verdict of not 
guilty, directed by the court, in the case of Domenick Vass, 
and a verdict of guilty of manslaughter in the case of Man- 
uel Smith. The defendant Manuel Smith was thereupon 
sentenced to jail for two years. The cases were in charge of 
District Attorney Joseph C. Pelletier. 

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., 
and Thomas J. Collins, Esq., appeared as counsel for the 
defendant. In May, 1920, the defendant was tried by a 
jury before Nelson P. Brown, J. The result was a verdict 
of not guilty by reason of insanity. The defendant was 
thereupon committed to the Northampton State Hospital. 
The case was in charge of District Attorney Charles H. 
Wright. 



1921.] PUBLIC DOCUMENT — No. 12. xiii 

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

Gaspare Asold, John Cammerara, Frank Figuccia and 
Tony Pizzo, indicted in Middlesex County, January, 1920, 
for the murder of Tony Carchidi, at Woburn, on Jan. 4, 
1920. The defendants were tried on so much of said in- 
dictments as charged assault with intent to murder, and so 
much of said indictments as charged murder in the first 
degree was placed on file. The cases were in charge of Dis- 
trict Attorney Nathan A. Tufts. 

Giuseppe Bonanno, indicted in Middlesex County, No- 
vember, 1920, for the murder of Francesco Bonanno, at 
Cambridge, on Nov. 3, 1920. He was arraigned Nov. 8, 
1920, and pleaded not guilty. Jerome J. Russo, Esq., ap- 
peared as counsel for the defendant. In January, 1921, the 
defendant was tried by a jury before Cox, J. The result 
was a verdict of guilty of murder in the second degree, and 
the defendant was thereupon sentenced to State Prison for 
life. The case was in charge of District Attorney Nathan 
A. Tufts. 

Giuseppe Botta, indicted in Norfolk County, April, 1920, 
for the murder of Concetta Botta, at Franklin, on Feb. 29, 
1920. He was arraigned May 3, 1920, and pleaded not 
guilty. Henry E. Buggies, Esq., and J. J. McAnarney, Esq., 
appeared as counsel for the defendant. In November, 1920, 
the defendant was tried by a jury before Thayer, J. The 
result was a verdict of guilty of manslaughter. The defend- 
ant was thereupon sentenced to State Prison for a term of 
not more than twelve nor less than nine years. The case 
was in charge of District Attorney Frederick G. Katzmann. 

Genero Buoniconto, indicted in Hampden County, May, 
1920, for the murder of Dominic Richy, at Springfield, on 
April 11, 1920. The defendant was arraigned May 14, 1920, 
and pleaded not guilty. Later the defendant retracted his 
former plea, and pleaded guilty to manslaughter. This plea 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

was accepted by the Commonwealth, and the defendant was 
thereupon sentenced to the house of correction for two years 
and six months. The case was in charge of District Attorney 
Charles H. Wright. 

Nicholas Caruso, indicted in Middlesex County, June, 
1920, for the murder of John C. Cunniff, at Newton, on 
May 25, 1920. He was arraigned June 11, 1920, and pleaded 
not guilty. James S. Cannon, Esq., appeared as counsel for 
the defendant. Later the defendant retracted his former 
plea, and pleaded guilty to murder in the second degree. 
This plea was accepted by the Commonwealth, and the 
defendant was thereupon sentenced to State Prison for life. 
The case was in charge of District Attorney Nathan A. 
Tufts. 

Pasquale Catrambone, indicted in Plymouth County, 
February, 1920, for the murder of J. B. George Guyette, at 
Brockton^ on Nov. 29, 1919. He was arraigned Feb. 19, 
1920, and pleaded not guilty. John J. Geogan, Esq., and 
Francis J. Geogan, Esq., appeared as counsel for the de- 
fendant. On Aug. 16, 1920, 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 w^as thereupon sentenced to State Prison for 
life. The case was in charge of District Attorney Frederick 
G. Katzmann. 

Gaetano Di Domenico, alias, indicted in Middlesex 
County, March, 1920, for the murder of Giuseppe Ugliotti, 
at Somerville, on Sept. 9, 1919. He was arraigned April 27, 
1920, and pleaded not guilty. William H. Lewis, Esq., and 
Isidore H. Fox, Esq., appeared as counsel for the defendant. 
On June 7, 1920, the defendant retracted his former plea, 
and pleaded guilty to manslaughter. This plea w^as accepted 
by the Commonwealth, and the defendant was thereupon 
sentenced to State Prison for a term of not more than ten 
nor less than eight years. The case was in charge of District 
Attorney Nathan A. Tufts. 



1921.] PUBLIC DOCUMENT — No. 12. xv 

Nicola Dispensa, indicted in Essex County, May, 1920, 
for the murder of Guiseppe Polizatta, at Lawrence, on Feb. 
14, 1920. On Oct. 19, 1920, the defendant was adjudged to 
be insane, and was committed to the Bridgewater State Hos- 
pital. The case was in charge of District Attorney S. How- 
ard DonnelL 

Henry A. Frazier, indicted in Suffolk County, January, 
1920, for the murder of Rufus Oxley Williams, on Dec. 12, 

1919. He was arraigned Jan. 22, 1920, and pleaded not 
guilty. The defendant later 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 seven years. The case was in charge of District 
Attorney Joseph C. Pelletier. 

John Graco, indicted in Suffolk County, July, 1920, for 
the murder of Frank Pierro, on June 18, 1920. Thomas J. 
Grady, Esq., appeared as counsel for the defendant. On 
Sept. 20, 1920, the defendant was arraigned, 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 seven nor less, 
than four years. The case was in charge of District Attorney 
Joseph C. Pelletier. 

Mary Levesqije, indicted in Essex County, May, 1920, 
for the murder of a male child, at Lawrence, on Jan. 29, 

1920. She was arraigned May 19, 1920, and pleaded not 
guilty. On June 22, 1920, the defendant retracted her 
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 a term 
of one year. The case was in charge of District Attorney S. 
Howard Donnell. 

EuPLio Nuzzo, indicted in Middlesex County, March, 
1920, for the murder of Angelo Quercues, at Maiden, on 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

March 14, 1920. He was arraigned May 4, 1920, 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 twelve 
nor less than ten years. The case was in charge of District 
Attorney Nathan A. Tufts. 

Joseph Sammarco, indicted in Suffolk County, January, 
1920, for the murder of William G. Clancy, on Jan. 22, 1920. 
Thomas J. Grady, Esq., appeared as counsel for the defend- 
ant. In March, 1920, the defendant was tried by a jury 
before John F. Brown, J. The result was a verdict of guilty 
of murder in the second degree, and the defendant was there- 
upon sentenced to State Prison for life. The case was in 
charge of District Attorney Joseph C. Pelletier. 

Anna Tomaszkewicz, indicted in Hampshire County, Feb- 
ruary, 1920, for the murder of Andrew^ Tomaszkewicz, at 
South Hadley, on Aug. 11, 1919. She was arraigned Feb. 
24; 1920, and pleaded not guilty. Edward J. Stapleton, Esq., 
and Richard P. Stapleton, Esq., appeared as counsel for the 
defendant. In May, 1920, the defendant was tried by a jury 
before Thayer, J. The result was a verdict of not guilty, by 
reason of insanity. The defendant was thereupon committed 
to the Northampton State Hospital. The case was in charge 
of District Attorney Thomas J. Hammond. 

Harold Vandercar, indicted in Worcester County, August, 
1920, for the murder of Charles A. Thomas, at Leominster, 
on July 31, 1920. He was arraigned Sept. 7, 1920, and 
pleaded not guilty. Thomas L. Walsh, Esq., appeared as 
counsel for the defendant. On Nov. 10, 1920, the defendant 
retracted his former plea, and pleaded guilty to murder in 
the second degree. This plea was accepted by the Common- 
wealth, and the defendant was sentenced to State Prison for 
life. The case was in charge of District Attorney Edward 
T. Esty. 



1921.] PUBLIC DOCUMENT — No. 12. xvii 

The following indictments for murder are now pending : — 

Joseph Balzarano, indicted in Berkshire County, Jan- 
uary, 1916, for the murder of Vincenzo Cresci, at Dalton, 
on March 27, 1915. He was arraigned Jan. 15, 1918, and 
pleaded not guilty. Thomas F. Cassidy, Esq., and Joseph 
W. Lewis, Esq., appeared as counsel for the defendant. In 
July, 1920, the defendant was tried by a jury before Calla- 
han, J. The result was a verdict of guilty of murder in 
the second degree, and the defendant was thereupon sen- 
tenced to State Prison for life. The defendant's motion for 
a new trial was denied, and his exceptions taken at the trial 
of the case are pending. The case is in charge of District 
Attorney Charles H. Wright. 

John T. Fisher, indicted in Hampden County, December, 
1920, for the murder of Lillian Fisher, at Springfield, on Oct. 
14, 1920. He was arraigned Dec. 31, 1920, and pleaded not 
guilty. Harry M. Ehrlich, Esq., and Isidore H. Hurowitz, 
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. 

Antonio Gregore, indicted in Hampden County, Decem- 
ber, 1920, for the murder of Antonio Gonsalves, at Ludlow, 
on Nov. 30, 1920. He was arraigned Dec. 31, 1920, and 
pleaded not guilty. James E. Dunleavy, Esq., and Francis 
I. Gallagher, 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. 

Bruno Mazzatto, indicted in Berkshire County, January, 
1920, for the murder of Vincenzo Desteto, at Pittsfield, on 
Aug. 13, 1919. He was arraigned Jan. 21, 1920, and pleaded 
not guilty. Thomas F. Cassidy, Esq., and Patrick J. Moore, 
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. 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

Charles Miller, indicted in Hampden County, Decem- 
ber, 1920, for the murder of Lillian INIiller, at Springfield, on 
Nov. 25, 1920, and for the murder of Grace H. Dickerson, 
at Springfield, on Nov. 29, 1920. He was arraigned Dec. 31, 
1920, and pleaded not guilty. Thomas F. McGlynn, Esq., 
and Louis C. Gaines, Esq., appeared as counsel for the de- 
fendant. 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., and Thomas L. 
Walsh, Esq., appeared as counsel for the defendant. On 
June 3, 1918, the defendant was tried by a jury before Keat- 
ing, J. The result was a verdict 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. 

Nicola Sacco and Bartolomes Vanzetti, indicted in 
Norfolk County, September, 1920, for the murder of Alex- 
ander Barardelli and Frederick A. Parmenter, at Braintree, on 
April 15, 1920. The defendants were arraigned Sept. 28, 1920, 
and pleaded not guilty. Fred H. Moore, Esq., and William 
J. Callahan, Esq., appeared as counsel for the defendants. No 
further action has been taken in these cases. The cases are 
in charge of District Attorney Frederick G. Katzmann. 

Rocco ScicCHiTANi, indicted in Middlesex County, Novem- 
ber, 1920, for the murder of Thomas J. Riley, at Cambridge, on 
Nov. 21, 1920. He was arraigned Nov. 30, 1920, and pleaded 
not guilty. No further action has been taken in this case. 
The case is in charge of District Attorney Nathan A. Tufts. 

Philip M. Taylor, indicted in Hampden County, May, 
1920, for the murder of Virginia Walker, at Springfield, on 
Feb. 20, 1920. The defendant has been committed to the 
Northampton State Hospital for observation. The case is 
in charge of District Attorney Charles H. Wright. 



1921.] PUBLIC DOCmiEXT — No. 12. xix 

Publication of the Opinions of the Attorneys-General. 
I recommend that a sufficient sum of money be appropri- 
ated for the purpose of continuing the publication of the 
opinions of the Attorneys-General, there now being, in my 
judgment, a sufficient number of public interest to make a 
volume of the size heretofore published. 

Service of Civil Process upon Corporations. 

I renew the recommendations contained in the two last 
annual reports of the Department for amendments to the 
law concerning the service of ciial process upon corporations. 

I recommend that the General Laws, chapter 223, section 
37, be amended by including the president and treasurer in 
the list of officers upon whom service may in any event be 
made, and that the State police officers be empowered by 
law to serve processes issued by the court, upon informations 
filed by the Attorney-General, against corporations for failure 
to file returns required by statute. As the law now stands 
service upon an officer of the corporation is required to be 
made by a deputy sheriff. If the State police officers are 
permitted to perform this ser\dce it will result in a sub- 
stantial saving to the Commonwealth. 

Practice of Special Justices and Police Commissioners 
IN Criminal Cases within the Jurisdiction of their 
Offices. 
The Attorney-General has been informed that in certain 
instances a special justice of a police or district court has 
acted as counsel for defendants in the trial of criminal cases 
before the court in which he holds the office of special justice, 
and that in some instances an attorney-at-law holding the 
office of police commissioner has acted as counsel for de- 
fendants in criminal cases. I am of the opinion that there 
is grave impropriety in such a practice, and that appropriate 
legislation should be enacted to prohibit the special justice 
of any court from being retained or employed as attorney 
in any criminal proceeding pending in his court, and that a 



XX ATTORNEY-GENERAL'S REPORT. [Jan. 

police commissioner, or other official performing the same 
or similar duties, should be prohibited from being retained or 
employed as . attorney in any criminal proceeding in any 
court within the jurisdiction of his office. 

Permits to be at Liberty, Parole and Discharge. 

The statutes relating to permits to be at liberty, parole 
and discharge of persons convicted of crime are contained in- 
sections 128 to 151 of chapter 127 of the General Laws. 

Section 133, which deals with permits to be at liberty from 
State Prison, provides that "if the prisoner is held in the 
prison upon two or more sentences, he shall be entitled to 
receive stich permit when he has served a term equal to the 
aggregate of the minimum terms of the several sentences, 
and he shall be subject to all the provisions of this section 
•until the expiration of a term equal to the aggregate of the 
maximum terms of said sentences." 

Except for the language of section 133, just quoted, the 
statutes make no express provision for those cases where 
prisoners have been convicted and sentenced to imprison- 
ment for two or more offences. In consequence, consider- 
able confusion has arisen where persons are confined upon 
two or more sentences in any of the prisons except the State 
Prison, including the Massachusetts Reformatory, the Re- 
formatory for Women, the Prison Camp and Hospital, the 
State Farm, and in jails, workliouses and houses of correc- 
tion. The first question which arises is whether a prisoner 
who has had two or more sentences imposed upon him may 
be conditionally released from confinement under any sen- 
tence except the last. If he may be conditionally released 
from confinement under the first sentence, may he be re- 
quired, immediately upon such release, to begin serving his 
second sentence? If the latter question be answered affirm- 
atively, and the second sentence be served in full, does 
any portion of the time prescribed in the first sentence re- 
main unexpired? If he may be conditionally released from 
confinement under the first sentence, and if he may not be 
required immediately to begin serving his second sentence, 
upon the theory that the second sentence, by its terms, is to 



1921.] PUBLIC DOCUMENT — No. 12. xxi 

begin "from and after the expiration of" the first, what is 
the effect upon the mittimus issued pursuant to the second 
sentence? Section 8 of chapter 279 of the General Laws, 
relative to the order in which sentences shall be served, is 
not of assistance in answering these questions. 

In view of the fact that the opinions of the officials in the 
Department of Correction and in several State and county 
penal institutions differ upon these questions, that the cus- 
tom which has prevailed appears to be at variance with the 
literal construction of the law, and that the intent of the 
Legislature is not clear upon a careful reading of the stat- 
utes, I recommend that legislation be enacted to remove the 
uncertainty. 

Execution of Leases in Behalf of the Commonwealth. 
There is no general statutory authority conferred upon any 
official to execute leases in behalf of the Commonwealth. 
Departments, commissions and boards are frequently re- 
quired to occupy quarters outside the State House, and in 
some instances in cities and towns in different parts of the 
State. The question how leases in such cases should be exe- 
cuted cannot be answered authoritatively. I recommend 
the passage of an act authorizing the execution of such leases 
by heads of departments, with the approval of the Governor 
and Council. 

Dividends and Interest on Deposits in the Savings 
Department of Trust Companies. 
G. L., c. 167, § 17, provides, in part, as follows: — 

Dividends or interest on deposits in the savings department of trust 
companies or in savings banks may be declared and paid for periods 
of not less than one month or more tlian six months, as determined by 
their by-laws, from income which has been earned and collected during 
the next preceding six months but such di^ddends or interest, whenever 
paid, shall not exceed the average monthly income of the preceding 
six months' period. . . . 

A literal construction of this provision would require that 
dividends or interest on deposits in the savings department 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 

of a trust company should not exceed the average monthly 
income, even although such dividends or interest were de- 
clared and paid for periods of three or six months instead of 
one month. This, evidently, was not the intention of the 
Legislature. 

I recommend that the section be amended by striking out 
the words "whenever paid, shall not exceed the average 
monthly income of the preceding six months' period," and 
inserting in place thereof the words "if paid for a period of 
less than six months, shall not exceed the proportionate 
amount, for the dividend period, of the income for the pre- 
ceding six months." 

Penalties for Illegal x\cts by Bank Officl^ls. 
The work of this Department was greatly increased when 
the Commissioner of Banks closed four trust companies and 
two private banks during the interval between Aug. 11, 1920, 
and Sept. 28, 1920. Since that date other private banks have 
been closed. The closing of these banking houses, although 
precipitated by the operations of Ponzi in the case of the 
Piano ver Trust Company, and by the abnormal business con- 
ditions in the case of all of them, was an inevitable result of 
unsound banking methods and unwise and speculative invest- 
ments continued during a period of years. The sudden ter- 
mination of the business of these institutions as going con- 
cerns raised many important legal questions, invohang bad 
loans, operations in foreign exchange and lax business meth- 
ods, both in the commercial and sax-ings departments of 
certain institutions. In this legal work the Department of 
the Attorney-General has had the services of Hon. Henry 
A. Wyman, who, at the Attorney-General's request and with 
the approval of His Excellency Governor Coolidge, has ren- 
dered valuable assistance to the Department, on the condi- 
tion imposed by Mr. Wyman that his services should be 
without compensation. Acting in an advisory capacity to 
Commissioner Allen, he has given a large share of his time 
to the Commonwealth, until, on account of illness, he was 
recently obliged to desist. His former service as x4ttorney- 
General made him familiar with many of the problems pre- 



1921.] PUBLIC DOCUMEXT — No. 12. xxiii 

sented, and the additional expense for legal sendees, which 
the closing of these banking institutions would have entailed 
upon this Department, has been in large part saved to the 
Commonwealth by his pubhc-spirited ser\'ice. 

That further legislation is needed to curb unsafe banking 
methods and improvident investments in the future is fully 
appreciated by the public and by those who are more closely 
identified with banking business, and reahze the extent of 
the unsafe practices which have brought disaster upon these 
institutions and great hardship to the thousands of deposi- 
tors. Remedial legislation is presented for the consideration 
of the General Court in the report of the Commissioner of 
Banks and the Commission to investigate the sale of Cor- 
porate Securities and Related Matters. 

In addition to the recommendations included in those re- 
ports, I recommend that legislation be enacted to estabhsh 
penalties for violation of those provisions of the banking 
laws which impose certain duties upon and prohibit certain 
acts by officers, directors and employees of banking institu- 
tions. This recommendation has the approval of the Com- 
missioner of Banks. 

The Im'ESTiGATioN of Automobile Thefts. 

The number of automobile thefts in Massachusetts in 
recent years has directed the attention of the public to the 
failure of the prosecuting officers to check the evil. It was 
a significant fact that by far the larger proportion of the 
thefts was in Suffolk and Middlesex counties. The return of 
the fugitive Barney to State Prison and the mystery con- 
nected with his voluntary offer to surrender himself aroused 
general suspicion, and the investigation of Commissioner 
Bates and the representatives of the press showed that the 
statement given to the public at the time of his apprehension 
was not correct in important particulars. The pubHc in- 
terest which was aroused revived the reports that automobile 
thieves were operating with receivers of stolen cars in greater 
Boston, and attention was again drawn to the failure of the 
authorities to adequately meet the situation. 

On Aug. 4, 1920, the Governor and Council ordered that 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

a sum not exceeding S8,000 be made available for the use 
of the Attorney-General in conducting special investigations 
of the financial transactions of Charles Ponzi and the larceny 
of motor vehicles. 

On the same date the Governor addressed a communication 
to the Police Commissioner for the City of Boston, as fol- 
lows : — 

Aug. 4, 1920. 

Hon. Edwin U. Curtis, Police Commissioner for the City of Boston, 
Pemherton Square, Boston, Mass. 
My Dear Mr. Curtis. — Owing to a serious condition in relation to 
the theft of automobiles in Massachusetts, and the alleged bringing of 
stolen cars here for sale, I desire that j^ou should take every action in 
3'our department to apprehend and bring to punishment the violators 
of the law. I wish especially that you would co-operate with the 
Attorney-General in his efforts to co-ordinate the activities of the 
various district attorneys in the Commonwealth. This is a matter 
of very grave importance and I cannot make the suggestion any too 
strong that your department renew and continue your efforts to enforce 
the law against all its violators. 

Very truly yours, 

Calvin Coolidge. 

Pursuant to the order of the Governor and Council the 
special investigation of automobile thefts was instituted, with 
the valuable aid of State police and special officers assigned 
to the work by Police Commissioner Curtis. Owing to the 
pressure of public business and the unusual demands upon 
the Department, due to the Ponzi investigation, on Sep- 
tember 25 I engaged the services of Henry F. Hurlburt, Esq., 
and assigned him to the investigation and prosecution of 
automobile frauds and related matters. At great personal 
inconvenience he consented to serve,, and on September 29 
he was duly appointed a Special Assistant Attorney-General, 
and his appointment was approved on the same day by the 
Governor and Council. His former service as district attor- 
ney in Essex County, and his familiarity with the conduct 
of criminal cases have made his service of great value. He 
has caused cases to be brought to trial which have been long 
inactive, has instituted proceedings against offenders where 
prosecutions have been delayed, and has refused to consent 



1921.1 PUBLIC DOCUMENT — Xo. 12. xxv 

to fines or light sentences, and has secured the imposition of 
heavy sentences in cases where he believed the defendant was 
not entitled to clemency. 

I submit to you herewith a partial report made by Special 
Assistant Attorney-General Hurlburt to the Attorney-Gen- 
eral, covering his investigation of automobile thefts and 
related matters to Dec. 31, 1920, setting forth recommenda- 
tions for legislation and the facts upon which his recom- 
mendations are based. The report is annexed to and ex- 
pressly made a part of this report for the consideration of 
the General Court. 

In the course of his investigation Mr. Hurlburt had occa- 
sion to examine into the return of Herman Barney to the 
State Prison, and has traced the movements of the prin- 
cipals and established the falsity of the report which was 
given to the public at the time. 

The Surrender of Barney. 

That portion of Mr. Hurlburt's report which deals with 
the return of Barney needs little comment. A district at- 
torney, at the request of the fugitive from justice, consented 
to withholding the true facts about his surrender and the place 
of his concealment. Commissioner Bates, as the respon- 
sible head of the Department of Correction, requested full 
information of the apprehension of Barney in order that the 
Commissioner might use such information to obtain, if pos- 
sible, some clue as to the whereabouts of Manster, the friend 
of Barney, who had made his escape at the same time and 
was still at large. He was clearly entitled to the informa- 
tion, but his second letter requesting specific information 
was not answered. When the information contained in 
the letter of the district attorney to the Attorney-General, 
which was at first made "confidential," but afterwards re- 
leased from any confidence, was received on Oct. 21, 1920, 
the main facts were already in the possession of Mr. Hurl- 
burt. By the withholding of this information those who 
had harbored or aided Barney were to that extent protected 
from detection and prosecution. 

The secret negotiation between an officer of the law and 



xxvi ATTORNEY-GENERAL'S REPORT. [Jan. 

an escaped murderer in the home city of Governor Coolidge, 
whose name is everywhere associated with the maintenance 
of law, affords a melancholy commentary on the relations 
which sometimes exist between public officials and the crim- 
inal class. The fugitive felon had not been apprehended, 
tried or imprisoned within the jurisdiction of Middlesex 
County. The first duty of the district attorney of that 
county would appear to be to communicate information of 
the whereabouts of Barney to the officials of the State Prison, 
District Attorney Hammond of Northampton, or the chief of 
the Northampton police. 

There was no occasion to treat with Barney for his return. 
He was within the jurisdiction of the Commonwealth. He 
should have been taken into custody. The State does not 
need to bend her head to listen to terms of surrender from 
an escaped murderer within her own borders. The majesty 
of the law does not permit it. 

The Authority of the Attorney-General in Criminal 

Matters. 

The right of the Attorney-General, as the chief law officer 
of the Commonwealth, to have free access to the courts of 
the Commonwealth for the prosecution of crime has been 
denied by the district attorney for the Suffolk District. I 
am unable to discover that this right has ever before been 
challenged. 

Under date of Dec. 27, 1920, I sent the following commu- 
nication to the district attorney: — 

After conference with Air. Hurlburt, I beg to ad\dse 3^ou that I shall 
present certain important cases before the grand jury of Suffolk County 
when it convenes next month. Mr. Hurlburt is of the opinion that 
the cases will not occupy the time of the grand jury more than ten days 
or possibly two weeks. As these cases have been prepared by this 
Department it ^\all not be necessary to call on j^ou for the services of a 
representative of 3- our office in their presentation. 

Under date'^of Jan. 3, 1921, the district attorney informed 
me that after careful investigation he had reached the con- 
clusion that the Attorney-General had no right to appear 



1921.] PUBLIC DOCUMENT — No. 12. xxvii 

before the grand jury and present evidence or give advice. 
Under a later date he informed me that he had expressed 
this view to the grand jury. Under such instruction from 
the district attorney, the grand jury would be prejudiced 
against permitting the presentation of cases by the Attorney- 
General or his representatives. 

As the cases now waiting for presentment to the grand 
jury have been fully prepared by this Department, Mr. 
Hurlburt and ]\Ir. Hurwitz, for reasons which to me appear 
sufficient, are of opinion that the interests of justice will be 
better served if the cases are presented by the Department. 
No opportunity was afforded me to present the cases, and 
after the district attorney had presented such cases as he 
desired the jury was dismissed. 

The district attorney now seeks by new legislation to 
obtain exclusive control of the courts in his jurisdiction for 
the prosecution of all criminal cases. On Jan. 15, 1921, he 
caused to be introduced in the General Court, upon his 
petition, a bill to change the existing law to provide that 
the Attorney-General, "upon request of a district attorney," 
may "assist him by attending the grand jury for the presen- 
tation of evidence and appear for the Commonwealth in the 
trial of criminal cases. He shall not have the right to at- 
tend the grand jury for the presentation of evidence or to 
try criminal cases unless so requested." 

By a further amendment he seeks to remove the clause in 
the present law defining the general duties of district attor- 
neys, which provides that "the attorney-general when present 
shall have control of such cases;" and also the provision 
that the Attorney-General and district attorneys "may in- 
terchange official duties." 

If the proposed legislation had been law during the past 
year the district attorney for the Suffolk district could have 
prevented all of the proceedings instituted by the Attorney- 
General or under his direction against those who were guilty 
of illegal advertising of silver stocks, against Charles Ponzi 
for his fraudulent operations, against the Old Colony Foreign 
Exchange Company, and the proceedings now being prose- 
cuted against dealers in German marks. 



xxviii ATTORNEY-GENERAL'S REPORT. [Jan. 

In March of last year, when the illegal advertising of silver 
stocks was continuing unchecked in Suffolk County, and pro- 
moters were appealing to the cupidity of the inexperienced 
investor, the Department of the Attorney-General, to pre- 
vent further exploitation, caused to be instituted and prose- 
cuted in the Municipal Court of the City of Boston proceed- 
ings against twelve defendants, all of whom either pleaded 
guilty or were found guilty by the court. 

In the following August the State instituted proceedings 
against Charles Ponzi in the Municipal Court, and his vol- 
untary surrender to the Federal authorities, apparently to 
avoid prosecution by the State, immediately followed. 

In the same month, when District Attorney Kenney of 
the Southern District and District Attorney Donnell of the 
Eastern District had taken steps to prevent the operations 
of the Old Colony Foreign Exchange Companj^ and its 
agents in their respective jurisdictions, and when no pro- 
ceedings had been instituted in Suffolk County, where the 
headquarters of the company were located and the greater 
part of the business was being transacted, I directed com- 
plaints to be brought against the president and others who 
were active in the management of the business, and arrests 
were promptly made. 

During the current month warrants have been issued by 
the Municipal Court, in prosecutions directed by the De- 
partment of the Attorney-General, to arrest certain persons 
who have conducted a business in German marks. 

In all of these prosecutions the justices of the Municipal 
Court have not hesitated to exercise the authority vested in 
them, upon proper cause shown, and the efficient adminis- 
tration of the criminal law in this court has afforded a large 
measure of protection to the public by its deterrent effect 
upon those who were engaging in fraudulent operations. The 
district attorney for the Suffolk District, who has denied the 
right of the Attorney-General to appear before the grand 
jury, by his proposed legislation seeks to secure the necessary 
power to prevent the Municipal Court or any court in his 
jurisdiction from taking any action at the instance of the 



1921.] PUBLIC DOCUMENT — No. 12. xxix 

Attorney-General in the apprehension and trial of wrong- 
doers. 

In all of these cases in which the Attorney-General has 
acted against defendants in Suffolk County the evil conse- 
quences of the fraudulent operations have extended far be- 
yond the limits of Suffolk County, and have affected large 
numbers of people. The Attorney-General is elected by all 
the people and is the responsible officer charged with the 
maintenance of law throughout the Commonwealth. When 
fraud or crime assumes state-wide proportions, no official of 
a county or district should have the power to prevent action 
by the State in the protection of its citizens. 

It should not be necessary for the Department of the 
Attorney-General, except in rare instances, to institute or 
conduct the prosecution of criminal cases. It is only when 
the local prosecuting officers fail or are unable to cope with 
crime in their jurisdictions that the duty devolves upon the 
Attorney-General. 

Recommendations with Respect to Criminal Procedure. 

If the district attorney of the Suffolk District does not 
succeed in securing legislation which will give him the power 
to bar the Attorney-General from the courts in criminal 
cases, and if the Attorney-General is given sufficient author- 
ity to enable Special Assistant Attorney-General Hurlburt 
and the other members of the Department to continue the 
investigation authorized by the Governor and Council, the 
prosecution of fraudulent promoters and automobile thieves 
will be continued until present conditions have been cor- 
rected. 

I concur in the recommendations made by Special Assistant 
Attorney-General Hurlburt in his report, and urge upon the 
General Court the importance of such legislation. 

In view of the fact that this Department is prepared to 
present before the grand jury of Suffolk County important 
cases which have been prepared by Assistant Attorneys- 
General Hurlburt and Hurwitz, I urge favorable action at 
an early date upon that recommendation which would en- 



XXX ATTORNEY-GENERAL'S REPORT. [Jan. 

able the Attorney-General to summon a special grand jury 
and present cases before it when the public interest demands. 
The recommendations are as follows: — 

(1) District attorneys should be prohibited from nolle 
prossing or filing cases without first petitioning the presid- 
ing justice or the court, setting forth the facts and reasons 
why the case should be nolle prossed or filed, and then it 
should not be nolle prossed or filed wdthout a certificate of 
the presiding justice or the court. 

(2) That the Attorney-General should have the power to 
summon a special grand jury whenever in his opinion the 
interests of the public demand an investigation of any 
charges against individuals or corporations; that he should 
have entire charge of such investigation before such grand 
jury, both in the presentation and the trial of the cases 
where indictments might be found. 

(3) That all sessions of the grand jury, whether summoned 
in by district attorneys or by the Attorney-General, should 
be presided over by a justice of the Superior Court, who 
would see that only proper evidence was introduced, and 
instruct the jury properly as to the questions of law involved 
with reference to the facts produced. 

The further recommendation of Mr. Hurlburt that the 
Attorney-General be authorized to summon witnesses in the 
investigation of matters which concern the public welfare 
was urged upon the consideration of the General Court at 
the last regular session, but was not accorded a hearing. I 
am convinced that the Attorney-General should be given 
authority to summon witnesses and require them to testify 
under oath, subject to the same rights to decline to testify 
which are given the witness when testifying before the courts, 
and I direct your attention to the fact that by the laws, of 
New York the Attorney-General of that State has the au- 
thority of summoning witnesses, under an act similar to one 
which was submitted by me and admitted by the Honorable 
Senate near the close of the last session. 



1921.1 PUBLIC DOCUMENT — Xo. 12. xxxi 



Department of the Attorney-General. 

The number of official opinions rendered b}^ the Depart- 
ment during the year, up to Jan. 1, 1921, was 267. The 
number of cases tried in the Probate Court was 38. Seven 
cases were tried in the Land Court. The number of cases 
tried before the Municipal Court of the City of Boston was 
28, and 5 cases were tried in other municipal and district 
courts of the Commonwealth. The number of cases tried 
in the Superior Court was 40. Ninety-two hearings before 
a single justice of the Supreme Judicial Court have been 
attended, and there have been 21 cases argued before the 
Supreme Judicial Court. One case has been argued before 
the L^nited States Supreme Court, and 5 cases before the 
Ignited States Circuit Court of Appeals. In the L^nited 
States District Court 13 cases have been tried. In addition, 
the Department has been in attendance at 10 hearings before 
the Industrial Accident Board, and has conducted an elec- 
tion inquest in Newton. 

The collections of the Department for the year amounted 
to 8302,623.22. 

Numerous changes have been made in the personnel of the 
Department during the year. On April 15, 1920, John W. 
Corcoran, Esq., resigned from the office of Assistant Attor- 
ney-General to enter private practice, after more than six 
years of efficient ser\'ice. On Sept. 1, 1920, Leland Powers, 
Esq., also resigned, in order to give his whole time to the 
law firm of which he is a member. During his incumbency 
he had rendered valuable service in matters relating to taxa- 
tion. On April 10, 1920, Maynard C. Teall, Esq., was ap- 
pointed an Assistant Attorney-General. On Aug. 7, 1920, 
Charles R. Cabot, Esq., was appointed an Assistant Attor- 
ney-General, and on Nov. 1, 1920, Alexander Lincoln, Esq., 
was appointed an Assistant Attorney-General. Samuel 
Spring, Esq., and Peter F. McCarty, Esq., assisted in im- 
portant work of the Department during July and August. 
The difficult task which devolved upon the Department of 
obtaining and compiling information of the number and 
amount of the unpaid Ponzi claims required the aid of at- 



xxxii ATTORXEY-GENERAL'S REPORT. [Jan. 

torneys who could speak the ItaHan language, and the 
thanks of the Department are due to Vincent Brogna, Esq., 
Andrew A. Casassa, Esq., and John E. Crowley, Esq., who 
offered their ser\aces without compensation. 

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, and a statement of petitions for the abolition 
of grade crossings pending. 

Respectfully submitted, 

J. WESTON ALLEN, 

Attor7iey-Ge?ieral. 



1921.1 PUBLIC DOCUMENT — No. 12. 



PAETIAL EEPORT OF HENRY F. HURLBURT, ESQ., 
SPECIAL ASSISTANT ATTORNEY-GENERAL, TO 
HON. J. WESTON ALLEN, ATTORNEY-GENERAL, 
IN RE AUTOMOBILE THEFTS. 



Hon. J. Weston Allen, Attorney-General, Commonwealth of 
Massachusetts, State House, Boston, Mass. 

Dear Sir: — I am herewith submitting to you a partial 
report of the "automobile cases," so called, which you desig- 
nated me to investigate. 

About the first of October last I took up the matter, and 
examined transcripts of docket entries of the counties of Suf- 
folk and Middlesex. In the latter county I found a large 
number of such cases undisposed of which had been carried on 
the docket from term to term. Some of these cases showed 
pleas of guilty, but no sentence; many of them had no plea 
taken in them; and this does not include cases against certain 
defendants who had not been apprehended. 

In that county I found over 100 cases undisposed of. Some 
of these indictments were more than two years old and many 
of them a year old. It seemed to me that some effort should 
be made to dispose of the cases and clear the docket of them, 
that guilty parties should be punished, and innocent parties, 
if any, have the cases against them dismissed. 

I found that many defendants had been joined in charges of 
conspiracy, and then separate indictments were obtained charg- 
ing these same defendants with the larceny and receiving of stolen 
automobiles, knowing them to be stolen. This increased the 
number of cases and gave an appearance of increased business 
in the criminal court in that county. I also found that some 
defendants had been indicted for larceny and receiving stolen 
automobiles in separate indictments instead of joining these 
charges in one indictment with separate counts, as is usually 
done in criminal pleadings. Later when I called this matter 
to the attention of one of the prosecuting officers I was in- 
formed that such a method had always been pursued in that 
county. I consider it a bad practice and not in accord with 



2 ATTORNEY-GEXEKAL'S REPORT. [Jan. 

the usual way of preparing indictments. While the trial court 
has the power to order all such indictments against the same 
defendants to be tried together, the power is discretionary 
with the presiding justice, whereas if these charges were set 
forth in one indictment it would not be necessary to invoke 
that discretion. The pleader of that county who draws the 
indictments should be instructed to join such cases in one in- 
dictment with separate counts. By so doing it would avoid 
some questions of law of calling upon the discretionary power 
of the court, and also the thought, in the minds of some, that 
the present method pursued is for the purpose of making an 
apparent increase of criminal business in that county and 
thereby, under the provisions of the Acts of 1918, chapter 272, 
entitled "An Act relative to salaries of district attorneys and 
assistant district attorneys," increasing the compensation pro- 
vided by that act. I believe such an act tends to encourage 
this method of pleading. 

As an illustration of this method I cite one case: Herman 
L. Barney, now undergoing a sentence for manslaughter in the 
State Prison for a term of many years, was indicted in that 
county in twelve separate indictments for larceny of automo- 
biles, and in the second count for receiving the same knowing 
they were stolen. All of these indictments could have been 
joined in one indictment with separate counts. 

Believing that these cases in that county should be dis- 
posed of, application was made to the chief justice of the 
Superior Court for a special session of the trial court for the 
transaction of criminal business, which was granted; and, it 
having been represented to him that a session of three weeks 
would be adequate to dispose of the list, it was understood 
that a term of that length should be commenced on Nov. 15, 
1920. 

Sometime in the summer of 1920, the assistant district at- 
torney of that county was instructed by his superior officer, 
the district attorney, to take over the investigation of the 
automobile thefts. Accordingly, he had brought before him 
parties whom he believed to be implicated in the same. Many 
appeared before him with counsel and made a clean breast of 
their participation in the thefts. Their statements were taken 
stenographically, and while it does not appear that there was 
any understanding with their counsel that immunity would be 
granted to these persons, it is fair to assume that there was 



1921.] PUBLIC DOCUMENT — No. 12. 3 

such an understanding; otherwise counsel would probably not 
permit their clients to appear and make a confession. 

The result of this action was to recover some stolen auto- 
mobiles, some of which the officers were able to return to the 
rightful owners, also some to insurance companies which had 
paid the loss to the owners of the stolen cars. Certain insurance 
companies are engaged in the business of writing policies of 
insurance against thefts, etc., of automobiles, and this amount 
of insurance is usually written for the full value of the car. 
It appears from my investigation that certain owners after 
using their cars so that they deteriorate, or when they for 
some reason desire to rid themselves of their cars, arrange 
with a thief or thieves or with others in touch with these 
thieves to have their cars stolen, and then collect the insur- 
ance. Of course in such a case the Commonwealth gets no 
assistance from the dishonest owner; but this statement must 
not be taken to apply to all owners who have had their cars 
stolen and collected their insurance on the same, for some 
owners have aided the Commonwealth in its effort to punish 
the thief or thieves. The insurance companies, so far as I 
have been able to ascertain, do not in any way aid the Com- 
monw^ealth in apprehending or punishing these thieves and 
conspirators. If a car is recovered by the police officers and 
it is one that the insurance company has paid the loss upon, 
it takes the car as part compensation of its loss and does 
nothing else. 

It is to be regretted that these insurance companies do not 
co-operate with the public authorities in running down the 
thieves in such cases, and further by limiting the amount of 
insurance which they will issue upon cars, or by having a 
graduated scale of loss to be paid by them according to the 
age and condition of the car, and thereby to some extent 
preventing unscrupulous owners of knowingly getting rid of 
their cars by theft and collecting the full amount they orig- 
inally paid for the cars. 

The cars that are most attractive to be stolen are Fords, 
Buicks and Hudsons, and in the order named. Rarely is a 
larger car or a more expensive car stolen. The price usually 
obtained for such by the thief or thieves is about $100 for a 
Ford touring car, $225 for a Ford sedan, with an increase over 
this price for other makes. One of the methods of procedure 
of thieves after stealing cars is to erase the number on the 



ATTORXEY-GEXERAL'S REPORT. 



[Jan. 



engine, and with dies or stamps replace another number 
thereon, or by changing one figure, such as making a "3'^ 
into an "8", and then applying for registration under this 
new number to the Massachusetts Highway Commission and 
receive a new registration number plate. Some new regula- 
tion should be made or method adopted by said Commission 
by which the history of a car could be traced and thereby 
make the registration of such stolen cars more difficult. 

The persons who steal and sell these cars are usually of the 
idle class of young men who frequent pool rooms, crap games, 
etc. The game of stealing cars is easy and brings a handsome 
return for their efforts. I have always felt that the receivers 
of these stolen cars, knowing them to have been stolen (and 
many of them must know they were stolen from the price 
they pay), should be more severely punished than they are 
at present. These stolen cars are sold to a certain class of 
garage keepers, taxi men in the New England States, and some 
of them are sent to New York and other States, and at the 
same time cars from New York and other States are sent into 
this State to purchasers. 

The stealing of cars in greater Boston has been enormous. 
Taken from the records, the number of cars reported stolen 
in metropolitan Boston is as follows: — 

Automobiles stole?} in Metwpolitan Boston. 





1917. 


1918. 


1919. 


January, 


36 


25 


89 


February, 
















24 


40 


75 


March, 


















37 


61 


64 


April, . 


















71 


74 


149 


May, . 


















87 


76 


151 


June, . 


















72 


69 


81 


July, . 


















89 


49 


63 


August, 


















81 


66 


72 


September, 


















60 


80 


601 


October, 


















68 


103 


- 


November, 


















52 


186. 


- 


December, 


















38 


98 


- 




















715 


927 


804 



September 1 to 24. 



1921.] PUBLIC DOCUMENT — No. 12. 5 

Making a total of 2,446 automobiles stolen in two years and 
nine months, and it is safe to say that a conservative estimate 
of the value of these cars was not less than $2,500,000; and 
when you stop to consider that this only applies to metro- 
politan Boston, and does not take into account the number of 
automobiles stolen outside of metropolitan Boston, of which 
I have no data, you can see at once the great loss that comes 
to our citizens, some of whom can afford the loss, others of 
whom cannot, and are put to distress, inconvenience and ex- 
pense by reason of the larceny. For the year ending Dec. 18, 
1920, in Boston alone there have been stolen 508 cars, but 
owing to the activity of the police 304 of these cars have been 
recovered. 

I have stated the action of the assistant district attorney 
who took statements from many of the thieves. He did a 
considerable amount of work in these cases, and by this w^ork 
secured some stolen automobiles, some of which were returned 
to the owners, some of which were taken by insurance com- 
panies. There are at the present time a number of unclaimed 
autos so secured which the authorities claim they do not know 
what to do with. It seems to me that there is sufficient au- 
thority in law at the present time to sell such autos, and that, 
upon petition of the district attorney and order of court after 
publication to all persons interested, they should be sold at 
public auction and the proceeds turned in to the State Treas- 
urer's office. 

This investigation of the assistant district attorney was a 
general one, and not particularly applicable to the indictments 
then pending, except remotely. In order to find out what 
statements certain thieves made (if it was intended to use any 
of them as witnesses for the Commonwealth) it was necessary to 
read through all the statements, some thirty in number (which 
w^as done), to find what evidence was applicable to a certain 
case. By the taking of these statements, while of importance 
to the general situation, it became a question as to whether 
the persons who gave them should be sentenced upon indict- 
ments either found or to be found against them. 

On Thursday, November 11, a special grand jury session 
was called by the district attorney, at which session I at- 
tended as your representative, as Special Assistant Attorney- 
General. My appearance in that session was not received 
cordially by the assistant district attorney, who had charge 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the grand jury, but I was permitted by him to remain in 
the grand jury room with him. He did not think I had a 
legal right to be present, and subsequently pleas in abatement 
were filed by the defendants who were indicted at this session 
alleging that I was unlawfully present, claiming the illegality 
under the decision in Commonwealth v. Harris, 231 Mass. 
595. After argument the pleas w^ere overruled, as they should 
have been, for I understand the law to be that the Attorney- 
General, being the chief law officer of the Commonwealth, 
has the right to be present before any grand jury, and intro- 
duce evidence and instruct the jury as to the law, regardless 
of the district attorney and without his approval or permission. 

The result of this investigation by the grand jury was that 
an indictment charging conspiracy against nine defendants was 
returned, and indictments against some of the same defendants 
for larceny and receiving stolen automobiles were returned. 

The larceny and receiving charge arose out of, and was a 
part of, the conspiracy indictment, so that instead of one in- 
dictment there were ten indictments returned. 

It will be borne in mind that the charge of conspiracy is 
a misdemeanor, while larceny and receiving stolen property, 
knowing it to be stolen, is a felony. The conspiracy case could 
involve only imprisonment in the house of correction, whereas 
the felony could be punished by imprisonment either in the 
house of correction or in the State Prison. 

On Wednesday, November 21, a trial was begun, by the 
assistant district attorney, of this conspiracy indictment and 
the felony indictments found by the special sitting of the 
grand jury on November 11. He considered it necessary to 
the Commonwealth's case to take pleas of guilty from some of 
the defendants, with the view^ of using them as witnesses 
against one of the defendants named John F. Dillon, a chum 
of Herman L. Barney mentioned above. After the first wit- 
ness had testified, James Smith, one of the defendants, pleaded 
guilty of the misdemeanor charge, and afterwards was used 
by the assistant district attorney as a witness for the Com- 
monwealth. Dillon pleaded guilty to a charge of receiving a 
stolen automobile, and was sentenced later. 

I did not know what trade was made as an inducement to 
obtain the plea of Smith at the time it was made, nor did I 
ever know what trade was made to induce Dillon to plead. 
The result was that out of these nine defendants only Dillon 



1921.] PUBLIC DOCUMENT — Xo. 12. 7 

was sentenced to the house of correction, and Pohlman was 
fined $300, and the case against Quinn was nolle prossed. 

I approved of the action in the case against Pohlman and 
Quinn. I question the judgment of the district attorney in 
accepting so many pleas from these defendants with the un- 
derstanding of using them as witnesses. I believe that in all 
such cases the use of defendants as witnesses for the Common- 
wealth should be with the approval of the court, and in the 
event of not using them as witnesses they should be sentenced 
on their plea of guilty or permitted to retract their plea. I 
am also satisfied that the filing and nolle prossing of so many 
cases, and the leniency displayed by the prosecuting officers 
towards defendants, is detrimental to the successful preven- 
tion of the crime of automobile stealing. 

It was apparent to me that I was not persona grata when I 
first appeared in Cambridge as your representative, and were 
it not from a sense of duty I would have withdrawn from the 
court. As showing that this feeling of antagonism existed, I 
was not, at the beginning, consulted as to the disposition of 
cases. I endeavored, however, to avoid friction, and did what 
I could to co-operate with but not to supersede the assistant 
district attorney, as he felt the responsibility to be upon him- 
self and not upon me. I addressed the court on the sentenc- 
ing of Samuel and Irving Fine, two junk dealers charged with 
receiving a stolen automobile, and upon the sentence of James 
Harte, an ex-police officer of Boston charged with receiving 
stolen automobiles. In this last case his counsel claimed he 
had an understanding with the district attorney that his client 
should not be sentenced, and I belie v-e it was not the purpose 
of the district attorney to have this last-named defendant sen- 
tenced, and I believe it was only by persistent urgings on my 
part that he was sentenced. Only toward the close of the 
special trial session did the assistant district attorney from 
time to time consult me as to the disposition of cases. 

You will notice from the report of the clerk of the Superior 
Court for the transaction of criminal business, hereto attached,^ 
many cases were placed on file, and many nolle prossed. 
Nearly all these cases were indictments, some of which were 
nolle prossed for insufficient evidence; some were nolle prossed 
because the witnesses had pleaded guilty with the understand- 
ing, express or implied, that they would be used as govern- 
ment witnesses; others were nolle prossed because they had 

1 Report of clerk of the Superior Court not filed with the Attorney- General's report. 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

been sentenced on one indictment, or are now undergoing im- 
prisonment, a notable instance being Herman L. Barney above 
mentioned; and others because of lack of jurisdiction. 

In the matter of the filing of cases, some were filed because 
the party had been sentenced on some indictment; some w^ere 
filed on pleas of guilty, to be taken from the files in case they 
failed to conduct themselves properly; some were filed because 
they had not been apprehended and are to be taken from the 
files as soon as they are apprehended. I am of opinion that 
no cases such as these should be filed or nolle prossed without 
affidavit of the district attorney and certified to by the pre- 
siding justice, by a statute on the lines of the provisions of 
chapter 359 of the Acts of 1885, now repealed. 

You will notice in the report of the clerk that ail the in- 
dictments against Herman L. Barney were nolle prossed. I 
was consulted about this action and approved the same, as 
Barney is now undergoing a sentence of many years in the 
State Prison for the crime of murder, and the docket should 
be cleared of these cases. 

From my experience at Cambridge before the grand jury of 
that county, and of Suffolk, I feel strongly that unless it is the 
purpose of the Commonwealth to keep the Attorney-General 
a mere figurehead without supervision over district attorneys, 
and subordinate to district attorneys, and without the right 
to prosecute the cases where in his opinion the interests of the 
public demand, he should have legislation giving him the right 
to summons in a special grand jury separate from the grand 
jury summonsed in by the district attorneys and over which 
they and their assistants preside. The Attorney-General 
should have entire charge of presenting such matters as he 
deems proper for the interest of the people of the Common- 
wealth, and entire charge of the trial of such indictments as 
may be found, free from the control or interference of any 
district attorneys or their assistants. 

I have found that the district attorneys of Suffolk and 
Middlesex resent the assistance of the Attorney-General, and 
they base their opposition, in part, on the ground that the 
presence of the Attorney-General or his assistants, either at 
trials or in the grand jury room, is a reflection upon their 
integrity. No such purpose, so far as I have been able to 
ascertain in conference with the Attorney-General, has ever 
been in his mind or in the minds of his assistants. The pur- 



1921.] PUBLIC DOCUMENT — No. 12. 9 

pose of the assistants, acting under instructions of the Attor- 
ney-General, is to co-operate fully and completely with the 
district attorneys. 

As a representative of the Attorney-General I had authority 
to assume charge of the prosecution of the cases, but I did not 
attempt to exercise that authority except to attempt to insist 
that adequate sentences should be imposed, and that trades 
with criminals should not be made to defeat justice in the 
imposing of sentences. The Attorney-General's assistant 
should be fully consulted by the district attorney about the 
disposition of cases where he appears, and the district attor- 
neys and their assistants should show a spirit of co-operation 
in any cases in which the office of the Attorney-General is 
represented. 

While as a matter of law the Attorney-General or his rep- 
resentative has the right to supersede any district attorney or 
his assistants in the trial of a case, you have not requested me, 
and I have not at any time sought, to interfere in the trial of 
these cases. The district attorneys should understand that 
the Attorney-General and his designated assistant are there 
in the interests of the public, and no personal feeling and no 
desire of personal gratification or credit should influence them 
to object to the Attorney-General and to his co-operation. 

I found in Cambridge this feeling of antagonism to such an 
extent that at times I felt humiliated, and that it was a re- 
flection upon the Attorney-General's office. I did, however, 
feel that nothing should be done by me which should in the 
least way add criticism of any kind to the Attorney-General's 
office, but my conduct should be based on a spirit of co-opera- 
tion. For this and other reasons I am firmly of the opinion 
that legislation should be invoked clearly setting forth the 
authority to the Attorney-General which I have mentioned. 
It may be that he will not exercise such authority, but he 
should have the right to exercise it, because such an exercise 
by him necessarily would be in the interests of the community 
and the public. 

My investigation of these cases convinces me that there is 
no organized gang of automobile thieves. That there is a 
gang engaged in the larceny of automobiles, and in the receiv- 
ing of stolen automobiles, knowing they were stolen, is clear. 
These thieves work sometimes alone, and sometimes in pairs, 
but rarely more than two at a time. As a conspiracy must 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

involve two or more, I do not believe that some of the in- 
dictments charging a conspiracy against a number of these 
thieves could be maintained if the point was raised that there 
was no combination or confederation between them to steal 
automobiles. In one indictment I found fifty defendants 
named as conspirators. There were a number of cases of 
conspiracy pending in Middlesex County. The result of 
charging these defendants with a conspiracy would fail, in my 
opinion, as against many of the defendants, under the law. 

In the course of my investigation of these cases I frequently 
came in contact with the activities of Herman L. Barney 
above mentioned, and in the endeavor to find out all facts 
relating to him and his activities I found a state of affairs 
relating to his escape from the State Prison and subsequent 
apprehension which ought to be reported to you for such 
action as you deem wise to take and as the existing laws 
permit. 

Barney was convicted of manslaughter under an indictment 
charging him with the murder of a policeman. The murder 
arose out of his activities in stealing automobiles. He was 
indicted in Suffolk County, the crime having been committed 
in Chelsea, in that county. The case was handled by the dis- 
trict attorney's office of that county. Barney was convicted 
of manslaughter and committed to State Prison at Charles- 
town, in Suffolk County, on June 28, 1919. On May 26, 1920, 
he made his escape from that prison, and was returned to the 
prison on June 30, 1920. 

His escape created great interest in the community, and his 
return to the prison was sensational and was of great interest 
to the press and public. District Attorney Tufts of Middlesex 
County took an active part in having him returned, and the 
question has arisen in the minds of many, why should he be 
the person who aided in obtaining the return of Barney, the 
case not having arisen in Middlesex County? I examined cer- 
tain persons concerning this return, and examined hotel regis- 
ters at Greenfield and Northampton. Among the persons 
examined by me were one Stephen Bresnahan of Cambridge, 
a member of the bar; Edward P. O'Halloran, formerly a lieu- 
tenant of the police of the city of Newton; Earl O. Barney, 
the stepfather of Herman L. Barney; and a chauffeur, Doh- 
erty by name. I also caused others to be interviewed, and I 
report the following facts: — 



1921.] PUBLIC DOCUMENT — No. 12. 11 

On Wednesday, June 30, District Attorney Tufts issued a 
written statement which he gave to the reporters, and which 
was published in the daily press on Thursday, July 1. I quote 
from this statement that part which is applicable to this re- 
port. The rest of the article is an encomium upon Herman 
L. Barney of such a character that those who know him as an 
ordinary thief and cold-blooded murderer might not agree 
to it. 

The portions of the article are as follows: — 

Tuesday morning I received a communication from Barney to the 
effect that he desired to talk %\ith Inspector O'Halloran of Newton and 
me with reference to his return to State Prison whence he escaped some 
weeks ago. Arrangements for meeting him were made, and Wednesday 
morning Inspector O'Halloran and I met him just outside of Brattleboro 
in the State of Vermont. He expressed a desire to return with us to 
State Prison, gi\dng as his reason therefor the fact that he was now 
very much recovered in health which at the time of his escape was 
badly depleted. Accordingly arrangements were made to return to 
Massachusetts with him. I notified Elmer Shattuck, warden of the 
State Prison, that he was in Cambridge with me, and in due course of 
time he was delivered to the warden of the State Prison. . . . 

He left us while he changed his clothes and ate his dinner. He then 
came out and got into the machine and rode with us to Boston. . . . 
He made just one request of us, namely, that he be allowed to stop 
and see his father and mother who live at Arlington before he was taken 
back to State Prison. That request was granted gladly. . . . 

Tuesday morning was June 29. Upon the publication of 
this information, the Department of Correction being inter- 
ested in the apprehension of Barney, and having read this 
statement to the effect that Barney was found in Brattleboro, 
Vt., took steps to ascertain further details than were con- 
tained in that statement, and after diligent inquiry and search 
by proper officials were unable to find that Barney had ever 
worked in or had ever been in Brattleboro, Vt., or was in 
Brattleboro, Vt., at the time of his apprehension. The Com- 
missioner of Correction wrote to Mr. Tufts on July 9, 1920, 
a letter in which he states : — 

Since the former conference between jVIr. Bagley, Warden Shattuck 
and 3^ourself in regard to return of Herman L. Barney, I have been 
hoping that j'ou would send me an official communication in regard to 
the matter. It is quite desirable that we should have a complete report 
setting out the facts relative to the apprehension and return of Barney 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

for the files of this Department. Will you accordingly be kind enough 
to send me such report, with as full details as possible concerning the 
offer of Barney to surrender himself and all the circumstances attending 
the recover}^ of the prisoner and his return to State Prison. As Barney 
was a close friend of Harry W. Manster, who is still at large, the infor- 
mation requested might also be of assistance to this Department in 
securing the apprehension of Manster. 

No reply w^as received to this letter until July 15, when Mr. 
Tufts wrote as follows: — 

Department of Correction, Boston, Mass. 

Gentlemen : — Replying to your inquiry of July 9 in re return of 
Herman Barney, I beg to state that I received a communication to the 
effect that he desired to give himself up and would surrender to Edward 
O'Halloran and me if we would come after him. This communication 
<;ame, as I understand it, after he had endeavored to get in touch with 
District Attorney Pelletier of Boston, learning, however, that the latter 
was then on the Pacific coast. Mr. O'Halloran and I accordingly wejit 
after Barne}^ and brought him back to State Prison. He expressed a 
desire to see his father and mother, and he was allowed to do so. He 
seemed entirely willing to return, and expressed himself as determined 
to do right in the future. 

This letter appearing to the Commissioner not to answer 
his inquiry, the Commissioner again wrote to Mr. Tufts under 
date of July 21, acknowledging the receipt of Mr. Tufts' letter 
of July 15, in which, among other things, the Commissioner 
stated : — 

There are several matters of detail, however, which still are not 
cleared up in connection with this matter. In order to direct your 
attention to certain phases of the matter which are connected with it 
from the point of view of this Department, I am asking you the follow- 
ing questions. I should be pleased if you would give me a defuiite reply 
to them. 

1. Please state the time when you first heard directly from Barney. 

2. From what telephone, exchange was the message sent? 

3. At what telephone exchange was it received? 

4. What was the substance of Barney's remarks over the telephone. 

5. At what time did you start out to bring back Barnej^, and who 
accompanied you? 

6. In what town and on what street did 3^ou first see Barney? 

7. What was his appearance and how was he dressed? 

8. Will you please send me a copy for our files of any statement 
Avhich Barney made to you as to where he had been while at liberty? 



1921.] PUBLIC DOCUMENT — No. 12. 13 



Nearly three months having elapsed without a repl}^ on 
October 18 the Attorney-General wrote to Mr. Tufts, among 
other things, as follows: — 

On examining the records in the Office of the Commissioner of Cor- 
rections there appears to be no report of the apprehension and return 
of Barney last summer. A detailed report of the facts relative to his 
apprehension and return should be made to the Department of Correc- 
tion, and may be of assistance in tracing the movements of Barnej^ or 
his associates. A copy of a letter to 3'ou from Commissioner Bates 
under date of July 21 is in the files, but so far as it appears it has not 
been answered. Will you furnish a report covering the matters in- 
quired of in that letter, and any additional information in your posses- 
sion. 

On Oct. 21, 1920, Mr. Tufts replied acknowledging receipt 
of this letter of the 18th, and stated, among other things: — 

I am ver}^ glad to give you personally for your information such 
knowledge as I have of the matter, although it came to me in part in a 
confidential manner, and I shall ask j^ou to so treat it. 

Some five days before the return of Barney I was told by Inspector 
Edward O'Halloran of the Newton pohce department, with whom I 
had previously talked in a general way on several occasions in regard 
to the possibility of the apprehension of Manster and Barney, that he 
thought the}^ could be located. . . . 

On Monday, June 28, 1 received word from Mr. O'Halloran that he 
expected to talk with a party who knew where Barney was. The officer 
suggested that he, O'Halloran, would like to have me present. I accord- 
ingly met Mr. O'Halloran in Greenfield, and went to Northampton 
with him where we met an attornej'- who said he represented Barnej^ 
He said that Barney wanted to give himself up; that he had advised 
him so to do, but that he did not want to do so until he, BsiYney, had 
talked with his mother. . . . The attorney furthermore said that 
Barney did not want to surrender until a matter of ten or fifteen days 
after that date. I told him that although I did not know Mrs. Barney, 
I would endeavor to get her to see him and that Barney ought to 
surrender forthwith. I might add that Barney's father was with the 
attorney at the time. 

They left Mr. O'Halloran and me and came back several hours later 
and said the young man wanted to see his mother forthwith. I accord- 
ingly returned to Cambridge, and after attending to my duties at the 
office got in touch with Mrs. Barney and suggested that she, Mrs. 
Barney, see her son and urge upon him the advisability of surrendering 
himself forthwith. That day, Tuesdaj^, if I recall correctly, I received 
a message which I assume was from Barney, saying he was wilhng to 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

surrender, and that his attorney would inform us as to the time and 
place. I accordingly went to Greenfield that day and met Mr. O'Hal- 
loran, and that evening received word to the effect that Barney was 
willing to surrender to him and to me the next morning. Arrangements 
w^ere accordingly made to meet him on the road out of Northampton 
leading to Vermont. There was one condition imposed upon that, 
and that was that he would not state precisely where he was to sur- 
render. He asked us to say it was near Brattleboro, this in order to 
relieve the people he had been with from any embarrassment. This 
we agreed to, for we felt that otherwise he would not surrender. 

We met him as arranged for, and he agreed to come back with us. 
He was dressed in a blue sweater and khaki trousers as I remember 
them. He said he wanted to change his clothes and say good-bye to 
the people he was with. We accordingly took him back to Northamp- 
ton, the place where we met him being out of that city in a northerly 
direction. Said he would be back in the course of an hour or two. . . . 

He did not come back at the time we expected, and we then began to 
look for him. We circled around in the direction which he went, and 
asked people in three or four houses if they had seen a young man in that 
vicinity. At one house we were told by somebody on the piazza that 
a young man answering his description had gone across the field in the 
direction from whence we had come. We accordingly swung around 
to the place where we had started from and found Barney at the place 
where he said he would be. 

My talk with the attorney referred to herein was confidential, and I 
feel that I am violating my word in giving you all the details that I have. 

To this the Attorney-General replied on October 27, ac- 
knowledging the above letter and stating, among other things, 
as follows : — 

I assumed upon a hasty reading of your letter that it was intended 
to serve as a report upon the matters inquired of in mj- letter to j^ou of 
October 15, but a more careful reading leaves some doubt in m}^ mind 
whether j'ou intended the information to be treated as a confidential 
report for the use of this Department, or as a confidential communica- 
tion to me personally and not to me as Attorney-General. You state 
in your letter, "I am very glad to give you personally for your informa- 
tion such knowledge as I have in the matter, although it came to me in 
part in a confidential manner, and I shall ask you to so treat it." 

As Attorney-General of the Commonwealth and its chief law officer, 
I have a right to request and receive official reports from all district 
attorne3^s in the Commonwealth relating to matters in which the 
Commonwealth is interested, or which I as Attorney-General beheve 
it is for the interests of the Commonwealth to know, and as Attorney- 
General of the Commonwealth to make such use of such reports as in 



1921.] PUBLIC DOCUMENT — No. 12. 15 

the interests of justice I deem wise. ... If this letter of yours was 
intended by 3'ou to be a confidential communication and not an official 
report on the subject inquired about, I must inform you that I cannot 
accept it as such, and my letter to you of October 15 remains unan- 
swered. If it is not to be treated as a confidential communication but 
as an official report from you as district attorney to me as Attorney- 
General of the matter inquired of I shall not be bound by any conditions 
such as are inferred from your letter, and I shall treat it as an official 
report relating to the Barney case from a district attorney who has 
some information regarding that case to the Attorney-General. Will 
you please immediately inform me in writing by the messenger who 
will deliver you this letter whether your letter of October 21 is an official 
report from you free from all conditions of a confidential nature, or 
whether I am to treat it as a purely confidential communication. 

To this District Attorney Tufts replied by letter dated Octo- 
ber 28, acknowledging receipt of letter of October 27, and 
stating: — 

In re apprehension and return of Herman L. Barney, in which I 
stated that I desired to have you treat the information which I gave 
you in that connection as confidential, I beg to state that you are free 
to usfe the information in any way in which your conception of duty 
prompts you. 

On May 26 Barney escaped from State Prison. On that 
night or the following night he went to the house of, and saw, 
Stephen A. Bresnahan. Bresnahan had never acted as coun- 
sel for Barney and was not his counsel. He had become ac- 
quainted with Barney prior to his being admitted to the bar 
by reason of Barney's coming in to consult an attorney in 
whose office Bresnahan was from time to time preparing for 
his examinations for admission to the bar. 

Between May 26 and June 5 Bresnahan met Barney three 
or four times at different places in Cambridge. He did not 
during this time communicate to the police authorities any 
information that would lead to the apprehension of Barney. 

On June 5, 1920, Barney appeared at the house of one 
Meisse in Northampton. Meisse had been a former school- 
mate of his, and an acquaintance of his stepfather and mother. 
He arrived there late at night on a motor cycle with a man 
called Frank Smith (whose identity has not been established). 
From that date until his return to State Prison he remained 
in this house in Northampton. He was not in Brattleboro, 



16 ATTORXEY-GEXERAL'S REPORT. [Jan. 

Vt., and the statement given to the press by Mr. Tufts to the 
effect that he and Inspector O'Halloran met Barney just out- 
side of Brattleboro in the State of Vermont was not true, nor 
is the statement true which was made by him in that same 
communication to the press that "arrangements were made to 
return to Massachusetts with him," for it appears that Barney 
was never out of the Commonwealth after his escape. 

Between June 5 and June 13 he was in correspondence with 
some parties in Cambridge, one of them being Bresnahan. 
After June 13, and before the visit to Xorthampton of Bres- 
nahan and O'Halloran, O'Halloran had communicated with 
Mr. Tufts concerning the whereabouts of Barney, and had an 
arrangement with Mr. Tufts that upon his going for Barney 
he would assume the name of Fleming in any telephone con- 
versations that he might have with Mr. Tufts. In the first 
statement of O'Halloran with reference to this name he denied 
that he ever went by the name of Fleming or used the same, 
or was ever known by the name of Fleming. In a subsequent 
statement he claimed that he assumed the name of Fleming 
because that was his mother's name, and that he made the 
arrangement mentioned of telephoning to Mr. Tufts using 
that name; that in all his police work prior to this time he 
had never assumed a fictitious name. 

On Saturday, the twenty-sixth day of June, Bresnahan and 
O'Halloran, in the automobile belonging to the police depart- 
ment of the city of Xewton, went to Xorthampton, O'Hal- 
loran getting excused from duty by communicating to his 
chief that he thought he might be able to locate Manster. 
He did not inform his chief as to where he was going, nor why 
he was going, nor that he expected to apprehend Barney. 

'Arriving at Xorthampton, according to O'Halloran's state- 
ment, Bresnahan left him and reported to him that he could 
not find the party he wanted, who was Barney. He and 
O'Halloran then drove to the Hotel Devens in Greenfield, 
where they stopped and registered as follows : — 

P.J.Fleming (Street) School (Number) 19 

(City) Chicopee (State) Mass. 

John P. Cower (Street) Chicopee (Nmnber) 

(City) Athol (State) Mass. 

"P. J. Fleming" was O'Halloran, and Bresnahan was "John 
P. Cower." 



1921.] PUBLIC DOCUMENT — No. 12. 17 

On Sunday, the 27th, Bresnahan returned to Boston, leav- 
ing O'Halloran at the hotel. On Monday, June 28, in com- 
pany with the stepfather, he took the late afternoon train at 
the North Station in Boston and went direct to Northampton, 
arriving there late at night. They both went directly to the 
house of Meisse, where Barney was, and had a conversation 
with him, Barney. They then went to the Hotel Draper at 
Northampton, and registered as follows: — 

J. P. Cower (City) Chicopee (State) Mass. 
Frank Rogers Chicopee 

Bresnahan was "Cower," and the stepfather, "Rogers." 
On the same day, Monday the 28th, O'Halloran having 
communicated with Mr. Tufts, Mr. Tufts went to Greenfield 
and saw O'Halloran. So that when Mr. Tufts states in his 
communication to the press, already referred to, that on " Tues- 
day morning" he received a communication from Barney "to 
the effect that he desired to talk with Inspector O'Halloran of 
Newton and me with reference to his return to State Prison," 
he is mistaken. Mr. Tufts was in Greenfield on Monday 
night. 

After arriving at Greenfield on Monday night, Mr. Tufts, 
his chauffeur and "Thomas Fleming" went to the Weldon 
Hotel in Greenfield, and there Mr. Tufts registered in his own 
handwriting as follows: — 

X. A. Tufts, Winchester, Mass., and chauffeur. 
Thomas Fleming, Natick. 

"Fleming" was O'Halloran. Mr. Tufts had left Boston 
about 3 o'clock in the afternoon, and went direct to the Hotel 
Devens at Greenfield and picked up O'Halloran, otherwise 
called Fleming, and drove him to the Hotel Weldon. They 
were assigned rooms. 

About half past 11 in the evening, in company with O'Hal- 
loran, alias Fleming, he went to Northampton to the Hotel 
Draper. There they met the stepfather and Bresnahan, both 
of whom took the car and drove up the street about a mile 
or so, where they got out and were gone about an hour and 
a half. They then went back to Hotel Draper at Northamp- 
ton, picked up O'Halloran and Tufts, and the four drove to 
Greenfield, arriving at the "Weldon Hotel. 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

On Tuesday, the 29th, Mr. Tufts, Bresnahan and the step- 
father came back to Boston by motor car, arriving about 10 
o'clock in the morning, leaving O'Halloran in Greenfield. The 
stepfather and Bresnahan were left at Arlington at the house 
occupied by the stepfather and his wife. Mr. Tufts was driven 
to the court house at Cambridge, and he instructed the chauf- 
feur to return at half past 2. At half past 2 the chauffeur 
returned to the court house and was told by Mr. Tufts to go 
to Arlington to the same house where he had left the step- 
father and Bresnahan in the morning and pick up the step- 
father. He did this, and picked up the stepfather and his 
wife and Bresnahan, and drove them to Greenfield. It was 
agreed between Mr. Tufts, the stepfather and Bresnahan that 
Tufts was to go to Greenfield that day, and he did go to 
Greenfield in his own car. Arriving at Greenfield, he picked 
up O'Halloran. The purpose, according to the statements, of 
having Mrs. Barney go on the trip was to endeavor to ijiduce 
Barney to surrender himself, the suggestion having been made 
by Mr. Tufts in conference with Bresnahan and O'Halloran, 
and it appears that on Tuesday, the 29th, Mr. Tufts again 
registered as follows, in his own handwriting: — 

Daniel Doherty, Boston. 

N. A. Tufts, Winchester, Mass. 

Thomas Fleming, Natick, Mass. 

Doherty was the name of the chauffeur who drove the step- 
father, the mother and Bresnahan to Greenfield; "Thomas 
Fleming, Natick, Mass.", was O'Halloran. 

After supper the party, consisting of the stepfather, Mrs. 
Barney, Bresnahan, Tufts and O'Halloran, drove to North- 
ampton under orders from Mr. Tufts. The car was stopped 
at the railroad station, and Mr. Tufts, Mrs. Barney and 
O'Halloran got out. Bresnahan and the stepfather drove in 
the car up the main street to about the same point they had 
stopped the night before, and got out and were gone possibly 
an hour and a half. Returning to the car they were then 
driven back to the railroad station, and met Mr. Tufts and 
Mr. O'Halloran and Mrs. Barney, who had remained at the 
railroad station during the absence of Bresnahan and the step- 
father. A conference then took place between the parties, 
and afterwards Mrs. Barney got in. This was about half past 
10 o'clock at night. She was then driven in the automobile 



1921.] PUBLIC DOCUMENT — No. 12. 19 

with the stepfather and Bresnahan back to the same point 
where the car had been about an hour before. They all got 
out of the car except the chauffeur, who waited probably fif- 
teen minutes, when the three came back and got into the car 
and went down to the railroad station. They again had a con- 
ference with Mr. Tufts and Mr. O'Halloran, both of whom got 
into the car with them, and about half past 12 at night they 
all drove to Greenfield. 

Acting under instructions from Mr. Tufts, the chauffeur re- 
turned at half past 4 in the morning, when the stepfather and 
Mrs. Barney were driven to the house in Arlington, arriving 
about 7.30. 

The conversation carried on between the parties at the rail- 
road station was not overheard by the chauffeur, who did not 
know they were in Northampton for the purpose of appre- 
hending Barney. At this time all of the other parties did 
know that Barney was in Northampton. Neither Mr. Tufts 
nor Mr. O'Halloran nor Mr. Bresnahan took any steps to give 
any information to any police officer to look out for Barney, 
or to place any guard at or near the house where Barney was 
located, for the purpose of preventing his escape. 

Northampton is about 20 miles from Greenfield. Going to 
Greenfield the chauffeur drove up by Worcester and Fitch- 
burg, thence through Gardner, Athol, Orange, Millers Falls 
and Turners Falls, this being the shortest route to take to get 
to Greenfield, according to the statement of the chauffeur. 
They did not go by way of Springfield. Northampton is be- 
tween Greenfield and Springfield, and north of Springfield. 

The statement of O'Halloran, that Bresnahan went in and 
telephoned to some one when they arrived at Northampton 
and then got into the car and drove with him, is contradicted 
by the occupant of the house, who states that Bresnahan was 
at his house on Saturday night, June 26, and saw Barney, and 
that there he offered the proposition to Barney in his presence 
to surrender himself to Mr. Tufts on condition that he would 
be safely brought back to prison and no bodily harm would come 
to him; and as a further inducement, that Mr. Tufts expected 
through the notoriety gained in the affair that his chances of 
winning the governorship at the coming election (for which he 
said he was going to be a candidate for the nomination in 
competition with Mr. Cox) would be bright, that his election 
would be assured, and that he would then be in a position 



20 ATTORXEY-GEXERAL'S REPORT. [Jan. 

to see that Barney was pardoned after serving a matter of 
three or four years. It was also talked over that in the mean- 
time Barney was to be transferred on account of ill health to 
Rutland, Mass. 

The occupant of the house further states under oath that 
on the following Monday, June 28, about 9.30 p.m., the step- 
father and Bresnahan called at the house; that Bresnahan 
stated that in their opinion it w^as a better proposition for 
Barney to agree to surrender; that they had until midnight 
to telephone or in some way convey Barney's answer to Mr. 
Tufts, who, they said, was waiting at his house, or would 
wait until midnight for that message, they having been sent 
by him; and that Barney agreed to give his answer Thursday 
or Friday, not promising, however, anything. As a matter of 
fact, Mr. Tufts at this time was not at his house, but was in 
Northampton and Greenfield. 

On Wednesday, the 30th, Tufts, Bresnahan and O'Halloran 
left Greenfield about 7.30 or 8 o'clock in the morning, with 
the chauffeur, who turned out to be Mr. Tufts' private chauf- 
feur, it being Mr. Tufts' private car, and drove to Northamp- 
ton. They arrived at Northampton somewhere about 9 or 
half past 9. They drove on the main street in Northampton, 
called Elm Street, and stopped a short distance from where 
O'Halloran and Bresnahan had stopped when they first ar- 
rived in Northampton on the 26th. Bresnahan got out of the 
car and went out of sight of O'Halloran and Mr. Tufts, prom- 
ising to bring Barney back. While Bresnahan was gone O'Hal- 
loran saw Barney coming along the street on the sidewalk. 
O'Halloran spoke to him and told him that "Steve" was wait- 
ing for him at the corner, "Steve" being Bresnahan. Bres- 
nahan came back, and Bresnahan ("Steve") and Barney got 
into the car with Tufts and O'Halloran. Barney said he 
wanted to have a talk, and they drove up the main street and 
he had a talk wath Bresnahan and the district attorney. 
O'Halloran claims he heard only part of the talk, in which 
Barney said he would be willing to come in, but he wanted 
more time to come in, giving as the reason he w^anted to get his 
clothes fixed up; that he had not been feeling well and wanted 
to see a doctor, but he (O'Halloran) does not remember whether 
he (Barney) gave any other reasons, but he did complain of some 
abdominal trouble, about being in pain, and said he wanted 
a chance to change his clothes; that Barney and the district 



1921.] PUBLIC DOCUMENT — Xo. 12. 21 

attorney talked together, but that O'Halloran coukl not hear 
what was said; that after this drive and conversation Barney 
was permitted to get out of the car, promising to come back 
after he had got a change of clothing; that then the car was 
turned around, they having left Barney on the sidewalk. This 
was somewhere about 11 o'clock in the morning. 

When Barney left he agreed to be back in twenty minutes; that 
twenty minutes having elapsed, Bresnahan returned and said 
that Barney was getting some pressing done and they would 
have to wait a little longer; they felt that Barney was double- 
crossing them, and they drove up the side street, and on com- 
ing back to the original place they found Barney at the place 
where he agreed to be on the main street, and thereupon he 
got into the car and the car was driven back to Greenfield; 
arriving at Greenfield they stopped and had some lunch in 
front of the hotel, and they then started for Boston. 

O'Halloran further stated that they stopped at Mr. Tufts' 
office in Waltham, this being somewhere about 8 o'clock, just 
coming on dusk, and then Mr. Tufts left to go to his home in 
Winchester, and that he, O'Halloran, brought the man out to 
headquarters in Newton; that subsequently he brought him 
direct to Mr. Tufts' office in East Cambridge. The stepfather 
says that Mr. Tufts, O'Halloran and his son came to his house 
in the morning; that after being there a short time they left. 

The first question that naturally comes to the mind of the 
average person is, what was the motive of so much secrecy in 
the apprehension of Barney, the signing of fictitious names 
upon the registers of hotels, midnight rides, the failure to call 
any police officer or to give any information to police officers 
or public authorities as to where Barney could be found? The 
only reasonable motive suggested by any statement taken by 
me from any of the parties is given by the occupant of the 
house, as already stated, that Mr. Tufts expected to be a 
candidate for the nomination of Governor, and the apprehen- 
sion of Barney would bring him great notoriety. 

It is especially important to keep in mind the fact that Mr. 
Tufts was not interested in this case as the prosecuting officer. 
The conviction was in Suffolk County, the escape was in Suf- 
folk, and it would seem as though Mr. Tufts, having this in- 
formation as to the whereabouts of Barney, as a public official 
should have communicated that information to some public 
official, either at the State Prison or Northampton. Also the 



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

question arises as to why Mr. Tufts should undertake to de- 
ceive the public by stating that Barney was apprehended in 
Brattleboro, Vt., which at the time it was given out he knew 
was not true. Why was it that he was giving the impression 
to the public that Barney was out of the State, and that he 
overtook him on the road leading from Brattleboro, which was 
also untrue? Why was it that when Barney was present with 
himself and a police officer, and after Barney rode in the car 
with both of them for some little time, he was permitted to 
get out of the car and disappear; for after he got out of the 
car until he afterwards came back to the place of appoint- 
ment Barney was out of sight of both of these officers. The 
only answer to this last question in any of the statements 
taken by me that has even been suggested is that Mr. Tufts 
trusted Barney. This was in contradiction of the sworn state- 
ment made by the occupant of the house, that Barney after 
coming back to the house sought to make an escape through 
the back door of the house, and that it was only by the urging 
of the occupant of the house that Barney was made to keep 
his appointment. Bresnahan stated that he called at the house 
for Barney and found he was gone. 

The facts before me appear to be that after Barney reached 
Meisse's house he then went to a neighboring house and stayed 
there for some little time, and that Bresnahan returned to the 
car where Mr. Tufts and Mr. O'Halloran were and informed 
them that he was afraid that Barney would not show up, but 
that he would make another effort, and his claim is that while 
he was going one way back to the Meisse house Barney went 
another way and met Mr. Tufts and O'Halloran. 

Why should O'Halloran mislead his chief by stating that if 
he could get a vacation he thought he could locate Manster? 
Why did he not communicate to his chief that he was going 
after Barney? Why did he register under a false name? When 
he saw Barney standing by his automobile, and when Barney 
was in his automobile, why as a police officer did he not at- 
tempt to apprehend an escaped murderer? 

These questions I can find no answer for in the statement 
of O'Halloran, and *it seems to me that O'Halloran, knowing 
as he did for days before he went to Northampton that Barney 
was in Northampton, and taking no steps to communicate 
with either the local or State police or with any police officials 
so that Barney could be apprehended, was guilty of gross neg- 



1921.] PUBLLC DOCUMENT — Xo. 12. 23 

lect of his duty as a police officer and as a citizen. Barney 
could have been apprehended by him in either capacity. 

O'Halloran was interviewed by me and his statement taken 
stenographically on October 27. On December 9 he, having 
had an opportunity to review his statement and to make any 
corrections that he chose, again came before me. Altogether he 
spent between four and five hours going over his statement, 
writing the corrections in his own handwriting, which were sub- 
sequently made. O'Halloran declined to sign the statement, 
even after he had made his corrections, unless he was furnished 
with a copy of the same. This I declined to furnish him, as 
it was a part of the investigation of the office of the Attorney- 
General, and in my view he was not entitled to it. Bresna- 
han also refused to sign his statement, after he had made his 
corrections, unless he was furnished wdth a copy, and stated 
that he had instructed the stepfather not to sign his statement 
unless copies were furnished to him. For the same reason I 
declined to furnish him with copies of his own statement and 
copies of the stepfather's statement. 

O'Halloran was asked if he did not register at the Hotel 
Devens at Greenfield under a fictitious name, and declined to 
answer on the ground that by so doing it would tend to in- 
criminate him, under the provisions of the Acts of 1918, chap- 
ter 259. At the Hotel Weldon, in Greenfield, Mr. Tufts 
registered O'Halloran under a fictitious name, and he, as 
district attorney, must have known at the time of doing so that 
he was violating the law which he was bound to uphold. 
Bresnahan and the stepfather also registered under fictitious 
names. 

Why should Bresnahan, being in touch with Barney and 
knowing that he was in Northampton, .get in touch with 
O'Halloran instead of officers in the city of Cambridge, or the 
State police, or the prison officials? He undertakes to explain 
it by sajdng that O'Halloran was a friend of Barney. Barney 
in his statement taken by me at the State Prison, stated that 
he did not know O'Halloran except from meeting him twice 
at Camp Devens. 

So the conclusion seems to me to be irresistible that after 
Barney's escape from the State Prison he got in touch with 
Bresnahan, who was not his attorney, and within a few days 
after his escape went to Northampton, from whence he cor- 
responded with Bresnahan; that Bresnahan, O'Halloran and 



24 ATTOKNEY-GEXERAL'S REPORT. [Jan. 

Mr. Tufts knew on Saturday, the 26th of June, at least (if 
not before), that Barney was in Northampton; that no steps 
were taken by any of these parties that would lead to the 
apprehension of this escaped murderer; that the}^ believed if 
there was any glory in apprehending Barney, it should be 
kept to themselves. 

As to Mr. Tufts, it would seem as though his duty to the 
Commonwealth required him to communicate his information 
to the proper authorities, and not to act as a policeman. 
District attorneys have always refuted the intimation that 
they are policemen, but in this matter Mr. Tufts acted as 
such. In order to induce an escaped murderer to surrender 
himself when he had it in his power to cause him to be appre- 
hended, he promised to Barney considerations which he had 
no right to offer, and which he believed would inure to his 
own political benefit. 

It is not true that Barney consulted any doctor in North- 
ampton, nor is it true that Barney's health was restored by 
his vacation, for an examination of his physical condition after 
he was brought back to State Prison shows that he had lost 
about 5 pounds in weight from what he weighed at the time 
of his escape, and his condition was not as good. 

It seems to me that Mr. Tufts and Mr. O'Halloran were 
guilty of i^mproper conduct, to say the least, in their respective 
offices. 

In the investigation of these cases I had no power to sum- 
mon witnesses before me, nor had the Attorney-General such 
power. The result is that some people whom I desired to 
interrogate in the matter of automobile thefts and kindred 
subjects declined to appear. I think this lack of power to 
summon witnesses .is a grave error, and that the Attorney- 
General should have the power to summon people to appear 
before him where he is investigating a matter in the interests 
of the people of the Commonwealth. 

There are some matters which should be so investigated for 
the purpose of ascertaining whether crime has been com- 
mitted, and should be investigated by the Attorney-General 
before the evidence is presented to a grand jury. 

While my work as Special Assistant Attorney-General has 
been limited to the investigation of automobile cases and 
kindred subjects, matters have come to my attention outside 
of the field of my special investigation which convince me 



1921.] PUBLIC DOCUMENT — Xo. 12. 25 

that this power to summon witnesses for the purpose of ascer- 
taining whether any evidence should be presented to the grand 
jury should be given to the Attorney-General. 

It is no answer to this right on the part of the Attorney- 
General to summon witnesses to say that it is an inquisitorial 
or star chamber proceeding, and for that reason objection- 
able. All investigations necessarily are inquisitorial and star 
chamber proceedings. If it w^ere not so, much crime would 
escape detection and punishment. 

Therefore I urge that power be granted to the Attorney- 
General to summon witnesses and to investigate matters which 
concern the public welfare. 

My investigation of all these cases so far as it has progressed 
convinces me that the following recommendations should be 
adopted by the Legislature: — 

1. District attorneys should be prohibited from nolle pros- 
sing or filing cases without first petitioning the presiding jus- 
tice of the court, setting forth the facts and reasons why the 
case should be nolle prossed or filed, and then it should not 
be nolle prossed or filed without a certificate of the presiding 
justice or the court. 

2. That the Attorney-General should have the power to 
summon a special grand jury whenever in his opinion the 
interests of the public demand an investigation of any charges 
against individuals or corporations; that he should have en- 
tire charge of such investigation before such grand jury, both 
in the presentation and the trial of the cases where indict- 
ments might be found. 

3. That all sessions of the grand jury, whether summoned 
in by district attorneys or by the Attorney-General, should be 
presided over by a justice of the Superior Court, who would 
see that only proper evidence was introduced, and instruct the 
jury properly as to the questions of law involved with refer- 
ence to the facts produced. 

While I am aware that this last recommendation is an in- 
novation in the practice of law in criminal proceedings in this 
State, still I believe that it would be in the interest of the 
public if such a law could be adopted. Grand juries, as you 
well know, were instituted to protect the weak from the strong, 
the poor from the rich. As it is now, by reason of the con- 
duct of some district attorneys, grand juries have become in- 
struments of oppression to the people rather than instruments 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

of protection. An indictment found is oftentimes as injurious 
to the party indicted as a conviction. An indictment may be 
found upon insufficient evidence, and to my knowledge has 
been found upon insufficient proper legal instruction to a 
grand jury. The person indicted, no matter how innocent he 
may be, when indicted can be arrested and the widest pub- 
licity given to his arrest, and the district attorney has it in 
his power when he finds that he has not sufficient evidence 
to convict, or for other reasons, to nolle pros the case without 
the consent of the court or defendant, or to make a trade, 
which unfortunately citizens are sometimes willing to do in 
order to avoid any further publicity and expense. I am 
strongly of the opinion that if a judge should preside over the 
deliberations of the grand jury, there would be less miscar- 
riage of justice. The power of district attorneys with refer- 
ence to the filing and nolle prossing of cases should not be 
longer continued without the approval of the court stated in 
writing as above mentioned. 

While I believe as a matter of law that the Attorney-General 
has the right to supersede, if necessary, any district attorney, 
and to take entire charge of the proceedings in the trial of 
cases of indictments found by a grand jury under the direction 
or charge of such district attorney, in order that that matter 
be finally settled it would be well to have a declaration from 
the Legislature that that is the law of the land, so that there 
can be no question about it. At the present time it is appar- 
ent to me that the Attorney-General's office is hampered by 
some district attorneys for the reasons herein stated and other 
reasons, and that the Attorney-General's powers should be 
clearly defined so that the district attorneys may know that 
the Attorney-General is their superior officer, and has the 
right not only to direct them, but if need be, to supersede 
them in their functions. 

Respectfully submitted, 

HENRY F. HURLBURT, 

Special Assistant Attorney-General. 

Boston, Dec. 31, 1920. 



1921.] PUBLIC DOCUMENT — No. 12. 27 



OPINIONS 



Schools — Transportation of Pupils living on Islands — Author- 
ity of Department of Education and of Cities and Towns. 

Unless some statute requires it, a city or town, need not provide trans- 
portation to and from school, or board in lieu thereof, for children of 
school age living upon islands within such city or town which are not 
provided with schools. R. L., c. 25, § -15, is permissive, not mandatory. 
The Department of Education, w^hich under Gen. St. 1919, c. 350, § 56,, 
is the successor of the State Board of Education, is authorized by 
Gen. St. 1919, c. 292, § 5, if the facts warrant it, to furnish such trans-^ 
portation in all cases where some statute does not place this duty 
upon the city or tow^l. 
Gen. St. 1919, c. 292, § 9, authorizes the Department of Education, in a 
proper case, to require a town to furnish transportation to and from 
school to children living upon islands within the town which are not 
provided with schools. 

Jan. 8, 1920. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You ask when a city or town must provide 
transportation to and from school, or board in lieu thereof, 
for children of school age living upon islands within the Com- 
monwealth which are not provided with schools, and when, 
under Gen. St. 1919, c. 292, § 5, the Department of Education 
may do so. 

In my opinion, only a general or special statute can impose 
this duty upon a city or town. Newcomh v. Rockport, 183 
Mass. 74; Davis v. Chilmark, 199 Mass. 113. R. L., c. 25, 
§ 15, is permissive only, not obligatory. Newcomh v. Rockport,. 
183 Mass. 74. It would seem, therefore, that the Department 
of Education, as the successor of the State Board of Educa^ 
tion under Gen. St. 1919, c. 350, § 56, is authorized by Gen. 
St. 1919, c. 292, § 5, if the facts warrant, to furnish such 
transportation or board in all cases where some statute does, 
not place this duty upon the city or town. 

In my opinion. Gen. St. 1919, c. 292, § 9, authorizes the 
State Board of Education (and so the Department of Educa- 



28 ATTORXF.Y-GENERAL'S REPORT. [Jan. 

tion as the successor of that Board) to ^'require the town to 
furnish transportation" when the circumstances therein de- 
fined exist. I see no reason why this section should not ap- 
ply to children of school age upon islands which are not 
provided with schools. I note, however, that this section 
apparently applies to towns alone (exclusive of cities), and 
that it contains no provision for requiring a town to furnish 
board in lieu of transportation. 
Very truly yours, 

Henry A. Wymax, Attorney-General. 



Automobiles — Registration — Substitution of Motors — Change 
in Maker's Number. 

Where an automobile has been registered, and where the maker's number 
was affixed to the motor therein, and subsequently another motor is 
substituted, with the result that the maker's number on the substi- 
tuted motor would not then correspond with the maker's number on 
the registration card, there should be issued a new registration card 
bearing the maker's number appearing upon the substituted motor. 

Jan. 13, 1920. 

Mr. F. I. BiELER, Secretary, Division of Highways, Department of Public 

Works. 

Dear Sir: — You ask my opinion upon the following 
facts: A company owns a number of Ford cars of different 
types which have been registered. You desire to know what 
should be done relative to registration in case the company 
places a spare motor in one of the cars now registered. 

Gen. St. 1919, c. 294, § 2, provides that the application for 
the registration of a motor vehicle shall contain, among other 
things, the number, if any, affixed b}' the maker. I under- 
stand that in Ford automobiles the maker's number is affixed 
to the motor, so that if the company in question should sub- 
stitute the spare motor in one of their cars, the maker's 
number thereon would not then correspond with the maker's 
number on the registration card. As the maker's number is, 
perhaps, the most important means of identification, I am 
of the opinion that when the company places its spare motor 
in one of its cars now registered, it should inform you of the 
fact, giving you both the maker's number that appears on 
the registration card of the car, and also the maker's number 
that appears on the spare motor, and at the same time return 



1921.] PUBLIC DOCUMENT — Xo. 12. 29 

to you the registration card. Your department should then 
issue in place thereof a new registration card bearing the 
maker's number appearing upon the spare motor. 
Yours very trul}^ 

Henry A. Wyman, Attorncy-Genrral. 



Electric Company — Producing and Distributing Company — 
Substitution for Producing Plant of Contract to purchase 
Current — Sale of Plant icithout Consent of Legislature — 
Conditional Sale. 

A producing and distributing electric company may substitute for its 
producing plant a proper and sufficient contract for the purchase 
of electricity. 

A producing and distributing electric company which substitutes for its 
producing plant a proper and sufficient contract for the purchase of 
electricity need not retain such plant in order to guard against a failure 
of the selling company to furnish electricity according to its contract, 
if such failure is not reasonably to be anticipated. 

If a producing and distributing electric company has substituted for its 
producing plant a proper and sufficient contract for the purchase of 
electricity, a sale of such plant without first obtaining the consent of 
the Legislature does not violate St. 1914, c. 742, § 51. 

If sale of such plant be proper, St. 1914, c. 742, § 51, does not forbid a 
contract of conditional sale which provides that immediate possession 
shall be given to the purchaser, who is bound to pay the purchase price 
by instalments during a term of years. 

Jan. 13, 1920. 

Hon. Henky C. Attwill, Chairman, Department of Public Utilities. 

Dear Sir: — Under date of Sept. 5, 1919, the Board of 
Gas and Electric Light Commissioners requested my opinion 
upon the following matter: — 

The Worcester Suburban Electric Company is a corporation duly 
established under the General Laws, and is an electric company within 
the definition set forth in section 1 of chapter 742 of the Acts of the year 
1914. The management of the company since the spring of 1914 has 
been in the hands of officers, a majority of whom are identified \Aath 
A & Co., Inc. Prior to that time a controlling interest was o\\Tied by 
B & C, Inc., who are identified with the New England Power Company 
(formerly Connecticut River Transmission Company) and its affiliated 
interests. B & C, Inc., on March 31, 1914, in connection ^vith and 
as part of the transaction hereinafter described, sold to A & Co., Inc., 
0,793 out of the 6,000 shares of stock then outstanding. At the same 
time, and as a part of the same transaction, the company executed the 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

following instruments with the Connecticut River Transmission Com- 
pany:— 

1. For the sale of electricity by the transmission company to the 
electric company, referred to as the contract for primarj^ electricity. 

2. For the distribution of electricity by the electric company for the 
transmission company, referred to as the distribution agreement. 

3. For reserving the steam station of the electric company at Ux- 
bridge for the use of the transmission company, referred to as the agree- 
ment for reserving steam plant. 

4. Lease of said steam station by the electric company to the trans- 
mission compan3^ 

The transaction in question has never been expressly authorized by 
the General Court. Is this transaction in %dolation of the terms of 
section 51 of chapter 742 of the Acts of the year 1914? 

I deemed the matter one requiring very considerable study 
and examination, and, owing to the advice of the chairman 
of the Board, Hon. A. R. ^Yeed, that the facts in the case 
w^ere not such that delay would in anywise affect the situation, 
and owing to the further fact of the unusual demands upon 
the Department, I have been unable to reply until this time, 
and now^ address the same to you as chairman of the Depart- 
ment of Public Utilities, as the successor of the Board of Gas 
and Electric Light Commissioners, under Gen. St. 1919, c. 350. 

Reduced to its lowest terms, the question raised by these 
four instruments seems to be: If a producing and distributing 
electric company replaces its producing plant by a thirty-year 
contract for the purchase of sufficient current, and thereupon 
sells such producing plant without obtaining the consent of 
the Legislature, does it violate St. 1914, c. 742, § 51? 

St. 1914, c. 742, § 51, provides: — 

A corporation which is subject to the provisions of this act shall not, 
except as is otherwise expressly provided, transfer its franchise, lease its 
works or contract with any person, association or corporation to carry 
on its works, without the authoritj^ of the general court. 

This statute does not in terms prohibit an electric com- 
pany from selling its works. An electric company authorized 
to furnish electricity to the public is charged with a public 
duty which it must discharge within the limits of its reason- 
able ability. It may not voluntarily disable itself to perform 
that duty. The Supreme Judicial Court has held that a sale 
of its physical property w^hich would so disable it is an 



1921.] PUBLIC DOCUMENT — No. 12. 31 

evasion of the act and unlawful without legislative consent, 
even though the franchise is not transferred. On the other 
hand, the Supreme Judicial Court has also held that an 
electric company might make an agreement for division of 
territory with another electric company, and might lawfully 
sell that portion of its distributing system which lay within 
the territory so ceded by it. Taking these two cases together, 
the legality of a sale of so much of the physical property of 
an electric company as relates to its producing plant, without 
legislative consent, appears to depend upon whether it ma- 
terially impairs the ability of the selling company to discharge 
its duty to the public. 

I find nothing in the act which requires an electric company 
to produce the current which it sells and distributes to the 
public. On the contrary, section 1 defines an electric com- 
pany as follows: — 

"Electric company" means a corporation organized under the laws 
of this commonwealth for the purpose of making . . . and selling, or 
distributing and selling, electricity within this commonwealth, . . . 

Moreover, I am informed that many electric companies in 
this Commonwealth are not producing companies, but instead 
rely upon contracts for the purchase of current. In my 
opinion, the terms of the act and this common practice both 
indicate that an electric company may lawfully rely for the 
performance of its public duty upon an honest and apparently 
adequate contract for the purchase of current. As an incident 
of its public duty it is not required to produce the current 
which it furnishes to the public, or even to install a plant as 
an additional safeguard against an unanticipated failure of 
the selling company to supply current. 

If a distributing electric company may lawfully rely upon 
an honest and apparently adequate contract as a source of 
supply, I see no reason why a company which has produced 
its own current may not lawfully substitute an adequate 
supply contract for such producing plant. The original 
decision of this question would seem fairly to lie in the cor- 
porate discretion of such company. It constitutes, as was 
said in Weld v. Gas Commission, 197 Mass. 556, "a detail of 
administration which is not in violation of law." If, however, 
the supply contract should not prove adequate to enable the 
company to discharge its public duty, there is ample power in 



32 ATTORXFA -GENERAL'S REPORT. [Jan, 

your Board, under the law, to compel due performance 
thereof. So long as the company duly and adequately 
furnishes current to the public, I find nothing in the act 
which prescribes the means by which that duty shall be 
performed. 

If a distributing company has made an honest and ap- 
parently adequate supply contract, so that it no longer re- 
quires its producing plant to enable it to discharge its public 
duty, I find nothing in the act which requires the retention 
of the plant as protection against an unanticipated failure of 
the selling company to supply current. But if a distributing 
company which has made an honest and apparently adequate 
supply contract is not required to retain its plant, the terms 
upon which it will dispose of it would seem fairly to lie 
within its corporate discretion. So far as discharge of its 
public duty is concerned, it would seem to be immaterial 
whether the sale is a present sale for cash, or a long-term 
conditional sale upon payment by instalments. In either 
case the company is merely disposing of property which it 
no longer requires to enable it to discharge its public duty. 

There is a clear duty devolving upon the officers of the 
corporation thus selling its producing plant to guard against 
any failure of the contracting producing company to perform 
its contract, which should be reasonably anticipated, and 
also to see that before the termination of the contract the 
selling company is so circumstanced as to continue its full 
functions as a public service company. It is not so much a 
question of law as a question of fact that would govern in 
this particular. 

Apply the foregoing to the question submitted: The 
Worcester Suburban Electric Company, on March 31, 1914, 
made a contract with the Connecticut River Transmission 
Company for the purchase of primary electricity during a 
period of thirty years. There is no suggestion that this 
contract has not proved entirely sufficient to enable the 
electric company to discharge its duty to the public. By 
reason of this contract the steam plant of the electric company 
was no longer needed by the electric company as a source of 
its supply. As a part of the same transaction, the electric 
company, b}" the so-called reservation agreement, made a 
conditional sale of this steam plant to the transmission 
company, the purchase price to be paid in instalments during 



1921.] PUBLIC DOCUMENT — No. 12. 33 

a period of twenty years, and the purchaser being put in 
immediate possession and control. If under these conditions 
the electric company might have sold outright for cash and 
have given immediate possession, I find nothing unlawful in 
giving such possession pending payment of the purchase 
price under a contract of conditional sale. In neither case 
is the ability of the electric company to discharge its public 
duty injuriously affected. Indeed, since, under paragraph 5 
of the reservation (conditional sale) agreement, the electric 
company may require the transmission company to operate 
the steam plant (materially improved and enlarged, as I am 
advised) for its benefit, the electric company, for twenty 
years at least, has two possible sources of supply instead of 
one. 

Under these circumstances I do not find that the simul- 
taneous execution of the agreement for the purchase of 
primary electricity and of the contract for the conditional 
sale of the steam plant (reservation agreement) w^as a viola- 
tion of St. 1914, c. 742, § 51, even though the consent of the 
Legislature was not first obtained. There was no *' transfer 
of its franchise" and no "contract" "to carry on its works," 
within the meaning of the statute. The company continues 
to conduct its own business, and is not controlled b}^ outside 
interests, which, I apprehend, is the real purpose underlying 
the provisions of the statute. To prohibit a corporation to 
"carry on its works" by means of the purchase of primary 
electricity, shown clearly to be advantageous to the company 
and the public, would, in effect, hamper if not deprive it of 
the management of its own affairs. Such is not, in my 
judgment, the natural construction to be given the statute, 
nor by any fair implication can it be so extended. 

The question remains whether the execution on March 
31, 1914, of the twenty-year "lease" of the steam plant in 
consideration of an annual rental of $1, and performance of 
the conditions of the simultaneous contracts, makes the 
transaction unlawful. If this "lease" had stood alone it 
might well be a violation of the act. But it does not stand 
alone. It is, on the contrary, a mere incident of the con- 
tract of conditional sale, of which it is an integral but un- 
necessary part, to which it adds nothing save an instrument 
which could be recorded as that contract could not be. The 
contract of conditional sale provides that throughout the 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 

twenty-year period thereof the purchaser, if he performs all 
his agreements, *'may occupy, operate and use the steam 
plant." Thus, if the "lease" were canceled, the transaction 
would not be materially changed. Under these circumstances, 
I regard the lease as immaterial, and insufficient to taint an 
otherwise lawful transaction with illegality. 

Moreover, as I am advised, the "lease," as such, has been 
by corporate action canceled, while the conditional sale 
stands, being evidenced by an escrow agreement in such form 
as to be made a matter of record. 
Very truly yours, 

Henry A. ^YyMAN, Attorney -General. 



Savings Deposits — Interest — Earned and collected. 

Interest collected in advance on a note which runs for a period beyond the 
date of declaring interest on savings deposits is not income earned 
during the next preceding period. 

Jan. 14, 1920. 
Hon. Augustus L. Thorndike, Bank Commissio7ier. 

Dear Sir: — I have your letter in which you make the 
following inquiry : — 

If a trust company has collected its interest in advance on a note 
which runs on savings deposits, can such company say that it is income 
earned during the next preceding period ? In other words, can I allow 
a trust company to pay a dividend on savings deposits from interest 
collected in advance, on-the theorj^ that it has been earned in accordance 
with such statute? 

The statute referred to, Gen. St. 1919, c. 326, provides: — 

Dividends or interest on the deposits in ttie savings departments of 
trust companies, savings banks and institutions for savings may be de- 
clared and paid for periods of not less than one month or more than six 
months, as determined by their by-laws, from income which has been 
earned and collected during the next preceding interest period. 

The words of the statute are, "earned and collected." 
These terms are not synonymous. Something more than 
mere collection is evidently required to bring a sum collected 
within the meaning of the term "earned." To hold that 
mere collection is sufficient to satisfy the statute would in 
effect strike out therefrom the words "and earned." 



1921.] PUBLIC DOCUMENT — No. 12. 35 

In my opinion, interest collected in advance is earned only 
as the period for which it is collected runs. If collected for 
a period beyond the date of declaring the interest, it cannot 
be said to have been earned "during the next preceding" 
period. 

There are decisions which hold that where interest has 
been collected in advance for the entire period of a loan, 
and there is a right on the part of the borrower to repay the 
principal before the expiration of such period, which right is 
exercised, the borrower is entitled to a return of the interest 
paid for the unexpired balance of the period. Such interest, 
though collected in advance, is clearly unearned. 

I am therefore of the opinion that a trust company which 
has collected its interest in advance on a note which runs 
for a period beyond the date of declaring interest on savings 
deposits cannot say that the interest for the period beyond 
the dividend date is income earned during the next preceding 
period. 

Very truly yours, 

Henry A. Wyman, Attorney -General. 



Superintendent of Buildings — Division of Highways — Lease 
of Quarters outside of Boston for Storage of Trucks — Au- 
thority to submit Same to Governor and Council. 

It is within the jurisdiction of the Superintendent of Buildings to lay be- 
fore the Governor and Council a proposal to lease storage space out- 
side the city of Boston for the use of the Division of Highways of the 
Department of Public Works, for the storage of trucks and outfit of 
the division. 

Jan. 15, 1920. 
Mr. Fred H. Kimball, Superintendent of Buildings. 

Dear Sir: — You have referred to me a letter to j^ou, dated 
January 2, from Mr. F. I. Bieler, secretary of the Division of 
Highways of the Department of Public Works, in which he 
requests 3'ou to lay before the Governor and Council for their 
approval a proposal to hire a stable in Middleborough for 
the storage of certain trucks and outfit of the Division of 
Highways of the Department of Public Works. You inquire 
whether this matter is within your jurisdiction. 

Gen. St. 1919, c. 350, § 17, provides that all the rights, 
powers, duties and obligations of the Sergeant-at-Arms, as 
defined in R. L., c. 10, §§ 4, 8 and 9, St. 1909, c. 514, § 2. St. 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

1913, c. 711, and Gen. St. 1915, c. 224, are hereby transferred 
to the Superintendent of Buildings, and shall hereafter be 
performed by him. R. L., c. 10, § 4, provides, in part: — 

He [the sergeant-at-arms] shall have general charge and oversight 
of the state house and its appurtenances and of any other buildings 
in Boston owned by or leased to the commonwealth for the use of 
public officers. . . . 

I am orally informed by the Sergeant-at-Arms that at the 
time when this section was enacted quarters for State officers 
were almost entirely confined to the city of Boston. Since 
that time quarters for various boards and commissions have 
been required to a much greater extent throughout the State. 
The practice, therefore, grew up of submitting proposed leases 
of such quarters to the Governor and Council, for their ap- 
proval, such submission being made through the Sergeant- 
at-Arms. In this w^ay such proposed leases came before the 
Governor and Council through a single channel, w^hereby 
confusion and waste were avoided. This practice seems to 
have been to some extent recognized and approved by the 
Legislature, wdiich, by St. 1910, c. 326, § 1, provided, subject 
to certain exceptions not here material: — 

The governor, with the advice and consent of the council, may as- 
sign the rooms in the state house and rooms elsewhere, used by the 
commonwealth, and may determine the occupancy thereof in such 
manner as the pubhc service may from time to time reciuire : . . . 

Gen. St. 1919, c. 350, § 19, provides in part: — 

The superintendent of buildings shall have charge of purchasing all 
ofl&ce furniture, fixtures and equipment, stationery and ofl&ce supplies 
for all executive and administrative departments and divisions and 
boards thereof, except paper for the state printing contract, which 
shaU be bought by the secretary of the commonwealth as heretofore, 
and shaU direct the making of all repairs and improvements in the 
state house and on the state house grounds. AU said departments, and 
the divisions and boards thereof shall make requisition upon the 
superintendent of buildings for all office furniture, fixtures and equip- 
ment, stationery and office suppfies which they may require, and for 
any repairs or improvements which may be necessary in the state 
house or in other buildings or parts of buildings owned, occupied by 
or leased to the commonwealth and occupied by said departments, 
divisions and boards. . . . 



1921.] PUBLIC DOCUMENT — No. 12. 37 

While the matter is, perhaps, not entirely clear, viewed in 
the light of the statutes alone, I am of opinion that, in view 
of the long-continued practice above referred to, it is within 
your jurisdiction, as Superintendent of Buildings, to lay be- 
fore the Governor and Council the proposal to hire storage 
space in Middleborough for the use of the Division of High- 
ways of the Department of Public Works. 
Yours very truly, 

Henry A. Wyman, Attorney -General. 



International Law — Taxation — Property oivned by a Foreign 

Government. 

It is a settled principle that jurisdiction is not asserted by a nation against 

foreign sovereigns or their sovereign rights. 
In the light of this principle the tax statutes of the Commonwealth must 

be construed as not asserting any power to tax against a foreign 

sovereign. 

Jan. 15, 1920. 

Hon. William D. T. Trefry, Commissioner of Corporations and Taxatipn. 

Dear Sir: — You ask my opinion as to whether taxes may 
legally be assessed in this Commonwealth upon tangible per- 
sonal property of a taxable character, located therein on 
April 1 of any year, and owned by a foreign government. 
The specific property to which your inquiry relates consisted 
of bales of linters held in storage in Chicopee on April 1, last, 
in one instance owned by the government of Great Britain 
and under the control of the Imperial Munitions Board of 
the Dominion of Canada, and in another instance owned by 
the French Republic and under the control of the French 
High Commission, Munitions Department. 

In my opinion, your inquiry must be answered in the 
negative. 

I assume that this property either was manufactured in 
Massachusetts or had otherwise acquired a permanent situs 
here, so that it would be taxable if owned by a non-resident 
individual or a foreign corporation. 

It is true that our statutes purport to tax "all property, 
real and personal situated within the commonwealth . . . un- 
less expressly exempted by law" (St. 1909, c. 490, pt. I, § 2), 
and that there is no express statutory exemption of the prop- 
erty of foreign governments. Yet this provision must be 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

construed in the light of established principles of international 
law and comity. 

The jurisdiction of each independent nation is necessarily 
exclusive and absolute within its own territory. However, by 
common consent among civilized nations, a consent largely 
implied from common usage and the necessities of mutual 
intercourse, that absolute jurisdiction is not asserted against 
foreign sovereigns or their sovereign rights. Whether this be 
called a rule of comity or of law, it has become a settled 
principle of international relations which has long been recog- 
nized by the Supreme Court of the United States. Schooner 
Exchange v. M'Faddon, 7 Cranch, 116. It is settled that the 
courts of one nation will assert no jurisdiction either against 
the person or the property of a foreign sovereign. Briggs v. 
Lighthoais, 11 Allen, 157, 184. 

In accordance with this principle, our Supreme Judicial 
Court refused to entertain an action of tort in our courts 
against a railroad owned directly by the sovereign of Great 
Britain, although jurisdiction in the usual sense of the term 
was obtained by attachment by trustee process of the property 
of the railroad located in Massachusetts. Mason v. Inter- 
colonial Railway, 197 Mass. 349. 

It follows that, even in the event that a tax of the char- 
acter now in question were valid, no proceedings could be 
had in any court in the Commonwealth to enforce its pay- 
ment, either against the foreign government or the property 
taxed so long as it was owned by that government. This 
fact alone strongly indicates that it was never intended by 
our statutes to impose such a tax. But the rule upon which 
these decisions are based goes much deeper than a refusal 
to assert mere judicial jurisdiction. It involves a waiver of 
all sovereign power. If a nation permits a foreign sovereign 
or his or its official representatives to enter the territory of 
that nation or to hold property therein, it impliedly consents 
that all sovereign rights of such foreign nation shall be recog- 
nized. One of these essential rights is independence of every 
other sovereign. For the Commonwealth to impose a tax 
upon the property of any sovereign within its borders would 
not only be exercising a jurisdiction to interfere with the 
rights of that sovereign in such property, but would be taking 
the further step of attempting to impose an obligation upon 
such sovereign to contribute toward the public expenses^ of 



1921.] PUBLIC DOCUMENT — No. 12. 39 

the Commonwealth. It would be asserting a jurisdiction 
more fundamental in character, even, than judicial jurisdic- 
tion. In my judgment, the tax statutes of the Common- 
wealth must be read in the light of these principles, and, 
when so read, they must be construed as not asserting any 
power to tax which is at variance with them. 

Accordingly, in my opinion, taxes of the character referred 
to in your inquiry cannot legally be assessed in this Com- 
monwealth. 

Yours very truly, 

Henry A. Wyman, Attorney-General. 



Prisoners — Sentence — Discharge of Common Night Walker 
from House of Correctio7i. 

The authority conferred by R. L., c. 225, upon the county commissioners, 
or, in the city of Boston, upon the penal institutions commissioner, 
to release persons sentenced to a house of correction is confined to 
persons sentenced as common night walkers under R. L., c. 212, § 55. 

Jan. 15, 1920. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — -You inquire "whether, under R. L., c. 225, 
§ 123, the county commissioners, or in the city of Boston the 
penal institutions commissioner, have a right to release any 
person sentenced to a house of correction in accordance with 
the terms of that section, or whether such right applies only 
to persons convicted in the manner described in lines 7, 8, 9 
and 10 of that section." 

R. L., c. 225, § 123, provides, in part: — 

The county commissioners, or, in the city of Boston, the penal in- 
stitutions commissioner, subject to the approval of a justice of the 
court which imposed the sentence, after six months from the time of 
sentence, maj^ discharge a person sentenced to the house of correction, 
and the directors of a workhouse may discharge a person sentenced 
thereto upon a conviction under the provisions of section fiftj^-five of 
chapter two hundred and twelve of being a common night walker, if 
they are satisfied that the prisoner has reformed, or, for any term 
during the period of the sentence, they may bind out such prisoner as 
an apprentice or servant to any inhabitant of the commonwealth. . . . 

In my opinion, this provision is confined to the discharge 
of a person sentenced as a common night walker under R. L., 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

c. 212, § 55. To extend section 123 to all persons "sen- 
tenced to the house of correction" would conflict with R. L., 
c. 225, § 121, which contains the general provisions for re- 
lease upon probation of "any person who is imprisoned in a 
jail or house of correction." I am confirmed in this view by 
an opinion rendered on Feb. 3, 1917, by Hon. Henry C. 
Attwill, Attorney-General, to Thomas C. O'Brien, Deputy 
Director of the Bureau of Prisons. 
Yours very truly, 

Henry A. Wyman, Attorney -General. 



Schools — Teaching of Thrift. 

R. L., c. 42, § 1, as amended by St. 1908, c. 181, and St. 1910, c. 524, per- 
mits but does not require thst thrift shall be taught in the public 
schools. 

Jan. 16, 1920. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You inquire whether instruction in thrift in 
the public schools is legally required by St. 1910, c. 524. 
That statute provides as follows: — 

Section one of chapter forty-two of the Revised Laws, relating to 
the subjects that shall be taught in the public schools, as amended 
by chapter one hundred and eight3^-one of the acts of the year nine- 
teen hundred and eight, is hereby further amended by inserting after 
the word "ethics", in the twenty-fourth line, the word: — thrift. 

R. L., c. 42, § 1, as amended by St. 1908, c. 181, provides, 
in part, that "special instruction" as to certain subjects 
"shall be taught as a regular branch of study to all pupils 
in all schools which are supported wholly or partly by public 
money," with certain exceptions. The next sentence provides: 
" Bookkeeping, . . . civil government, ethics and such other 
subjects as the school committee consider expedient jnay be 
taught in the public schools." 

St. 1910, c. 524, provides that the word "thrift" shall be 
inserted in the above sentence after the word "ethics." The 
act is, however, entitled " An act to provide for compulsory 
instruction in thrift in the public schools." The precise ques- 
tion is whether this title renders the provision for instruction 
in thrift mandatory. 

I am of opinion that it does not. The title of an act, of 



1921.] PUBLIC DOCUMENT — No. 12. 41 

itself, cannot be held to control or enlarge the words of the 
statute unless they are doubtful or ambiguous. The sentence 
of R. L., c. 42, § 1, in which the word "thrift" is inserted, 
is clearly permissive, not mandatory. If so, the title of St. 
1910, c. 524, cannot control or change its meaning. If there 
were any doubt as to this conclusion, it seems to be removed 
by Gen. St. 1917, c. 169, and Gen. St. 1918, c. 257, § 174, 
both of which re-enact the provision for instruction in thrift 
in the permissive form. 

Yours very truly, 

Henry A. Wyman, Attorney-General. 



Elections — Corrupt Practices — Political Committees — Expend- 
iture of Money. 

Review of law relative to use of money in primaries and elections, and the 
powers of political committees, candidates and other persons defined. 

Jan. 19, 1920. 
Hon. Albert P. Langtry, Secretary of the Commonwealth. 

Dear Sir: — You have asked five questions arising under 
the law relating to corrupt practices at elections (St. 1913, 
c. 835, as amended by St. 1914, c. 783, and Gen. St., 1916, 
c. 161). I will answer your questions seriatim. 

1. Is a committee organized for the purpose of aiding the nomina- 
tion, election or defeat of a candidate a "poUtical committee" ? 

A similar question was submitted to one of my predecessors 
in office, who ruled that a political committee consisting of 
five or more persons selected and appointed by a candidate 
or a political party, or combination for the purpose of aiding 
the election of such candidate, was a political committee, 
within the meaning of the statute; but from a careful con- 
sideration of the corrupt practices act and its history I feel 
obliged to dissent from this ruling. Under the provisions of 
the original law of 1913 the term "political committee" ap- 
plied "to every committee or combination of three or more 
persons who shall aid or promote the success or defeat of a 
political party or principle in a public election or shall aid 
or take part in the nomination, election or defeat of a can- 
didate for public office." By the act of 1914, as amended 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

by Gen. St. 1916, c. 161, this portion of the law was changed, 
and the term ** political committee" was made to apply "to 
every committee or combination of three or more persons 
w^ho shall aid or promote the success or defeat of a political 
party or principle in a public election, or shall favor or oppose 
the adoption or rejection of a constitutional amendment or 
other question submitted to the voters." 

It is not to be presumed that the change was unintentional, 
and it is my opinion that a committee organized for the pur- 
pose of aiding the nomination, election or defeat of a candi- 
date is not a political committee. 

2. What is the meaning of the words ''pubhc election" ? 

It will be noted that the words "public election" appear in 
Gen. St. 1916, c. 161, as quoted in the discussion of your first 
question. While the election laws of 1913 do not give a 
definition, the meaning of these words may be inferred from 
the following definitions: "city election" shall apply to any 
election held in a city for the choice of a city officer by the 
voters, whether for a full term or for the filling of a vacancy; 
"town election" shall apply to any meeting held for the elec- 
tion of town officers by the voters, whether for a full term 
or for the filling of a vacancy; "state election" shall apply 
to any election held for the choice of a national, State, dis- 
trict or county oflScer by the voters, whether for a full term 
or for the filling of a vacancy. "Primary" shall apply to a 
joint meeting of municipal or political parties held under the 
provisions of the act relating to primaries. 

It is obvious that while a primary has much of the ma- 
chinery of an election, it is not an election at all. It nomi- 
nates but does not elect. The words "public election" include 
elections by a town, city or State, or subdivisions thereof, 
but cannot include a primary. 

3. May a committee organized to promote the nomination or elec- 
tion of a candidate expend money for advertising purposes, printing 
or distributing letters or circulars in its behalf ? 

In my answer to your first question I have said that a 
committee organized to aid the nomination, election or de- 
feat of a candidate is not a political committee. The com- 
mittee so organized has no standing as a political committee, 



1921.] PUBLIC DOCUMENT — No. 12. 43 

and therefore its members can do no more than an individual 
can do in their support of a candidate. The law is clearly 
stated in St. 1914, c. 783, § 5, which is as follows: — 

No person, except a person acting under the authorit}' or in behalf 
of a political committee having a treasurer, or a candidate for nomina- 
tion or election to a public office, or person acting under his authority, 
shall receive money or its equivalent, or expend, disburse or promise 
to expend or disburse money or its equivalent, to aid or promote the 
success or defeat of a political partj^ or principle or a constitutional 
amendment or other question submitted to the voters in any election, 
or to aid or influence the nomination, election or defeat of a candidate 
for office: provided, however, that nothing herein shall be construed 
to prohibit any individual, not a candidate, from contributing to po- 
litical committees or to candidates a sum which in the aggregate of 
all contributions by him shall not exceed one thousand dollars in any 
election and primary" preliminary thereto; and provided, also, that 
nothing herein shall be construed to prohibit the rendering of services 
by speakers, publishers, editors, writers, checkers and watchers at the 
polls or by other persons for which no compensation is asked, given or 
promised, expressly or by implication; nor to prohibit the pajinent 
b}^ themselves of such personal expenses as may be incidental to the 
rendering of such services; and nothing herein shall be construed to 
prohibit the free use of property belonging to an individual and the 
exercise of ordinary hospitality for which no compensation is asked, 
given or promised, expressly or by implication. 

Thus, neither an individual nor a campaign committee of 
an individual candidate can lawfully expend money in behalf 
of a party or a candidate except to contribute to a candidate's 
personal fund or to a duly constituted political committee. 
The reason for this is obvious, inasmuch as a candidate must 
make a return of his personal expenses, and a political com- 
mittee must make a return of the party expenses. It was 
plainly the intention to confine direct expenditures to persons 
or groups of persons who are required to make return. It 
cannot be considered that it was intended to leave an easy 
means of escape from the limitation of expenditures estab- 
lished by statute. 

In my opinion, the statute makes it unlawful for any person 
or combination of persons, except candidates or political 
committees, to defray any election expenses except by con- 
tributions as above stated. 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

4. May a committee organized for the express purpose of promoting 
the success of a pohtical party expend money for advertising purposes, 
printing or distributing letters or circulars in behalf of an indi\ddual 
candidate? 

A committee such as is described in this question is clearly 
a political committee, and the rights and limitations of such 
a committee are set forth in St. 1914, c. 783, § 3, as follows: — 

Political committees, duly organized, may receive, pay and expend 
money or other things of value for the purposes authorized by this 
act, and may contribute to other political committees. The author- 
ized purposes of expenditure shall be advertising, writing, printing and 
distributing circulars or other publications, hire and maintenance of 
political headquarters, and clerical hire incidental thereto, meetings, 
refreslmients other than intoxicating Uquors, decorations and music, 
postage, stationery, printing, expressage,- travehng expenses of com- 
mittee, speakers and clerks, telephone, telegraph and messenger serv- 
ice, hire of not more than one conveyance and not more than two 
persons at each polling place on election day: provided, however, that 
not more than one such conveyance and not more than two persons at 
each polling place shall be hired to represent the same political party 
or principle. 

A pohtical committee may contribute to the personal fund of a 
candidate, but no such committee shall pay, directly or indirectly, any 
personal expenses of any candidate for nomination or election, except 
by such a contribution to the fund of the candidate. The follomng 
expenses shall be deemed, for the purposes of this act, to be personal 
expenses : — TraveUng expenses of a candidate and expenses properly 
incidental thereto, writing, printing and distributing any letter, circu- 
lar or other publication or advertisement of or for an individual can- 
didate, meetings and refreshments for the sole benefit of an indi\ddual 
candidate, hire and maintenance of personal pohtical headquarters, 
and clerical hire incidental thereto, stationery, postage, telephone, 
telegraph and messenger service of an individual candidate, preparing, 
circulating and filing nomination papers, and the hire of conveyances 
and workers at primaries. 

It will be observed that the first paragraph provides what 
a political committee may do, and the second what it may 
not do. It may expend money for the benefit of the party, 
but not for the benefit of an individual candidate. It can, 
therefore, have nothing to do with relation to primaries, nor 
may it expend money for any individual candidate for elec- 



1921.] PUBLIC DOCUMENT — No. 12. 45 

tion apart from aiding or promoting the success or defeat of 
a political party. 

5. Msiy an individual not a candidate expend monej^in support of 
a nomination or election of a candidate or for the success of a political 
party in a pubhc election? 

In connection with my answer to your third c^uestion you 
will find quoted section 5 of chapter 783 of the Acts of 1914, 
in which may be found the answer to this question. No in- 
dividual not a candidate can lawfully expend money in ad- 
vertising or for any other purpose in behalf of a candidate 
for nomination or election or to aid a political party at an 
election except by contribution to the personal fund of such 
candidate or to a political committee. 

Moreover, assuming that St. 1914, c. 783, § 5, is constitu- 
tional, it forbids any person to spend money for political ad- 
vertisements, even in the form required by St. 1913, c. 835, 
§ 354, unless such expenditures are made by or under the au- 
thority of a political committee or candidate, who must in- 
clude them in his or its return. 
Very truly yours, 

Hexry a. Wyman, Attorney-General. 



License to store Inflammable Liquid — Api^eal to Commissioner 
of Public Safety from Order of State Fire Marshal. 

Under Gen. St. 1919, c. 350, § 109, a person ''affected" by an order of the 
State Fire Marshal, made under St. 1914, c. 795, § 18, by which the 
State Fire Marshal affirmed a permit to store a volatile inflammatory 
liquid, granted by the license commissioners of CamJjridge, may ap- 
peal to the Commissioner of Public Safety, who shall grant a hearing 
upon such appeal. 

Jan. 28, 1920. 

Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — I am in receipt of your request for an opinion 
as to your duty to grant a hearing on an appeal from an 
order of the State Fire Marshal affirming the granting of a 
permit to store volatile inflammatory liquid by the license 
commissioners of Cambridge. The facts briefly are these: 
said commissioners were given power by the Fire Prevention 
Commissioner of the Metropolitan District, acting under the 



46 ATTORXEY-GEXERAL'S REPORT. [Jan. 

provisions of St. 1914, c. 795, § 4, to issue permits for the 
storage of inflammatory liquids, as authorized by section 6 
of said chapter, and a permit was duly granted by said com- 
missioners. 

A person living in the vicinity where said liquid was sought 
to be stored, claiming to be aggrieved by the action of the 
commissioners, appealed to the State Fire Marshal for a 
hearing under the provisions of section 18 of said chapter 
795, the State Fire Marshal being the successor in office of 
the Fire Prevention Commissioner. 

Following a hearing held b}^ the State Fire Marshal, an order 
was issued affirming the decision of the license commissioners. 

The appellant now seeks a further hearing before the Com- 
missioner of Public Safety under the provisions of Gen. St. 
1919, c. 350, § 109, which reads as follows: — 

Any person affected bj' an order of the department or of a division 
or office thereof, msiy, mthin such time as the commissioner may fix, 
which shall not be less than ten days after notice of such order, appeal 
to the commissioner, who shall thereupon grant a hearing, and after 
such hearing may amend, suspend or revoke such order. Any person 
aggrieved by an order approved by the commissioner may appeal to 
the superior court: provided, such appeal is taken within fifteen days 
from the date when such order is approved. The superior court shall 
have jurisdiction in equity upon such appeal to annul such order if 
found to exceed the authority of the department, and upon petition 
of the commissioner to enforce all vaUd orders issued by the depart- 
ment. Nothing herein contained shall be construed to deprive any 
person of the right to pursue an}^ other lawful remedy. 

St. 1914, c. 795, § 18 provides that — 

The commissioner [State Fire Marshal] shall hear and determine 
all appeals from the acts and decisions of the heads of fire departments 
and other persons, acting or purporting to act under authority of the 
commissioner, done or made or purporting to be done or made under 
the proAdsions of this act, and shall make all necessary and proper 
orders thereupon, and any person aggrieved by any such action of the 
head of a fire department or other person shall have an absolute right 
of appeal to the commissioner. 

Concisely stated, a person aggrieved at the action of a 
board or commission to whom the Fire Prevention Commis- 
sioner, now the State Fire Marshal, has delegated power to 
act, may appeal to said State Fire Marshal, who shall hear 



1921.] PUBLIC DOCUMENT — Xo. 12. 47 

and determine the appeal and make an order thereon; and 
any person who is affected by an order of said State Fire 
Marshal may appeal to the Commissioner of Public Safety, 
who shall grant a hearing, and he may amend, suspend or 
revoke the order. 

I must therefore advise you that you are required to grant 
a hearing to the appellant on the facts as stated. 
Very truly yours, 

J. Weston Allex, Attorney-General. 



Retirement — Emjjioyee icho leaves the Service and later returns 

to it. 

WTiere a member of the State Retirement Association leaves the service 
of the Commonwealth and receives a refund of the amount contributed 
by him to the association, in accordance with St. 1911, c. 532, § 6, 
par. 2, but returns to the service of the Commonwealth within five 
months, being then under fifty-five years of age, he begins a new term 
of emplo3^ment in respect of which he is not entitled to credit because 
of his former employment, either for the purpose of reinstatement in 
the association or for the purpose of determining the period of service 
which will entitle him to retire with a pension. 

Jan. 2S, 1920. 

Board of Retirement. 

Gentlemen : — I have your request for my opinion upon 
certain questions in connection with the interpretation of St. 
1911, c. 532, as amended, as applied to the following facts: — 

i\. member of the Retirement Association resigns from the 
service of the Commonwealth, and a refund is made to him 
upon his application and notice of withdrawal from his em- 
ployment, in accordance with the provisions of St. 1911, c. 
532, § 6, par. {2) A (a). 

Within five months, being then under fifty-five years of 
age, he returns to the position from which he had resigned, 
and makes written application to your Board for reinstate- 
ment in the Retirement Association, enclosing therewith his 
check for the amount which had been refunded to him. 

Your first question is whether or not the law will permit 
your Board to reinstate him under such a basis. 

Your second question is whether or not he would be en- 
titled to any credit for the period of continuous service ren- 
dered prior to the date of his last appointment. 

These questions are interrelated and will be treated as one. 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

St. 1911, c. 532, § 2, provides for the establishment of a 
retirement system, and section 3 of said chapter 532 provides 
for the organization of a retirement association among the 
employees of the Commonwealth. 

Section 3, paragraph 1, provides that — 

All employees of the commonwealth, on the date when the retirement 
system is estabhshed, may become members of the association. . . . 

Section 3, paragraph 2, provides that — 

All employees who enter the ser^dce of the commonwealth after the 
date when the retirement system is estabhshed, except persons who 
have already passed the age of fifty-five years, shall upon completing 
ninety days of service become therebj^ members of the association. . . . 

Section 6, paragraph (2) A (a), provides that — 

Should a member of the association cease to be an employee of the 
commonwealth for any cause other than death, . . . before becoming 
entitled to a pension, there shall be refunded to him all the money 
paid in bj^ him under section five, (2) A, with such interest as shall 
have been earned thereon. 

Section 6, paragraph (2) B, provides that — 

Any member who reaches the age of sixty years and has been in the 
continuous ser\dce of the commonwealth for fifteen years immediately 
preceding, and then or thereafter retires or is retired, . . . shall receive 
an annuitv. . . . 



The member, having been an employee at the time that 
the retirement system was established, became a member of 
the Retirement Association under the provisions of section 3, 
paragraph (1). Having resigned prior to the expiration of 
fifteen years of continuous service, he was not entitled to 
any pension, but was entitled to the refund provided for in 
said section 6, paragraph (2) A (a). This refund was granted 
to him by your Board and was accepted by him. His ac- 
ceptance of the refund clearly shows that he intended at the 
time of his resignation to permanently discontinue in the em- 
ploy of the Commonwealth. 

St. 1911, c. 532, § 1 (/), reads as follows: — 



1921.] PUBLIC DOCUMENT — Xo. 12. 49 

The words "continuous service" mean uninterrupted employment, 
with these exceptions: — a laj-off on account of illness or reduction of 
force, and a leave of absence, suspension or dismissal followed bj" rein- 
statement within two years. . . . 

Under the provisions of section 6, paragraph (2) B, as de- 
fined by section 1 (/), the fifteen years of employment must 
be uninterrupted other than for the exceptions mentioned 
therein. Should your Board consider his voluntary resigna- 
tion in the light of a subsequent return to the position which 
he had resigned as a mere interruption of the period of his 
emploj'ment, the time spent in the service of the Common- 
w^ealth prior to his resignation could still not be considered as 
part of a continuous service, since voluntary resignation is 
not included in the exceptions mentioned in said section 1 (/). 

Under section 4, paragraph (4), of said act your Board is 
authorized to make by-laws and regulations, provided they 
are "not inconsistent with the provisions of this act." 

No express provision for the reinstatement of a member 
who voluntarily resigns from the association appears in the 
act. Reinstatement in the association, together with the ac- 
ceptance by your Board of a check for the amount which 
had been refunded to him, w^ould revive the continuity of 
the term of his employment prior to the time of his resig- 
nation. Such act on the part of your Board would in effect 
constitute an additional exception to those specifically men- 
tioned in said section 1 (/), and would result in giving an 
interpretation to the w^ords "continuous service" contrary to 
that as defined by said section 1 (/). Any provision made by 
your Board permitting his reinstatement would clearly be in- 
consistent with the provisions of the act, and therefore illegal. 

His term of employment having terminated, he would, upon 
re-entering the service of the Commonw^ealth, become a mem- 
ber of the association under the provisions of section 3, para- 
graph (2), and the term of fifteen years would commence to 
run from said date. 

In view of the fact that his resignation constituted a ter- 
mination of the first term of his employment, said term must 
be disregarded. I am therefore of the opinion that 3'our 
Board could not lawfully reinstate him nor would he be en- 
titled to any credit for the period of continuous service 
rendered by him prior to the date of his last employment. 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

Your third question is whether or not this member, if not 
allowed credit for the period of service from the time of the 
establishment of the Retirement Association to the date of 
his resignation, would, on completion of fifteen years of con- 
tinuous service immediately preceding retirement at the age 
of sixty or over, be entitled to the pension for the period of 
service rendered prior to the establishment of the Retirement 
Association as provided by section 6, paragraph (2) C (6), by 
virtue of the fact that he had been in the service of the 
Commonwealth at the time the system went into effect. 

Section 6, paragraph (2) C {b), provides as follows: — 

. . . An}^ member of the association who reaches the age of sixty 
years, having been in the continuous ser^^ce of the commonwealth for 
fifteen j^ears or more immediate!}^ preceding, and . . . thereafter re- 
tires or is retired, . . . shall receive in addition to the annuity and 
pension provided for by paragraphs (2) B and C (a) of this section, an 
extra pension for life as large as the amount of the annuit}^ and pen- 
sion to which he might have acquired a claim if the retirement S3'stem 
had been in operation at the time when he entered the service of the 
CGmmonxcealth. . . . 

This section was clearl}- enacted by the Legislature for the 
purpose of rewarding such of the employees of the Common- 
wealth as had been in its employ prior to the time of the 
establishment of the retirement system, who remained in its 
continuous service and who would be compelled to leave the 
service by the terms of the act, by providing them with a 
reasonable retirement allowance. Had the member remained 
in the continuous service of the Commonwealth he would un- 
questionably, under the provisions of said section, have been 
entitled to the additional pension as therein provided. His 
voluntary resignation from the service of the Commonwealth 
terminated his first employment. His subsequent re-employ- 
ment and readmission constituted, for the purpose of this act, 
the actual beginning of the term of his employment in the 
service of the Commonwealth, and did not revive the former 
term. 

Having voluntarily resigned and having thereby terminated 
the period of his employment which was in operation at the 
time the retirement system w^ent into effect, he thereby for- 
feited whatever right he might have had to the special bene- 
fits provided for in said section 6, paragraph (2) C (b). 



1921.] PUBLIC DOCUMENT — No. 12. 51 

I am of the opinion that the term " when he entered the 
service of the commonwealth," as used in said section 6, par- 
agraph (2) C ih), would in his case apply to his re-entry into 
the service, which was after the establishment of the retire- 
ment system, and that he would therefore not be entitled to 
the additional pension for the period of continuous service 
rendered prior to the time the retirement system went into 
effect. 

Very truly yours, 

J. Westox Allen, Attorney -General, 



Banks and Banking — Collections — Right of Collecting Bank 
to become Debtor for Sum collected — Money on Storage — 
Defunct Trust Company. 

Where a draft is transmitted to a trust company for collection and is col- 
lected by it while the trust company is still solvent and open for 
business, the proceeds of such draft constitute a debt, and cannot be 
recovered in specie, under St. 1910, c. 399, § 12, as money "in its 
. . . possession for storage or safekeeping," even though the trust 
company is closed by the Commissioner of Banks under authority of 
St. 1910, c. 399, § 2, before the treasurer's check, transmitted in pay- 
ment of the proceeds of said draft, is presented to the trust company 
for payment. 

Semble that if the draft had been collected after the trust company 
had closed its doors or was known by its officers to be insolvent the 
proceeds thereof would be held in trust, and could be recovered in 
specie by the owner of the draft. 

Semble that where a draft is transmitted to a trust company for collection 
the trust compan}^ holds it in a fiduciary capacity until collected. 

Jan. 30, 1920. 
Hon. Augustus L. Thorndike, Bank Commissioner. 

Dear Sir: — I have considered the inquiry contained in 
your recent letter. As I understand your letter, supplemented 
by 'an oral interview, the case is this : — 

A draft was drawn upon the X Company, a Massachusetts 
concern, pa^^able at the Old South Trust Company on Dec- 
16, 1919. It was transmitted to the Old South Trust Com- 
pany for collection by the First National Bank of , 

. The drawee brought in a certified check on Dec. 16, 

1919, which was received in payment of the draft. On the 
same day (Dec. 16, 1919), the Old South Trust Company 
drew a check on itself, signed by its treasurer, to the order 



52 ATTORXEY-GENERAL'S REPORT. [Jan. 

of said First National Bank, and mailed it to that bank in 
payment of the collection. On Dec. 18, 1919, the Bank Com- 
missioner, acting under the authority of St. 1910, c. 399, 
closed the Old South Trust Company. The said treasurer's 
check was thereafter presented to the Old South Trust Com- 
pany and went to protest. You further inform me that it is 
a usual custom of banks and trust companies to pay such 
collection items by a cashier's or treasurer's check drawn on 
themselves. You ask whether the proceeds of this collec- 
tion are money or property held by the trust company "in 
storage or safekeeping," within the meaning of St. 1910, c. 
399, § 12. 

St. 1910, c. 399, § 12, provides, in part, as follows: — 

Should any corporation or indi^idual banker, at the time when the 
bank commissioner takes possession of the property and business of 
such corporation or banker, have in its or his possession for safe keep- 
ing and storage, any jewelry, plate, money, securities, valuable papers 
or other valuable personal propertj-, or should it or he have rented any 
box, safes, or safe deposit boxes, or any part thereof, for the storage of 
property of any kind, the bank commissioner may at anj^ time after 
taking possession as aforesaid cause to be mailed to the person claim- 
ing to be, or appearing upon the books of the corporation or banker to 
be, the owner of such property, or to the person in whose name the 
safe, vault, or box stands, a notice in writmg in a securely closed post- 
paid, registered letter, directed to such person at his postoffice address 
as recorded upon the books of the corporation or banker, notifjdng 
such person to remove, within a period fixed by said notice and not 
less than sixt}^ daj^s from the date thereof, all such personal property; 
and upon the date fixed by said notice, the contract, if any, between 
such persons and the corporation or banker for the storage of said 
property, or for the use of said safe, vault or box, shall cease and de- 
termine, and the amount of the unearned rent or charges, if anj?", 
paid by such person shall become a debt of the corporation or banker 
to such person. . . . 

The question, therefore, is whether the Old South Trust 
Company could and did make itself the debtor of the First 

National Bank of for the proceeds of this collection, or 

whether it held the specific money collected for delivery to 
its correspondent. 

The general rule is that where commercial paper is trans- 
mitted to a bank for collection, the bank holds such paper 
as agent for the apparent owner until the collection is made. 



1921.] PUBLIC DOCUMENT — Xo. 12. 53 

Manufacturers' Banh v. Continental Bank, 148 Mass. 553, 557; 
Freeman s National Bank v. National Tube Works, 151 Mass. 
413, 417; Commercial Bank v. Armstrong, 148 U. S. 50; 7 
Corpus Juris, pp. 597, 598, note 33. But the great weight of 
authority and the rule in this State appears to be that when 
the collection is made, the collecting bank may, by custom, 
mingle the proceeds with its general funds and become a 
debtor for the amount collected. Manufacturers Bank v. Con- 
tinental Bank, 148 Mass. 553, 558; Freeman's National Bank 
V. National Tube Works, 151 Mass. 413, 418; Commercial 
Bank V. Armstrong, 148 U. S. 50. This custom ma^^, of 
course, be modified by express directions (7 Corpus Juris, 
pp. 616, 617, notes 71, 72), and is further quahfied by the 
implied condition that at the time the collection is made the 
bank has not closed its doors or is not known by its officers 
to be insolvent. Manufacturers' Bank v. Continental Bank, 
148 Mass. 555, 559; Western German Barik v. NorreU, 134 
Fed. Rep. 724; St. Louis & S. F. Rij. Co. v. Johnston, 133 
U. S. 566; 7 Corpus Juris, p. 616, note 70. In other words, 
the authority of the bank to change its relation to the owner 
of the paper from agent to debtor ceases when the bank has 
closed its doors or is known by its officers to be insolvent. 
(See cases last cited.) 

In the present case the collection was complete upon Dec. 
16, 1919. You inform me that the bank was not then, and 
in your judgment is not now, insolvent. Its doors were not 
closed until Dec. 18, 1919. It does not appear that there 
was any direction to transmit the specific money collected 
to the owner of the draft, or that the treasurer's check of the 
Old South Trust Company was rejected and the proceeds of 
the collection claimed in specie. Under these circumstances, 
and in the absence of any further facts, I am of opinion that 
the Old South Trust Company could and did make itself a 
debtor for the proceeds of this collection. Such a debt is 
not within St. 1910, c. 399, § 12. 
Yours very truly, 

J. Westox Allex, Attorney-General. 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 



Insane Person — Surgery — Right to operate on Insane Patient 
without Consent — Quarantine without Consent, of Insane 
Patient who is Dangerous or afflicted with a Contagious 
Disease — Vaccination of Insane Patient. 

The superintendent of a State insane hospital has no authority to draw 
small quantities of blood and spinal fluid from a patient for purposes 
of diagnosis and treatment unless the patient, if competent, or his 
guardian, if he is incompetent, consents. 

If a patient be dangerous or afflicted with a contagious or infectious dis- 
ease, he may be quarantined, even against his will or the will of his 
guardian. 

If the conditions prescribed by R. L., c. 75, § 138, are satisfied, a patient 
may be vaccinated against his wull or that of his guardian. 

Jan. 30, 1920. 

Dr. George M. Kline, Commissioner of Mental Diseases. 

Deak Sir: — You inquire whether superintendents of State 
insane hospitals have authority to draw small quantities of 
blood and spinal fluid from a patient for purposes of diagnosis 
and treatment, "notwithstanding the objections of the patient 
or his guardian or relatives." 

Under date of Feb. 14, 1916, an opinion was rendered by 
this Department to the effect that lumbar punctures could 
not be made on patients without their consent, or the consent 
of their guardians if such patients were themselves incom- 
petent to give such consent, where such punctures were made 
for the purpose of experiment or research. 

On March 25, 1916, this Department rendered a further 
opinion to the State Board of Insanity that lumbar punctures 
cannot be made upon a patient in an insane hospital, even 
for purposes of diagnosis and treatment, unless the patient 
(if competent) or the patient's guardian consents. IV Op. 
Atty.-Gen., 531. See also McClatlen v. Adams, 19 Pick. 333; 
Purchase v. Seelye, 231 Mass. 434, 438. 

In the light of these authorities I am of opinion that con- 
sent, either express or by conduct, is a condition of both 
surgical and medical treatment in the case of sane persons. 
McClallen v. Adams, 19 Pick. 333. But such consent may 
be manifested by conduct, either of the patient himself or 
of one who has authority to give such consent. McClallen 
v. Adams, 19 Pick. 333. In an emergency such consent may 
sometimes be presumed. Mohr v. Williams, 95 Minn. 261. 



1921.] PUBLIC DOCUMEXT — No. 12. 55 

The rule appears to be the same for insane patients. Pratt 
V. Davis, 224 111. 300. If the patient is competent to give 
consent, his assent, either express or by conduct, is a con- 
dition of treatment. IV Op. Atty.-Gen., 531. If the patient 
is incompetent, the consent of his guardian, either express or 
by conduct, is a condition of treatment. IV Op. Att^^-Gen., 
531. It may be that the Legislature might modify this rule 
to some extent in the case of persons committed to State 
institutions. Commomcealth v. Pear, 183 Mass. 242; Jacoh- 
S071 V. Massachusetts, 197 U. S. 11. See also Gen. St. 1918, 
c. 58, § 2, and opinion of the Attorney-General to the State 
Department of Health under date of Aug. 22, 1919, as to 
physical examination of inmates of the penal institutions 
named in that act. I find no similar statute applicable to 
inmates of State insane hospitals. I am therefore of opinion 
that where the patient (if competent) or his guardian (if the 
patient be incompetent) has expressl}^ forbidden a given sort 
of medical or surgical treatment, that prohibition is effective 
and such treatment may not be administered. 

To avoid misunderstanding, let me add two general quali- 
fications. In the first place, if a patient be dangerous or 
afflicted with a contagious or infectious disease, he might, in 
my opinion, be segregated and quarantined even against his 
will, for the protection of other inmates. In the second place, 
the Legislature has, by R. L., c. 75, § 138, made express pro- 
vision for vaccination. That section provides as follows: — 

The board of health of a city or to-^ii in which any incorporated 
manufacturing company, almshouse, reform or industrial school, hos- 
pital or other estabhshment where the poor or sick are received, prison, 
jail or house of correction or any institution which is supported or 
aided by the commonwealth is situated may, if it decides that it is 
necessary for the health of the inmates or for the pubUc safetj^, re- 
quire the authorities of said establisliment or institution, at the ex- 
pense thereof, to cause all said inmates to be vaccinated. 

See Commonwealth v. Pear, 183 Mass. 242; Jacobson v. Massa- 
chusetts, 197 U. S. 11. 

I am of opinion that, if the conditions provided in R. L., 
c. 75, § 138, are satisfied, a patient might be vaccinated even 
against his will or that of his guardian. 
Yours very trul}^ 

J. Weston Allen, Attorney-General. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 



Constitutional Law — Provisions for raising Tax to pay Bonds 
no Contract ivith Bondholder or Taxpayer — Taxes not 
Borrowed Money — Application of Tax to Different Pur- 
2)ose. 

Money raised by taxation to repay a loan is not "borrowed money," 
within the meaning of Mass. Const. Amend. LXII, § 4. 

The provisions of Gen. St. 1919, c. 283, § 9, with respect to the manner in 
which money shall be raised by State taxation to pay the bonds 
authorized by that act, do not constitute a contract with the bond- 
holder. 

The provisions of Gen. St. 1919, c. 283, § 9, that the purpose of the tax 
thereby imposed shall be stated upon the tax bill, do not constitute a 
contract with the taxpayer that the tax shall be applied to such 
purpose. 

There is no constitutional provision which requires that the taxes raised 
under Gen. St. 1919, c. 283, § 9, shall be applied to the purpose stated 
therein. 

The Legislature may constitutionally provide that payment of the $10 
bonus, authorized by Gen. St. 1917, c. 211, shall be made out of taxes 
raised under Gen. St. 1919, c. 283, to pay the $100 bonus authorized by 
that act. 

Feb. 3, 1920. 

Joint Commitiee on Ways and Means. 

Gentlemen: — You ask my opinion upon the following 
matter: — 

Gen. St. 1919, c. 283, makes provision for the payment of 
$100 each to soldiers, sailors and certain others, resident in 
Massachusetts, who served in the war with Germany. Sec- 
tion 9 of that act provides as follows: — 

For the purpose of meeting the expenditures authorized by this act 
the treasurer and receiver general is hereby authorized, with the ap- 
proval of the governor and council, to issue bonds or notes from time 
to time, as thej^ are needed, to an amount not exceeding twenty mil- 
lion dollars, for such tenus as the governor shall recommend to the 
general court in accordance with section three of Article LXII of the 
amendments to the constitution. Such bonds or notes shall be desig- 
nated on the face thereof Massachusetts Military Ser\dce Loan, Act 
of 1919, shall be countersigned by the governor, and shall be deemed 
a pledge of the faith and credit of the commonwealth; and the prin- 
cipal and interest thereof shall be paid at the times specified on said 
bonds or notes in gold coin of the United States, or its equivalent. 
Said bonds or notes shall be disposed of in such manner as shall be 
deemed best by the treasurer and receiver general, who shall, when 



1921.] PUBLIC DOCUMEXT — No. 12. 57 

issuing any of said bonds or notes, provide for the pajniient of the same 
in the manner prescribed b}^ chapter three of the acts of nineteen hun- 
dred and twelve. The amount necessary to pay the principal of said 
loan as it matures, and the interest as it accrues, shall be raised by the 
assessment of a civilian war poll tax sufficient to provide not less than 
one half of the said amount, and the balance of such amount shall be 
raised by the imposition and levy of such assessments, rates and taxes, 
and of such duties and excises as the general court may hereafter deem 
just and expedient and may by law provide. All tax bills for the 
collection of taxes imposed to meet the amount of said principal and 
interest shall show on the face thereof that said taxes are imposed for 
the purpose of raising funds to provide for the pajTnents hereby au- 
thorized to the soldiers and sailors of Massachusetts who served in 
the war with Germany. The tax commissioner shall have authority 
to make suitable regulations for enforcing this provision. Any person 
entitled to the benefits of this act shall, upon apphcation to the board 
of assessors of the city or town in which he resides, receive an abate- 
ment of the additional war poll tax assessed upon him under the pro- 
visions of this section. 

Section 10 provides for the levy of a poll tax of $5 in the 
years 1920 to 1923, inclusive. 

Gen. St. 1919, c. 307, provides that the bonds to be issued 
under chapter 283 shall be for a term not exceeding five years, 
and authorizes the issue of notes in anticipation, payable 
within not more than one year from issue. Under this act 
$10,000,000 of notes have been issued. It is proposed to re- 
fund these notes this year by a bond issue maturing in the 
amount of $2,500,000 on December 1 of each of the years 
1920 to 1923, inclusive. 

Gen. St. 1919, c. 342, imposes certain additional taxes (in- 
cluding a special State tax of $650,000) for the purposes afore- 
said, with provision for a statement of the purpose upon the 
tax bills. Section 7 further provides that the amounts col- 
lected under the act shall be set aside in a special fund to 
meet the bonus requirements and the notes and bonds, and 
interest thereon, and that "any surplus remaining in said 
fund after all such payments have been made shall be dis- 
posed of as the general court shall hereafter prescribe by 
law." 

Gen. St. 1917, c. 211, § 1, provided for the payment of $10 
per month for a prescribed period to each soldier and sailor 
mustered into the military or naval service of the United 
States. Section 2 provided for a special issue of bonds or 



58 ATTORNEY-GENERAL'S REPORT. [Jan. 

notes, not exceeding $1,500,000, for a term not exceeding five 
years. 

It was and is anticipated that the amount required under 
the $100 bonus law will be less than $20,000,000, but that 
the amount required under the $10 bonus law will exceed 
$1,500,000. 

Spec. St. 1919, c. 242, § 3 (the Supplementary Appropri- 
ation Bill), authorized the Treasurer and Receiver-General 
to pay a sum not exceeding $200,000 from the proceeds of the 
loan authorized by Gen. St. 1919, c. 283 (the $100 bonus law), 
to soldiers and sailors under Gen. St. 1917, c. 211 (the $10 
bonus law). None of this appropriation has been expended. 
Question has been made whether this provision is in violation 
of Mass. Const. Amend. LXII, § 4, which provides: — 

Borrowed money shall not be expended for any other purpose than 
that for which it was borrowed or for the reduction or discharge of the 
principal of the loan. 

In connection with a proposal to repeal section 3 of chapter 
242 of the Special Acts of 1919 you make the following in- 
quiry : — 

May the General Court, by amendment to the acts creating the 
special taxes above mentioned or by new legislation, provide for the 
appropriation of the proceeds of any of said taxes to the pajonent of 
the $10 bonus pro^dded for by Gen. St. 1917, c. 211, before such time 
as all indebtedness incurred under the above-mentioned acts has been 
discharged and as all the $100 bonus pajinents have been made or 
provided for? And if, in your opinion, such appropriation may be 
vaUdly made at this time, what procedure would you suggest? 

1. I am of opinion that money raised by taxation to repay 
a loan is not "borrowed money," within the meaning of 
Mass. Const. Amend. LXII, § 4, quoted above. It follows 
that that amendment does not require that money so raised 
by taxation shall be applied to repay such loan. 

2. In my opinion, the provisions of Gen. St. 1919, c. 283, 
§ 9, with regard to the manner in which money shall be 
raised by taxation to repay the loan thereby authorized, do 
not enter into or become a part of the contract between the 
Commonwealth and note holders or bondholders. There is 
no express pledge of the proceeds of the taxes so imposed or 



1921.] PUBLIC DOCUMENT — Xo. 12. 59 

to be imposed, similar to the express pledge of rentals and 
tolls in the case of the East Boston tunnel. See Oinnion of 
the Justices, 190 Mass. 605. Even in the case of a munici- 
pality, a pledge of the receipts from certain water works 
was not implied from ordinances placing such receipts in a 
special fund to meet bonds issued to build the water works. 
Sinclair v. Fall River, 198 Mass. 248, 253. The act provides 
that the bonds or notes "shall be deemed a pledge of the 
faith and credit of the commonwealth." I am informed that 
bonds of the Commonwealth have always been issued without 
security. Under these circumstances, I am of opinion that 
the provision of section 9 for the imposition of taxes to pay 
the bonds must be regarded as a statutory declaration of the 
legislative will, which may be amended at pleasure, rather 
than as a contract with the bondholders or note holders. 

3. I am of opinion that the provisions for stating on the 
tax bills the purpose for which the tax is raised confer no 
right upon the taxpayer to insist that the proceeds of the 
tax be applied to payment of the $100 bonus only. A state- 
ment of the reason for or purpose of the tax is not a declar- 
ation of trust which the taxpayer may enforce. Moreover, 
application of some part of the proceeds of the tax to the 
payment of the $10 bonus is an application to a purpose of 
similar character, namely, care of soldiers and sailors who 
served in the late war. I suggest, however, that if any of 
the proceeds of these taxes are to be applied to the payment 
of the $10 bonus t'he Commonwealth might well provide in 
any act for that purpose that the statement on the tax bill 
be so changed as to include payments under both acts. 

4. I find no constitutional provision which requires that 
the taxes raised under or in connection with this act shall be 
applied to the purpose stated in the act. 

I am therefore of opinion that the Legislature has power 
to provide that ta.ves raised under or in connection with Gen. 
St. 1919, c. 283, may be immediately used to pay the $10 
bonus provided for by Gen. St. 1917, c. 211. Mass. Const. 
Amend. LXII, § 4, applies only to the proceeds of the loan, 
and not to the taxes raised to pay it. 
Very truly yours, 

J. Weston Allen, AitorTiey-General. 



60 ATTORNEY-GENERAL'S REPORT. [Jan. 



Civil Service — Fire Department — Promotion. 

Under St. 1913, c. 487, as amended, and Civil Service Rule 34, a call cap- 
tain of the fire department may not be promoted directly to the posi- 
tion of captain of the permanent force. 

Feb. 4, 1920. 
Division of Civil Service, Department of Civil Service and Registration. 

Gentlemen: — St. 1913, c. 487, § 1, as amended by St. 
1914, c. 138, provides as follows: — 

Cities and towns which have a call or part call fire department which 
now is or may hereafter be subject to the civil service rules may, on 
the recommendation of the board of engineers of the fire department 
or of the officer or board having charge of the fire department, appoint 
as members of the permanent force without civil service examination 
any persons then in the call or part call fire department who have 
served as call men or part call men for five or more successive years: 
provided, that such persons are certified by the city or town physician 
to be competent physically for the duty. If there is no city or town 
physician, then the said certification shall be made by a phj^sician 
designated for the purpose by the board of engineers or other authority, 
as aforesaid. 

Gen. St. 1916, c. 119, provides that the term "call men or 
part call men," as used in the above acts, shall be construed 
to include substitute call men. St. 1913, c. 487, which, by 
section 4, was subject to a referendum provision, was ac- 
cepted by the town of Dedham on March 2, 1914. There are 
only seven permanent men in the Dedham fire department 
at present, none of whom are oflRcers. All the officers are call 
men. Two men have served as call captains for more than 
five years. You inquire whether under the above acts and 
the rules of the civil service these two men may be promoted 
to the permanent force with the rank of captain, or whether 
they may be promoted only to the rank of private in the 
permanent force. 

Paragraphs 1, 2 and 3 of Rule 34 of the Civil Service Rules 
provide as follows: — 

1. In the Official Service, a promotion from one grade, as fixed by 
the rules or determined by the Commission, to another grade in the 
same class, shall not be valid imtil the candidate or candidates for 
promotion shall have been subjected to a competitive or non-com- 
petitive examination, as the Commission may decide (except as other- 



1921.] PUBLIC DOCUMENT — Xo. 12. 61 

wise required bj' law), and until the promotion shall have been au- 
thorized by the Commission. 

2. So far as practicable, promotions shall be made by successive 
grades; and no person shall be designated for promotion or examined 
until he shall have ser^^ed at least six months in the lower position 
except by special vote of the Commission. 

3. No promotion or transfer from the call to the permanent fire 
force shall be allowed except after open competitive examination "vvith 
all applicants for said force, except as otherA\'ise provided by statute. 
No examinations shall be required for promotion of call men ^\ithin 
the call force. 

Former Attorney-General Thomas J. Boynton has already 
advised you that under St. 1913, c. 487, and the civil service 
rules, a call fireman cannot be promoted to the office of cap- 
tain in the permanent force. IV Op. Atty.-Gen. 151. 

It seems reasonabl}^ clear that appointment from the call 
force to the permanent force is a promotion by successive 
grade, within the meaning of Rule 34, paragraph 2. In my 
opinion, a call captain is, in spite of his rank, only a member 
of the call force. To appoint a call captain to the position 
of captain in the permanent force would, in my opinion, be 
equivalent to a promotion from call man to membership in 
the permanent force, and then from private in the permanent 
force to captain. I am of opinion that such appointment is 
not authorized by St. 1913, c. 487, as amended, and would 
conflict with both paragraph 1 and paragraph 2 of Rule 34. 
Yours very truly, 

J. Weston Allen, Attorney-General . 



Soldiers and Sailors — Military Aid — Person summoned to 
Active Service but discharged for Previous Disability — State 
Aid to Dependents of Such Person. 

In view of the express provision of Gen. St. 1919, c. 290, § 9, which incor- 
porates into said section 9 the limitations prescribed by section 3 of 
said act, a man enrolled in the United States Naval Reserve Force, 
who is called for active duty but who is almost immediately discharged 
for a disability which is not incurred in said service, is not entitled 
to military aid in the first, second, third or fourth classes defined by 
said section 9. 

The dependents of a man enrolled in the United States Naval Reserve 
Force, who is summoned for active duty but is almost immediately 
dischai'ged by reason of a disability which is not incurred in said serv- 
ice, are not entitled to receive State aid in the first, second, third or 
fourth classes defined by Gen. St. 1919, c. 290, § 3. 



62 ATTORNEY-GENERAL'S REPORT. [Jan. 

Feb. 4, 1920. 
Mr. Richard R. Flynn, Commissioner of State Aid and Pensions. 

Dear Sir: — You request my opinion upon the following 
inquiry: — 

Your official opinion is requested by this department as to the right 
of the State to pay State aid to the dependents of service men of the 
German War, and militar^^ aid to the ex-service men of the German 
War, who were officially enrolled in the United States Naval Reserve 
Force and who were later called to active duty but who were, before 
performing any real ser\dce, called before the medical officers of the 
Na\y Department and found to be physically disqualified for service 
and almost immediately discharged from the service. 

I understand that the physical disqualification above referred 
to was not incurred in the service. You further refer to a 
ruling of the Navy Department by the Chief of the Bureau 
of Navigation, to the following effect : — 

Status of men enrolled m the Naval Reserve Force and found 
physically unquahfied upon assignment to active duty. 

1. If the men were enrolled in the Reserve Force and were called 
to active duty they were in active service during the war even if their 
active ser\ice was only for a period of one day. 

1. Military Aid to Such Ex-Service Men. 
Gen. St. 1919, c. 290, § 9, provides as follows: — 

The recipient of military aid shall belong to and have the quali- 
fications of one of the four following classes: — 

First Class. 
Each person of the first class shall have his settlement in the city or 
town aiding him: shall have served as a soldier, sailor, marine, nurse, or 
commissioned officer in the manner and under the limitations prescribed 
in the first class of section three; shall have been honorably discharged 
or released from active duty in such United States service and from 
all appointments and enUstments therein; shall be poor and indigent 
and, by reason of sickness or other physical disabihty, in such need as 
would entitle him to relief under the pauper laws; shall not be, directly 
or indirectly, in receipt of slylj other state or mihtary aid, or of any 
pension for ser\dces rendered or disabilities incurred either in the 
Civil or Spanish wars, Mexican border service or German war service. 
The disabihty must have arisen from causes independent of his mil- 
itarv or naval service aforesaid. 



1921.1 PUBLIC DOCOIEXT — Xo. 12. 63 



Second Class. 
Each person of the second class shall have his settlement in the city 
or town aiding him, and shall be an invalid pensioner, entitled to re- 
ceive state aid, whose income from pension or government compensa- 
tion and state aid is inadequate for his relief, and who would other- 
wise receive relief under the pauper laws. 

Third Class. 
Each person of the third class shall have all the qualifications of 
persons of the first class except settlement, and shall have been a 
oontinuous resident of this commonwealth during the three years last 
preceding his receipt of mihtary aid, and he or she shall be a resident 
of the city or to\^'n granting the aid. 

Fourth Class. 
Each person of the fourth class shall have all the qualifications of 
persons of the second class except settlement, and shall have been a 
continuous resident of this commonwealth during the three years last 
preceding his or her receipt of military aid, and shall be a resident of 
the cit}" or town granting aid. 

A. First and Third Classes. — Since each person of the 
third class "shall have all the qualifications of persons of 
the first class except settlement," I am of opinion that 
both classes may be considered together in respect of your 
inquiry. 

There can be no question that a man enrolled in the United 
States Naval Reserve Force, who is called for active duty 
but who is almost immediately discharged from the service 
because physically disqualified therefor, is "honorably dis- 
charged," within the meaning of the statute. I further as- 
sume, without deciding, that, in view of the ruling of the 
Navy Department, such a man was "discharged or released 
from active duty in such United States service," within the 
meaning of the act. The question, therefore, is whether such 
a man is not entitled to military aid because such physical 
disqualification was not incurred in the service. 

Section 9, above quoted, requires that "each person of the 
first class . . . shall have served as a . . . sailor ... in the 
manner and under the limitations prescribed in the first class 
of section three." 



64 ATTORXEY-GEXERAL'S REPORT. [Jan. 

Section 3 contains the following requirements for member- 
ship in the first class in respect of the late war: — 

The recipient of state aid shall have a residence, and shall actually 
reside, in the city or town from which such aid is received, shall not 
receive aid from any other city or town, in the commonwealth or from 
any other state, shall be in such needy circumstances as to require 
public assistance, and, if a soldier, sailor or nurse, shall have been 
honorably discharged from all appointments and enlistment in the 
army or naw, shall be so far disabled, as the result of his service in 
the army or nav\^, as to prevent him from following his usual occupa- 
tion, and shall belong to one of the following classes: — 

First Class. 



Any soldier, sailor, or nurse who served in the army or naw of the 
United States in the war with Germany, which for the purposes of 
this chapter shall be defined as having begun on the third day of Feb- 
ruary, nineteen hundred and seventeen, and as having ended on the 
eleventh day of November in the year nineteen hundred and eighteen : 
provided, that such soldier, sailor, or nurse, receives a joension or com- 
pensation from the United States government for disability mcurred 
in such service, and was mustered into such service while an inhab- 
itant of a city or town in the commonwealth and actually residing 
therein; and provided, further, that such soldier, sailor, or nurse was 
honorably discharged from such ser\dce by reason of illness or dis- 
ability incurred therein. 

It will be observed that these requirements contain the ex- 
press proviso: ''provided, further, that such . . . sailor . . . 
was honorably discharged from such service by reason of ill- 
ness or disabilit}^ incurred therein." 

I am of opinion that, in view of the express incorporation of 
the "limitations" of section 3 into section 9, this proviso of 
section 3 governs. It follow^s that a man officiallj' enrolled 
in the United States Naval Reserve Force, who is called for 
active duty but almost immediately discharged from the 
service by reason of illness or disability not incurred therein, 
is not entitled to military aid in either the first or third classes 
defined by section 9 of chapter 290 of the General Acts of 
1919. 

B. Second and Fourth Classes. — Since each person of the 
fourth class "shall have all the qualifications of persons of 



1921. J PUBLIC DOCUMENT — Xo. 12. 65 

the second class except settlement," I am of opinion that 
both classes may be considered together with respect to your 
inquiry. Each member of these two classes must be "an 
invalid pensioner entitled to receive state aid." I am of 
opinion that this requirement confines the right to receive 
military aid to those persons who would be entitled to State 
aid under the provisions of section 3. It follows that the 
conclusion already reached as to the first and third classes 
applies eciually to the second and fourth classes. 



2. State Aid to Dependents of Such Ex-Service Men. 

The persons entitled to receive State aid as dependents are 

defined in the second, third and fourth classes of section 3. 

A. Second Class. — The provisions of section 3 applicable 
to this war are as follow^s: — 

Dependent relatives of invaUd pensioners and of soldiers or sailors 
who served in the manner and under the limitations described for such 
service under class one who did not die in the service above defined and 
who were honorably discharged therefrom, as follows: 

The dependent widow, dependent widowed mother and dependent 
children up to the age of sixteen of any soldier, sailor, or nurse who died 
while in such ser\ice during the German war as defined in class one, or 
who shall die after an honorable discharge from such service from in- 
juries received or disabihties or illness incurred therein, or any child 
dependent by reason of physical or mental incapacity; provided, that 
the children were in being prior to his or her discharge or prior to the 
termination of said war as herein defined, or any person who stood to 
him or her in the relationship of a parent for five years prior to such 
service. 

B. Third Class. — The third class is defined as follows: — 

Dependent wives, and children up to sixteen years of age, widows 
and widowed mothers of soldiers, sailors, and nurses, entitled to state 
aid as defined in class one of this section, who appear on the rolls of their 
regiments or companies in the office of the adjutant general to be missing 
or to have been captured by the enemy, and who were not exchanged 
and have not returned from capti^dty, and whom the city or town 
officers granting such aid have good reason to befieve to be dead. 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

C. Fourth Class. — The provision of section 3 applicable 
to this war is as follows: — 

Fathers or mothers, the fathers being living, of soldiers or sailors who 
served in the German war, in the same manner and under the same 
limitations described herein for the service of said soldiers or sailors, 
and who died in such ser\'ice, if such parents had been in receipt of state 
war allowance between February third nineteen hundred and scA^enteen 
and November eleventh nmeteen hundred and eighteen. 

It will be noted that membership in the second class is con- 
fined to the prescribed dependents of a man who either died 
in the service or who died after an honorable discharge from 
such service "from illness or disability incurred therein." 
Membership in the fourth class is confined to the prescribed 
dependents of men ''who died in such service." The pro- 
visions as to membership in the third class manifestly do not 
apply. I am therefore of opinion that dependents of a man 
enrolled in the United States Naval Reserve Force, who is 
summoned for active duty but is almost immediately dis- 
charged by reason of illness or disability not incurred in the 
service, are not within the provisions of section 3 and are not 
entitled to State aid thereunder. 
Yours very truly, 

J. Weston Allex, Attorney-General. 



Emergency Fund — Transfer therefrom to meet Deficiency in 
Appropriation — Recommendation by Auditor as Condition 
Precedent to transfer by Governor and Council. 

Under R. L., c. 4, § 9, as amended by St. 1908, c. 549, § 1, a request for a 
transfer from the emergency fund, in order to meet a deficiency in an 
appropriation, must be recommended by the Auditor before the same 
can be approved by the Governor and Council. 

Feb. 4, 1920. 
His Excellenaj the Governor, mid the Honorable Council. 

Gentlemen: — I have received from the executive secretary 
a letter addressed to Your Excellency and the Honorable 
Council by the secretary of the Soldiers' and Sailors' Com- 
mission, and an informal request for an opinion in regard to 
the authority vested in Your Excellency and the Honorable 
Council to take the action requested in the letter. 

The letter states that on Sept. 3, 1919, Your Excellency 



1921.] PUBLIC DOCUMENT — No. 12. 67 

and the Honorable Council appropriated the sum of $5,000 
for the use of the Soldiers' and Sailors' Commission, but 
that the amount was never transferred to the account of the 
commission. The letter further states that the amount is 
needed in order that the commission may properly carry on 
its work, and requests that such action be taken as will make 
this amount previously voted available for the use of the 
commission. 

Upon the facts stated, the question presented would appear 
to be whether Your Excellency and the Honorable Council 
can by any action at this time make available for the use of 
the commission the sum of S5,000, the use of which was 
authorized by the vote of Sept. 3, 1919. 

Upon inquiry I am advised b\' the Auditor that of the 
amount of $100,000 appropriated for extraordinary expenses 
last year, pursuant to St. 1908, c. 549, a balance of S467.60 
remains unexpended. It is obvious, therefore, that no action 
which can now be taken would make available for the use of 
the commission the amount the use of which was authorized 
by the vote of last year. 

The amount authorized by the vote of Sept. 3, 1919, being 
no longer available, a further question is presented as to 
whether the commission may properly request Your Excel- 
lency and the Honorable Council to authorize the use of the 
amount desired from the amount to be appropriated for ex- 
traordinary expenses during the current year. 

This raises the inquiry whether any occasion is presented 
at this time which would justify the use of any part of the 
emergency fund for the expenses of the commission. The 
commission was created by Spec. St. 1919, c. 112, and by. 
the provisions of that act received an appropriation of $10,000. 
The General Court is now in session, and any request for 
funds to carry on the work of the commission during the 
current year would properly be addressed to the General 
Court in the first instance. I find in the cases in which the 
opinion of the Attorney-General has previously been re- 
quested no instance in which requests have been made to 
Your Excellency and the Honorable Council for a payment 
out of the emergency fund when the General Court was in 
session. 

The question of what constitutes such an emergency as 
was contemplated by the General Court at the time of the 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

passage of St. 1890, c. 415, by the terms of which the emer- 
gency fund was originally created, has been presented for 
consideration and discussed in previous opinions of the 
Attorneys-General. The original act, as incorporated in R.L., 
c. 4, § 9, is as follows: — 

An amount not exceeding twenty thousand dollars shall be appro- 
priated each year for carrying out the provisions of sections one hundred 
and twenty to one hundred and twenty-seven, inclusive, of chapter 
sixteen, for the entertainment of the president of the United States and 
other distinguished guests while visiting or passing through this com- 
monwealth and for extraordinary expenses, not otherwise provided for, 
which the governor and council may deem necessarj^ 

Under this act the question was presented whether an 
amount due the State printer for printing the journal of the 
Senate and the journal of the House might properly be paid 
from the appropriation for extraordinary expenses when ap- 
propriations by the General Court for the purpose had 
proved inadequate, and the General Court was no longer in 
session. In the opinion of Hon. Herbert Parker to His Ex- 
cellency John L. Bates, advising that it was for the Governor 
and Council, in the large discretion conferred upon them by 
the act, to determine whether the faith and the interests of 
the Commonwealth rendered such pa^-ment necessary, he 
said: — 

I am constrained to add, however, that such action is to be justified 
onl}^ if the Governor and Council deem it to be required by an exigency 
growing out of a particular condition of facts imperatively demanding 
immediate payment on grounds of good faith or of the interests of the 
Commonwealth, and no precedent should be established under which 
the fund in question may be held available for meeting deficiencies in 
general appropriations, for such is not its legitimate purpose. 

In a later opinion, rendered on Dec. 22, 1903, by Hon. 
Herbert Parker to His Honor Curtis Guild, Jr., the Attorney- 
General said: — 

I had the honor to advige His Excellency the Governor heretofore, 
in an opinion under date of Nov. 12, 1903, that in my opinion the Legis- 
lature did not intend that the fund set apart for extraordinary expenses 
should be used to defray any expense incurred in the usual course of 
events, and for which an appropriation is regularly set apart — 



1921.] PUBLIC DOCUMENT — No. 12. 69 

and, in concluding, again emphasized the fact that the ap- 
propriation for extraordinary expenses should be rigidly con- 
fined to the purposes which were within the contemplation of 
the General Court at the time the act was passed. In this 
connection he said: — 

But, since there does exist an appropriation to which these expenses 
might otherwise be charged, I should be evading the responsibility 
which I think Your Honor's inquiry puts upon me, if I did not further 
say, substantially as I have heretofore said to His Excellency the 
Governor, that the appropriation for extraordinary expenses should be 
held rigidly for the purposes for which the Legislature intended it, and 
any draught upon it can be justified only by the express provisions of 
the law, or bj^ the responsible exercise of that discretion of the Council 
to which the Legislature confided the fund. 

The specific provision for the use of this appropriation to 
meet deficiencies in appropriations made by the General 
Court was first made in an amendment to R. L., c. 4, § 9, 
being St. 1908, c. 549, § 1. The statute as then amended 
has not since been changed, and is as follows: — 

An amount not exceeding one hundred thousand dollars shall be 
appropriated each year for carrying out the provisions of sections one 
hundred and twenty to one hundred and twenty-seven, inclusive, of 
chapter sixteen, for the entertainment of the president of the United 
States and other distinguished guests while visiting or passing through 
this commonwealth, for extraordinary expenses, not otherwise provided 
for, which the governor and council may deem necessary, and, upon the 
recommendation of the auditor with the approval of the governor and 
council, to make transfers to such appropriations as have proved in- 
sufficient. 

The clear intent of the statute, as amended, is to require 
the recommendation of the Auditor as a condition precedent 
for favorable action by the Governor and Council upon any 
transfer from the appropriation for extraordinary expenses to 
meet a deficiency in any other appropriation. The statute 
contemplates that before exercising the large discretion vested 
in the Governor and Council in determining what are extra- 
ordinary expenses, within the purpose and intent of the act, 
they shall have the approval of the Auditor, based upon the 
full information with respect to previous appropriations and 
expenditures which is available to his department. As the 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

recommendation of the Auditor is made a condition precedent 
to approval of a transfer from the fund appropriated for 
extraordinary expenses, it follows that until such recom- 
mendation has been made any request for a transfer of funds 
from the appropriation for extraordinary expenses to the use 
of the Soldiers' and Sailors' Commission for the purposes 
stated cannot properly be addressed to Your Excellency and 
the Honorable Council. See Opinion of the Justices, 13 Allen, 
593. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Laic — Public Office — Commissioner to qualify 
Civil Officers — Woman. 

Under R. L., c. 17, § 8, and the Constitution of the Commonwealth a 
woman maj- not be appointed as commissioner to qualify civil officers. 

Feb. 10, 1920. 

His Excellencj^ Calvin Coolidge, Governor of the Commonwealth. 

Sir: — You inquire whether, under R. L., c. 17, § 8, a 
woman may legally be appointed to the office of commissioner 
to qualify civil officers. 

Mass. Const., pt. 2nd, c. VI, art. I, requires ''any person 
appointed or commissioned to any judicial, executive, mili- 
tary, or other office under the government" to take and 
subscribe the oath prescribed by Mass. Const. Amend. VI 
"before such persons and in such manner as from time to 
time shall be prescribed by the legislature." By Res. 1780, 
October Session, c. 58, the Legislature provided : — 

Resolved, That the Governor, Lieutenant-Governor, or any two of 
the Council, or any other person or persons especially appointed by the 
Governor and Council, be, and the}^ hereby are empowered, to admin- 
ister the oaths or affirmations required by the constitution of this Com- 
monwealth to all officers commissioned under the said constitution or 
form of government, until further provision shall be made by the Gen- 
eral Court of the Commonwealth aforesaid. 

The provision of this resolution for the appointment of 
commissioners to administer such oaths has been continued 
through Rev. Stats., c. 13, § 57, Gen. Stats., c. 14, § 40, Pub. 



1921.] PUBLIC DOCUMENT — No. 12. 71 

Stats., c. 18, § 7, to R. L., c. 17, § 8, which provides as 
follows: — 

The governor, with the advice and consent of the council, shall ap- 
point commissioners to administer to pubhc officers the oaths of office 
required bv the constitution. Such commissioners shall, upon admin- 
istering such oaths, forthwith make return thereof, with the date of the 
same, to the secretary of the commonwealth. 

These commissioners perform a function prescribed by the 
Constitution. It is of so high and important a character 
that, under Res. 1780, c. 58, it might be discharged by the 
Governor, Lieutenant-Governor or "any two" of the Council. 
This provision clearly indicates that women were not intended 
by the Legislature to be included in the "persons" who might 
be appointed as commissioners under that resolution. Indeed, 
it may be doubted whether the word "persons," as used in 
Mass. Const., pt. 2nd, c. VI, art. I, was intended to include 
women. See Opinion of the Justices, 107 Mass. 604; Opinion 
of the Justices, 150 Mass. 586; Opinion of th^ Justices, 165 
Mass. 599. Moreover, there is no indication that the Legis- 
lature, in continuing and re-enacting the provisions of Res. 
1780, c. 58, for the appointment of commissioners, intended, 
even if it had the power, to broaden the scope of that reso- 
lution so as to permit the appointment of women. Both the 
constitutional and legislative history of R. L., c. 17, § 8, 
strongl}^ indicate that women are not eligible. 

The authorities point to the same result. A woman has 
been held ineligible to appointment as a justice of the peace. 
Opinion of the Justices, 107 Mass. 604; or as a notary public. 
Opinion of the Justices, 150 Mass. 586, Opinion of the Jus- 
tices, 165 Mass. 599; or to the office of truant officer under 
R. L., c. 46, § 12, III Op. Atty.-Gen. 444; or to the office of 
deputy collector of taxes, opinion of former Attorne3'-General 
Dana Malone to the Committee on Taxation, dated Feb. 27, 
1908. It has also been held that, under St. 1876, c. 197, a 
woman could not be examined for admission to the bar, 
Robinson's Case, 131 Mass. 376, though this was later changed 
by St. 1882, c. 139. So, also, she cannot participate in a 
party caucus, II Op. Atty.-Gen. 469, or be a town treasurer, 
Attorney-General's Report, 1919, p. 86. Indeed, it has been 
held that the Legislature had no constitutional power to au- 
thorize the appointment of women as notaries public under 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

Mass. Const. Amend. IV, Opinion of the Justices, 165 Mass. 
599, though women are now made eligible by Amend. LVII. 
So, also, the Legislature has no constitutional power to pro- 
vide that the persons entitled to vote on the ratification or 
rejection of constitutional amendments shall include women. 
Ojnnion of the Justices, 226 Mass. 607. 

On the other hand, it has been held that the Constitution, 
which is wholly silent on the subject, does not exclude women 
from a school committee. Opinion of the Justices, 115 Mass. 
602. And a provision for the appointment of "nine persons 
who shall constitute a state board of health, lunacy and 
charity" has been held to authorize the appointment of a 
woman where other parts of the act and prior legislation 
indicated that such was the intent of the Legislature. Opinion 
of the Justices, 136 Mass. 578. Thus, when the Legislature 
has intended that women should be eligible, it has usually 
made express provision therefor (Robinson's Case, 131 Mass. 
376, 379, 381), as in R. L., c. 17, ,§ 5. The omission of 
any such provision from R. L., c. 17, § 8, is a further indi- 
cation of the legislative intent that women should not be 
eligible. 

I am therefore constrained to advise you that women are 
not eligible to appointment under R. L., c. 17, § 8. 
Yours very truly, 

J. Weston Allex, Attorney-General. 



Animals — Killing of Wild Birds and Animals on State Reser- 
vations — Power of Commissioner of Conservation to license. 

Under St. 1909, c. 362, § 1, the Commissioner of Conservation cannot 
authorize, within any State reservation under his jurisdiction, the 
hunting, taking or killing, during the open season, of any birds or 
animals which were protected by law at the time when that act took 
effect. 

Feb. 12, 1920. 

Hon. William A. L. Bazeley, State Forester, Department of Conservation. 
Dear Sir: — You inquire whether the Commissioner of 
Conservation may lawfully authorize, during the open season, 
the hunting and killing of wild birds or animals on a State 
reservation under his jurisdiction, if such birds or animals 
were, on June 6, 1909, protected by law during a part of 
the vear. 



1921.] PUBLIC DOCUMENT — No. 12. 73 

St. 1909, c. 362, entitled "An Act to provide for the estab- 
lishment of refuges for birds and game," reads, in part, as 
follows : — 

Section 1. No person shall hunt, pursue, take, kill or in any man- 
ner molest or destroy any wild bird or game within the exterior bound- 
aries of any state reservation, park, common or any land held in trust 
for public use, except that the authorities or persons having the control 
and charge of such reservations, parks, commons or other lands ma}- in 
their discretion, and with such limitations as they may deem advisable, 
authorize persons to hunt, take or kill within said boundaries any wild 
birds or animals which are not now protected by law. . . . 

The words ''not now protected by law" would seem to make 
the exception in said section apply only to such birds and 
animals having no protection whatever. The use of the word 
''now" is significant. Without it, it might well be argued 
that hunting could be licensed during an open season, but 
by its use it indicates an intention to prohibit the killing of 
an}^ birds and game which receive protection under the laws 
of the Commonwealth. This construction is supported by 
the title of the act, which declares State reservations to be 
refuges for certain birds and animals. Prior to its passage, 
it would have been unlawful to hunt protected birds and 
animals during the close season on State land as well as on 
private property; and if the act were held to permit the 
killing of certain birds and animals on a State reservation 
during the open season, such reservations would not be refuges. 

I therefore advise you that only such birds and animals 
as were entirely unprotected by law on June 6, 1909, when the 
statute took effect, may lawfully be killed under a license of 
the persons having charge of State reservations. 
Yours very truly, 

J. Westox Allen, Attorney-General. 



Maximum Prison Sentence — Date of Expiration. 

A maximum sentence to prison for five years from June 15, 1916, expires 
at midnight on June 14, 1921. 

Feb. 17, 1920. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You have requested my opinion as to whether 
the maximum sentence to prison for five years from June 15, 
1916, expires on June 14 or June 15, 1921. 



74 ATTORNEY-GENERAL'S REPORT. [Jan. 

In computing time the law does not recognize a fraction 
of a day. Each day being in contemplation of law indi- 
visible, it has become a recognized rule, and it has been so 
held in this Commonwealth, that a person attains the age of 
majority on the day preceding the twenty-first anniversary 
of his birth. The terminus a quo is the day of his birth. 
Bardwell v. Purrington, 107 Mass. 419. 

The term of sentence of a prisoner begins when his sentence 
has been imposed by the court. From that time he is in con- 
finement, although he may not be removed to the place 
where he is to serve his sentence until the next day or even 
a later date. A sudden illness or other sufficient reason 
might prevent his removal, but, in contemplation of law, he 
begins to serve his sentence from the time when the sentence 
is imposed. 

It follows, from the foregoing, that if a prisoner served a 
maximum sentence of five years imposed on June 15, 1916, 
the sentence would expire at midnight on June 14, 1921. 
Very truly yours, 

J. Weston Allen, Aitorney-GeneraL 



Constitutional Law — Fourteenth Amendment — State Consti- 
tution — Poiver to fix Charge of Employment Agency. 

A proposed bill which fixes the maximum charge which may be exacted 
by an employment agency from an applicant for a position in the pub- 
lic schools would violate the Fourteenth Amendment to the Federal 
Constitution and also those provisions of the State Constitution 
which guarantee life, liberty and property to the same extent as does 
the Fourteenth Amendment. 

Feb. 20, 1920. 
Joint Committee on Education. 

Gentlemen: — You inquire whether House Bill No. 431, 
relative to the fees that may be charged for obtaining posi- 
tions for school teachers, would, if enacted, be constitutional. 
The bill amends St. 1911, c. 731, § 2, by providing that "no 
person, firm, corporation, or association shall demand or ac- 
cept from any applicant for the position of a teacher in the 
public schools" a fee exceeding $2, or shall charge, if a posi- 
tion be obtained for the applicant, a sum exceeding 3 per 
cent of the salary- of the teacher for the first year. St. 1911, 
c. 731, § 4, provides that any violation of the act shall be 



1921.] PUBLIC DOCUMENT — No. 12. 75 

punished by a fine of not less than $50 nor more than $500. 
The fundamental question raised by this bill is whether the 
Legislature has power to fix the maximum fee to be charged 
by an employment agency. to an applicant for its service. 

The Fourteenth Amendment to the Federal Constitution 
provides: "... nor shall any state deprive any person of 
life, liberty or property, without due process of law, nor deny 
to any person within its jurisdiction the equal protection of 
the laws." 

Mass. Const., pt. 1st, art. I, provides: — 

All men are born free and equal, and have certain natural, essential, 
and unalienable rights; among which may be reckoned the right of 
enjoying and defending their lives and liberties; that of acquiring, 
possessing, and protecting property; in fine, that of seeking and obtain- 
ing their safet}^ and happiness. 

See also articles X, XII and XXIX of the Declaration of 
Rights. 

It has been held that these provisions of the Massachusetts 
Constitution guarantee ''life, liberty and property" to the 
same extent as does the Fourteenth Amendment. Opinion 
of the Justices, 220 Mass. 627, 630; Wijeth v. Cambridge, 200 
Mass. 474, 478. It will not, therefore, be necessary to con- 
sider the two constitutions separately. Each independently 
guarantees a right to ''life, liberty and property," and each 
correspondingly limits the power of the Legislature. 

The extent to which the Legislature may regulate a lawful 
business without infringing the constitutional right to liberty 
and property is affected by the relation of the business to 
the public. If the business be affected with a public use, 
the Legislature may require those w^ho engage in it to serve 
the public for a reasonable price. Munn v. Illinois, 94 U. S. 
113; German Alliance Ins. Co. v. Kansas, 233 U. S. 389. 
Railroads, telephone and telegraph companies, gas and elec- 
tric light companies and many others are familiar examples 
of businesses affected with a public use, whose charges may 
be thus regulated. In all these cases the service has become 
important, or even essential to the public. The company 
has generally attained such a dominating position that com- 
petition is not a sufficient safeguard against overcharge and 
discrimination. Economically the citizen stands at such dis- 
advantage that if the matter be left to private bargain he 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

must take the service upon the terms imposed by the com- 
pany. Under such circumstances, one who professes to render 
the service to the public indiscriminately has no constitu- 
tional right to prescribe at pleasure what the public must 
pay. The business has, in fact, become affected with a public 
use, and is subject to regulation accordingly. Munn v. 
Illinois, 94 U. S. 113; German Alliance Ins. Co. v. Kansas, 
233 U. S. 389. The Legislature cannot, it is true, require 
the service to be given for less than a fair and reasonable re- 
turn. Denver v. Denver Union ]Yater Co., 246 U. S. 178. 
But in the case of public service companies the right to pre- 
scribe a reasonable rate is unquestioned. 

The constitutional distinction between a business affected 
with a public use and private transactions between man and 
man is fundamental. It is true that changing conditions 
may carry a business originally private across the line into 
the classes of service which are deemed to be public. Munn 
V. Illinois, 94 U. S. 113; German Alliance Ins. Co. v. Kansas, 
233 U. S. 389. But until that occurs, a private business is 
entitled to the full measure of protection guaranteed by the 
Constitution to private persons. 

Thus the "liberty" guaranteed by each Constitution to 
private individuals embraces the right to follow any lawful 
private calling and to enter into all lawful contracts to that 
end, but subject, nevertheless, to a reasonable measure of 
regulation for the common welfare. Allgeyer v. Louisiana, 
165 U. S. 578, 589; Lochner v. Neiv York, 198 U. S. 45, 53; 
Adair v. United States, 208 U. S. 161; Brazee v. Michigan, 
241 U. S. 340; Adams v. Tanner, 244 U. S. 590, 595; Cojj- 
page v. Kansas, 236 U. S. 1, 14; Commonwealth v. Perry, 155 
Mass. 117, 121; Commomvealth v. Boston & Maifie R.R., 222 
Mass. 206, 208; Opinion of the Justices, 220 Mass. 627, 630. 
The principle is thus stated in Opinion of the Justices, 220 
Mass. 627, 630: — 

It was said in Coppage v. Kansas, 236 L^. S. 1, at page 14: ''Included 
in the right of personal libert}^ and the right of private property — par- 
taking of the nature of each — is the right to make contracts for the 
acquisition of property. Chief among such contracts is that of personal 
emplojanent, by which labor and other ser\^ces are exchanged for money 
or other forms of property. If this right be struck down or arbitrarily 
interfered with, there is a substantial impairment of liberty in the long- 
estabhshed constitutional sense." 



1921.] PUBLIC DOCUMENT — No. 12. 77 

Moreover, labor or service is "property," within the mean- 
ing of the Constitution, and is entitled to protection as 
property. Bogni v. Perotti, 224 Mass. 152, 155; Adair v. 
United States, 208 U. S. 161, 173-175; Coppage v. Kansas, 
236 U. S. 1, 10. The principle is thus stated in Bogni v. 
Perotti, 224 Mass. 152, 154: — 

That the right to work is property cannot be regarded longer an open 
question. It was held in Cornellier v. Haverhill Shoe Ma^iufacturers' 
Association, 221 Mass. 554, at page 560, that ''The right to labor and 
to its protection from unlaAvful interference is a constitutional as well as 
a common law right." It was said in State v. Stewart, 59 Vt. 273, 289, 
"The labor and skill of the workman, be it of high or low degree, the 
plant of the manufacturer, the equipment of the farmer, the invest- 
ments of commerce, are all in equal sense property." In the Slaughter- 
House Cases, 16 Wall. 36, 127, in the dissenting opinion of Mr. Justice 
Swayne, but respecting a subject as to which there was no controversy, 
occur these words: "Labor is property, and as such merits protection. 
The right to make it available is next in importance to the rights of life 
and liberty." It was settled that the right to labor and to make con- 
tracts to work is a property right by Adair v. United States, 208 U. S. 
161, 173-175, and Coppage v. Kaiisas, 236 U. S. 1, 10. Controversy on 
that subject before this court must be regarded as put at rest by these 
decisions. The right to work, therefore, is property. One cannot be 
deprived of it by simple mandate of the Legislature. It is protected by 
the Fourteenth Amendment to the Constitution of the United States 
and by numerous guaranties of our Constitution. It is as much prop- 
erty as the more obvious forms of goods and merchandise, stocks and 
bonds. 

The business of an employment agency is a lawful private 
calling. Adams v. Tanner, 244 U. S. 590, 593; Ex parte 
Dickey, 144 Cal. 234, 236; Spokane v. Macho, 51 Wash. 322, 
324. As was said in Adams v. Tanner, 244 U. S. 590, 593: — 

But we think it plain that there is nothing inherently immoral or 
dangerous to public welfare in acting as paid representative of another 
to find a position in which he can earn an honest living. 

Like other lawful private callings, the business of employment 
agencies is subject to a reasonable measure of regulation for 
the common welfare. Brazee v. Michigan, 241 U. S. 340. 
It is competent for the Legislature to require that such 
agencies be licensed and to forbid sending applicants to an 
employer who has not applied for labor. Brazee v. Michigan^ 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

241 U. S. 340. But in essence the business is merely a pur- 
chase and sale of private personal service. From a constitu- 
tional standpoint the transaction does not differ from a sale 
of service by a professional man or a laborer. It is entitled 
to the same measure of constitutional protection. As the 
contract is incident to, and, indeed, the very essence of, the 
exercise of a lawful calling, the making of that contract is 
within the constitutional guarantee of "liberty." Since the 
contract involves a sale and purchase of service, which is 
property, it is within that measure of protection w^hich the 
Constitution extends to property, w^hether tangible or in- 
tangible. It is beyond the power of the Legislature either 
to abolish the business or to require that the service be ren- 
dered without charge to "workers," even though the agency 
is left free to exact a fee from the employer for the service 
rendered to him. Adams v. Tajiner, 244 U. S. 590. 

The Legislature may to some extent regulate even contracts 
between man and man for a sale of labor or service in order 
to protect the safety, health and morals of the public. If 
the employment be dangerous, like mining, it may prescribe 
reasonable hours of service. H olden v. Hardy, 169 L^. S. 366, 
373. On the other hand, a statute which prohibits males of 
full age to labor for more than ten hours a day in an ordinarily 
healthful occupation is an unlawful interference with the 
constitutional right of both employers and employed to con- 
tract for the sale of labor on such terms as they deem best. 
Lochner v. New York, 198 L^. S. 45; Coinmonwealth v. Boston 
& Maine R.R., 222 Mass. 206; but see Bunting v. Oregon, 
243 U. S. 426. So, also, a statute which forbids an employer 
to require the employee, as a condition of employment, to 
refrain from membership in a labor union, is in violation of 
the constitutional right to sell and purchase labor. Adair v. 
United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1. 
On the other hand, a statute which provides that the basic 
day in a mill or factory shall be ten hours, with a proviso that 
employees may work overtime not more than three hours in 
any one day if they receive time and a half, the regular wage 
for such overtime, has been upheld as a reasonable health 
regulation in view of the nature of the work, the provision 
for additional overtime pay being construed, not as a regu- 
lation of wages, but as a deterrent upon the use by the em- 
ployer of the overtime privilege. Bunting v. Oregon, 243 



1921.] PUBLIC DOCUMENT — No. 12. 79 

U. S. 426; see also Wilson v. New, 243 U. S. 332. It is true 
that changed conditions and perhaps fuller knowledge of 
what public welfare requires may render reasonable and 
proper a regulation which, on a different state of facts, would 
have been beyond the power of the Legislature. This creates 
the illusion of a growing legislative power, which constantly 
tends to eat away constitutional guaranties. Such is not the 
case. The extent of the power and the scope of the guar- 
anties remains unaltered. It is merely that a change in the 
conditions upon which both the power and the guarantee 
operate may bring within the scope of legislative power what 
was not formerly within it, just as changed conditions may 
affect with a public use a business which formerly was private. 
The constitutional rule remains unchanged that, unless the 
safety, health or morals of the public are reasonably involved, 
the Legislature has no power to prescribe the conditions under 
which labor or private service shall be bought and sold 
by men of full age. Adair v. United States, 208 U. S. 
161; Coppage v. Kansas, 236 U. S. 1; Lochner v. New York, 
198 U. S. 45; Commonwealth v. Boston & Maine R.R., 222 
Mass. 206. 

To prescribe the maximum price at which a private indi- 
vidual shall sell his labor or service manifestly has a less 
direct relation to the safety, health or morals of the public 
than a regulation of the hours which he may work. The 
Supreme Judicial Court leaves it doubtful whether a com- 
pulsory minimum wage law, even for women, would be valid 
(see Holcomhe v. Creamer, 231 Mass. 99), although statutes 
which reasonably regulate the hours of labor of women and 
minors are upheld for reasons of health. Commonwealth v. 
Hamilton Mfg. Co., 120 Mass.. 383; Commonwealth v. Riley, 
210 Mass. 387, affirmed 232 U. S. 671. Be that as it may, 
no question either of health or hours of labor is involved in 
the present case. The service of an employment agency is 
not measured by time. The price to be charged depends 
primarily upon the views of the contracting parties as to its 
value. Such a sale differs in no essential respect from a sale 
of a house or of a sack of potatoes. If the Legislature could 
regulate the price of that intangible property known as pri- 
vate labor or private service, it might equally fix the price 
of every commodity of daily life from a shoestring to a man- 
sion. To hold that it possesses this power would in effect 



80 ATTORNEY-GENERAL'S REPORT. 



an. 



abolish the settled constitutional distinction between private 
business and a business affected with a public use. 

In Commonwealth v. Perry, 155 Mass. 117, a statute which 
in effect required manufacturers to agree to pay the same 
wage for good and for imperfect weaving was held to infringe 
the liberty of contract guaranteed by the Constitution. In 
II Op. Atty.-Gen., 264, 266, Hon. Hosea M. Knowlton, in 
advising that a statute which required counties, cities and 
towns to pay more than the prevailing rate of wages to those 
employed upon public work was unconstitutional (see also 
in accord, Street v. Varney Electrical Supply Co., 160 Ind. 338; 
People v. Coler, 166 N. Y. 1; contra, Malette v. Spokane, 77 
Wash. 205), said: — 

It would scarcely be disputed, I apprehend, that a law containing 
such provisions, affecting private individuals and corporations, would 
be a \iolation of the liberties and pri-\dleges of citizens under the Declar- 
ation of Rights of the Massachusetts Constitution and under the Four- 
teenth Amendment to the Federal Constitution. In the exercise of 
the pohee power conferred by the Constitution, many laws limiting the 
rights of citizens in the making of contracts, and even prohibiting cer- 
tain contracts, have been enacted by the General Court and sustained 
as constitutional by the Supreme Judicial Court. Opinion of Jmtices, 
163 Mass. 589. But, so far as I am aware, since the beginning of con- 
stitutional government no attempt has been made to fix by legislation an 
arbitrary price of any commodit}^, including labor, that may properly 
be the subject of contract between parties. It may well be assumed that 
any such interference with the rights of indi\dduals and private corpora- 
tions would be pronounced to be beyond the scope of legislative power. 

It is true that the Legislature has a special contractual au- 
thority to regulate the manner in which contractors engaged 
upon public work for the Sta,te shall deal with the laborers 
employed in performing it (see Atkin v. Kansas, 191 U. S. 
207; Heivi v. McCall, 239 U. S. 175; Lee v. Lynn, 223 Mass. 
109; Woods v. Woburn, 220 Mass. 416) which it does not 
possess in the case of a purely private sale and purchase of 
labor. Lochner v. New York, 198 U. S. 45; Truax v. Raich, 
239 U. S. 33, 43. But this contractual authority does not 
reach to the present case. The employment agency does not 
contract with the State in respect of applicants for the position 
of teacher in the public schools. The transaction is a purely 
private contract between private persons for a sale and pur- 
chase of private service. It has been squarely held that the 
State has no power to prescribe the compensation which an 



1921.] PUBLIC DOCUMENT — No. 12. 81 

employment agency shall exact from applicants for its serv- 
ice. Ex parte Dickey, 144 Cal. 234. The conclusion reached 
by this decision seems to follow inevitably from the author- 
ities already considered. I am therefore of opinion that 
House Bill No. 431 would, if enacted, infringe upon both the 
liberty of contract and the right to private property guaranteed 
by both the Massachusetts Constitution and the Fourteenth 
Amendment. 

There is a further constitutional objection which might 
well be urged against the present bill. It purports to regulate 
the charges to be made by the agency only in the case of 
applicants for the position of teacher in the public schools. 
It therefore makes a special regulation applicable only to 
the persons who serve such applicants. Such a classification 
may well be so arbitrary as to deny to those within it the 
equal protection of the laws. See Commomvealth v. Boston 
& Maine R.R., 222 Mass. 206, 208; Bogni v. Perotti, 224 
Mass. 152, 156. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Constitutional Law — ''Borrowed Money'' — Proceeds of Dry 
Dock built in Part by Outstanding Bonds. 

Where the cost of a public work is in part defrayed by bonds issued by the 
Commonwealth, and while part of the bonds so issued are outstanding 
such public work is sold, so much of the purchase price as represents 
property paid for by the proceeds of the bonds so issued and outstand- 
ing is still "borrowed money," within the meaning of Mass. Const. 
Amend. LXII, § 4, and must be used either for the purpose for which 
such bonds were issued or to repay the loan. 

The extent to which the $3,107,366.93, received as the purchase price of 
the Boston Dry Dock, is the proceeds of outstanding bonds issued 
under St. 1911, c. 748, § 17, examined and determined. 

That part of the purchase price of the Boston Dry Dock which is the pro- 
ceeds of outstanding bonds issued under St. 1911, c. 748, § 17, and 
therefore borrowed money, which under Mass. Const. Amend. I^XII, 
§ 4, is being held to repay such bonds at maturity, may lavv^fully be 
invested in other bonds of the Commonwealth which fall due prior 
to the due date of the bonds to be repaid. 

March 1, 1920. 

Joint Committee on Ways and Means. 

Gentlemen: — You inquire whether and to what extent 
the $3,107,366.93 which will be received from the Federal 
government as the purchase price of the Boston Dry Dock 



82 ATTORNEY-GENERAL'S REPORT. [Jan. 

may legally be considered a receipt into the general fund of 
the Commonwealth, and so be available to meet current ap- 
propriations made by the General Court. 

I have received from various departments the following 
information in regard to this dry dock. It cost $3,107,366.93, 
which is the price at which it is sold to the United States. 
Of this amount $778,805.34 came from available funds in the 
treasury of the Commonwealth, and the balance, namely, 
$2,328,561.59, was paid out of the $9,000,000 issue of bonds 
authorized by St. 1911, c. 748, § 17. Of that issue $1,300,000 
has been repaid out of general funds, leaving $7,700,000 of 
bonds still outstanding. It is clear, therefore, that a certain 
proportion of the price received from the United States is 
the proceeds of bonds which are still outstanding and unpaid. 

Amendment LXII, § 4, of the Constitution provides as 
follows: — 

Borrowed money shall not be expended for any other purpose than 
that for which it was borrowed or for the reduction or discharge of the 
principal of the loan. 

It is a well-recognized principle of sound finance that 
capital, and especially borrowed capital, should not be used 
for current expenses. The amendment, in my opinion, adopts 
this principle. It limits the purposes for which borrowed 
money may be used. Such money may not be used save 
for the purpose for which it was borrowed or to repay the 
loan. Clearly, if a million dollars of the amount received for 
the port development bonds issued under St. 1911, c. 748, 
§17, were still in the treasury, that money could not be used 
for current expenses. Over $2,000,000 of money received for 
port development bonds has gone into this dry dock. The 
sale of the dry dock turns it back into money. That money 
is as clearly the proceeds of the loan as any unexpended bal- 
ance of the loan which may be still in the treasury. In my 
opinion, it is borrowed money still, within the meaning of 
the constitutional amendment. Were it otherwise, borrowed 
money could be relieved from the constitutional purpose im- 
pressed upon it by simply turning it into property and then 
back again into money by a sale of the property. I cannot 
believe that the salutary restriction imposed by the amend- 
ment is so easily satisfied. I am therefore of opinion that 
in so far as the money received for the sale of the drv dock 



1921.] PUBLIC DOCUMENT — No. 12. 83 

Is the proceeds of bonds still outstanding and unpaid, it must 
be used either for the purpose for which the bonds were 
issued or to repay the loan. 

The first question is as to the amount of those proceeds 
which were derived from the outstanding bonds which are 
still unpaid. It appears that $2,328,561.59, or about one- 
quarter of the $9,000,000 borrowed, went into the dry dock, 
but of this $9,000,000 there has been paid the sum of 
$1,300,000. The amount of bonds so paid which is fairly 
apportionable to the dry dock would, therefore, be repre- 
sented by that fraction of $1,300,000 which has as its nu- 
merator 2,328,561.59 and has as its denominator 9,000,000. 
This amount when computed is $336,347.74. Add to this the 
$778,805.34 which was paid out of available funds, and the 
amount of the proceeds of the dry dock subject to use for 
current expenses is $1,115,153.08. If this sum be deducted 
from the $3,107,366.93 which is received from the sale of the 
dry dock, we find that $1,992,213.85 is the proceeds of the 
bonds still outstanding and unpaid. This amount, therefore, 
is still charged with the constitutional restriction, and may 
not be used save for the purposes for which the money was 
borrowed or to repay the loan. 

The next question is as to the purpose for which the money 
was borrowed. The loan was authorized by St. 1911, c. 748, 
§ 17, "to meet the expenses incurred under this act." That 
act provided for a comprehensive scheme for the develop- 
ment of the port of Boston. It is proposed to appropriate 
for such purposes this year the sum of $600,000, to be taken 
from certain permanent funds established by statute. I see 
no legal reason why this amount may not be taken instead 
from the $1,992,213.85 and an equivalent amount transferred 
to the general fund from the permanent port funds established 
by statute. It would require a special act to do this, but, 
as these special funds are the creature of statute and are not 
within Amendment LXII, they may be modified by statute. 
Another item which may lawfully be met out of the 
$1,992,213.85 is the $250,000 to be used to pay port devel- 
opment bonds which fall due this year. Add this to the 
$600,000 and it makes a total of $850,000, which, if deducted 
from the $1,992,213.85, leaves $1,142,213.85 still subject to 
the constitutional restriction. 

The next question is as to how this $1,142,213.85 shall be 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

held pending its use either to pay the port development loan 
or for purposes within the scope of St. 1911, c. 748. The 
principal of the port development loan falls due at the rate 
of $250,000 each year. There are still $7,700,000 outstanding, 
and $250,000 mature each year, but as the bonds were issued 
at different times, for a term not exceeding forty years, the 
final maturity is not until 1957. There is nothing in the 
Constitution which requires that the $1,142,213.85 shall either 
be held in the treasury or deposited in banks to await the 
time when it will be needed for the retirement of the loan. 
It is not only lawful but good business policy to invest it in 
proper securities which w^ill yield a larger income return than 
bank deposits. It has been suggested that, in view of the 
heavy State tax to be anticipated this year, capital expendi- 
ture for highways be met by bonds instead of by current 
revenue. It is suggested further that $1,000,000 be borrowed 
for this purpose. If the term of the bonds to be issued for 
this purpose be so fixed that the principal will fall due in 
time to retire the port development bonds, I see no reason 
why $1,000,000 out of the $1,142,213.85 may not be invested 
in those bonds. Such investment is not a diversion of the 
fund to highways, but simpl}^ a lawful investment of a special 
fund. The balance, or $142,213.85, remains available for 
Boston port development or to be applied to the $250,000 of 
port bonds which mature next year. 
To summarize: — 

Cost of dry dock, $3,107,366 93 

Amount met from general funds, . . $778,805 34 

Amount of dry dock bonds paid from gen- 
eral funds, 336,347 74 

Amount of proceeds of dock available for 

general purposes, ■ — — — • 1,115,153 08 

Balance of proceeds of dock paid out of $9,000,000 

loan, $1,992,213 85 

Port development purposes this year, . $600,000 00 
Port development bonds payable this 

year, 250,000 00 



Amount to be spent for purposes for which the money 
was borrowed, and so payable out of loan proceeds, 850,000 00 



Amount still remaining in trust fund, . . . $1,142,213 85 



1921.] PUBLIC DOCUMENT — No. 12. 85 

Appropriation for highways for current year to be 
bonded and bonds bought by Commonwealth out of 
trust fund, $1,000,000 00 



Balance in trust fund, $142,213 85 

In conclusion, I may suggest that the determination of the 
question submitted to me by 3'our committee must depend 
ultimately upon the principles of sound finance rather than 
upon the legal principles involved. By that I mean that 
whether the Commonwealth has or has not the power under 
the Constitution to transfer money borrowed for the capital 
account to the income account and to use it for current ex- 
penses should not determine the course to be pursued by your 
committee. The General Court has power under the Consti- 
tution to raise the entire amount required for the expenses of 
the year by a bond issue, making any State tax unnecessary, 
and passing on to future taxpayers the burden of paying the 
budget for the current year. To use money received from 
the sale of the property of the Commonwealth, which property 
has not yet been paid for, is an indirect way of accomplishing 
the same result. If the principle of using the proceeds of the 
sale of the dry dock for current expenses is sound, a sale of 
the Commonwealth Pier to the Federal government for 
$5,000,000, and of other property acquired by the port de- 
velopment loan, would make it possible to do away with the 
State tax altogether, or reduce it to an inconsiderable sum. 
The motive which has constrained the General Court to 
make provision for current expenses from current income is 
as cogent to prevent passing on the burden to future tax- 
payers indirectly by a sale of the property of the Common- 
w^ealth acquired with borrowed money as directly by means 
of a bond issue. 

In the foregoing opinion I have suggested certain methods 
by which the proceeds of the sale of the dry dock may legally 
be expended and invested in such manner as to reduce the 
amount of the State tax for the current year below what 
would otherwise be required. In answer to inquiries made 
by members of the committee I have pointed out that 
$600,000 of certain permanent port funds may legally be trans- 
ferred to the general fund by appropriate legislation, and that 
the proceeds of the sale of the dry dock may be invested in 
bonds issued to provide for capital expenditure for highways. 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 

In what I have said I would not be understood to recommend 
either the transfer of permanent funds to the general fund or 
the issue of bonds. I have endeavored only to suggest what 
methods may legally be pursued by your committee to avoid 
the serious constitutional question which would be raised by 
appropriation of the entire proceeds of the dry dock to cur- 
rent expenses. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Taxation — Discharge in Bankruptcy. 

Taxpayers who have received their discharge from the Bankruptcy Court 
are liable for unpaid taxes, since they are not provable debts. 

March 4, 1920. 

Irving L. Shaw, Esq., Income Tax Director, Department oj Corporations 

and Taxation. 

Dear Sir: — You have asked my opinion as to the proper 
procedure to collect unpaid taxes against taxpayers who have 
gone into bankruptcy, and whether you may proceed against 
such taxpayers after they have received a discharge from 
the Bankruptcy Court. 

Section 17 of the Bankruptcy Act of 1898, as amended by 
the act of Feb. 5, 1903, provides, by section 17a, that "a 
discharge in bankruptcy shall release a bankrupt from all of 
his provable debts, except such as (1) are due as a tax levied 
by the United States, the State, county, district, or mu- 
nicipality in which he resides; . . ." 

A tax, therefore, is not a provable debt, but section 64a 
of the act requires the court to order the trustee to pay all 
taxes "legally due and owing by the bankrupt to the United 
States, State, county, district, or municipality in advance of 
the payment of dividends to creditors." This has been con- 
strued as placing on the trustee the obligation to pay the 
tax first of all, even ahead of other debts which have priority. 
But taxes are not provable debts, and need not be proved in 
the bankruptcy court, and it is the duty of the trustee to pay 
them whether they are proved or not. 

Section 9a of the act provides that "a bankrupt shall be 
exempt from arrest upon civil process except in the following 
cases: (1) When issued from a court of bankruptcy for con- 



1921.] PUBLIC DOCUMENT — No. 12. 87 

tempt or disobedience of its lawful orders; (2) when issued 
from a State court having jurisdiction, and served within 
such State, upon a debt or claim from which his discharge in 
bankruptcy would not be a release, and in such case he shall 
be exempt from such arrest when in attendance upon a court 
of bankruptcy or engaged in the performance of the duty 
imposed by this act." Since taxes are not provable debts, a 
bankrupt cannot be discharged from his taxes, and therefore 
neither while he is in bankruptcy nor after he is discharged 
is there any prohibition of his arrest for failure to pay taxes. 

As a matter of policy, however, I think it unwise to arrest 
taxpayers prior to their discharge, or, at any rate, until you 
have had an opportunity, from the examination of their re- 
turns, to find out whether there are sufficient assets in the 
hands of the trustee to pay taxes, which are an obligation 
which must be met first of all. If you find that there are 
no assets, or assets entirely inadequate to meet your claim 
for taxes, and believe that arrest will result in payment of 
the tax, you are warranted in taking such procedure, having 
due regard to the necessary conditions which must be com- 
plied with in making an arrest. 

Under the conditions stated, I see no reason why you 
should not have warrants issued against taxpayers who have 
received their discharge from bankruptcy and have not, in 
the meantime, either individually or through the trustee in 
bankruptcy, made payment. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Aliens — Right to possess Shotguns or 

Rifles. 

The statute prohibiting certain aliens from possessing shotguns and rifles 
is a law for the protection of wild animals and birds; hence, fines re- 
ceived for violation thereof are to be divided equally between the 
Commonwealth and the county in which prosecution is made. 

March 5, 1920. 

Mr. Theodore N. Waddell, Director of Accounts, Department of Corpo- 
rations and Taxation. 

Dear Sir: — You ask my opinion "as to whether a vio- 
lation of the latter half of section 1 of chapter 240 of the 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

General Acts of 1915 (possession of firearms by an alien, with 
no apparent or proven intent to hunt) is to be construed as 
a violation of the game laws; and whether any fine imposed 
in such case is to be paid over in accordance with St. 1908, 
c. 330." 

Gen. St. 1915, c. 240, § 1, reads, in part, as follows: — 

It shall be unlawful for any unnaturalized foreign born resident, 
unless he owns real estate in this commonwealth to the value of not 
less than five hundred dollars, to hunt, capture or kill any wild bird or 
animal, either game or otherwise, of any description, excepting in de- 
fence of the person, and it shall be unlawful for any such unnaturaUzed, 
foreign born resident within this commonwealth to own or have in his 
possession or under his control a shotgun or rifle of any make. 



The provisions of St. 1908, c. 330, direct that all fines, 
penalties and forfeitures recovered in prosecutions under the 
laws relative to fisheries or to birds, animals and game, with 
certain exceptions not here important, shall be divided equally 
between the county in which such prosecution is made and 
the Commonwealth, with a further proviso that if the prose- 
cution is directed by a deputy, appointed by the Commis- 
sioners on Fisheries and Game and receiving compensation 
from the Commonwealth, all fines, penalties and forfeitures 
shall be paid into the treasury of the Commonwealth. 

I assume that the reason for your inquiry is that in some 
cases the complaint filed with the court does not allege that 
the defendant alien was hunting or killing any wild game, 
but that such person owned or had in his possession or under 
his control a shotgun or rifle. 

The object of the 1915 statute is described in its title as 
being, "An Act to provide further protection for wild birds 
and quadrupeds." Under section 3 of the same act it is 
provided that notice of the seizure of firearms shall be sent 
to the Commissioners on Fisheries and Game, and that such 
firearms shall be sold at the discretion of said commissioners. 
In section 4 the commissioners and their deputies are given 
authority to arrest without a warrant any such person with 
a shotgun or rifle in his possession. The act is essentially 
one of game protection. Were it otherwise there might be 
a doubt as to its constitutionality, by reason of the Four- 



1921.] PUBLIC DOCUMENT — No. 12. 89 

teenth Amendment to the Federal Constitution, which pro- 
vides : — 

. . . nor shall anj^ state deprive any person of life, liberty or prop- 
erty, without due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws. 

The constitutionality of an almost identical statute was 
raised in the case of Commomvealth v. Patsone, 231 Pa. St. 
46, affirming 44 Pa. Superior Ct., 129. It was there held 
that the act 

. . . defines two several and independent offences : first, the hunting 
of game by an alien; second, for an alien either to own or be possessed 
of a shotgun or rifle of any make. The primary subject of the act is 
the preservation of wild birds, animals and game, and under all our 
authorities the pri\dlege of hunting and taking game is limited, under 
defined restrictions, to our own citizens. Since long-range firearms — 
shotguns and rifles — are generally used in killing wild birds and 
animals, it is clear that the Legislature, in prohibiting a foreign-born, 
imnaturahzed resident from himting game, intended to make the hunt- 
ing of game by an ahen the more difficult by taking away from such 
persons the means by which game is usually killed. This prohibition 
against having deadly and long-range firearms does not in any way 
deprive the ahen of property without due process of law, but simply 
defines and Hmits his right to use firearms by restricting such right to 
the use of short-range firearms — revolvers and pistols — and such 
other weapons as may be necessary for defence of his person and 
property. 

The decree in this case was affirmed in Patsone v. Pennsyl- 
vania, 232 U. S. 138. 

It is my opinion, therefore, that inasmuch as the act in 
question has for its primary purpose the protection of wild 
animals and birds, any fines or forfeitures derived from the 
authority therein conferred should be paid over in accordance 
with the provisions of St. 1908, c. 330. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 



Civil Service — Female Veteran — Certification. 

The word "veteran" as used in Gen. St. 1919, c. 150, § 1, includes women 
who possess the quahfications prescribed by that act. 

Where a civil service list is certified in answer to a requisition calling for 
women, a woman who passes the appropriate civil service examination 
and who is a veteran, within the meaning of Gen. St. 1919, c. 150,. 
§ 1, is entitled to be certified ahead of women who are not veterans^ 
even though the latter have obtained a higher percentage in the 
examination. 

March 9, 1920. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — In a recent letter you request my opinion on 
the following questions: — 

1. Does the word ''veteran," as defined in Gen. St. 1919, c. 150, § 1, 
include women ? 

2. If the answTr to the first question is in the affirmative, under sec- 
tion 2 of that act are the names of women who are ''veterans," and who 
pass the appropriate civil service examinations, to be placed "above 
the names of all other applicants," and in answer to a requisition calling 
especially for women are their names to be certified ahead of women 
who are not veterans but who have obtained a higher percentage in the 
examinations? 

1. Gen. St. 1919, c. 150, § 1, provides as follows: — 

The word "veteran" as used in this act shall mean any person who 
has served in the army, navy or marine corps of the United States in 
time of war or insurrection and who has been honorably discharged 
from such ser\dce or released from active dut}^ therein, provided that 
such person was a citizen of this commonwealth at the time of his in- 
duction into such ser\dce or has since acquired a settlement therein; 
and pro\ided further that any such person who at the time of entering 
the said service had declared his intention to become a subject or citizen 
of the United States and withdrew such intention under the pro\asions 
of the act of congress approved July ninth, nineteen hundred and 
eighteen, and any person designated as a conscientious objector upon 
his discharge shall not be deemed to be a "veteran" within the meaning 
of this act. 

The Legislature has in this act used the comprehensive word 
"person." The w^ord "person" is broad enough to include 
women unless a contrary intent appears in the statute. Rob- 
inson's Case, 131 Mass. 376, 377; Opinion of the Justices, 



1921.] PUBLIC DOCUMENT — No. 12. 91 

150 Mass. 586; see also Opinion of the Justices, 226 Mass. 
607, 610. It is suggested, however, that the word "his,'* 
which is used throughout this section, indicates an intention 
to confine the word ''person" to persons of the masculine 
gender. But R. L., c. 8, § 4, provides: — 

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

Fourth, Words importing the singular number may extend and be ap- 
plied to several persons or things, words importing the plural number 
may include the singular, and words importing the masculine gender 
may be appUed to females. 

The provision of section 2 as to a requisition "not especially 
calling for women"; the provision of section 3 as to em- 
ployment of veterans in the labor service of cities and towns 
not subject to civil service rules "in preference to all other 
persons except women"; and the provision of section 4 that 
that section "shall not apply to requisitions calling for 
women", do not, in my opinion, narrow the word "person." 
Those provisions do not directly qualify the definition of 
veteran contained in section 1. They merely prescribe cer- 
tain rules as to those who are veterans within the meaning 
of that section. The question is not free from doubt, but 
it seems to me that the word "veteran" as used in section 
1 includes women as well as men. Opinions of Hon. Henry 
C. Attwill, Attorney-General, and Hon. Henry A. Wyman, 
Attorney-General, to Hon. Charles L. Burrill, Treasurer and 
Receiver-General, dated, respectively, June 28, 1919 (At- 
torney-Generars Report, 1919, p. 64), and Oct. 11, 1919, 
also point to this conclusion. 

2. In my opinion, the answer to your second question fol- 
lows from the answer to the first. Women who are veterans 
are to be placed upon those lists to which they are eligible 
above all other applicants who are not veterans, and, in 
answer to a requisition calling for women, women who are 
veterans are entitled to be certified ahead of women who are 
not veterans, even though the latter attained a higher per- 
centage in the examination. The provision as to certifica- 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

tion "upon receipt of a requisition not especially calling for 
women," while somewhat obscure, is, in my judgment, in- 
tended to prevent the preference to veterans from overriding 
a sex limitation in the request itself. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Legislature — Power to define Words used 
in Constitution — Legal Voter. 

The meaning of words used in the Constitution presents a judicial question. 

An act defining the term "legal voter," as used in the Constitution, if not 
unconstitutional as an attempted exercise of judicial power, would be, 
at most, a declaration of legislative opinion which would not fore- 
close the question of the meaning of those words. 

March 10, 1920. 
Committee on Bills in the Third Reading. 

Gentlemen: — You submit a proposed bill entitled "An 
Act to define the term 'legal voter.'" It appears from the 
letter which accompanies it that the proposed bill is intended 
to define the term "legal voter," as used in Mass. Const. 
Amend. XXI and XXII, for the guidance of the Secretary 
of the Commonwealth in taking the decennial census required 
by those amendments. You inquire in substance: — 

1. Can the Legislature defuie what is meant hy the words "legal 
voters" as used in said amendments? 

2. What is meant by the words " legal voters" as used in said amend- 
ments? 

The Bill of Rights, art. XXX, provides as follows: — 

In the government of this commonwealth, the legislative department 
shall never exercise the executive and judicial powers, or either of them: 
the executive shall never exercise the legislative and judicial powers, 
or either of them: the judicial shall never exercise the legislative and 
executive powers, or either of them: to the end it may be a govern- 
ment of laws and not of men. 

There can be no question that the meaning of any words 
used in the Constitution presents in the last analysis a ju- 
dicial question. Marhury v. Madison, 1 Cranch, 137; Capen 
V. Foster, 12 Pick. 485; Blanchard v. Stearns, 5 Met. 298, 



1921.] PUBLIC DOCUMENT — No. 12. 93 

301; Opinion of the Justices, 5 Met. 591, 592; Kinneen v. 
Wells, 144 Mass. 497; Opinion of the Justices, 226 Mass. 607; 
Monongahela Navigation Co. v. United States, 148 U. S. 312, 
337. The courts, and the courts alone, can finally declare 
what the true construction is. Marhury v. Madison, 1 
Cranch, 137; Monongahela Namgation Co. v. United States, 
148 U. S. 312, 337; Kinneen v. WeUs, 144 Mass. 497; Opinion 
of the Justices, 226 Mass. 607. Yet both the Legislature and 
the executive also construe the Constitution. Every time 
the Legislature passes a statute it necessarily decides that 
the proposed enactment is within its constitutional powers. 
Kendall v. Kingston, 5 Mass. 524, 533. Officials charged 
with executive duties may find it necessary to determine 
what the Constitution means in order to obey its mandate. 
Attorney -General v. Apportionment Commissioners, 224 Mass. 
598; Donovan v. Apportionment Commissioners, 225 Mass. 
55; McGlue v. County Commissioners, 225 Mass. 59; Brophy 
v. Apportionment Commissioners, 225 Mass. 124. Neither the 
Legislature nor the executive invades the judicial function 
when either construes the Constitution in order to exercise 
an authority conferred by law. Yet if the Legislature at- 
tempts to decide a judicial question and to declare its de- 
cision by statute, it does invade the judicial function and 
its act is void. Denny v. Mattoon, 2 Allen, 361; Forster v. 
Forster, 129 Mass. 559; see also Kilbourn v. Thompson, 103 
U. S. 168. Indeed, it has been intimated that the Legislature 
has no power to declare retroactively that the meaning of 
a statute was different from that placed upon it by the court. 
Cambridge v. Boston, 130 Mass. 357. In the present case 
the proposed statute undertakes to declare what shall be the 
meaning of two words in the Constitution. The definition 
stands alone, and is in no way incident to legislation other- 
wise valid. It is open to grave question whether this statute 
is not an attempt by the Legislature to exercise judicial 
power contrary to article XXX of the Bill of Rights. 

But putting that question aside, the bill would, at most, 
be only a declaration of legislative opinion, which could not 
foreclose the question. Mass. Const, c. I, § II, art. II, and 
c. I, § III, art. IV, as modified b}^ Amendments III, XVII, 
XX, XXVIII, XXX, XXXI, XXXII and XL, define the 
qualifications of the electorate. These qualifications cannot 
be modified by statute. Kinneen v. Wells, 144 Mass. 497; 



94 ATTORNEY-GENERAL'S REPORT. [Jan. 

Blanchard v. Stearns, 5 Met. 298, 301; Opinion of the Justices, 
5 Met. 591, 592; Opinion of the Justices, 226 Mass. 607. 
It is true that the Legislature, as an incident of its power to 
provide for elections, may also provide for the registration of 
those qualified to vote upon due proof of the qualifications 
prescribed by the Constitution. Capeti v. Foster, 12 Pick. 
485. In defining those entitled to such registration, it has 
enumerated the constitutional qualifications for the vote 
without apparently usurping judicial power. Capen v. Foster, 
12 Pick. 485; Stone v. Smith, 159 Mass. 413; see also R. L., 
c. 11, § 12. But such enumeration, even as a part of an 
otherwise valid election law, is invalid if it conflicts with 
the constitutional definition. Kinneen v. Wells, 144 Mass. 
497; Opinion of the Justices, 226 Mass. 607. It is true that 
Amendments XXI and XXII do not define "legal voters" 
with the fulness and precision with which the qualifications 
for the ballot are defined by the articles heretofore enumer- 
ated. Yet the term "legal voters" possesses a definite con- 
stitutional meaning which must be determined from the 
Constitution as a whole. It follows, therefore, that the pro- 
posed bill, if enacted, could not foreclose the question or stand 
unless the definition therein contained should exactly conform 
to the construction of those words ultimately adopted by 
the Supreme Judicial Court. In my opinion, the Legislature 
should not volunteer a legislative expression of opinion upon 
a judicial question, especially in view of the serious doubt 
whether the proposed bill would not amount to a usurpation 
of judicial power. 

The answer to your first question renders it unnecessary, 
in my opinion, for me to answer your second question. I do 
not feel that I ought to frame a definition of "legal voter" 
for the purpose of the proposed bill. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



1921.1 PUBLIC DOCUMENT — No. 12. 95 



Constitutional Law — Infamous Punishment — Sentence to State 
Prison upon Complaint. 

In so far as Gen. St. 1916, c. 187, § 1, authorizes any district court or trial 
justice to impose a sentence to the State Prison upon complaint, it 
violates article XII of the Bill of Rights, which requires that a sen- 
tence to the State Prison shall not be imposed except upon an indict- 
ment duly presented by a grand jury. 

March 15, 1920. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You inquire whether, in view of St. 1911, c. 
176, Gen. St. 1916, c. 187, confers upon a district court or trial 
justice . authority to sentence to the State Prison an inmate, 
transferred from that prison to the Prison Camp and Hospital, 
who escapes from the latter institution and is later recaptured. 

Gen. St. 1916, c. 187, § 1, amends St. 1904, c. 243, § 2, so 
.as to read as follows: — 

A prisoner who escapes, or attempts to escape, from the land or 
buildings of said camp, now known as the prison camp and hospital, 
or from the custody of an officer while being conveyed thereto, or 
therefrom, or while employed therein, may be pursued and recaptured; 
and upon complaint before any district court or trial justice may be 
punished for such escape, or attempt to escape, by a sentence of im- 
prisonment at the institution to which he was originally sentenced for 
not less than one year nor more than five years. The expense of sup- 
porting such prisoner shall be paid by the institution to which he is 
sentenced, and the expense of committing him shall be paid by the 
prison camp and hospital. 

St. 1905, c. 355, authorized the prison commissioners to 
establish a hospital prison at Rutland. Section 2 of that act 
authorized the prison commissioners, under certain conditions, 
to remove "any male prisoner in the state prison" to such 
hospital prison. By St. 1906, c. 243, the hospital prison and 
the temporary industrial camp for prisoners were consolidated 
into one institution to be known as the Prison Camp and 
Hospital. Construing Gen. St. 1916, c. 187, § 1, in connection 
with these other statutes, it seems plain that it purports to 
confer power upon any district court or trial justice, upon 
complaint, to sentence to the State Prison any inmate of the 
Prison Camp and Hospital who was originally sentenced to 
the State Prison and who escapes or attempts to escape from 
the Prison Camp and Hospital. 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

Viewed as a question of construction, the authority which 
Gen. St. 1916, c. 187, § 1, purports to confer upon anj^ district 
court or trial justice cannot be limited by St. 1911, c. 176, 
§ 1. The earlier enactment must yield to the later enactment 
if the later enactment be constitutional. Moreover, the 
provisions of St. 1911, c. 176, § 1, which in effect deny author- 
ity to police, district and municipal courts to sentence to the 
State Prison, and limit the sentence which they may impose 
to not exceeding two years in the house of correction, are 
expressly confined to that act. For both reasons St. 1911, 
c. 176, cannot be held to limit Gen. St. 1916, c. 187. 

The serious question is whether Gen. St. 1916, c. 187, § 1, 
is constitutional in view of article XII of the Declaration of 
Rights, which provides: — 

No subject shall be held to answer for any crimes or offence, until 
the same is fully and plainly, substantial^ and formally, described to 
him; or be compelled to accuse, or furnish evidence against himself. 
And every subject shall have a right to produce all proofs that may 
be favorable to him; to meet the witnesses against him face to face, 
and to be fully heard in his defence b}^ himself, or his counsel, at his 
election. And no subject shall be arrested, imprisoned, despoiled, or 
deprived of his property, immunities, or privileges, put out of the pro- 
tection of the law, exiled, or deprived of his life, liberty, or estate, but 
by the judgment of his peers, or the law of the land. 

And the legislature shall not make any law that shall subject any 
person to a capital or infamous pimishm.ent, excepting for the gov- 
ernment of the army and na\y, without trial by jury. 

The objection that Gen. St. 1916, c. 187, provides for a 
sentence to the State Prison without trial by jury is met by the 
right of appeal to the Superior Court, where a jury trial may 
be had. Jones v. Robbins, 8 Gray, 329. But such right of 
appeal leaves untouched the further objection that the trial 
in the Superior Court will be had upon the complaint author- 
ized by Gen. St. 1916, c. 187, and not upon an indictment duly 
presented b\^ a grand jury. Jones v. Robbins, 8 Gray, 329. 
It is now settled law that article XII of the Bill of Rights 
requires that the crime shall be charged by an indictment duly 
presented by a grand jury, if, upon conviction, the accused 
may be sentenced to the State Prison, since such a sentence is 
an "infamous punishment," within the meaning of that 
article. Jo7ics v. Robbins, 8 Gray, 329; Nolan's Case, 122 
Mass. 330; CommonweaUh v. Horregan, 127 Mass. 450; Com- 



1921.] PUBLIC DOCUMENT — Xo. 12. 97 

inonweaUh v. Harris, 231 Mass. 584; Opinion of the Justices, 
232 Mass. 601. It is true that trial upon information or com- 
plaint, even for murder, is "due process of law," within the 
meaning of the Fourteenth Amendment to the Federal Consti- 
tution. Hurtado v. California, 110 U. S. 516. But this 
decision cannot be held to alter the construction which our 
court has placed upon article XII of the Bill of Rights. I am 
therefore constrained to advise you that Gen. St. 1916, c. 187, 
is unconstitutional in so far as it attempts to authorize a dis- 
trict court or trial justice to impose a sentence to the State 
Prison. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Constitutional Law — Street Railway — Fixing Fare of Blind 
Person accompanied by Sighted, Guide. 

A proposed bill which would require street railways to carry a blind person 
for half fare and a sighted guide who accompanies him for full fare 
would be unconstitutional, 

March 18, 1920. 
Hon. Edw^in T. McKnight, President of the Senate. 

Dear Sir: — I have given careful consideration to the bill 
transmitted with the order of the Honorable Senate, dated 
March 12, 1920, which reads as follows: — 

Ordered, That the Senate require the opinion of the Attornej^-Gen- 
eral as to the constitutionality of Senate Bill No. 201, relative to the 
transportation of blind persons accompanied by guides on street, 
steam or elevated railroads or railway's. 

A question arises as to the construction of the proposed bill. 
Under section 1 it is by no means clear whether the intention 
is that the blind person and his sigRted guide shall each pay 
half fare, or whether the blind person shall pay half fare and 
the sighted guide full fare. But taking the language of section 
1 and section 2 together, the more natural construction seems 
to be the latter, viz.: that the blind person shall pay half fare 
and the sighted guide shall pay full fare. Assuming that this 
is the true construction, the bill in substance provides that a 
blind person whose name appears upon the register of the 
Massachusetts Commission for the Blind, who obtains from 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

that Commission the prescribed identification card upon pay- 
ment of a fee, who is obliged to travel from place to place in 
pursuance of his legitimate occupation, and who is accom- 
panied by a sighted guide for safety and protection, shall 
pay one-half the regular fare charged by street, steam or 
elevated railroads or railways to other passengers for the same 
service. 

In my opinion, this bill is open to several constitutional 
objections. 

1. In its present form the bill is not limited to regulation 
of rates of fare in intrastate commerce. The power to regu- 
late rates of fare in interstate commerce is possessed by Con- 
gress alone. Unless, therefore, the bill is amended to con- 
fine its operation to fares to be charged for travel wholly 
within the Commonwealth, it will be clearly unconstitutional 
upon this ground. 

2. There is a further question whether the bill, which 
requires carriers to grant a reduced rate to a particular class, 
may not be confiscatory. There is no question that the 
Commonwealth has power to prescribe reasonable rates of 
fare to be charged by carriers for travel wholly within the 
Commonwealth. Whether a rate is confiscatory is a mixed 
question of law and fact, to be determined in each particular 
case upon all the facts. 

It is well known that many steam and electric roads at 
the present time are not able at the present rates of fare to 
earn more than operating expenses, and in numerous instances 
they are not earning operating expenses. Any statute which 
would require a carrier to lower the rate of fare to a certain 
class of the traveling public would be confiscatory, and there- 
fore unconstitutional, if it resulted in reducing the return to 
the carrier below that reasonable minimum to which it is 
entitled. 

3. The ordinary rule of^law is that public service companies 
shall serve all who apply, without discrimination, at a reason- 
able rate. A law which provides a special rate to a particular 
class purports to authorize a discrimination in favor of that 
class. It may well be that the cost of the discrimination must 
be made up by charging a larger rate to the rest of the 
traveling public in order to produce that reasonable return to 
which the carrier is entitled. Even the Legislature has a very 
limited power to provide for a discrimination in favor of a 



1921.] PUBLIC DOCUMENT — No. 12. 99 

particular class of the traveling public at the expense of the 
traveling public as a whole. Lake Shore & Michigan Southern 
Ry. Co. V. Smith, 173 U. S. 684. An arbitrary classification 
cannot be made. Chicago, R. I. & P. Ry. v. Ketchum, 212 Fed. 
Rep. 986. In my opinion, a valid classification must be 
adapted to promote a sufficient public purpose. Thus the law 
granting a half fare to school children and other persons travel- 
ing to and from schools maintained by the public, and private 
schools of a like kind, was sustained by the court against the 
contention that such a classification was arbitrary, on the 
ground that that classification tended to promote a public 
purpose, namely, education. Commonwealth v. Interstate Con- 
solidated Ry., 187 Mass. 436; Commonwealth v. Connecticut 
Valley St. Ry., 196 Mass. 309; Commonwealth v. Boston & 
Northern St. Ry. Co., 212 Mass. 82. The Interstate Railway 
Case (supra) was affirmed by the Supreme Court of the 
United States in 207 U. S. 79, on the very narrow ground that 
as the statute was in force at the time when the company 
received its charter, that company could not complain of it. 
See also San Antonio T. Co. v. Altgelt, 200 U. S. 304. 

On the other hand, a statute which requires carriers to grant 
a reduced rate to a particular class upon private grounds 
peculiar to that class is clearly invalid. Thus a statute which 
requires a railroad to grant free transportation to one who 
accompanies a shipment of cattle is arbitrary and void. 
Atchison, etc. R. Co. v. Campbell, 61 Kan. 439; McCully v. 
Chicago, B. & Q. R.R., 212 Mo. 1; George v. Chicago, R. I. 
& P. Ry. Co., 214 Mo. 551. The reasoning of these cases is 
to the effect that where a reasonable rate has been prescribed, 
the Legislature cannot prescribe a reduction from that rate to 
some private class of travelers selected by the Legislature. 
The present bill seems to fall within this principle. It pre- 
scribes a reduced rate for a particular class of blind persons. 
Unless the classification rests upon a public purpose sufficient 
to justify it, this bill could not stand. It would open the door 
to laws designed to afford special rates to almost any class 
which the Legislature might select for special favors to be 
rendered by carriers at the carriers' expense. Such a principle 
substitutes legislative discrimination for corporate discrimina- 
tion. 

For the foregoing reasons the bill under consideration would 
be unconstitutional. 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

I am of opinion, however, that if there should be substituted 
for the present compulsory bill a proper permissive bill, 
applicable to intrastate commerce only, the constitutional 
objections pointed out above might be avoided. Any rail- 
road which might choose to avail itself of such permission to 
carry a blind person and a sighted guide for a single fare, in 
order to lessen the chance of accident, with possible liability 
for damages, could not object that such a bill was either 
arbitrary or confiscatory, or, on the ground of such voluntary 
action, ask to raise ordinary fares. Such permissive legislation 
might be supported also by the precedent of the Federal rail- 
road law, and the regulations of the Interstate Commerce 
Commission thereunder, which permit but do not require a 
special rate to certain designated classes of persons, such as 
ministers. 

Very truly yours, 

J. Weston Allen, AUorney-General. 



Constitutional Laic — " A7iti-aid" Amendment — Religious 
Worship — State Institutions. 

The expenditure of money at the various insane hospitals and other State 
institutions for the purpose of affording inmates therein the opportunity 
for worship is not prohibited by the provisions of article XLVI of the 
Amendments to the State Constitution. 

March 25, 1920. 
Committee on Ways and Means. 

Gentlemen: — You state that the Legislature is in the 
habit of appropriating funds for religious instruction at the 
various insane hospitals and other State institutions. These 
funds are then paid by the institutions to Protestant, Catholic 
and Jewish clergymen. At several of the penal institutions 
there is an official called a chaplain, who is appointed by the 
superintendent and who receives an annual salary from the 
Commonwealth for religious work. You request my opinion 
as to whether this practice of paying for religious instruction 
at public expense is in accordance with the provisions of 
article XLVI of the Amendments to the Constitution. 

Under the provisions of article XLVI, section 2, " ... no 
grant, appropriation or use of public money . . . shall be 
made or authorized by the commonwealth . . . for the pur- 



1921.] PUBLIC DOCUMENT — No. 12. 101 

pose of founding, maintaining or aiding any school or institu- 
tion of learning, whether under public control or otherwise, 
wherein any denominational doctrine is inculcated, ..." 

As the institutions referred to in your communication are 
neither schools nor institutions of learning, the provisions of 
said section, as above quoted, do not apply. 

Said section 2 further prohibits the expenditure of public 
moneys ''for the purpose of founding, maintaining or aiding 
. any other school, or any college, infirmary, hospital, 
institution, or educational, charitable or religious undertaking 
which is not publicly owned and under the exclusive control, 
order and superintendence of public officers ..." 

As the institutions in question are publicly owned and under 
the exclusive control, order, and superintendence of public 
officers, they are exempt from the provisions of section 2. 

Section 4 of said article XLVI provides: — 

Nothing herein contained shall be construed to deprive any inmate 
of a publicly controlled reformatory, penal or charitable institution of 
the opportunity of religious exercises therein of his own faith; . . . 

Construing together sections 2 and 4 of article XLVI, I am 
of opinion that the broad purpose intended by the amend- 
ment was to prevent the use of public money to build up 
private denominational institutions, or schools and institutions 
of learning, whether under public control or otherwise, where 
any denominational doctrines were being inculcated. It was 
not intended to banish all forms of religious worship from 
State institutions or to prohibit the incidental expenditure of 
pubHc money for religious worship in such institutions, simply 
because these institutions were being maintained out of the 
public funds. 

I therefore advise you that the expenditure of money by 
these institutions for the purpose of affording inmates therein 
the opportunity for worship is a legitimate expenditure out of 
the funds appropriated for the maintenance of these institu- 
tions or directly out of the funds of the Commonwealth. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



102 ATTORNEY-GENERAL'S REPORT. [Jan. 



State Sanatoria — Cities and Towns — Payment for Clothing 
supplied to Indigent Patients. 

Cities and towTis which pay the price fixed by St. 1907, c. 474, § 10, for 
the support of patients in State sanatoria, cannot be made to supply 
clothing to said patients who, on account of their indigent condition^ 
are unable to provide clothing for themselves. 

March 29, 1920. 

William J. Gallivan, M.D., Director, Division of Tuberculosis, Depart- 
ment of Public Health. 

Dear Sir: — You request my opinion as to whether cities 
and towns where patients of State sanatoria have legal settle- 
ment can be required to provide clothing for such of said 
patients as are in dire need of clothing, and who, because of 
their indigent condition, are unable to provide it for them- 
selves. 

St. 1907, c. 474, provides for the establishment of State 
sanatoria for tubercular patients. The money necessary for 
their maintenance is appropriated annually by the Legislature 
from the ordinary revenue of the Commonwealth. 

There is no liability on the part of cities and towns for the 
payment of charges for the support of patients in these sana- 
toria except as provided by section 10 of said chapter, and 
except in so far as cities and towns are liable for the support 
of all poor and indigent persons lawfully settled therein, as 
provided by R. L., c. 81, § 1, w^hich provides: — 

Every city and town shall relieve and support all poor and indigent 
persons la^^^ully settled therein, whenever they stand in need thereof. 

St. 1907, c. 474, § 10, provides: — 

The charges for the support of each inmate in a state sanatorium 
shall be four dollars a week, and shall be paid quarterly. Such charges 
for those not having known settlements in the Commonwealth shall be 
paid by the Commonwealth, and may afterward be recovered by the- 
treasurer and receiver general of the patients, if they are able to pay, 
or of any person or kindred bound by law to maintain them, or of the 
place of their settlement subsequently ascertained; but for those having 
known settlements in this Commonwealth, the charges shall be paid 
either by the persons bound to pay them, or by the place in w^hich such 
inmates had their settlement, unless security to the satisfaction of the 
trustees is given for their support. If any person or place refuses or 
neglects to pay such charges the treasurer and receiver general may 



1921.] PUBLIC DOCUMENT — No. 12. 103 

recover the same to the use of the sanatorium, as provided in section 
seventy-nine of chapter eighty-seven of the Revised Laws. A city or 
town which pays the charges for the support of an inmate of a state 
sanatorium shall have like rights and remedies to recover the amount 
thereof, with interest and costs, from the place of his settlement or 
from such person of sufficient ability, or from any person bound by 
law to maintain him, as if such charges had been incurred in the ordi- 
nary support of such inmate. 

The price to be charged for the support of each patient is 
definitely fixed in said section at S4 per week. The liability 
of cities and towns is also fixed at $4 per week, as the words 
"the charges,'^ as used in that part of said section which pro- 
vides for payment by cities and towns, refer to the words 
"four dollars per week," stipulated in the first sentence of 
said section 10 as the amount of the charges. 

As the sum to be paid by cities and towns is definitely fixed, 
and as said payment is to be made for the support of the 
patient, the real query is whether or not, in addition to the 
payment of the said sum of $4, cities and towns are liable for 
moneys expended for clothing supplied to such of said patients 
as are unable, because of their indigent condition, to provide 
necessary clothing for themselves. 

This depends upon the meaning of the word "support," as 
used in St. 1907, c. 474, § 10. 

In the case of Gould v. City of Lawrence, 160 Mass. 232, 
the question before the court was whether cities and towns are 
liable to the Commonwealth for moneys expended for clothing 
supplied to paupers confined in the lunatic asylum at Danvers. 
Mr. Justice Knowlton said: — 

The word "support" is often used in our statutes, and in its ordi- 
nary signification it includes not merely board, but everything necessary 
to proper maintenance. 

In that case it was held to include clothing. 

There is nothing to indicate that the Legislature intended 
to limit the use of the word "support" in this statute to mere 
board and lodging, or so as to have a meaning other than that 
which it has commonly acquired. 

As the word "support" is used in the same sense in St. 
1907, c. 474, § 10, as in R. L., c. 81, § 1, and as supplying 
necessary clothing would be included within the meaning of 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 

the word "support," as used in said section 10, I am of the 
opinion that cities and towns which pay the price fixed by 
St. 1907, c. 474, § 10, for the support of patients in State 
sanatoria cannot be obliged to supply clothing to said patients 
w^ho, on account of their indigent condition, are unable to 
provide clothing for themselves. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Intoxicating Liquor — Eighteenth Amendment — Effect on State 
Legislation — Druggist's License. 

Neither article XVIII of the Amendments to the Federal Constitution 
nor the Volstead Act passed by Congress to enforce the same nul- 
lifies those provisions of our State law which provide for the issue of 
licenses to druggists to sell liquor for medicinal purposes, but such a 
license issued under State law does not relieve the druggist from the 
duty to comply with the Federal law also. 

March 29, 1920. 
Board of Registration in Pharmacy. 

Gentlemen: — You ask my opinion on the following: — 

This office has been in receipt of several inquiries regarding the 
State liquor laws. The claim has been made by various persons that 
the prohibition amendment to the Constitution of the United States 
renders any State law regarding liquors null and void. . . . 

It has been our contention and also the contention of the Boston 
licensing board that the State laws are in full force and effect in such 
sections as do not conflict with prohibition laws and liquor regulations 
of the government. 

If the claim of these persons is correct, that the State liquor laws 
have been rendered null and void, of course our revenue from liquor 
license certificates will cease April 30. 

Your inquiry is, in substance, whether article XVIII of the 
Amendments to the Constitution of the United States and the 
act of Congress passed pursuant thereto suspend or nullify 
those portions of our State laws which provide for the issue of 
licenses to druggists to sell liquor for medicinal purposes. 
The material portion of article XVIII provides 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 



1921.] PUBLIC DOCUMENT — No. 12. 105 

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 concur- 
rent power to enforce this article by appropriate legislation. 

The first section of this amendment prohibits certain acts, 
including the sale of liquor for beverage purposes. It does not 
prohibit the sale of liquor for medicinal purposes. It follows 
that those portions of our State law which provide for the sale 
of liquor by druggists for medicinal purposes are not in con- 
flict with the amendment and are not suspended or nullified 
thereby. Any doubt which might remain upon this point is 
removed by the express provisions of the act of Congress, 
known as the Volstead Act, in regard to the sale of liquor by 
druggists for medicinal purposes. 

The second question is whether legislation by Congress 
under this amendment nullifies State laws inconsistent there- 
with. I am of the opinion that it does not. Section 2 of the 
amendment provides that Congress and the several States 
shall have "concurrent" power to enforce the amendment by- 
appropriate legislation. In my opinion, this provision permits 
both the States and Congress to adopt independently any 
laws in regard to liquor which do not violate the prohibitions 
contained in section 1 of the amendment. The States cannot 
nullify any valid law which Congress may pass. Congress, on 
the other hand, cannot nullify any valid law which shall be 
in force in or be passed by the several States. Each system 
of legislation stands independent of the other. Each must be 
obeyed by the citizen. Compliance with the Federal law 
will not excuse a breach of the State law, nor will compliance 
with the State law excuse a breach of the Federal law. A 
violation of both laws would be an offence under each. As a 
practical matter, that law, Federal or State, which is most 
severe and which most restricts the liberty of the citizen in 
regard to liquor, is the law which marks the limit beyond 
which he may not go without being guilty of an offence. If, 
however, the State law and the Federal law each permit an 
act, but prescribe different conditions, the act is unlawful 
unless the citizen complies with the conditions prescribed by 
each law. 

I am therefore of opinion that the so-called Volstead Act 
does not nullify the provisions of our State law in regard to 



106 ATTORNEY-GENERAL'S REPORT. [Jan. 

druggists' licenses. But a State license does not in any way 
relieve druggists from the necessity of procuring in addition 
a license under the Federal law. A State license only author- 
izes the sale of liquor for medicinal purposes in so far as the 
law of this Commonwealth is concerned. The druggist must 
in addition comply with the Federal law. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



State Examiners of Plumbers — Master Plumheis License — 
Reneioal — Refusal because Applica7it is not actively en- 
gaged in Business. 

Under St, 1909, c. 536, the State Examiners of Plumbers cannot refuse 
to renew a master plumber's license because said plumber is not 
actively engaged in business at the time of the application for renewal. 

Mahch 29, 1920. 
State Examiners of Plumbers. 

Gentlemen: — You request my opinion as to whether the 
State Examiners of Plumbers can refuse to renew a master 
plumber's license because the owner of such license is not 
actively engaged in business at the time of the application for 
renewal. 

St. 1909, c. 536, creates a board to be known as the State 
Examiners of Plumbers, provides for examinations to be given 
to persons desiring to engage in the business of plumbing as 
master plumbers, and for the issuance of licenses to such 
persons as successfully pass said examinations. 

Section 4 provides: — 

. . . Licenses shall be issued for the term of one j^ear, and shall be 
renewable on or before the first day of May in each year upon the pay- 
ment of the required fee. Each holder of a master plumber's certificate 
or of a license shall register his name and business address with the 
board of health of the cit}^ or town where the holder thereof desires 
to engage in the business of plumbing as a master plumber; . . . 

Section 3 provides: — 

. . . The fees for examination, and for renewals shall be fifty cents 
each. . . . 

A license issued to a master plumber is merely a permit or 
authority to engage in the plumbing business and to perform 



1921.] PUBLIC DOCraiENT — No. 12. 107 

plumbing work either by himself or by journeymen plumbers 
in his employ. It may be exercised or not, as the licensee 
sees fit. The mere failure to engage in the business authorized 
under the permit would not, under the provisions of the 
statute, either revoke or terminate the said license. 

A renewal of a license is, to all intents and purposes, 
equivalent to an original issue of the license, except that the 
person to whom the renewal is to be granted, having passed 
an examination prior to the original issue of the license, is not 
obliged to undergo another examination. 

I am therefore of opinion that the State Examiners of 

Plumbers cannot refuse to renew a master plumber's license 

because the owner is not actively engaged in business at the 

time that he makes application for the renewal of his license. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Fish and Game — Possessio7i of Trout and Certain Birds during 
the Closed Season. 

The prohibition against having trout, ruffed grouse or woodcock in one's 
possession during the closed season bars the importation of the same 
into the State during that period. 

M.uiCH 30, 1920. 

Mr. William C. Adams, Director, Division of Fisheries and Game, Depart- 
ment of Conservation. 

Dear Sir: — You ask my opinion as to whether the laws 
relating to trout, quail and grouse prohibit their being brought 
into Massachusetts from another State during the closed 
season here. 

The laws involved are as follows: — 

St. 1909, c. 377, as amended by St. 1910, c. 469: — 

It shall be imlawful for a person at any time to buy or sell or offer 
for sale a trout except as hereinafter provided, or to take or have in 
possessio7i trout or salmon between the first day of August in anj^ year 
and the first day of April of the year following. . . . 

St. 1911, c. 236, as amended by Gen. St. 1919, c. 153, 
§ 1:- 

It shall be unlawful, excepting only between the twentieth day of 
October and the twentieth day of November of each year, both dates 



108 ATTORNEY-GENERAL'S REPORT. [Jan. 

inclusive, to hunt, pursue, take or kill a ruffed grouse, commonly 
called partridge, or a woodcock, or to have the same, or any part 
thereof^ in possession, whenever or wherever the same may have been 
taken or killed ; . . . 

St. 1911, c. 356, as amended by Gen. St. 1919, c. 153, 
§ 2:- 

It shall be unlawful excepting only between the twentieth day of 
October and the twentieth day of November of each year, both dates 
inclusive, to hunt, pursue, take or kill a quail or to have the same, or 
any part thereof, in possession. . . . 

The fish and game laws above mentioned are clearly in- 
tended to prevent the unlawful taking or killing of fish and game 
included in the prohibition during the closed season, and, in 
furtherance of this object, the having in possession of such 
fish or game is also made an offence. Without this provision, 
in many cases it would, obviously, be difficult to secure a 
conviction, as the burden would be on the Commonwealth 
to establish the fact that fish or game found in one's possession 
was caught or killed within the Commonwealth. It is fair to 
assume that the Legislature intended to prevent the evasion 
of the law, and thus made it unlawful to have such fish and 
game in one's possession during the closed season. The lan- 
guage used is clear, and there is no reason to doubt that such 
was the intention. 

Yours very truly, 

J. Weston Allex, Attorney-General. 



Cities and Towns — Notes. 



A vote of a town appropriating a sum of money in excess of the amount 
called for by the warrant for the meeting is invalid, and town notes 
may not be issued thereunder. 

March 30, 1920. 

Mr. Theodore N. Waddell, Director of Accounts, Department of Corpo- 
rations and Taxation. 

Dear Sir: — You ask whether you should certify town 
notes under a vote of the town authorizing an appropriation 
in excess of the amount called for by the article in the warrant, 
which was as follows: — 



1921.] PUBLIC DOCUMENT — No. 12. 109 

To see if the town will vote to raise and appropriate the sum of 
three thousand dollars to be used in reconstructing Salem Street, as 
recommended by the Massachusetts Highway Commission, or what 
action it will take thereon. 

The vote was an appropriation of $7,500 for the purpose of 
reconstructing a street, and provided that a part of said sum 
be borrowed on town notes. 

I am of the opinion that the vote is invalid. The article in 
the warrant might have read, "to see if the town will recon- 
struct Salem Street and make an appropriation therefor." In 
that event, notice to the town would have been sufficiently 
given that the purpose of the article was to secure the recon- 
struction of Salem Street, and even without the words "make 
an appropriation therefor," it would have been proper to have 
made an appropriation under the article. Blackburn v. Wal~ 
pole, 9 Pick. 97; Aver2j v. Stewart, 1 Gush. 496, 502. 

In the case before us, however, the voters had notice of the 
proposal to raise and appropriate $3,000 for specified purposes, 
and the voters thus had the right to assume that no larger 
appropriation would be voted. There not having been a 
sufficient notice given, the appropriation of $7,500 was un- 
warranted, and you are not authorized to certify the town 
notes issued thereunder. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Elections — Presidential Primaries — Group Voting. 

No provision is made for group voting for delegates in presidential pri- 
maries, and candidates must be voted for by a cross opposite the name 
of each candidate. 

March 31, 1920. 

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

Dear Sir: — You have asked my opinion as to whether in 
printing the ballots for the presidential primary you should 
cause to be placed over a group of candidates a circle, with 
instructions that the voter may vote for such group by placing 
a cross therein. 

If a circle is to be placed over a group of candidates it is 
authorized only by the reference implied in St. 1913, c. 835, 
§ 142, to section 108 of the same act. 



no ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 108, in part, provides: — 

A cross (X) marked against a name shall constitute a vote for the 
person so designated, A cross in the circle at the head of a group of 
candidates for ward committees or for delegates to a state convention 
shall count as a vote for each candidate therein. 

Section 142 is as follows: — 

The provisions of law relating to primaries not inconsistent with the 
three preceding sections shall apply to presidential primaries so far 
as is practicable. 

Section 140 of the same act provided for the manner of 
electing candidates in presidential primaries. This act was 
amended by Gen. St. 1916, c. 16, entitled "An Act to change 
the method of voting in presidential primaries," by striking 
out said section 140 and inserting the following detailed pro- 
visions : — 

The secretary of the commonwealth shall cause to be placed upon 
the official ballot for use in primaries at which delegates to national 
conventions of political parties are elected, under separate headings, 
and in the following order, the names of candidates for delegates at 
large, alternate delegates at large, district delegates, and alternate dis- 
trict delegates. The names of candidates appearing in nomination 
papers which contain nominations for all the places to be filled shall 
be placed first on said ballot, arranged in groups and in the same order 
as in the nomination papers. The names of candidates appearing in 
nomination papers which contain nominations for less than all the 
places to be filled shall follow, alphabetically arranged. The ballot 
shall also contain a statement of the preference, if any, of each candi- 
date for delegate as to a candidate for nomination for president, pro- 
vided that such statement appears in his nomination papers; but no 
such statement or preference by any candidate for delegate shall 
appear upon the ballot unless such candidate for nomination for presi- 
dent files his written assent thereto with the secretary of the common- 
w^ealth on or before five o'clock of the last day for filing nomination 
papers. Such assent may be communicated by telegraph or cable. 
Upon the receipt of the records of votes cast at presidential primaries, 
the city or town clerk or election commissioners shall forthwith can- 
vass the same and make return thereof to the secretary of the com- 
monwealth, who shall forthwith canvass such returns, determine the 
results thereof, and notify the successful candidates. 



1921.] PUBLIC DOCUMENT — No. 12. Ill 

Section 140, as amended by Gen. St. 1916, c. 16, is included 
in that portion of St. 1913, c. 835, which appears under the 
title "Provisions applying to presidential primaries." 

It clearly appears that there is no express authorization for 
voting for a group of candidates by a cross in a circle at the 
head of the group, as provided in the case of groups of candi- 
dates for ward committees and for delegates to a State con- 
vention, under section 108 of the act. 

Provision is made for the arrangement upon the ballot of 
candidates in groups in those cases where the names of 
candidates have appeared in groups on the nomination papers. 
Section 140, as amended, contains no provision as to the 
method of voting, and there is no express provision as to 
the method of voting in any of the sections included under 
the title "Provisions applying to presidential primaries." 

The method of voting in presidential primaries is, there- 
fore, governed by section 142, which provides that "the 
provisions of law relating to primaries . . . shall apply to 
presidential primaries so far as is practicable." 

There is no provision of law relating to primaries which 
permits voting for a group of candidates by a single cross in 
a circle which has any general application. The only pro- 
vision of law which authorizes voting for a group of candidates 
by a single cross is contained in section 108, to which reference 
has already been made, and is expressly limited to "a group 
of candidates for ward committees or for delegates to a state 
convention. " 

As it clearly appears there is no provision of law relating 
to primaries which authorizes the use of a single mark in a 
circle, except in voting for a group of candidates for ward 
committees or for delegates to a State convention, I am 
constrained to advise you that the candidates in the presiden- 
tial primaries must be voted for by a cross against the name 
of each candidate. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 



Jurisdiction — Crimes committed on Federal Property. 

The courts of the Commonwealth have no jurisdiction over a crime com- 
mitted on the premises of the Watertown Arsenal, which is the prop- 
erty of the United States of America. 

April 5, 1920. 

Eugene R. Kelley, M.D., Commissioner oj Pvhlic Health. 

Dear Sir: — You have asked my opinion as to v^hether 
the courts of the Commonwealth have jurisdiction over a 
certain crime committed on the premises of the Watertown 
Arsenal. The crime referred to is a violation of R. L., c. 56, 
§ 55, and St. 1907, c. 216, and from your letter I understand 
that the defendant is specifically charged w^ith a violation of 
the law in regard to a sale of milk. This sale took place on 
the premises of the Watertown Arsenal, which is the property 
of the United States of America, over which our courts have 
no jurisdiction except as to service of process, to prevent such 
property from becoming a haven for those desiring to avoid 
suit or prosecution to which service of process is a prerequisite. 

The case of Commonwecdth v. Clary, 8 Mass. 72, has been 
followed or cited wath approval in several cases, and is the 
law in this Commonwealth. It is my opinion, therefore, that 
our courts have no jurisdiction over the offence charged, and 
that the defendant's contention is correct. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Schools — Attendance — Requirements. 

Under Gen. St. 1915, c. 81, as amended by Gen. St. 1919, c. 281, children 

between fourteen and sixteen years of age are required to attend 

school only in case they do not possess such ability to read, write and 

. spell the English language as is required to complete the sixth grade 

course. 

April 13, 1920. 

E. Leroy Sweetser, Esq., Commissioner oJ Labor and Industries. 
Dear Sir: — You ask my opinion on the following: — 

Gen. St. 1915, c. 81, § 1, as amended by Gen. St. 1919, c. 281, pro- 
vides, in part as follows: — 

Every child between seven and fourteen years of age, every child under six- 
teen years of age who does not possess such ability to read, write and spell in the 
English language as is required for the completion of the sixth grade of the 



1921.] PUBLIC DOCUMENT — No. 12. 113 

public schools of the city or town in which he resides . . . shall attend a public 
day school in said city or town or some other day school approved by the school 
committee, . . . 

The question raised is whether or not a child, before receiving a 
certificate, should be required to complete the course in reading, wTit- 
ing and spelling of the sixth grade, or whether it is sufficient if, in the 
opinion of the superintendent, a child possesses the ability to read, 
write and spell in the English language equivalent to completing the 
sixth grade course. 

The statute divides school children into tw^o classes, ac- 
cording to age. Those between seven and fourteen years of 
age are required to attend school until they reach the age of 
fourteen years, even if they advance beyond the requirements 
of the sixth grade. In the case of children between fourteen 
and sixteen years of age attendance only in case the child 
does not possess such ability to read, write and spell in the 
English language as is required to complete the sixth grade. 
This test is, in my opinion, a mental one. The condition of 
receiving the certificate is not the completion of the sixth 
grade, but the possession of sufficient knowledge of English 
to complete it. Between seven and fourteen years the test 
is an age test only; between fourteen and sixteen years the 
test is the possession of the ability to read, write and spell 
English in accordance w^ith the statutory requirement. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Treasury — Collection of Revenue — Abandonment of Contract — 
Payment of Penalty by Bonding Company. 

Under the provisions of Mass. Const. Amend. LXIII, § 1, providing that 
"all money received on account of the commonwealth from any 
source whatsoever shall be paid into the treasury thereof," a sum of 
money received from a bonding company, reimbursing the Common- 
wealth for the excess amount expended in completing a work upon a 
contractor's abandoning the same, should be paid directly into the 
treasury of the Commonwealth. 

April 24, 1920. 

Mr, William D. Hawley, Deputy Auditor of the Commonwealth. 

My Dear Sir: — You rec|uest my opinion upon the fol- 
lowing set of facts : — 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

Chapter 50 of the Resolves of 1918 appropriated to the 
Department of Mental Diseases the sum of S38o,000 for the 
construction of a male infirmary group at the Boston State 
Hospital. A contract for this work was awarded to a con- 
tractor for the sum of $250,000. The said contractor aban- 
doned the work early this year, and the Commonwealth, with 
the assent of the surety on the contractor's bond, proceeded 
to complete the work. It is now estimated by the architects 
that there will be needed approximately $6,585 in excess of the 
contract price. This excess is to be paid to the Commonwealth 
in due course by the surety company. The specific question 
you ask is whether or not it will be necessary to obtain an 
additional appropriation, or can the amount when received 
from the bonding company be applied directly to the payment 
of bills incurred in the completion of the infirmary. 

Mass. Const. Amend. LXIII, § 1, provides that "all money 
received on account of the commonwealth from any source 
whatsoever shall be paid into the treasury thereof. " 

Accordingly, it is my opinion that the amount that the 
bonding company is to pay should, when received, go directly 
into . the treasury of the Commonwealth, and, therefore, the 
sum necessary to complete the building in excess of the 
appropriation should go into the coming supplementary 
budget. 

Yours very truly, 

J. ^YESTOX Allen, Attorney-General. 



Commissioner of Banks — Corj^oration — Corporate Name — 
Use of JVord "Bankers." 

St. 1908, c. 590, § 16, as amended by St. 1914, c. 610, does not prohibit a 
corporation using the word ''bankers" as a part of its corporate name. 

April 26, 1920. 
Mr. Joseph C. Allen, Commissioner of Banks. 

My Dear Sir: — You request my opinion as to whether 
a corporation can use the word "bankers" as a part of its 
corporate name. 

St. 1908, c. 590, § 16, provides, in part, that no corporation 
shall make use of any printed paper having thereon any name 
or other word or words indicating that such business is the 



1921.] PUBLIC DOCUMENT — No. 12. 115 

business of a savings bank. The use of the word "bankers" 
is not prohibited by this prohibition. 

It is to be noted that said section 16 was amended by St. 
1914, c. 610, which provides, in substance, that no one there- 
after should transact business under any name or title which 
contains the w^ords "bank" or "banking" as descriptive of 
said business. 

It is further to be noted that section 17, which authorizes 
the Commissioner to examine the accounts, books, papers, 
etc., of any one doing a banking business or of any corpora- 
tion, person, partnership or association which has the words 
"bank", "banking" or "trust" in the name under which its 
business is conducted, was amended by Gen. St. 1918, c. 44, 
in part, by inserting after the word "banking," in the fifth 
and sixth lines, the words "banker" and "bankers." The 
effect of this latter amendment in this connection was to give 
the Commissioner authority to examine the accounts, etc., 
not only of any corporation which had the word "bank" and 
"banking" in the name under which its business was con- 
ducted, but also similarly to examine any corporation which 
had the words "banker" or "bankers" in its name. However, 
the Legislature did not at that time amend the last part of 
section 16 by inserting after the words "bank" or "banking", 
the words "banker" or "bankers", with the result that, in 
my opinion, it is still possible for any person, partnership, 
corporation or association to transact business under a name 
or title which contains the words "banker" or "bankers". 
If this situation is one that should be corrected it will be 
necessary for the Legislature to amend the last part of said 
section 16 along the lines indicated. 
Very truly yours, 

J. Weston Allen, Attorney-General . 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 



Constitutional Law — Taxation — Appropriation of Public 
Funds — Public Purpose — State House — Assignment of 
Rooms — Furnishing, Upkeep and Maintenance of Rooms 
— United Spanish War Veterans. 

A bill providing for the assignment of a room or rooms in the State House 
for the free use of the United Spanish War Veterans would be con- 
stitutional, if enacted, for the assignment of a room or rooms for this 
purpose is for a public purpose. 

There is nothing in Mass. Const. Amend. XLVI, the so-called "anti-aid" 
amendment, nor in article LXII of the Massachusetts Constitution 
that prevents the Commonwealth assigning rooms for this purpose. 

Under the provisions of the bill, that the use of the rooms is "for the storing 
and preserving the records and other property of the said department 
and relics and mementoes of the war," the Commonwealth may ap- 
propriate money for the furnishing, upkeep and maintenance of such 
rooms. 

April 27, 1920. 

Mr. Frank E. Lyman, Chairman, House Committee 07i Ways and Means. 

My Dear Sir: — You have requested my opinion upon 
certain questions in connection with House Bill No. 1445, 
relative to the assigning of quarters in the State House for the 
use of the United Spanish War Veterans. Your committee 
desires an opinion as to whether or not the Commonwealth 
may, consistently with the so-called "anti-aid" amendment to 
the Constitution (art. XLVI), and art. LXII, assign a room 
or rooms in the State House for the free use of the United 
Spanish War Veterans, to be under the charge of the State 
commander of the department, and may appropriate money 
for the furnishing, upkeep and maintenance of such room or 
rooms. 

House Bill No. 1445 provides as follows: — 

Section 1. The superintendent of buildings, with, the approval of 
the governor and the council, is hereby authorized and directed to 
assign a room or rooms, suitably furnished, in the state house for the 
use of the United Spanish War Veterans, to be under the charge of 
the state commander of the department. The headquarters thus es- 
tablished shall be used for storing and preserving the records and other 
property of the said department and relics and mementoes of the war. 
The records shall be accessible at all times, under suitable rules and 
regulations, to members of the department and others engaged in 
collecting historical information. 



1921.] PUBLIC DOCUMENT — No. 12. 117 

Sectiox 2. A\Tienever the United Spanish War Veterans cease to 
exist as a department or organization, the records, papers, reUcs and 
other effects of whatever character belonging to the said department, 
shall become the property of the commonwealth. 

It is my opinion that there is nothing in section 2 of article 
XLVI, the so-called "anti-aid" amendment, and nothing in 
article LXII, which forbids the giving or loaning of the credit 
of the Commonwealth to any private enterprise, that prevents 
the Commonwealth from assigning a room or rooms in the 
State House for the purposes set forth in the House bill in 
question. 

The real question raised is as to whether or not an assign- 
ment of a room in the State House for this purpose is for a 
public purpose. 

The reasonable use of public money for similar purposes has 
been sanctioned by several different statutes, and has been 
upheld by the courts as a public purpose, in that the Common- 
wealth thus recognized valuable services given in war and thus 
promoted loyalty and patriotism. 

It is to be noted that the provisions of the present bill 
follow^ closely the provisions of R. L., c. 10, § 21, which 
provides for the assignment of a room in the State House to 
the Grand Army of the Republic, and that the language is 
exactly the same as Spec. St. 1919, c. 246, relative to the 
assignment of quarters in the State House for the use of the 
Massachusetts Branch of the American Legion. 

It is also my opinion that the Commonwealth may appro- 
priate money for the furnishing, upkeep and maintenance of 
such room or rooms, in view of the fact that the use of the 
room or rooms by the terms of the proposed bill is defined to 
be "for the storing and preserving the records and other 
property of the said department and relics and mementoes 
of the war." 

Yours very truly, 

J. Weston Allen, Attorney-General. 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 



Employees — Discharge — Hearing — Veteran Firejiian on 
Boston Police Boat. 

A civilian fireman employed under authority of St. 1906, c. 291, § 8, upon 
the police boat operated by the police department of the city of 
Boston, is a State employee. 

Such civilian fireman, if a veteran, is entitled to a hearing upon his dis- 
charge before the Associate Commissioners of Labor and Industries 
instead of before the city council of Boston. 

April 28, 1920. 

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

Dear Sir: — You ask my opinion upon the following 
case: — 

The police boat operated by the police department of 
Boston performs the functions of a floating patrol wagon» At 
present the firemen employed upon this boat are civilians, 
who are employed by the Police Commissioner under authority 
of St. 1906, c. 291, § 8. It is proposed to replace these 
civilian firemen w^ith members of the police force, in order to 
increase the police strength of this floating patrol wagon. One 
of these civilian firemen is a veteran who is entitled to a 
hearing upon his discharge. Under R. L., c. 19, § 23, as 
amended by St. 1910, c. 500, the hearing must be before the 
city council if he is a city employee, and before the State 
Board of Conciliation and Arbitration (now succeeded by the 
Associate Commissioners of Labor and Industries, see Gen. 
St. 1919, c. 350, §§ 69-72) if he is a State employee. You 
inquire whether he is a State or a city employee. 

St. 1878, c. 244, provided that the mayor of Boston should 
appoint three police commissioners, who should have charge 
of the police department. St. 1885, c. 323, provided that the 
commissioners should be appointed by the Governor, with, 
the advice and consent of the Council. All the powers of the 
former police commissioners, except as otherwise provided, 
were transferred to the new commission. Commonwealth v. 
Plaisted, 148 Mass. 375. This statute contained no express 
authority to employ civilian employees, but no question can 
be made that it impliedly conferred such power. See Sims v. 
Police Commissioner, 193 Mass. 547. In that case the police 
commissioners having discharged such an employee without 
assigning any cause for his removal, as required by St. 1885, 
c. 266, § 5, in the case of a discharge by boards and officers 



1921.] PUBLIC DOCUMENT — No. 12. 119 

of the city of Boston, the employee sought reinstatement. 
In holding that the employee was not entitled to the rights of 
a city employee the court said: — 

. . . The St. of 1885, c. 323, contains nothing to prevent the board 
of police of Boston from discharging one of their employees whenever 
in their judgment it might be advisable to do so; nor has our attention 
been called to any subsequent legislation having this effect, unless it 
be found in the statutes regulating the civil service and fixing the 
right of veterans presently to be considered. O'Dowd v. Boston, 149 
Mass. 443; Attorney-General r. Donahue, 169 Mass. 18. 

The petitioner was not protected by the provisions of St. 1885, 
c. 266, § 5, that officers and boards of the city of Boston may remove 
their subordinates "for such cause as they may deem sufficient and 
shall assign in their order for removal," because the police commis- 
sioners were not officers or a board of the city of Boston, but were 
appointed by and were responsible to the Governor of the Common- 
wealth. Commonwealth v. Plaisted, 148 Mass. 375, 383, et seq.; Phil- 
lips V. Bosto7i, 150 Mass. 491, 494. . . . 

St. 1906, c. 291, § 7, provides for the appointment of a 
single police commissioner by the Governor, with the advice 
and consent of the Council, to succeed the former board of 
three commissioners similarly appointed. Section 10 confers 
upon such commissioner all the powers and duties of the 
former board, except as otherwise provided. Section 8 further 
provides, in part : — 

. . . The city of Boston shall provide all such accommodations for 
the police of said city as said police commissioner may require. All 
buildings and property used by said police shall be under control of 
said police commissioner. 

Said police commissioner may employ such clerks, stenographers 
and other employees as he may deem necessary for the proper per- 
formance of the duties of his office. 

All expenses for the maintenance of buildings, the pay of the police, 
clerks, stenographers and other employees, and all incidental expenses 
incurred in the performance of the duties of said commissioner or in 
the administration of said police shall be paid by the city of Boston 
upon the requisition of said police commissioner. 

The employee in question is, I understand, employed under 
this provision. If the employee in the Sims case was a State 
employee there would seem to be little question that the 
present employee is a State employee likewise. See opinion 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

of Hon. Henry A. Wyman, Attorney-General, to the police 
commissioner for the city of Boston, dated Sept. 16, 1919. 

I therefore advise you that the hearing should be held before 
the Associate Commissioners of Labor and Industries (see 
Gen. St. 1919, c. 350, §§ 69-72), and not before the city 
council. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Constitutional Law — State Bonds — Contract ivith Bondholder 
— Sinking Fund Provisions. 

A bond issued by the Commonwealth, which provides that it "shall be 
deemed a pledge of the faith and credit of the Commonwealth," con- 
stitutes a contract with the holder faithfully to perform the sinking 
fund provisions contained in R. L., c. 6, §§ 69, 70 and 71, which con- 
tract is within U. S. Const., art. I, § 10. 

Although neither the obligation of the bond itself nor the obligation of the 
contract relative to the maintenance of the sinking fund to pay it can 
be enforced in court by any person against the Commonwealth with- 
out its own consent, unanswerable considerations of public policy, of 
duty to the taxpayers and of public honor require that both obliga- 
tions be punctually and strictly performed. 

April 30, 1920. 

Committee on Ways and Means. 

Gentlemen: — I have considered your inquiry of April 6. 
As bearing upon this inquiry you call my attention to R. L. 
c. 6, §§ 69, 70 and 71, which provide as follows: — 

Section 69. The income or any surplus of funds belonging to or 
in the custody of the commonwealth shall, unless otherwise provided, 
be added to the principal. 

Section 70. \^Tien the accumulations of a sinking fund of the 
commonwealth are sufficient to extinguish at maturity the indebted- 
ness for which it w^as established, its subsequent accumulations may 
be added by the treasurer to any sinking fund which is not sufficient 
to meet the indebtedness for which it was established. 

Section 71. The treasurer, instead of selling any of the stocks or 
securities belonging to funds over which the commonwealth has ex- 
clusive control to meet maturing liabilities, may transfer them to any 
other of such funds upon terms and conditions approved by the gov- 
ernor and council. 

As a typical example of a sinking fund provision you 
mention St. 1894, c. 497, § 8, which authorizes a state high- 



1921.] PUBLIC DOCUMENT — No. 12. 121 

way loan of S300,000 for a period of thirty years at a rate not 
exceeding 4 per cent, provides that the bonds issued therefor 
"shall be deemed a pledge of the faith and credit of the 
commonwealth," and further provides: — • 

. . . The treasurer and receiver general shall, on issuing any of said 
scrip or certificates of indebtedness, establish a sinking fund for the 
payment of said bonds, into which shall be paid any premiums re- 
ceived on the sale of said bonds, and he shall apportion thereto from 
year to year, in addition, amounts sufficient with the accumulations to 
extinguish at maturity the debt incurred by the issue of said bonds. 
The amount necessary to meet the annual sinking fund requirements 
and to pay the interest on said bonds shall be raised by taxation from 
year to year. 

You then inquire, in substance, what constitutional vested 
right the holder of a bond issued under these or substantially 
similar provisions has in the maintenance and application of 
the sinking fund so established. 

Some State Constitutions contain special provisions relative 
to the creation and preservation of sinking funds to pay State 
bonds. Graham v. Horton, 6 Kan. 343; Park v. Ca^idler, 113 
Ga. 647; Park v. Candler, 114 Ga. 466; McReynolds v. Small- 
house, 8 Bush (Ky.), 447; 36 Cyc. 899. As our Constitution 
does not contain similar provisions these cases may be laid 
aside. There remains the question whether our statutory 
provisions for creation and application of a sinking fund 
constitute a contract with the bondholder within the meaning 
of section 10 of article I of the Federal Constitution, which 
provides: — 

No state shall . . . pass any . . . law impairing the obligation of 
contracts. 

If a State attaches to its bonds some special privilege, such 
as a provision that the bonds and coupons when due shall be 
receivable in payment of taxes and other demands due to the 
State, such provision constitutes a contract with the bond- 
holder which the State may not impair by subsequent legislation. 
Hartman v. Greenhow, 102 U. S. 672; Royall v. Virginia, 116 
U. S. 572; Sands v. Edmunds, 116 U. S. 585; McGahey v. Vir- 
ginia, 135 U. S. 662; McCullough v. Virginia, 172 U. S. 102. 
An express pledge of property or of income to secure the bonds 
is within the protection of the constitutional prohibition. 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

Trustees of the Wabash & Erie Canal Co. v. Beers, 2 Black. 
448; Opinion of the Justices, 190 Mass. 605. If the State 
authorizes a municipal corporation to issue bonds, it impliedly 
confers a general authority to impose taxes in order to pay 
principal and interest, which authority cannot be subsequently 
revoked. Ralls County Court v. United States, 105 U. S. 733. 
If a statute authorizes the municipality to issue the bonds and 
expressly requires the levy of an annual tax to pay interest, 
any surplus to be applied to principal, and further expressly 
devotes the proceeds of the tax to those purposes, such grant 
of authority enters into the contract with the bondholder and 
cannot later be withdrawn. Von Hoffman v. Quincy, 4 Wall. 
535; Louisiana v. Pillsbury, 105 U. S. 278; Mobile v. Watson, 
116 U. S. 289; Graham v. Folsom, 200 U. S. 248, 252. Pro- 
visions for the creation and maintenance of a sinking fund 
by the municipality in order to meet the bonds have likewise 
been held to be within the constitutional guarantee. JJ^aricick 
V. Rhode Island Hospital Trust Co., 38 R. I. 517. A statute 
which authorizes an issue of State bonds, and requires that a 
five and a half mill tax shall be levied annually to pay interest 
and redeem the bonds until all the bonds are discharged, 
has been held to create a contract with the bondholders, 
especially where a subsequent constitutional amendment 
expressly recognized a contractual relation. Louisiaria v. 
Jumel, 107 U. S. 711, 719. I am not of course, unmindful 
that such a contract cannot be enforced by any court against 
a sovereign State without its own consent, but this is equally 
true of the bonds themselves. Louisiana v. Jumel, 107 U. S. 
711; Hajis v. Louisiana, 134 U. S. 1; North Carolina v. 
Temple, 134 U. S. 22; Louisiana v. New York Guaranty and 
Indemnity Co., 134 U. S. 230. 

On the other hand, a statute which authorizes a munici- 
pality to issue bonds and to levy a tax to pay them does not 
prevent a subsequent modification of the taxing provision 
which does not render the security insufficient. Gilman v. 
Sheboygan, 2 Black. 510. And where a statute authorized a 
city to issue bonds to meet the cost of a waterworks, provided 
for a sinking fund, and further directed that the price of water 
should be so regulated, if practicable and reasonable, as to 
produce a sufficient sum to pay the principal and interest of 
the bonds, it was held that the latter provision did not consti- 
tute a pledge of the water rates to pay the bonds. Shiclair 



1921.] PUBLIC DOCUMENT — No. 12. 123 

V. Fall River, 198 Mass. 248; see also I Op. Atty.-Gen., 263, 
266. It is evident, therefore, that the question whether and 
to what extent a given statute constitutes a contract with the 
bondholder requires a very careful consideration of the circum- 
stances of each case. 

The question whether the Massachusetts sinking fund 
provisions constitute a contract is very close. It appears 
that it is customary to provide that the bonds ''shall be 
deemed a pledge of the faith and credit of the commonwealth." 
Perhaps these words, if taken alone, might be so narrowly 
construed as to exclude the sinking fund provision from the 
security upon which the bondholder might legally rely, even 
though the usual sinking fund provision would seem broad 
enough to devote that fund to the payment of the bonds 
without further express words of pledge. The usual form of 
bond is merely an acknowledgment of indebtedness in a 
specified sum on a specified date, with interest at a specified 
rate, but it has generally been the custom to refer specifically 
to the act which authorizes the issue, thus calling to the 
attention of the bondholder the provisions for sinking fund, 
if any. Under all the circumstances, it seems that the pledge 
of the "faith" of the Commonwealth in addition to the pledge 
of its "credit" is broad enough to import an obligation faith- 
fully to perform the sinking fund requirements and to ad- 
minister that fund according to law. In any event, it can 
scarcely be doubted that bondholders have purchased Massa- 
chusetts bonds in reliance upon honorable observance of those 
provisions. 

In my judgment, the question in the last analysis is not 
one of narrow legal construction. The duty to preserve the 
sinking funds, like the express promise to pay the bonds, rests 
upon the honor of the Commonwealth. The very fact that 
neither duty can be enforced by any court without the consent 
of the Commonwealth strengthens the obligation to keep 
faith. Moreover, strict observance of the obligation is in 
accord with sound business policy. Massachusetts has had 
occasion to borrow large sums in the past. Similar occasions 
will doubtless arise in the future. Any action which might 
call in question the good faith of the Commonwealth must 
inevitably be reflected not only in a higher interest rate but 
also in a restricted market for the bonds themselves. More- 
over, the duty to preserve the sinking funds is owed not only 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

to the creditors of the Commonwealth but also to the citizens. 
The sinking fund provisions provide a means whereby the 
burden of discharging the public debt is spread over a 
considerable period of years. To preserve the sinking funds 
protects taxpayers who must ultimately discharge the debt. 
In the Sinking- Fund Cases, 99 U. S. 700, the Supreme Court, 
in speaking of a statute which established a sinking fund to 
meet the bonds of certain railroads, said: — 

All that has been done is to make it the dutj^ of the company to lay 
by a portion of its current net income to meet its debts when they do 
fall due. In this way the current stockholders are prevented to some 
extent from depleting the treasury for their owti benefit, at the expense 
of those who are to come after them. This is no more for the benefit 
of creditors than it is for the corporation itself. It tends to give per- 
manency to the value of the stock and bonds, and is in the direct 
interest of a faithful administration of affairs. It simply compels the 
managers for the time being to do what they ought to do voluntarily. 
The fund to be created is not so much for the security of the creditors 
as the ultimate protection of the public and the corporators. 

These words are equally applicable to the sinking fund of a 
State. Aside from any constitutional restrictions, unanswer- 
able considerations of public policy, of duty to the taxpayers, 
and of public honor require that the sinking funds be kept 
intact and be applied to the debts which they were created 
to pay. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Regulation of Fire Escapes — Door as an Obstacle to Meaiis 

of Exit. 

A door of a lodging room in a hotel which may at any time be locked or 
otherwise fastened, and which is the only means of egress to an out- 
side fire escape, constitutes an obstacle that may interfere with the 
means of exit from the hotel in case of fire, within the meaning of 
St. 1914, c. 795. 

April 30, 1920. 

Mr. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — I duly received your letter of March 8, in 
which you state as follows: 

There is in the city of Boston a hotel of first-class construction, 
eight stories in height, having two wings, and at the end of each wing 



1921.] PUBLIC DOCUMENT — No. 12. 125 

a fire escape has been installed, by direction of the building commis- 
sioner of the city of Boston, as one of the necessary means of egress. 

The only egress to each of the fire escapes in question is through 
either one of two rooms, both rooms in each wing being used as lodging 
rooms, and the doors, therefore, liable to be locked at any time, day 
or night. 

Since the receipt of j^our letter a representative of the 
hotel in question has explained to me at some length the 
conditions with respect to the fire escapes at said hotel, and 
I have conferred wath you in regard to the facts and the 
question upon which you request my opinion. 

The specific question, as stated in your letter, on w^hich 
you desire an opinion, is whether a door to a room in use as 
a lodging room, and liable to be occupied day or night, so 
that such door may be at any time locked or otherwise 
fastened, w^hich door provides the only means of exit to an 
outside fire escape that must be reached through the room in 
question, constitutes an obstacle that may interfere with the 
means of exit from the hotel in case of fire. 

St. 1914, c. 795, which is the statute upon which you 
derive 3'Our authority in the premises, provides, in part, as 
follows: — 

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

D. Causing obstacles that may interfere with the means of exit to 
be removed from floors, halls, stairways and fire escapes. 

The fire escapes provided for the hotel constitute a necessary 
means of egress in case of fire. As the only means of egress 
to each of the fire escapes is through one of tw^o lodging 
rooms, as above described, the door opening into the selected 
room, when locked or otherwise fastened, constitutes an 
obstacle which clearly interferes with the means of exit to 
said fire escapes. 

When these doors are located upon floors of the hotel from 
which fire escapes are reciuired by law% as they may prevent 
exit to the fire escapes from the halls and stairways of the 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

hotel, I am of the opinion that they constitute obstacles, 
within the meaning of St. 1914, c. 795. 

In reaching this decision I do not pass upon the question 
whether or not, if these doors were provided with some 
ready means by which in case of fire a person on the outside 
could remove any fastening, and if the exit to the fire escape 
was clearly indicated, and notice posted how to open the door, 
this might constitute a sufficient means of access to the fire 
escape, within the purpose and intent of the statute. 
Very truly yours, 

J. Weston Allex, Attorney-General. 



Public Health — Common Drinking Cup. 

The use of a common cup in communion services in churches is not a vio- 
lation of St. 1910, c. 428, § 1. 

May 3, 1920. 

Dr. EuGEXE R. Kelley, Commissioner of Public Health. 

Dear Sir: — You ask my opinion whether or not the use 
of a common cup in giving communion in the Lutheran church 
would come under St. 1910, c. 428. 

Section 1 of the act in question provides as follows : — 

In order to prevent the spread of communicable diseases, the state 
board of health is hereby authorized to prohibit in such public places, 
vehicles or buildings as it may designate the providing of a common 
drinking cup, and the board may establish rules and regulations for 
this purpose. 

It will be observed that no offence is committed by the 
use of a common cup unless the place of alleged violation has 
been designated by the department as a public place. The 
department has not so designated a church. 

I believe that you might designate a church a public place 
in so far as to prevent the use there of a water tank with 
a cup hanging beside it, which is the sort of thing that the 
statute aimed at. 

But as to communion, only a limited number of persons, 
who are duly qualified under church rules, participate therein. 
In my opinion, the communion is of a private, rather than a 
public nature, and the use of the communion cup is not such 
a use as the Legislature had in mind when it gave to the State 



1921.] PUBLIC DOCUMENT — No. 12. 127 

Board of Health authority to prohibit the use of a "common 
drinking cup." A church may be a public place in the sense 
that its usual services are open to the public, but if communion 
service is participated in only by church members and others 
who may be admitted to the service, it may well be regarded 
as a ceremony of a private nature. 

I may also direct your attention to the fact that not only 
may your department designate what shall be "public places, 
vehicles or buildings," within the meaning of the act, but 
that the statute is not mandatory, as it merely authorizes 
your department to take action in accordance with its terms. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Civil Service — Assistant Treasurer and Assistant Collector of 
the City of Fall River. 

The appointment of a clerk as assistant treasurer or assistant collector for 
the city of Fall River, under the provisions of St. 1920, c. 80, is not 
subject to the civil service law and rules. 

While a clerk so designated or appointed may be removed as assistant 
treasurer or assistant collector without reference to the Civil Service 
Law and Rules, the latter govern his removal from the position of clerk. 

May 4, 1920. 

Payson Dana, Esq., Commissioner of Civil Service and Registration. 
Dear Sir: — You ask my opinion upon the following case: — 
St. 1920, c. 80, provides as follows: — 

Section 1. The city treasurer and the city collector of the city of 
Fall River shall each appoint one of their male clerks as assistant 
treasurer and assistant collector, respectively. The said assistants 
shall, in cases which will not admit of delay, perform the duties and 
exercise the authority imposed or conferred by law or ordinance upon 
their respective chiefs, in case of their absence or disability, or of a 
vacancy in the office. 

Section 2. The appointing officer shall in each case file notice of 
the appointment with the mayor and city clerk, and the appointment 
shall continue in force until revoked by the appointing officer. 

The clerical force and employees in the aforesaid offices are 
classified under the civil service by St. 1913, c. 548. You 
ask: — 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 

1. Is the appointment of an assistant treasurer and an assistant 
collector under St. 1920, c. 80, subject to the civil ser\ice law and 
rules? 

2. If the answer to question 1 is in the affirmative, must a person 
properly appointed to and holding the position be discharged in ac- 
cordance with the laws relating to the discharge of civil service 
employees? 

1. St. 1920, c. 80, § 1, requires the city treasurer and the 
city collector to "appoint" one of their male clerks as assist- 
ant treasurer and as assistant collector, respectively. But 
such appointment carries no increase in salary. It imposes 
no regular duties upon the appointee. The appointee does 
not act except w^hen the office is vacant or in case of the 
absence or disability of his chief. Even then he may not 
act except "in cases which wall not admit of delay." See 
Dimick v. Barry, 211 Mass. 165. Moreover, under section 2 
"the appointment shall continue in force until revoked by the 
appointing officer." The natural meaning of this provision 
is that the appointment is revocable at pleasure. Under these 
circumstances I am of opinion that the "appointment" does 
not operate as a promotion to an office, but is merely a desig- 
nation of an employee to discharge the duties of the office 
in case of emergency. The situation differs from that pre- 
sented by Attorney-General v. TiUinghast, 203 Mass. 539, 
where the appointment of an assistant auditor, to assist the 
auditor in his duties, was subject to confirmation by the city 
council. I am therefore constrained to advise you that 
neither the "appointment" nor the revocation thereof is 
within the provisions of the civil service law. 

2. The answer to your second question follows from the 
first. Under St. 1913, c. 548, the civil service law and 
the rules and regulations established thereunder apply to the 
clerks and employees in the office of the collector of taxes 
and in the office of the city treasurer of Fall River. The 
status of the male clerk w^ho may be "appointed" under St. 
1920, c. 80, remains unchanged by that "appointment." He 
is a clerk still, and within the protection of the civil service 
so far as his clerkship is concerned. The revocation of the 
"appointment" terminates the authority to act in case of 
emergency, but leaves his status as clerk entirely unaffected. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



1921.] PUBLIC DOCmiENT — No. 12. 129 



Sunday Sports — Metropolitan Park System. 

St. 1920, c. 240, which legalizes amateur sports on Sunday under certain 
conditions, applies not only to parks under the control of cities and 
towns, but also to those under control of the Metropolitan District 
Commission. 

May 6, 1920. 

James A. Bailey, Esq., Commissioner, Metropolitan District Commission. 

Dear Sir: — You inquire whether St. 1920, c. 240, applies 
to parks under the control of the Metropolitan District Com- 
mission, successor, under Gen. St. 1919, c. 350, §§ 123 to 129, 
to the Metropolitan Park Commission. In this connection 
I have carefully considered the helpful memorandum sub- 
mitted by Mr. Rogers. 

St. 1920, c. 240, §§ 1, 2, 3 and 6, provide as follows: — 

Section 1. In cities and towns which accept the provisions of this 
act it shall be la^\iul to take part in or to witness any amateur athletic 
outdoor sport or game on the Lord's Daj^ between the hours of two 
and six in the afternoon as hereinafter provided. 

Section 2. Such sports or games shall take place on such public 
playgrounds, parks or other places as may be designated for that 
purpose in a permit or license issued by the mayor and city council 
or body exercising similar powers in cities or by the selectmen in 
towns: 'provided, that if, under any statute or ordinance a public 
playground or park is placed under the exclusive charge and authority 
of any other officials, such officials shall, for that playground or park, 
be the licensing authority; and provided, further, that no sport or game 
shall be permitted in a place, other than a public playground or park, 
within one thousand feet of any regular place of worship. 

Section 3. The said sports or games shall be conducted subject 
to such regulations and restrictions as shall be prescribed by the 
mayor and city council or body exercising similar powers in cities 
and by the selectmen in towns, and the same shall be stated in the 
license or permit. 

Section 6. The respective authorities described in section two 
may at any time and -^athout previous notice revoke permits to con- 
duct the ?;aid sports or games if the}^ have reason to believe that anj^ 
provision of this act, or any regulation or restriction prescribed under 
section three, is being or will be violated. 

The statute makes lawful any amateur athletic outdoor 
sport or game on the Lord's Day between the hours of two 



130 ATTORNEY-GENERAL'S REPORT. [Jan. 

and six in the afternoon, "in cities and towns which accept 
the provisions of this act." It further authorizes the use of 
parks and public playgrounds for such sports, subject to 
license and regulation by the proper authorities. The metro- 
politan parks system is the great park system of the metro- 
politan district. It serves thirty-nine cities and towns. It 
is maintained for outdoor sport and recreation. The Legis- 
lature has introduced one geographical qualification into the act 
by limiting its operation to those cities and towms which accept 
its provisions. To except the metropolitan parks from its 
operation introduces a further geographical qualification which 
might unduly restrict the operation of the act in those cities 
and towns which accept it. If the Legislature had intended 
to make this further geographical qualification it would prob- 
ably have done so by express words. 

I find myself unable to concur in the suggestion that the 
language of the act is not broad enough to include the metro- 
politan parks system. Section 1 is certainh^ broad enough to 
apply thereto. Section 2, after providing for licenses by city or 
town officials, as the case may be, adds the following proviso: — 

'provided, that if, under any statute or ordinance a public playground 
or park is placed under the exclusive charge and authority of any 
other officials, such officials shall, for that playground or park, be the 
Hcensing authority. 

The words "any statute" can scarcely be restricted so as to 
exclude the statutes which place the metropolitan parks sys- 
tem under the exclusive charge of the Metropolitan District 
Commission. 

I am unable to concur in the narrow and restrictive con- 
struction of St., 1920, c. 240, § 3, which is suggested. 

St. 1893, c. 407, § 4, provides, in part, as follows: — 

Said board shall have power to acquire, maintain and make avail- 
able to the inhabitants of said district open spaces for exercise and 
recreation; ... In furtherance of the powers herein granted, said 
board may employ a suitable police force, make rules and regulations 
for the government and use of the public reservations under their 
care, and for breaches thereof affix penalties not exceeding twenty 
dollars for one offence, to be imposed b}' any court of competent 
jurisdiction; and in general may do all acts needful for the proper 
execution of the powers and duties granted to and imposed upon 
said board by the terms of this act. . . . 



1921.] PUBLIC DOCUMENT — No. 12. 131 

This authority is transferred to the Metropolitan District 
Commission by Gen. St. 1919, c. 350, § 123. It is clearly 
broad enough to authorize regulation of sports and games in 
the metropolitan parks. Brodbine v. Revere, 182 Mass. 595; 
Whitney v. Commonwealth, 190 Mass. 531; Teasdale v. Newell 
& Snowling Cons. Co., 192 Mass. 440; I Op. Atty.-Gen., 598; 
II Op. Atty.-Gen., 56, 84, 292, 363, 376, 454; III Op. Atty.- 
Gen., 14, 96. I understand that for twenty-seven years week- 
day sports and games in the metropolitan parks have been 
regulated thereunder. I cannot believe that it is not broad 
enough to apply to the Sunday sports and games which are 
made lawful by St. 1920, c. 240. Section 2 of that act makes 
the Metropolitan District Commission the licensing authority 
for the metropolitan parks. Section 3 requires that the regu- 
lations or restrictions imposed "shall be stated in the license 
or permit." The case of Teasdale v. Newell & Snowling Cons. 
Co., 192 Mass. 440, constrains me to the conclusion that it 
was not the intention of section 3 to withdraw the power to 
regulate Sunday sports in the metropolitan parks from the 
Metropolitan District Commission and to vest it in the city or 
town authorities as the case may be. If so, section 3 does not 
require a construction of section 2 which would exclude the 
metropolitan parks system. 

The Teasdale case, supra, does not require such a narrow 
construction of St. 1920, c. 240. All that that case decided 
was that R. L., c. 102, § 69, did not subject the Metropolitan 
Park Commission, in its management of the parks as the 
representative of the State, to the regulating authority con- 
ferred by that statute upon local boards of health. It is not 
an authority for the proposition that St. 1920, c. 240, exempts 
the metropolitan parks system from a legislative enactment 
which is applicable to all other parks and relates to the use of 
them for the very purpose for which they were established, 
namely, outdoor sport and recreation. It is one thing to hold 
that the Legislature did not intend to subject the metropolitan 
parks to regulation by local boards of health; it is quite an- 
other to hold that a direct legislative regulation is not intended 
to apply to them. I am therefore constrained to advise you 
that in my opinion St. 1920, c. 240, is applicable to the metro- 
politan parks system. 

To avoid misconception, however, let me add that St. 1920, 
c. 240, does not, in my opinion, impair the authority of the 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

Metropolitan District Commission to make reasonable regu- 
lations for the government of the parks and of Sunday sports 
therein. What is a reasonable regulation as applied to known 
facts is a question of law. Whitney v. Commomvealth, 190 
Mass. 531, 535; Commonwealth v. Plaisted, 148 Mass. 375. 
Without in any way attempting to prejudge any case which 
may hereafter arise, I feel that the following suggestions may 
be helpful. The act is operative only in those cities and towns 
which accept it in the manner therein provided. For this 
reason Sunday sports which are within the scope of the act 
should not be permitted in those parks or portions of parks 
which lie within towns or cities which do not accept the act. 
Since the intent of the act is to legalize certain Sunday sports 
to the extent therein provided, regulations which would be 
reasonable with respect to similar sports on week days would 
seem to be equally applicable to such sports on Sundays. It 
is unnecessary to consider at the present time whether the 
possible presence of unusual crowds on Sundays, or other con- 
ditions peculiar to Sundays, would render special Sunday regu- 
lations reasonable and valid. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Insurance — Automobile Insurance — Discrimination — Re- 
hates — Rate for One or More Automobiles — Floating, 
Open and Blanket Policies. 

St. 1912, c. 401, § 1, providing, in part, that "no insurance company 
. . . shall pay or offer to pay or allow in connection with placing 
or attempting to place insurance any valuable consideration or in- 
ducement not specified in the policy ... or any rebate of premium 
... or any special favor or advantage in the dividends or other 
benefits to accrue thereon ..." prohibits an insurance company 
giving a lower rate to an insurant of several automobiles than to a 
person who insures a single automobile. 

The issuance of the so-called floating, open and blanket policies to an 
automobile manufacturer, covering a large number of new auto- 
mobiles, either in his factory, in warehouses or in transitu, is not 
prohibited by St. 1912, c. 401, § 1. 

May 6, 1920. 

Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Deae Sir: — You have requested my opinion upon the 
following c^uestion of law: — 



1921.] PUBLIC DOCmiENT — No. 12. 133 

It has been represented that certain insurance companies in 
connection with automobile insurance allow a person to insure 
a number of cars at a lower rate than a person who insures 
a single car. Your specific question is whether these facts con- 
stitute a violation of the provisions of St. 1912, c. 401, entitled 
" An Act to prohibit discrimination or rebates of premiums for 
policies issued by insurance companies other than life." 

This act is a revision of St. 1908, c. 511, which is similarly 
entitled. 

Section 1 of the 1912 act provides: — 

No insurance company . . . shall pay or offer to pay or allow in 
connection with placing or attempting to place insurance any valuable 
consideration or inducement not specified in the policy contract of 
insurance, or any rebate of premium payable on the policy, or any 
special favor or advantage in the dividends or other benefits to accrue 
thereon; or give, sell or purchase or offer to give, sell or purchase in 
connection with placing or attempting to place insurance anything 
of value whatsoever not specified in the policy. 

The thought suggests itself, of course, that if an insurance 
company gives a lower rate to a person who insures, say, 
three or four automobiles than to a person who insures a 
single car, it does thereby give a special favor or advantage in 
the benefits to accrue thereon. The evil sought to be elimi- 
nated by chapter 401 is discrimination between individuals 
properly members of the same class. Generally speaking, a 
situation that results in an insurant obtaining in any way, 
directly or indirectly, an advantage over any other insurant 
of the same class is contrary to the provisions of chapter 401. 
Consequently, the giving of a lower rate to an insurant of 
several automobiles than to a person who insures a single car 
is prohibited by this statute. 

• On the other hand, it is my opinion that it was not intended 
that chapter 401 should prevent the further issuance of the 
so-called floating, open and blanket policies. The issuance 
of such insurance to an automobile^ manufacturer covering a 
large number of new automobiles, either in his factory, in 
warehouses, or in transitu in freight trains, and so on, is 
proper. The question of just where the line of demarcation 
between the two situations lies is a difficult one. Each case 
will have to be decided upon its own facts. 
Yours very truly, 

J. Weston Allen, Attorney-General . 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 



Department of Public Safety — Garage License — Appeal to 
Commissioner. 

Under Gen. St. 1919, c. 350, § 109, an appeal lies to the Commissioner of 
Public Safety in respect of licenses to construct a garage and store 
gasoline therein, granted under the provisions of St. 1913, c. 452. 

The sj^stem of appeals to the Commissioner of Public Safety created by 
Gen. St. 1919, c. 350, § 109, is not confined to licenses granted in the 
metropolitan district, under the provisions of St. 1914, c. 795, but 
also applies to licenses granted outside the metropolitan district 
under the provisions of St. 1913, c. 452. 

May 6, 1920. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You request my opinion upon the following 
facts: — 

Under the provisions of St. 1913, c. 452, and amendments 
thereof and additions thereto, the city council of Lawrence 
granted a license for the construction of a garage in that 
city, and the chief of the fire department of said city, also 
acting under the provisions of said chapter 452, granted a 
permit for said garage, the chief of the fire department being 
the official designated for that purpose by the chief of the 
district police. Certain abutters have objected, and desire to 
appeal to you under the provisions of Gen. St. 1919, c. 350, 
§ 109, which provides that — 

Any person affected by an order of the department or of a division 
or office thereof, may, within such time as the commissioner may fix, 
which shall not be less than ten days after notice of such order, appeal 
to the commissioner, who shall thereupon grant a hearing, and after 
such hearing may amend, suspend or revoke such order. Any person 
aggrieved by an order approved by the commissioner may appeal to 
the superior court: provided, such appeal is taken within fifteen days 
from the date when such order is approved. The superior court shall 
have jurisdiction in equity upon such appeal to annul such order if 
found to exceed the authority of the department, and upon petition 
of the commissioner to enforae all valid orders issued by the depart- 
ment. Nothing herein contained shall be construed to deprive any 
person of the right to pursue any other la^^iul remedj^ 

Your question is whether or not, under this section, you are 
obliged to grant a hearing to the objecting abutters. 

St. 1914, c. 795, which applied to fire prevention and the 
storage of inflammable fluids in the metropolitan district 



1921.] PUBLIC DOCUMENT — No. 12. 135 

therein defined, provided by section 4 that the Fire Prevention 
Commissioner, created by the act, might delegate the granting 
of licenses and permits and certain other duties "to the head 
of the fire department or to any other designated officer in 
any city or town of the metropolitan district." In this re- 
spect the power of the Fire Prevention Commissioner of the 
metropolitan district resembled the powers conferred upon 
the detective and fire inspection department of the district 
police by St. 1904, c. 370, and acts in amendment thereof, 
including St. 1913, c. 452. But St. 1914, c. 795, § 18, further 
provided: — 

The commissioner shall hear and determine all appeals from the 
acts and decisions of the heads of fire departments and other persons, 
acting or purporting to act under authority of the commissioner, done 
or made or purporting to be done or made under the provisions of this 
act, and shall make all necessary and proper orders thereupon, and 
any person aggrieved by any such action of the head of a fire depart- 
ment or other person shall have an absolute right of appeal to the 
commissioner. 

In an opinion rendered to you on Jan. 26, 1920, I advised you 
that this "absolute right of appeal to the commissioner," 
whose successor you are, under Gen. St. 1919, c. 350, §§ 99, 
104, was preserved w^ith respect to the metropolitan district 
by section 109, w^hich is quoted above. St. 1904, c. 370, and 
amendments thereof, including St. 1913, c. 452, w^hich origi- 
nally applied to fire prevention throughout the Common- 
wealth but subsequently ceased to apply to the metropolitan 
fire district created by St. 1914, c. 795, contain no provision 
for appeal similar to St. 1914, c. 795, § 18, quoted above. The 
question is, therefore, whether Gen. St. 1919, c. 350, § 109, 
intended to continue this purely geographical discrimination. 
Gen. St. 1919, c. 350, §§ 99, 100, created the Department 
of Public Safety, under the supervision and control of a 
Commissioner of Public Safety, abolished not only the district 
police force, including the detective and fire inspection depart- 
ment of the district police, but also the Fire Prevention 
Commissioner of the metropolitan district, and transferred to 
the Department of Public Safety the rights, powders, duties 
and obligations of the district police and of other boards and 
offices so abolished. Section 101 provides that the Depart- 
ment of Public Safety shall be organized in three divisions,, 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

one of which shall be the division of fire prevention, under 
charge of a director to be known as State Fire Marshal. 
Section 104 provides that such director shall have the powers 
and perform the duties of the Fire Prevention Commissioner 
of the metropolitan district, and also the duties of the district 
police and of the deputy chief of the detective and fire in- 
spection department under certain statutes with respect to 
the keeping and storing of inflammable liquids and combustible 
compounds. The general effect of these provisions is to place 
the duties imposed by law with respect to fire prevention upon 
the Department of Public Safety, which operates throughout 
the Commonwealth. 

Under these circumstances, I am of the opinion that the 
Legislature did not intend, by Gen. St. 1919, c. 350, § 109, 
to grant a system of appeal to the commissioner which should 
operate only within the former metropolitan fire district, and 
to deny that same system of appeal to the rest of the Com- 
monwealth. Accordingly, I advise you that you are required 
to grant a hearing to the abutters in the instant case. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Commonwealth — Department of Public IJ^orks — Commission- 
ers — Retirement Association — Employees. 

The provisions of the retirement act, St. 1911, c. 532, do not apply to the 
commissioners constituting the Department of Public Works. 

May 8, 1920. 
Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — ^ You have requested my opinion as to whether 
or not you and your four associate commissioners, constituting 
the Department of Public Works, are members of the Retire- 
ment Association as provided for by St. 1911, c. 532, and 
subsequent amendments. 

Paragraph (c) of section 1 of said chapter 532, as amended 
by St. 1912, c. 363, provides that — 

The word ''emploj'ees" means permanent and regular emplo3Tes 
in the direct service of the commonwealth or in the metropolitan 
district service, whose only or principal employment is in such service. 

Among the rulings made by the Board of Retirement is 
the following, numbered 4 : — 



1921.] PUBLIC DOCraiENT — No. 12. 137 

Officials appointed by the Governor for definite terms are ''perma- 
nent and regular employees," and if their "only or principal" em- 
ployment is in the service of the Commonwealth, the}' become members 
of the Retirement Association. 

Paragraph (4) of section 4 of said chapter 532 provides, 
in part, that the "board of retirement shall have power to 
make by-laws and regulations not inconsistent with the pro- 
visions of this act." 

The construction of a constitution or a statute is a judicial 
question. Monongahela Nat. Co. v. United States, 148 U. S. 
312, 327; Cambridge v. Boston, 130 Mass. 357. Neither Con- 
gress nor the Legislature can modify a constitutional provision 
by a statute which purports to declare its meaning. Kinneen 
V. Wells, 144 Mass. 497; Monongahela Nav. Co. v. United 
States, 148 U. S. 312, 327; Eisner v. Macomber, 252 U. S. 189. 
Clearly, the Board of Retirement cannot by rule change the 
meaning of the word "employees," as used in St. 1912, c. 363. 
In determining the meaning of the w^ord "employees" the rule 
adopted by the Board must, therefore, be laid on one side. 

Our decisions recognize a distinction between a public office 
and a public employment. Attorney -General v. Drohan, 169 
Mass. 534; Attorney-General v. Tillinghast, 203 Mass. 539. 
The W'ord "employee" may be used in a sense w^hich includes 
"officers." Opinion of Attorney-General Allen to the Metro- 
politan District Commission, Feb. 4, 1920. It may be used 
in a restrictive sense, so as to exclude them. Opinion of 
Attorney-General Wyman to E. Leroy Sw^eetser, Dec. 16, 1919. 
To such a word the language of Mr. Justice Holmes in Toivne 
V. Eisner, 245 L^. S. 418, 425, is peculiarly applicable: — 

A word is not a crystal, transparent and unchanged; it is the skin 
of a living thought, and may vary greatly in color and content ac- 
cording to the circumstances and the time in which it is used. 

Officials appointed by the Governor, with the advice and 
consent of the Council, who exercise some part of the sovereign 
powder, are "officers" who are not within the scope of the word 
"employee" when used in its restrictive sense. Opinion of 
Attorney-General Wyman to E. Leroy Sweetser, supra\ 
Attorney -General v. Tillinghast, 203 Mass. 539. In determin- 
ing whether the w^ord "employee," as used in this act, was 
intended to include such officers, regard must be had to the 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

purpose which the act was intended to accomplish. Holy 
Trinity Church v. United States, 143 U. S. 457, 459-462. 

St. 1911, c. 532, and amendments thereof, established a 
contributory retirement system for the several employees of 
the Commonwealth, the fundamental idea of which is that 
one-half of the retirement allowance shall be purchased by the 
savings of the employee, which have been deducted from his 
salary during the term of his employment, and one-half shall 
be contributed by the Commonwealth. The purpose was to 
establish a pension system containing provision for contribu- 
tion by the employee, and to have the pension become effec- 
tive after a protacted service for the Commonwealth, in one 
case where a member reaches the age of sixty years and has 
been in the continuous service of the Commonwealth for fifteen 
years preceding his retirement, and in another case where a 
member has completed a period of thirty-five years of con- 
tinuous service. There is also, of course, the provision that 
any member who reaches the age of seventy must retire. 

In the case, however, of yourself and your four associate 
commissioners you are appointed to your official positions by 
the Governor, with the advice and consent of the Council, for 
short and definite terms of a few years. In my opinion, the 
provisions of the retirement act do not apply to 3'our situation, 
as it is apparent that almost without exception members of 
such a Commission serve the Commonwealth but temporarily, 
and return to private life long before they reach the advanced 
age of sixty or seventy years, and before they have completed 
thirty-five years of continuous service. 

If the provisions of the retirement act did apply to you 
and your associate commissioners, it would mean that you 
would make your contributions over a short period of time, 
and, upon ceasing to be a member of the department, would 
receive a refund of the money paid in, with the interest earned 
thereon. Under these circumstances, the Commonw^ealth 
would be acting as an institution for savings, and, in my 
judgment, this was not intended by the establishment of the 
retirement system. I have come to this conclusion despite an 
opinion to the contrary by one of my predecessors in office. 
See IV Op. Atty.-Gen. 105. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



1921.1 PUBLIC DOCUMENT — No. 12. 139 



Division of Registration in Medicine — Right to Summon — 
Felony outside of Practice of Medical Profession. 

The Division of Registration in Medicine has a right, under the provisions 
of Gen. St. 1917, c. 55, § 1, to summon before it a registered physician 
who has been convicted of a felony committed by him outside of the 
practice of his profession. 

May 8, 1920. 

Walter P. Bowers, M.D., Secretary, Division of Registration in Medicine, 
Department of Civil Service and Registration. 

Dear Sir: — You request my opinion as to whether your 
Board has a legal right to summon before it, under the pro- 
visions of Gen. St. 1917, c. 55, § 1, a registered physician who 
has been convicted of perjury in connection with testimony 
given by him at a court hearing on a motion for alimony for 
his wife, in view of said conviction being of a felony com- 
mitted by him outside of the practice of his profession. 

Gen. St. 1917, c. 55, § 1, so far as it applies to your inquiry, 
provides as follows: — 

. . . Said board, after hearing, may by unanimous vote revoke 
any certificate issued by it and cancel the registration of any physician 
who has been convicted of a felony or of any crime in the practice of 
his profession ... 

By the use of the word "felony" and the words "any 
crime," and from the construction of the language used, "in 
the practice of his profession", which modifies the words 
"any crime" and has no relation to, or bearing on, the word 
"felony", it is quite clear that the Legislature intended that 
the provisions of said section 1, as above quoted, shall apply 
to the conviction of registered physicians of crimes com- 
mitted both outside of and in connection with the practice 
of their profession. In case of the former, the conviction is 
limited to a felony, but in the latter case the conviction may 
be for either a felony or a misdemeanor. 

Had the Legislature intended to limit the application of 
the provisions of said section, as above quoted, to a conviction 
of a physician of a crime committed solely in the practice of 
his profession, it would have had no occasion to use the word 
"felony," inasmuch as said word is included within the 
statutory definition of the words "any crime." 



140 ATTORNEY-GENERAL'S REPORT. [Jan. 

R. L., c. 215, § 1, provides: — 

A crime which is punishable b}^ death or imprisonment in the state 
prison is a felony. All other crimes are misdemeanors. 



I am therefore of the opinion that though the felony of 
which the physician was convicted was committed outside of 
the practice of his profession, your Board has the right to 
summon the physician before it for a hearing, and may, upon 
a unanimous vote, either revoke his certificate or cancel his 
registration. 

I desire to direct your attention to Gen. St. 1918, c. 257, 
§ 285, which amends the present provisions of Gen. St. 1917, 
c. 55, § 1, by striking out said section and substituting there- 
for a new section, in which the w^ords "or of any crime in the 
practice of his profession" do not appear. This amendment 
is to take effect on Feb. 1, 1921. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Insurance — Mutual Fire hisuraiice — Premium Charge — 
Deposit Notes — Excepted Companies. 

A mutual fire insurance company may not conduct in this Commonwealth 
the system of business outlined in St. 1907, c. 576, § 49, unless it 
not only was organized prior to May 21, 1887, but also was lawfully 
doing business upon the plan set forth in said section 49 at the time 
St. 1907, c. 576, took effect, namely, July 28, 1907. 

May 12, 1920. 
Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — You request my opinion upon the following 
question of law : — 

St. 1907, c. 576, § 48, provides, in part: — 

Mutual fire insurance companies, except as provided in the follow- 
ing section, shall charge and collect upon their policies a full mutual 
premium in cash, or notes absolutely payable. 

Section 49 provides: — 

Mutual fire insurance companies organized prior to the twenty-first 
day of May in the year eighteen hundred and eighty-seven and now 



1921.] PUBLIC DOCmiENT — No. 12. 141 

lawfully doing business upon the plan of taking deposit notes for a 
percentage of the amount insured by its poHcies, and making a call 
or assessment thereon for expenses and for the payment of losses only 
after such losses are incurred, may continue such system of business, 
and such deposit notes shall constitute the entire liability of their 
members. 

A company is seeking admission to this Commonwealth 
which does business upon the plan outlined in section 49, and 
is also allowed under its charter to issue policies for a cash 
premium but without the features peculiar to mutual insurance 
companies of dividends or liability for assessment. This com- 
pany was organized prior to the twenty-first day of May, 1887. 

Your specific ciuestions are as follows: — 

1. Can the company, in view of sections 48 and 49, be admitted, 
inasmuch as the character of its insurance is such that a domestic 
mutual company could not be organized to ^\Tite business in the same 



manner 



2. Does the fact that this companj^ was organized prior to the 
twenty-first day of May in the year 1887 make it possible to admit 
it to this Commonwealth under the provisions of section 49? 

My answer to both of your Cj[uestions is in the negative. 
Unless a mutual fire insurance company is doing business as 
set forth in section 48, namely, charging and collecting upon 
its policies a full mutual premium in cash, or notes absolutely 
payable, it cannot be admitted unless it falls within the ex- 
ceptions set forth in section 49. The company must not only 
have been organized prior to the twenty-first day of May, 
1887, but also lawfully doing business upon the plan therein 
set forth at the time said St. 1907, c. 576, took effect, namely, 
July 28, 1907. In my opinion, the words "now lawfully doing 
business" are to be construed to mean lawfully doing business 
on that date within the Commonwealth of Massachusetts. 
Very truly yours, 

J. Westox Allex, Attorney-General. 



142 ATTORNEY-GENERAL'S REPORT. [Jan. 



Salaries of Officers and Employees of the Commonwealth — 
Increases — Deputy Supervisor of Administration. 

Under Gen. St. 1919, c. 320, § 1, recommendations for increases in the 
salaries of all officers and employees who are within the provisions 
of Gen. St. 1918, c. 228, § 1, except those whose salaries are or shall 
be fixed by statute, must be presented in the first instance to the 
Supervisor of Administration. 

Gen. St. 1919, c. 320, § 1, repeals by implication provisions of prior 
statutes which require increases to be approved by the Governor and 
Council. 

The provision of Gen. St. 1916, c. 296, § 2, which authorizes the Super- 
visor, with the consent of the Governor and Council, to appoint a 
deputy or deputies, and to determine their salaries, is so modified by 
Gen. St. 1919, c. 320, § 1, that the Supervisor has the power to in- 
crease the salary of a deputy without consent of the Governor and 
Council. 
It is suggested that the Supervisor, in formulating rules and regulations, 
may include some provision for submitting certain increases for the 
approval of the Governor and Council. 

May 12, 1920. 

Mr. Thomas W. White, Supervisor of Administration. 

Dear Sir: — You have requested my opinion as to whether 
an increase in salary for your deputy, for which a sufficient 
appropriation has been made, must be approved by the Gover- 
nor and Council before becoming effective. 

Gen. St. 1916, c. 296, § 1, abolished the Commission on 
Economy and Efficiency and the State Board of Publication, 
and transferred the rights, powers, duties and obligations of 
both said Commission and said Board to the Supervisor of 
Administration established by said act. Section 2 provides, 
in part : — 

The supervisor . . . , with the consent of the governor and coun- 
cil, may appoint a deputy or deputies and determine their salary 
and duties except as is otherwise hereinafter provided. Any deputy 
may be removed for cause by the supervisor with the consent of the 
governor and council. The supervisor may also appoint a secretary 
and such experts, clerks and other assistants, and may pay them 
such salaries and may incur such other expenses, including traveling 
expenses, not exceeding such sums as may be appropriated therefor 
by the general court, as he may deem necessary and proper, subject, 
however, to the approval of the committee on finance of the council 
or of the governor and council where such approval is required by 
law. 



1921.] PUBLIC DOCUIVIENT — No. 12. 143 

Section 3 provides, in part, as follows: — 

The committee on finance of the council shall act as a board of 
advisers of the supervisor and shall hear appeals from the decisions of 
said officer as provided in this act. . . . 

Gen. St. 1918, c. 228, §§ 1 and 2, provide as follows: — 

Section 1. All appointive offices and positions in the government 
of the commonwealth, except those in the judicial and legislative 
branches, shall be classified by the supervisor of administration, 
subject to the approval of the governor and council, in services, groups 
and grades according to the duties pertaining to each office or position. 
Such classification shall be established by specifications defining for 
each grade the titles, duties and responsibilities, and minimum quali- 
fications for entrance and promotion. The titles so designated shall 
be the official title of positions included therein, and shall be set forth 
on all pay rolls. The term "group" as used in this act and in said 
classification shall be construed to include positions in a separate 
profession, vocation, occupation or trade involving a distinctive line of 
work which requires special education, training or experience. The 
term "grade" shall be construed to mean a subdivision of a group, 
and to include all positions with substantially identical authority, 
duties and responsibility as distinct from all other grades in that 
group. The term "advancement" shall be construed to mean an 
increase from one salary rate to another salary rate within a grade. 
The term "promotion" shall be construed to mean a change from the 
duties of one grade to the duties of a higher grade, and shall involve 
a change in salary to the rates of the higher grade. 

Section 2. The supervisor of administration shall have authority 
to make rules and regulations, subject to the approval of the governor 
and council, providing for the application and administration of the 
classification and the specifications established under the provisions 
of this act. 

Gen. St. 1919, c. 320, struck out section 3 of Gen. St. 1918, 
c. 228, and substituted therefor a section reading, in part, as 
follows : — 

Recommendations for increases in the salaries of officers and em- 
ployees of the commonwealth who are subject to the provisions of 
this act, except officials and employees whose salaries are now or 
shall be regulated by statute, shall be submitted in the first instance 
to the supervisor of administration, and if approved by him shall 
take effect upon notice by the supervisor to the civil service com- 
mission and the auditor of the commonwealth. If the supervisor 
does not approve a proposed increase in salary, he shall report the 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

recommendation of the department or institution with his own recom- 
mendation to the governor and council whose decision shall be final, 
except that the governor and council shall not grant an increase in 
salarj^ greater than that recommended by the department or in- 
stitution. Increases in salaries granted under the provisions of this 
section shall conform to such standard rates as may be established by 
rule or regulation in accordance with the provisions of section two. 
Xo increase in salary shall be granted under the provisions of this 
section unless an appropriation sufficient to cover such increase has 
been granted by the general court in accordance with estimates for 
the budget filed as required by law. . . . 

Gen. St. 1919, c. 350, § 15, provides: — 

The office of supervisor of administration, existing under au- 
thority of chapter two hundred and ninety-six of the General Acts 
of nineteen hundred and sixteen, and acts in amendment thereof 
and in addition thereto, shall continue to be under the governor and 
council, as now provided by law. 

The meaning of these statutes is by no means clear. Ap- 
parently, Gen. St. 1919, c. 320, § 1, is intended to apply to all 
officers or employees who are to be classified under Gen. St. 

1918, c. 228, § 1, "except officials and employees w^hose salaries 
are now or shall be regulated by statute." The word "regu- 
lated" in this phrase must, in my opinion, be held to mean 
"fixed." In a broad sense the classification prescribed by 
Gen. St. 1918, c. 228, § 1, is a regulation by statute. If the 
word "regulated" be construed broadly enough to include 
such a regulation, it would insert an exception w^hich is as 
broad as the statute, and in effect make the act nullify itself. 
I am therefore of opinion that recommendations for increases 
in the salaries of all officers and employees who are within the 
provisions of Gen. St. 1918, c. 228, § 1, except those whose 
salaries are or shall be fixed by statute, either in some definite 
sum or by a sliding scale which is automatically effective, must 
be presented "in the first instance" to the Supervisor of 
Administration. Such increases become effective if and when 
the Supervisor notifies the Civil Service Commission and the 
Auditor. 

It is true that this construction apparently repeals by impli- 
cation that provision of statutes enacted ^rior to Gen. St. 

1919, c. 320, which requires increases, in certain cases, to be 
approved by the Governor and Council. On the other hand. 



1921.] PUBLIC DOCLTMEXT — No. 12. 145 

Gen. St. 1919, c. 350, which is subsequent to Gen. St 1919, 
c. 320, restores this provision in a number of instances. The 
result is that Gen. St. 1919, c. 320, supersedes this, provision 
in prior statutes, but, of course, yields to subsequent statutes 
which restore it. 

On the other hand, the provision that recommendations 
for increases which are within the scope of Gen. St. 1919, 
c. 320, shall be submitted "in the first instance" to the Super- 
visor of Administration does not necessarily require that he 
shall pass upon the increase without recourse to the Governor 
and Council. The classification required by Gen. St. 1918, 
c. 228, § 1, is to be approved by them. Under section 2 of the 
same act the rules and regulations for the application and 
administration of such classification are likewise subject to 
their approval. Moreover, under Gen. St. 1916, c. 296, § 3, 
the finance committee of the Council acts as a board of ad- 
visers to the Supervisor. Clearly, there is nothing in the act 
which prevents the Supervisor from consulting the finance 
committee as to the propriety of any increase upon which he 
is to pass "in the first instance." It may well be that rules 
and regulations might be adopted which require him to submit 
recommendations for increases in certain classes of cases to the 
Governor and Council before he acts thereon. In a word, the 
authority to make rules and regulations with the approval of 
the Governor and Council affords an opportunity for clarifying 
certain obscurities in the act. 

The provision of Gen. St. 1916, c. 296, § 2, which author- 
izes the Supervisor, with the consent of the Governor and 
Council, to appoint a deputy or deputies, and to determine 
their salaries, is, in my opinion, so modified by Gen. St. 1919, 
c. 320, § 1, that the Supervisor has power to increase the salary 
of such deputy without submitting the increase to the Gover- 
nor and Council, provided, of course, that the other provi- 
sions of the latter section are complied with. 

It is to be borne in mind, however, that when this power 
was conferred on the Supervisor the General Court had pre- 
viously provided, in Gen. St. 1918, c. 228, that rules and 
regulations made by the Supervisor, providing for the applica- 
tion and administration of the classification and specifications 
established under the provisions of that act, should be subject 
to the approval of the Governor and Council, and that section 
3 of chapter 296 of the General Acts of 1916, making the 



146 ATTORNEY-GENERAL'S REPORT. [Jan. 

committee on finance of the Council a board of advisers of the 
Supervisor, was continued in full force and effect. How far 
the Supervisor should seek the advice of the committee on 
finance in the matter of salary increases is left by the statute 
undetermined, and may well be the subject of mutual con- 
sideration and agreement by the Supervisor and the finance 
committee. The office of deputy in your department is one 
conferring executive and managerial duties upon the incum- 
bent. It may well be that, in formulating rules and regula- 
tions under the provisions of Gen. St. 1918, c. 228, some 
provision might be included for submitting for the approval of 
the Governor and Council increases in salary of those officials 
who exercise executive or managerial functions. 
Yours very truly, 

J. Weston Allen, Attorney-General . 



Taxation — Franchise Tax on Domestic Corporation — Deduc- 
tions — Mortgage of Real Estate held as Collateral Securiti/. 

The value of a real estate mortgage held by a domestic corporation as 
collateral security for a debt due to it is not to be deducted, under 
St. 1909, c. 490, pt. Ill, § 41, cl. 4th, in determining the franchise 
tax upon such corporation, assuming that the corporation has paid 
no local tax upon such mortgage. 

May 13, 1920. 

Hon. W. D. T. Trefry, Commissioner of Corporations and Taxation. 

Dear Sir: — You have asked my opinion as to whether a 
deduction under the provisions of St. 1909, c. 490, pt. Ill, 
§ 41, cl. 4th, should be permitted to a corporation on the 
following state of facts. 

A Massachusetts corporation holds as collateral security 
for a loan a mortgage on Massachusetts real estate. The 
mortgagee is the borrower from the corporation, and the 
mortgagor has nothing to do with the transaction. 

St. 1909, c. 490, pt. Ill, § 41, cl. 4th, reads as follows: — 

In case of corporations subject to the requirements of the preceding 
section, other than railroad corporations, telegraph, telephone, street 
railway and electric railroad companies, whether chartered or organized 
in this commonwealth or elsewhere, and of domestic business corpora- 
tions, the value as found by the tax commissioner of their works, 
structures, real estate, machinery, underground conduits, wires and 
pipes, subject to local taxation wherever situated. 



1921.] PUBLIC DOCUMENT — No. 12. 147 

For the purposes of this section the tax commissioner may take the 
value at which such works, structures, real estate, machinery, poles, 
underground conduits, wires and pipes are assessed at the place where 
they are located as the true value, but such local assessment shall not 
be conclusive of the true value thereof. 

In Firemen s Fire Ins. Co. v. Commonwealth, 137 Mass. 80, 
the court decided that in figuring the franchise tax the Tax 
Commissioner should deduct from the aggregate value of the 
shares of the corporation the value of mortgages of real estate 
held by it and subject to local taxation; and later, in Brooks 
V. West Springfield, 193 Mass. 190, at p. 194, the court, in 
discussing this case sa3's: — 

Our system of taxation is purely statutory, and the conditions 
which underlie the exemption are plainly stated. They are, that the 
debt must be secured by a mortgage of realty, and that the mortgagee's 
interest must be taxed as real estate. 

In Firemen s Fire Ins. Co. v. Commonwealth, supra, the 
court, at p. 81, states: — 

Pub. Sts., c. 13, §§ 39-41. The whole scope of these provisions 
shows that the object of the Legislature, in requiring the deduction 
from the aggregate value of the shares named in section 40, was to 
prevent double taxation in fact if not in form, and to insure that 
property of a corporation which, under the laws, was subject to local 
taxation, should not be included in the valuation upon which the 
excise on the franchise is based. 

Applying these tests to the case submitted, I am of the 
opinion that a deduction for mortgages given as collateral 
should not be allowed. While it might be said that such a 
mortgage is held by the corporation, it is not held within the 
meaning of the decisions, as a mortgage held as collateral has 
no necessary relation to an investment in real estate, and it 
is not property of the lender, who holds such mortgage merely 
as collateral. The object of the exemption granted is to avoid 
double taxation, and such exemption must be strictly construed. 

By St. 1909, c. 490, pt. I, §§ 16 and 18, it is provided that 
a mortgage " given to secure the payment of a fixed and cer- 
tain sum of money . . . shall be assessed as real estate 
. . . ; and the mortgagor shall be assessed only for the 
value of such real estate after deducting the assessed value 
of the interest therein of such mortgagee." For the purpose 



148 ATTORNEY-GENERAL'S REPORT. [Jan. 

of taxation mortgagors and mortgagees are deemed joint 
owners until the mortgagee takes possession, but section 17 
permits the assessment of the entire tax to the mortgagor 
unless a statement in regard to the mortgage is filed; and as 
a matter of practice this method is always followed, and the 
mortgagee, if a corporation, is amply protected against double 
taxation by the decision in Firemen's Fire Ins. Co. v. Common- 
UTCtlth, supra. In answering your query I have assumed that 
the corporation to whom the mortgage is pledged as collateral 
pays no local tax on such mortgage. 

To extend the corporate mortgagee's deduction to a cor- 
poration holding mortgages as collateral would not be justified 
as avoiding double taxation, because it would give to such 
corporation not a proper deduction but a real exemption, 
based not on the loan but on the amount of the collateral, 
which is not the property of the corporation. By continually 
pledging and repledging a mortgage as collateral, total tax 
deductions of many times the face of the mortgage could be 
secured by successive corporate creditors. A construction 
permitting this result is not to be entertained unless clearly 
implied, and the wording of the statute does not require 
such a construction. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Metropolitan District Commission — Power to adopt Regula- 
tions prohibiting Discharge of Gasoline into Metropolitan 
Seiccr System. 

The Metropolitan District Commission, created bj' Gen. St. 1919, c. 350, 
§§ 123-129, has authority to adopt reasonable regulations forbidding 
the discharge of gasoline from local sewers into the metropolitan 
sewer system, which regulations, if reasonable, may be enforced in 
equity. 

May 14, 1920. 

James A. Bailey, Esq., Commissioner^ Metropolitan District Commission. 
Dear Sir: — You request my opinion upon the following 
question: — 

What department, board, commission or public authority — state, 
municipal or otherwise — has the power, authority and duty to pre- 
vent gasoline from entering city and town sewers which are con- 
nected with and empty into metropoUtan sewers ? 



1921.] PUBLIC DOCUMENT — No. 12. 149 

In relation to the power and duty of the Metropolitan Dis- 
trict Commission, which, under Gen. St. 1919, c. 350, §§ 123- 
129, succeeded to the rights, powers, duties and obligations of 
the Metropolitan Water and Sewerage Board, existing under 
St. 1901, c. 168, and acts in amendment thereof and in addi- 
tion thereto, you refer me to the following statutes: — 

St. 1889, c. 439, § 1, created a board to be known as the 
Metropolitan Sewerage Commissioners. Section 3 provided 
that said board should "construct, maintain and operate" 
for Boston and certain other designated cities and towns 
"such main sewers and other works as shall be required for 
a system of sewage disposal for said cities and towns"; and 
also "another such system" for Boston and certain other 
named cities and towns. Sections 9 and 16 further provided 
as follows: — 

Section 9. Any city or town within whose limits any main sewer 
shall have been constructed under the provisions of this act shall 
connect its local sewers with such main sewer, subject to the direction 
and control of said board, and any person, firm or corporation may, 
subject to the direction, control and regulation from time to time of 
said board, and subject to such terms, conditions and regulations as 
each city or town may prescribe, connect private drains with said 
main sewer. 

Section 16. The supreme judicial court shall have jurisdiction in 
equity to enforce the provisions of this act, and shall fix and determine 
the compensation of all commissioners appointed by said court under 
the provisions hereof. 

St. 1895, c. 406, provided that said board should construct 
a system of sewage disposal for the Neponset River Valley. 
Sections 9 and 21 of said act contain provisions similar to 
sections 9 and 16 of St. 1889, c. 439. 

St. 1899, c. 424, provided that said board should construct 
a high level gravity sewer for the relief of the Charles and 
Neponset River Valleys. Section 8 contains provisions similar 
to those in St. 1889, c. 439, § 9, and further provides: — 

The sewerage systems of all drainage areas not now drained by the 
south metropolitan system, which are constructed after the passage 
of this act, shall be constructed in accordance with the so-called sepa- 
rate system of sewerage. 

Section 21 is similar to section 16 of St. 1889, c. 439. 



150 ATTORNEY-GENERAL'S REPORT. [Jan. 

Gen. St. 1915, c. 150, amends St. 1889, c. 439, § 9, so as to 
read as follows : — 

Any city or town within whose limits any main sewer shall have 
been constructed under the provisions of this act shall connect its 
local sewers with such main sewer, subject to the direction, control 
and regulation of said board, and any person, firm or corporation 
may, subject to the direction, control and regulation from time to 
time of said board, and subject to such terms, conditions and regula- 
tions as each city or towTi may prescribe, connect private drains with 
said main sewer. 

Gen. St. 1915, c. 147, makes a similar amendment to St. 
1899, c. 424, § 8. 

Where statutes are parts of a general system relating to the 
same class of subjects, and rest upon the same reasons, they 
should be so construed, if possible, as to be uniform in their 
application and in the results which they accomplish. Ilydc 
V. Fall River, 189 Mass. 439, 441; Sheldon v. Bosto7i & Albany 
R.R., 172 Mass. 180, 182. The statutes referred to above 
fall within this principle. St. 1901, c. 168, abolished the 
metropolitan sewerage commissioners and transferred all their 
powers, rights, duties and liabilities to the Metropolitan Water 
and Sewerage Board. Gen. St. 1919, c. 350, § 123, abolished 
the Metropolitan Water and Sewerage Board and transferred 
all its rights, powers, duties and obligations to the Metro- 
politan District Commission created by that act. Section 127 
of that act further provides: — 

The commission shall have and exercise over the public property 
hereby transferred to its charge and control from the metropolitan 
water and sewerage board, in addition to the power and authority 
of said board, all the power and authority which the metropolitan 
park commission has over open spaces for exercise and recreation 
under chapter four hundred and seven of the acts of eighteen hundred 
and ninety-three, and acts in amendment thereof and in addition 
thereto, so far as such power and authority may be exercised con- 
sistently with the purposes for which the metropolitan water and 
sewerage systems were created and are maintained. 

In my opinion, the Metropolitan District Commission has 
authority to adopt reasonable regulations forbidding the dis- 
charge of gasoline into the metropolitan sewer system. See 
Commomvealth v. Whitney, 190 Mass. 531, 535; Teasdale v. 



1921.] PUBLIC DOCUMENT — No. 12. 151 

Newell d' Snoicliug Cons. Co., 192 Mass. 440, 442. Under St. 
1889, c. 439, § 16, St. 1895, c. 406, § 21, and St. 1899, c. 424, 
§ 21, such regulations, if reasonable, may be enforced in equity. 
But this authority does not confer jurisdiction over the local 
sewers which are connected with the metropolitan system. 
Jurisdiction over the local sewers is vested in that public body 
which is charged by law^ with the duty to make and maintain 
them. R. L., c. 49, §§ 1-36. R. L., c. 49, §§ 12 and 36, pro- 
vide: — 

Section 12. The mayor and aldermen of a city and the sewer 
commissioners, selectmen or road commissioners of a town may lay, 
make and maintain particular sewers from com^mon sewers to the 
street line, which shall be the property of the city or town. The 
owner of any land benefited thereby shall pay to the city or town 
for the permanent privilege of using the same, such reasonable amount 
as said boards determine, which may be fixed at the estimated average 
cost of all such particular sewers within the territory for which a 
system of sewers has been built or adopted. Said boards may, upon 
request of the owner of land and payment by him of the actual cost 
thereof, construct a particular sewer from the street line to a house 
or building; and may make regulations for the construction and use 
of all particular sewers and impose penalties not exceeding twenty 
dollars for their violation. 

Section 36. The superior court shall have jurisdiction in equity 
to restrain the use of the public sewers or the placing or depositing 
of any materials therein or the making of any unlawful connections 
therewith. 

Thus, R. L., c. 49, §§ 12 and 36, appear to confer upon the 
proper authorities of a city or town a control over local sewers 
similar to that exercised by the Metropolitan District Com- 
mission over the metropolitan sewerage system. If, there- 
fore, a city or town should persist in discharging gasoline into 
the metropolitan sewerage system through the local sewers, 
in defiance of a reasonable regulation of the Metropolitan 
District Commission forbidding such discharge, the Metropoli- 
tan District Commission would have an immediate remedy in 
equity against the municipal offender, and the proper munici- 
pal authority could in turn invoke against the individual 
offender both the penalty authorized by R. L., c. 49, § 12, and 
the equitable remedy conferred by R. L., c. 49, § 36. Whether 
the Metropolitan District Commission could in case of per- 



152 ATTORNF.Y-GENERAL'S REPORT. [Jan. 

sistent violation by the municipal authority proceed to seal up 
the offending local sewer at the point where it joins the metro- 
politan system, and w^hether the municipal authority could 
in turn proceed to seal the particular sewer of a persistent 
individual offender, need not now be decided. 

It may be, also, that with the co-operation of the Commis- 
sioner of Public Safety another remedy might be had directly 
against the individual offender. St. 1904, c. 370, § 2, as 
amended by St. 1905, c. 280, § 1, provides as follows: — 

The detective and fire inspection department of the district police 
may make regulations, except as hereinbefore provided, for the keep- 
ing, storage, use, manufacture, sale, handling, transportation or other 
disposition of gunpowder, dynamite, crude petroleum or any of its 
products, or explosive or inflammable fluids or compounds, tablets, 
torpedoes or any explosives of a like nature, or any other explosives, 
except fireworks and fire crackers, and may prescribe the materials 
and construction of buildings to be used for any of the said purposes. 

Section 3 of said chapter 280 provides, in case of violation of 
such regulation, for a fine of not more than $100 or for imprison- 
ment for not more than one month, or for both such fine and 
imprisonment. 

In my opinion, a regulation forbidding the use or storage of 
gasoline in such a manner as to permit it to get into the sewers 
would be valid. Violation of such a regulation would bring 
the offender within the penalty provided by section 3. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Bank Commissioner — Taking Possession of Bank — Liquida- 
tion or Resumption of Business. 

Under St. 1910, c. 399, as amended, the Bank Commissioner has an option 
whether to proceed to liquidate the affairs of a bank of which he has 
taken possession, or to allow it to resume business. 

Unless and until the Bank Commissioner decides to liquidate, he is not 
required to make and file an inventory of assets, to give notice in 
regard to proof of claims, or to file in court list's of claims as provided 
in sections 7, 8 and 9. 

May 21, 1920. 

Mr. Joseph C. Allex, Commissioner of BanlxS. 

Dear Sir: — In 1919 the then Bank Commissioner, acting 
under the authority conferred by St. 1910, c. 399, took pos- 



1921.] PUBLIC DOCUMENT — No. 12. 153 

session of the property and business of the Old South Trust 
Company. He made no decision as to whether the trust com- 
pany should be liquidated or allowed to resume business, and 
as yet you have not decided this question. You desire to 
know, prior to making such decision, (1) whether you should 
file an inventory of assets with the clerk of the Supreme Judi- 
cial Court; (2) whether you should file a list of claims with 
the clerk of the Supreme Judicial Court; (3) whether you 
should publish and mail notices in regard to claims. 

St. 1910, c. 399, entitled "An Act relative to proceedings 
against and the liquidation of delinquent corporations and in- 
dividual bankers subject to the supervision of the Bank Com- 
missioner," as amended by St. 1912, c. 472, and by St. 1913, 
c. 177, provides in section 2, in part: — 

Whenever it shall appear to the bank commissioner that any bank 
under his supervision ... is conducting its business in an unsafe 
. . . manner, . . . the bank commissioner may take possession 
forthwith of the propert}^ and business of such bank and may retain 
possession thereof until the bank shall resume business or until its 
affairs shall finally be liquidated as herein provided. . . . 

Section 3 provides, in part, as follows: — 

. . . Such bank may, with the consent of the bank commissioner, 
resume business upon such conditions as he may approve: provided, 
however, ... he may retain in behalf of the bank the control, prose- 
cution or defence of any undetermined suits or claims brought in 
behalf of or against the bank under the provisions of section five of 
this act during the time when the bank was in his charge, .... 

Section 7 is as follows: — 

Upon taking possession of the property and assets of such bank, 
the bank commissioner shall make an inventory of the assets of the 
bank in duplicate, one to be filed in the office of the bank commissioner 
and one in the office of the clerk of the supreme judicial court for the 
count}' in which the principal office of the bank is located. 

Section 8 is as follows: — 

The bank commissioner shall cause to be published weekly for three 
consecutive months, in such newspapers as he may direct, a notice 
calling on all persons who may have claims against such bank to 
present the same to the bank commissioner and to make legal proof 
thereof at a place and in a time, not earlier than the last day of publi- 



154 ATTORNEY-GENERAL'S REPORT. [Jan. 

cation, to be therein specified. The bank commissioner shall mail a 
similar notice to all persons whose names appear as creditors upon 
the books of the bank, so far as their addresses are known. If the 
bank commissioner doubts the justice and validity of any claim, he 
may reject the same and serve notice of such objection upon the 
claimant either by mail or person. An affidavit of service of such 
notice, which shall be prima facie evidence thereof, shall be filed 
with the bank commissioner. An action upon the claim so rejected 
shall not be entertained unless brought within six months after such 
service. Claims presented after the expiration of the time specified 
in the notice to creditors shall be entitled to share in the distribution 
only to the extent of the assets in the hands of the bank commissioner 
equitably applicable thereto. 

Section 9 is as follows: — 

Upon the expiration of the time fixed for the presentation of claims, 
the bank commissioner shall make in duplicate a full and complete 
list of the claims presented, including and specifying such claims as 
have been rejected by him. One of said lists shall be filed in the office 
of the bank commissioner and the other in the office of the clerk of 
the supreme judicial court for the county in w^hich the principal office 
of the bank is located. Thereafter the bank commissioner shall make 
and file in said offices, at least fifteen days before every appHcation to 
the court for leave to declare a dividend, a supplementary list of the 
claims presented since the last preceding list was filed, including and 
specif jing such claims as have been rejected b}- him, and, in any 
event, he shall make and file the said list at least once in every six 
months after the filing of the original list, so long as he shall remain 
in possession of the property and business of the bank. Said inventory 
and said list shall be open to inspection at all reasonable times. 

Sections 10 and 11 relate to matters arising only out of 
liquidation of a bank. Section 14 deals with liquidation of a 
bank by vote of the stockholders. Section 15 provides the 
method for dealing with dividends and unclaimed deposits 
remaining after the order for final distribution. Section 16 
gives the Supreme Judicial Court jurisdiction in equity to 
enforce the provisions of the act. Section 17 repeals sections 
9, 10 and 11 of chapter 590 of the Acts of 1908. 

Reading the act as a w^hole, it is evident that most of its 
provisions deal with the duties and authority of the Bank 
Commissioner after he has started to liquidate the affairs 
of the bank. In section 2, how^ever, the Bank Commissioner 
is given powder to retain possession until the bank shall resume 



1921.] PUBLIC DOCUMENT — No. 12. 155 

business, and section 3 also mentions the possibility of the 
bank resuming business. These are the only two references to 
resumption of business, and, as our Supreme Court said in 
Greenfield Savings Bank v. Commonicealih, 211 Mass. 207, at 
p. 209 — 

Whether these will be resumed or the corporation be extinguished 
is matter of doubt, although the main part of the provisions of said 
chapter 399 look toward final liquidation. 

The first sentence of section 4 is as follows: — 

Upon taking possession of the property and business of such bank, 
the bank commissioner shall have authority to collect moneys due to 
the bank, and to do such other acts as are necessary to conserve its 
assets and business, and shall proceed to liquidate its affairs as here- 
inafter provided. 

This sentence does not impose a duty on the Bank Com- 
missioner to liquidate the aflfairs of the bank, as he is specif- 
ically given an option, under section 2, whether he shall pro- 
ceed to liquidation or allow a bank to resume business. But 
the sections following section 4, w^hich compose the main body 
of the act, deal primarily with liquidation. The Bank Com- 
missioner may take possession of the bank's property and 
business without any court action, but he cannot liquidate 
the affairs of the bank without going to the Supreme Judicial 
Court. There can be no question that unless there is a liqui- 
dation, sections 8 and 9 impose upon the Bank Commissioner 
the duty of doing vain acts, as it would be foolish to give 
notices in regard to proof of claims and to file in court lists of 
claims presented unless such claims would be paid, and unless 
your duties in respect to the bank made it incumbent on you 
to take court action. Until and unless you decide to liquidate 
the affairs of the bank, the provisions of sections 8 and 9 do 
not control your conduct. 

The construction of section 7 is more difficult. That section 
provides as follows : — 

Upon taking possession of the property and assets of such bank, 
the l^ank commissioner shall make an inventory of the assets of the 
bank in duplicate, one to be filed in the office of the bank commis- 
sioner and one in the office of the clerk of the supreme judicial court 
for the county in which the principal office of the bank is located. 



156 ATTORNEY-GENERAL'S REPORT. [Jan. 

If you were to proceed to liquidation you would act under 
this section. The question is whether you must follow its 
provisions before you have made a decision as to whether the 
bank is to liquidate or to resume business. The wording of 
the section is unambiguous, and there can be no doubt that 
it is your duty to ''make an inventory of the assets of the 
bank in duplicate." But is it necessary for you to file one of 
these in the office of the clerk of the Supreme Judicial Court 
for the county in which the principal office of the bank is 
located? And if it is necessary, on what date must such list 
be filed? It is my opinion that until you make a decision as 
to resumption or liquidation you are under no duty to file the 
list in court. To take over the property and business of the 
bank, and then to turn it back to the bank when it is ready to 
resume business, requires no application to any court. It is 
only in case of liquidation that the approval of the court must 
be sought, and there seems no sound reason for filing in court 
a list of claims as to which the court has no jurisdiction until 
liquidation proceedings are started. 

It would seem that the words "hereinafter provided," at 
the end of the first sentence of section 4, qualify the clause 
"shall proceed to liquidate its aft'airs," and are not to be read 
as modifying the other provisions of that sentence. 

The construction given to section 7 is strengthened by an 
examination of the law existing prior to the passage of St. 
1910, c. 399, repealed by that act. Sections 9, 10 and 11 of 
chapter 590 of the Acts of 1908 in substance provided that 
when the continuance of a bank was hazardous, the Commis- 
sioner could apply to the Supreme Judicial Court for an in- 
junction, and "upon making such application the commis- 
sioner may forthwith take possession of the property and 
business of the bank, and retain possession thereof pending the 
action of the court." The court could appoint receivers, who 
were to make schedules of property, a copy of which was to 
be delivered to the Commissioner, who had a right to examine 
the bank's officers and also the accounts of the receivers. 

Under these provisions the court, and not the Bank Com- 
missioner, determined whether or not there should be a liqui- 
dation, but pending court action the Commissioner had 
possession of the property and business of the bank, and 
continued to hold the same until receivers should be appointed. 
The appointment of receivers foreshadowed liquidation; but 



1921.] PUBLIC DOCUMENT — No. 12. 157 

unless a liquidation seemed likely, the Bank Commissioner 
handled the difficult}' until the bank could resume business. 
This general idea is carried out more elaborately in St. 1910, 
c. 399, and it is my opinion that the proper construction of 
the act requires a negative answer to all of your questions. 
Very truly yours, 

J. Westox Allen, Attorney-General. 



Bonds — Purchase of Port Development Bonds — Treasurer and 
Receiver-General — Governor and Council. 

Under St. 1920, c. 225, § 4, the Governor and Council must approve each 
purchase of bonds made under that section bj' the Treasurer and 
Receiver-General. 

May 22, 1920. 
His Excellency the Governor, and the Honorable Council. 

Gentlemen: — You inquire, in substance, whether the 
Governor and Council, under St. 1920, c. 225, § 4, must ap- 
prove each specific purchase of bonds by the Treasurer and 
Receiver-General, or whether the Governor and Council may 
fix a rate at which bonds may be purchased, and authorize the 
Treasurer and Receiver-General to purchase at his discretion 
at that rate or one more favorable to the Commonwealth. 
St. 1920, c. 225, § 4, provides as follows: — 

For purchasing from time to time, at a price not exceeding the 
fair market value, with the approval of the governor and council, 
outstanding serial bonds of the loan for the development of the port 
of Boston authorized by section seventeen of chapter seven hundred 
^nd forty-eight of the acts of nineteen hundred and eleven, and acts 
in amendment thereof and in addition thereto, the treasurer and 
receiver-general is hereby authorized to expend, and there is hereby 
appropriated from, and upon the receipt from the United States of 
the proceeds from the sale of the Boston dry dock, a sum not exceeding 
two million seventy-eight thousand five hundred and sixty-one dollars 
and fifty-nine cents. All bonds so purchased shall be cancelled. 
Pending the purchase of said sei'ial bonds, the treasurer and receiver- 
general, mth the approval of the governor and council, is hereby 
authorized to invest and reinvest the said sum or any part thereof, 
from time to time, in other bonds or notes of the commonwealth. 

In my opinion, the words, "with the approval of the gov- 
ernor and council" modify the word /'purchasing." To fix 
the rate in advance, and then to authorize the Treasurer and 



158 ATTORNEY-GENERAL'S REPORT. [Jan. 

Receiver-General to purchase such amounts of bonds as he 
from time to time may deem best, at the rate so fixed or at a 
rate more favorable to the Commonwealth, is not equivalent 
to approving each purchase. It leaves the Treasurer and 
Receiver-General to fix the amount of bonds to be purchased 
and also the time of purchase, both of which are essential 
ingredients of each contract of purchase. If it had been the 
intent of the General Court that the approval of the Governor 
and Council should be required only as to the price to be paid 
for the bonds, this could have been made to appear from the 
language of the statute. It should have provided "for pur- 
chasing from time to time, at a price not exceeding the fair 
market value, which shall be approved b}' the governor and 
council." By the express terms of the statute it must be 
assumed that the General Court intended the Governor and 
Council to have a voice in deciding not only the price at 
which the bonds should be purchased, but in what amounts 
and at what times such purchases should be made. If the 
Governor and Council were of the opinion that the bonds 
could be purchased to better advantage at a subsequent time, 
they might withhold their approval. Doubtless, the Treas- 
urer and Receiver-General may make a tentative contract of 
purchase contingent upon subsequent approval by the Gov- 
ernor and Council, but such contract will not bind the Com- 
monwealth unless and until such approval be given. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Corporations — Increase of Capital Stock — No Par Value 
Stock — How to be valued for Filing Fee Purposes. 

St. 1920, c. 349, § 9 requiring a filing fee of one-twentieth of 1 per cent of 
the amount of stock with par value, and 5 cents a share for all shares 
without par value, by which the capital is increased, is an excise 
tax, and as such reasonable. 

The Secretary of the Commonwealth, ^in respect to assessing the above 
excise, shall not be required to examine into the actual value of the 
shares where an increase of no par value stock is to be authorized, 
but shall consider shares of no par value as having a par value of 
$100. 

May 24, 1920. 

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

Dear Sir: — St. 1920, c. 349, entitled "An Act relative to 
the issue of capital stock by business corporations," permits 



1921.] PUBLIC DOCUMENT — No. 12. 159 

the issue of stock without par value, with certain restrictions 
as regards issue, voting, stockholders' liability and fees. Cer- 
tain corporations desire to file with you articles of amendment 
changing their capital stock from shares of par value to shares 
without par value, under the provisions of St. 1920, c. 349, 
§§ 6 and 7. 

You have asked my opinion whether you should accept 
such articles of amendment on payment of the fee fixed by 
St. 1903, c. 437, § 89, or whether 3'ou should receive a larger 
fee, under the provisions of St. 1920, c. 349, § 9. 

St. 1920, c. 349, § 9, which amends St. 1903, c. 437, § 89, 
is as follows: — "^ 

The fee for filing and recording the certificate required by section 
forty-two providing for an increase of capital stock shall be one 
twentieth of one per cent of the amount of stock with par value and 
five cents a share for all shares without par value, by which the capital 
is increased. 

St. 1920, c. 349, § 8, contains similar provisions in regard 
to the original issue of capital stock; and section 7, in amend- 
ing St. 1903, c. 437, § 47, reads, in part, as follows: — 

Such report of a corporation which has a capital stock of one 
hundred thousand dollars or more, for this purpose counting shares 
without par value as though of a par value of one hundred dollars 
each, shall be accompanied by a written statement. . . . 

Gen. St. 1918, c. 235, in providing for an excise on foreign 
corporations, amends St. 1909, c. 490, pt. Ill, § 56, by adding 
thereto — 

Provided, that for the purpose of assessing the excise upon corpora- 
tions whose stock was issued without a par value one hundred dollars 
shall be considered par. 

St. 1920, c. 349, § 1, provides that where shares with par 
value are to be issued the total amount of capital stock shall 
be not less than one thousand dollars, and where shares with- 
out par value are to be issued the number of shares without 
par value shall be not less than ten. Section 3, amending St. 
1903, c. 437, § 27, provides, in part: — 

The provisions of law relating to the issue of shares of capital stock 
with par value shall apply to the issue of shares without par value. . . . 



160 ATTORNEY-GENERAL'S REPORT. [Jan. 

Prior to the passage of the 1920 act the fees for filing and 
recording articles of organization and for the certificate pro- 
viding for an increase of capital stock were based entirely 
upon the par value, without any reference to the value of the 
stock. 

From the provisions cited it is clear that the Legislature 
intended, so far as fees were concerned, that the Secretary 
of the Commonwealth should consider shares of no par value 
as if they had a par value of SlOO, and that he should not be 
required to examine into the actual value of the shares. 

The provisions of sections 4 and 5 of the 1920 act, which 
limit the shareholders' liability to the value of the shares of 
no par value at the time of issuance, do not, in my opinion, 
require that for the purpose of levying an excise a similar rule 
should be followed. An excise need not be proportional but 
must be reasonable, and to require that a fee of 5 cents for 
each share without par value issued shall be paid to the Com- 
monwealth is not, in my opinion, unreasonable legislation. 

On the facts submitted to me it is m\' opinion that before 
accepting for filing articles of amendment you should receive 
a fee in accordance with the provisions of St. 1903, c. 437, § 89, 
as amended by St. 1920, c. 349, § 9, and not merely the fee 
required by St. 1903, c. 437, § 90. 
Very truly yours, 

J. Westox Allen, Attorney-General. 



Labor — Hours of Service — Emj^loyee of Railroad engaged in 
Interstate Commerce. 

Where a woman receives and transmits orders which affect train move- 
ments in both interstate and intrastate commerce, her hours of service 
are governed by the Federal Hours-of-Service Act (act of ISIarch 
4, 1907; 34 Stat. 1415) and not by Gen. St. 1919, c. 113. 

May 27, 1920. 

E. Leroy Sweetser, Esq., Commissioner of Labor and Industries. 

Dear Sir: — You inquire whether Gen. St. 1919, c. 113, 
or the Federal Hours-of-Service Act (act of March 4, 1907; 
34 Stat. 1415), governs the hours of labor of a woman em- 
ployed by a railroad engaged in interstate commerce, "who 
by the use of the telegraph or telephone dispatches, reports, 



1921.] PUBLIC DOCUMENT — No. 12. 161 

transmits, receives or delivers orders to or affecting train 
movements." 

The answer to your question is, in my opinion, determined 
by Erie R.R. Co. v. New York, 233 U. S. 671, to which you 
call my attention. That case, like Northern Pacific Railway 
V. Washington, 222 U. S. 370, decided that the Federal Hours- 
of-Service Act superseded State legislation relative to the 
hours of service of persons employed by railroads in interstate 
commerce. I understand that, in the case which you put, the 
woman in question is engaged in interstate commerce to a 
greater or less extent. It is clearly impossible to govern her 
hours of labor in intrastate commerce by State law and her 
hours of labor in interstate commerce by Federal law. The 
two are so inextricably intermingled that separation cannot 
be made. In such a case the State law yields to the para- 
mount power of Congress over interstate commerce. New 
York Central R.R. Co. v. Winfield, 244 U. S. 147; Houston & 
Texas Ry. v. United States, 234 U. S. 342; Minnesota Rate 
Cases, 230 U. S. 352. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Cities and Towns — Americanization Classes — Reimbursement 
by Commomvealth. 

Cities and towns maintaining schools or classes to promote Americanization, 
under Gen. St. 1919, c. 295, are not entitled to further reimbursement 
under the provisions of Gen. St. 1919, c. 363, on account of expendi- 
tures for teachers employed in such schools or classes. 

May 28, 1920. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You request my opinion as to whether cities 
and towns maintaining schools or classes to promote Ameri- 
canization, under Gen. St. 1919, c. 295, are entitled to further 
reimbursement under the provisions of Gen. St. 1919, c. 363, 
on account of expenditures for teachers emploj^ed in such 
schools or classes. 

Gen. St. 1919, c. 295, provides for the establishment of 
schools or classes for the education of persons over twenty- 
one years of age who are unable to speak, read or write the 
English language. Section 2 of said chapter 295 provides as 
follows: — 



162 ATTORNEY-GENERAL'S REPORT. [Jan. 

Any city or town desiring to obtain the benefits of this act may 
apply therefor to the board, shall conduct the educational work herein 
provided for in conjunction with the board and shall be entitled to 
receive from the commonwealth, at the expiration of each school 
year and on the approval of the board one half of the sums expended 
by it in carrying out the provisions hereof. Teachers and supervisors 
who are employed by cities and towns for the above purpose shall be 
chosen and their compensation shall be fixed by the local school com- 
mittee, subject to the approval of the board. 

Gen. St. 1919, c. 363, provides for the reimbursement, in 
part, of cities and towns "for expenditures for salaries of 
teachers, supervisors, principals, assistant superintendents, 
and superintendents of schools, for services rendered in the 
public day schools." 

Inasmuch as the provisions of said chapter 363 are to apply 
solely to services rendered by teachers in the "public day 
schools," the question raised by your inquiry is whether or 
not Americanization schools or classes can be said to be 
included within the meaning of that phrase. 

The phrase "public schools," as used in the Constitution 
and the laws of this Commonwealth, has acquired a common 
and well-settled meaning. It refers and is limited to schools 
w^hich form a part of the general system of education for the 
children of the Commonwealth, and w^hich are the kind of 
schools that cities and towns are by statute required to 
maintain as a part of our system of common education 
(R. L., c. 42, § 1), and that children of legal school age are 
obliged to attend (R. L., c. 44, § 1). 

Schools or classes established and maintained for the in- 
struction of voluntary pupils in certain specified branches of 
education, which do not form a part of the general system of 
education which the law requires cities and towns to main- 
tain, are not included within the meaning of said term. 
Merrick v. Amherst, 12 Allen, 500; Jenkins v. Andover, 103 
Mass. 94; III Op. Atty.-Gen. 75. 

As the schools or classes referred to in said Gen. St. 1919, 
c. 295, are to be established for persons over twenty-one 
years of age, for instruction therein of certain specified 
subjects, and as both the establishment of such schools by 
cities and towns and the attendance on the part of the persons 
for whose benefit they are established are purely optional, I 
am of the opinion that such schools or classes cannot be said 



1921.] PUBLIC DOCmiENT — No. 12. 163 

to be a part of the public school system of the cities and 
towns in which they are established and maintained. Not 
being a part of the public school system, they necessarily 
cannot be included within the meaning of the phrase "public 
day schools," which constitute a component part of the 
public school system. 

I am therefore of the opinion that the provisions of said 
Gen. St. 1919, c. 363, do not apply to said chapter 295 of 
the acts of that year, and that cities and towns conducting 
schools or classes under the provisions of said chapter 295 are 
not entitled to additional reimbursement, under the pro- 
visions of said chapter 363, on account of salaries paid to 
teachers in the said schools. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Laiv — Police Poicer — Interference with Inter- 
state Commerce — Commissioner of Public Safety — Regu- 
lation of Sale, Lease, Loan or Use of Motion-picture Films. 

A bill prohibiting the selling, leasing, loaning or using for public exhibition 
or commercial purposes any motion-picture film, unless the film has 
been submitted to and approved by the Commissioner of Public 
Safety, would be unconstitutional if enacted into law, as it would 
violate that clause of section 8 of article I of the Constitution of the 
United States which gives Congress the power to regulate commerce 
among the several States. 

June 3, 1920. 

His Excellency Calvin Coolidge, Governor of the Commonwealth. 

Sir: — Your Excellency has requested my opinion upon the 
constitutionality of House Bill No. 1540, entitled "An Act 
relative to the approval and public exhibition of motion-pic- 
ture films." Section 2 of said bill provides: — 

On and after January first, nineteen hundred and twenty-one, it 
shall be unla^\'ful for any person to sell, lease, loan or use for public 
exhibition or commercial purposes any motion-picture film unless the 
said film has been submitted to and approved by the commissioner. 

The language of this section is not limited to the inspection 
and approval of motion-picture films to be used for public 



164 ATTORNEY-GENERAL'S REPORT. [Jan. 

exhibition within the Commonwealth, and, in this respect, it 
goes farther than the motion-picture censorship laws which 
were upheld in Mutual Film Co. v. Industrial Commission of 
Ohio, 215 Fed. Rep. 138, affirmed, 236 U. S. 230, and Mutual 
Film Corp. v. Kansas, 236 U. S. 248. It is my opinion that 
this section is so broad that it would apply to a sale, lease or 
loan in this Commonwealth of a motion-picture film made in 
this state and on its way into another state, and would also 
apply to a film in the original package in which it might be 
shipped into this state from another state or from a foreign 
country. If so, it is to that extent in conflict with that clause 
of section 8 of article I of the Constitution of the United 
States which confers on Congress power *'to regulate com- 
merce with foreign nations, and among the several states, and 
with the Indian tribes." Brown v. Maryland, 12 Wheat. 419; 
Leisy v. Hardin, 135 U. S. 100; Schollenberger v. Pennsylvania, 
171 U. S. 1. I am therefore of opinion that said section 2 is 
an attempt directly to regulate interstate commerce, and is, 
accordingly, unconstitutional. 

I would also call your attention to section 4, which provides 
for an appeal to the Superior Court sitting in equity. While 
I feel that there is a strong probability that the constitutional 
requirement that one shall have a right to trial by jury where 
the value in controversy exceeds S20 is complied with, in that 
the remedy in equity is not necessarily exclusive, nevertheless, 
in my judgment it would have been advisable to add to the 
section some provision stating that it should not be construed 
to deprive any person of the right to pursue any other lawful 
remedy. If this section is constitutional, it would be so 
because of an interpretation of its meaning made by a court 
rather than by the clear wording of the section itself. In its 
present form the question of its constitutionality might be 
raised. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



1921.] PUBLIC DOCUIMENT — No. 12. 165 



Boston School Teachers — Part-time Employment — Retirement 

Systems. 

Regular academic teachers of the city of Boston, who are members of the 
retirement system for Boston pubh'c school teachers and who are 
employed on a part-time basis in vocational schools, are not obhged, 
under the provisions of St. 1914, c. 494, to enroll as members of the 
State retirement system. 

Teachers who enter the service of the city of Boston, employed on a part- 
time basis in vocational schools operating under the provisions of St. 
1911, c. 471, and who are also employed in the academic courses in 
the public schools of the city of Boston, are not obliged to enroll as 
members of the State retirement system, as said teachers must, 
under the provisions of St. 1908, c. 589, become members of the 
retirement system for the Boston public school teachers. 

June 4, 1920. 

Mr. Clayton L. Lent, Secretary, Teachers' Retirement Board, Department 

of Education. 

Dear Sir: — You state that the city of Boston has recently 
established certain schools operating under St. 1911, c. 471, in 
which schools some of the regular academic teachers of the 
city of Boston, who are members of the retirement system 
for Boston public school teachers, are employed oil a part- 
time basis. 

You request my opinion as to whether it will be necessary, 
by virtue of the provisions of St. 1914, c. 494, to enroll these 
teachers as members of the State teachers' retirement system, 
provided they never served in public schools of Massachusetts 
prior to July 1, 1914, and, if it is so necessary, whether they 
will be required to pay assessments on their total salary or 
only on the salary received for vocational work. 

You further desire my opinion as to whether it will be 
necessary for a teacher who enters the service of the city of 
Boston in the future, employed on a part-time basis in 
vocational schools and also in the academic courses, to become 
a member of the State system, and whether, if so required, 
the assessments will be based on the total salary or only on 
the salary received for the vocational work. 

The Massachusetts retirement system was established by 
the Legislature under the provisions of St. 1913, c. 832. 
Teachers employed in the public schools of the city of Boston 
were exempt from becoming members of this system by 



166 ATTORNEY-GENERAL'S REPORT. [Jan. 

paragraph (3), of section 3 of said chapter 832, which pro- 
vides as follows : — 

Teachers in the service of the public schools of the city of Boston 
shall not be included as members of the retirement association. 

The reason for this exemption was due, no doubt, to the 
fact that the city of Boston already had a local teachers^ 
pension system of its own, established under the provisions 
of St. 1908, c. 589. 

This remained a law of the Commonwealth until the Legis- 
lature enacted St. 1914, c. 494, which provides as follows: — 

Section 1. Teachers employed by the city of Boston prior to the 
thirtieth day of June, nineteen hundred and fourteen, in schools 
operating under the provisions of chapter four hundred and seventy- 
one of the acts of the year nineteen hundred and eleven and of chapter 
eight hundred and five of the acts of the year nineteen hundred and 
thirteen, may become members of the teachers' retirement association, 
as established by chapter eight hundred and thirty-two of the acts 
of the year nineteen hundred and thirteen, in the manner prescribed 
by paragraph (2) of section three of said chapter; and all teachers 
employed in the said schools for the first time after the first day of 
July, nineteen hundred and fourteen, shall thereby become members 
of the said retirement association as prescribed by paragraph (1) of 
said section three. 

Section 2. Paragraph (3) of section three of said chapter eight 
hundred and thirty-two shall not be construed as applying to the 
teachers described in section one of this act. 

It is quite clear that in enacting said statute the Legislature 
intended to differentiate between the regular public schools 
of the city of Boston and the schools to be conducted by that 
city under the provisions of St. 1911, c. 471. As regards 
the former, Boston teachers were to continue to become 
members of the Boston system, while as regards the latter, 
they were to enroll as members of the State system; the 
reason for the change being apparently due to the fact 
that the latter schools w^ere receiving State aid, and that 
these teachers were not eligible to membership in the 
Boston system. 

St. 1913, c. 832, § 12, provides as follows: — 

(1) No person required to become a member of the association 
under the provisions of paragraph (1) of section three of this act shall 



•1921.] PUBLIC DOCUlViENT — No. 12. 167 

be entitled to participate in the benefits of any other teachers' re- 
tirement system, supported in whole or in part by funds raised by 
taxation, or to a pension under the provisions of chapter four hundred 
and ninety-eight of the acts of the year nineteen hundred and eight, 
or chapter five hundred and eighty-nine of the acts of the year nineteen 
hundred and eight, as amended by chapter six hundred and seventeen 
of the acts of the year nineteen hundred and ten. 

(2) No member of the retirement association shall be ehgible to 
receive any pension as described in section six of this act, who is at 
the time in receipt of a pension paid from funds raised in whole or in 
part from taxation under the provisions of chapter four hundred and 
ninety-eight of the acts of the year nineteen hundred and eight, or 
chapter five hundred and eighty-nine of the acts of the year nineteen 
hundred and eight, as amended by chapter six hundred and seventeen 
of the acts of the year nineteen hundred and ten, or of any other act 
providing pensions for teachers, providing that this paragraph shall 
not be construed as applying to the Boston Teachers' Retirement 
Fund Association. 

Under the provisions of this section a teacher who is a 
member of the Boston system on becoming a member of the 
State system would forfeit her right to participate in the 
benefits of the Boston system. 

To hold, therefore, that under the provisions of St. 1914, 
c. 494, a teacher employed by the city of Boston in the 
academic department of the public schools, who is a member 
of the retirement system for Boston public school teachers, 
must, on being employed in the vocational schools or courses, 
established under the provisions of said chapter 494, also 
enroll as a member of the State teachers' retirement system, 
would work an injustice to said teachers, as they would be 
obliged to continue to pay their assessments as members of 
the Boston system and yet would not be entitled to receive 
the benefits therefrom. 

Since the retirement systems were established to benefit 
the public school teachers and not to penalize or to impose 
burdens upon them, I am of the opinion that the Legislature 
had no intention to include within the provisions of said 
chapter 494 teachers who, upon entering their employment 
as part-time teachers in the vocational schools, were in 
addition thereto employed by the city of Boston as teachers 
in the regular public schools thereof, and entitled to participate 
in the benefits of the Boston teachers' retirement system. I 
am therefore of the opinion that it will not be necessary, by 



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

virtue of the provisions of St. 1914, c. 494, to enroll regular 
academic teachers of the city of Boston, who are members of 
the retirement system for Boston public school teachers, as 
members of the State teachers' retirement system upon their 
being employed on a part-time basis as teachers in schools 
conducted by the city of Boston and operating under the 
provisions of St. 1911, c. 471. 

Since teachers employed by the city of Boston for the 
first time after July 1, 1914, in the academic courses of the 
regular public schools, being regularly employed on a full or 
on a part-time basis, must, under the provisions of St. 1908, 
c. 589, become members of the teachers' retirement association 
established under the provisions of said chapter, and inas- 
much as such teachers would lose the benefits that they would 
be entitled to as members of said association upon being 
enrolled as members of the State system, I am of the opinion 
that the word "teachers," as used in said St. 1914, c. 494, 
was intended to apply only to teachers who at the time of 
entering the vocational schools, either on a whole or on a 
part-time basis, were not to be employed, in addition thereto, 
in the regular academic courses of the Boston public schools. 
I am therefore of the opinion that it will not be necessary 
for a teacher who enters the service of the city of Boston in 
the future, employed on a part-time basis in a vocational 
school operating under the provisions of St. 1911, c. 471, 
and who is also employed in the academic courses, to become 
a member of the State system. 

Very truly yours, 

J. Weston Allen, Attorney-Generql. 



Schools — Continuation Schools — Reimhurscment of City or 
Town for Expenditures. 

Continuation schools are not public day schools. 

Cities and towns which maintain continuation schools are not entitled, 
on account of such schools, to the reimbursement provided in 
Gen, St. 1919, c. 363, § 2, on account of expenditures for public day 
schools. 

June 13, 1920. 

Dr. Payson Smith, Commissioner of Education. 

"Dear Sir: — You ask my opinion as to whether cities and 
towns maintaining continuation schools under the provisions 



1921.] PUBLIC DOCUjVIENT — No. 12. 169 

of Gen. St. 1919, c. 311, are entitled to further reimbursement 
under the provisions of Gen. St. 1919, c. 363, on account of 
expenditures for teachers employed in such schools. 

Gen. St. 1919, c. 311, provides for the establishment and 
maintenance of continuation schools by cities and towns for 
employed minors under sixteen years of age. 

Paragraph (4) of section 1 of said chapter 311, provides 
that, — 

. . . when established, the said continuation schools or courses shall 
be considered a part of the public school system of the municipaUty 
wherein the minors attending the same are employed. 

Section 2 of said chapter 311 provides as follows: — 

Cities and towns maintaining such continuation schools or courses 
of instruction as are approved by the board of education as to organi- 
zation, control, situation, equipment, courses of study, quahfications 
of teachers, methods of instruction, conditions of admission, em- 
ployment of pupils and expenditures of money, shall receive reim- 
bursement from the treasury of the commonwealth to an amount 
equal to one half the total sum raised by local taxation and expended 
for the maintenance of such schools or courses of instruction. 

Gen. St. 1919, c. 363, §§ 1 and 2, provide as follows: — 

Section 1. The treasurer and receiver general shall, on or before 
the fifteenth day of November, nineteen hundred and nineteen, and 
annually thereafter, set aside from the proceeds of the income tax a 
sum of money sufficient to provide for the purposes of Part I of this 
act, and which shall be available therefor without further appropriation 
by the general court. 

Section 2. The treasurer and receiver general shall, as herein 
provided, distribute said sum on or before the fifteenth day of Novem- 
ber, nineteen hundred and nineteen and annually thereafter, to the 
several cities and towns of the commonwealth as reimbursement, in 
part, for expenditures for salaries of teachers, supervisors, principals, 
assistant superintendents, and superintendents of schools, for services 
rendered in the public day schools during the year ending on the 
thirtieth day of June next preceding. 

Under the provisions of said chapter 363 the reimburse- 
ment to which cities and towns are entitled is limited to 
expenditures for salaries of teachers, supervisors, principals, 
assistant superintendents and superintendents of schools for 



170 ATTORNEY-GENERAL'S REPORT. [Jan. 

services rendered in the public day schools, and is based upon 
a fixed scale determined by the salaries paid. 

Previous to the enactment of Gen. St. 1919, c. 311, con- 
tinuation schools were held not to be a part of the public 
school system, and as public day schools were a part of the 
public school system, it is quite evident that continuation 
schools could not have been included within the meaning of 
the phrase "public day schools.'' As said chapter 311 ex- 
plicitly provides that continuation schools, when established 
shall be considered a part of the public school system, the 
question therefore arises as to whether, under this provision, 
continuation schools may also be said to be included within 
the meaning of the phrase "public day schools." 

Though both the "public day schools" and the "continua- 
tion schools" now form a part of the public school system, it 
is quite evident that they are not synonymous. The term 
"public day school" long prior to the passage of said chapter 
311 had acquired a common and well-understood meaning, 
and included such day schools as cities and towns were obliged 
to establish and maintain for children of school age, and 
such as children, on the other hand, were obliged to attend. 

Up to the year 1913 all children between the ages of 
seven and fourteen years, with certain exceptions not here 
material, were obliged to attend these schools (R. L., c. 44, 
§ 1). That year the Legislature enacted chapter 779, section 
1 of which provides, with certain exceptions not here material, 
that "every child under sixteen years of age who has not 
received an employment certificate as provided in this act 
. . . shall attend a public day school." As to children 
between the ages of fourteen and sixteen years who became 
regularly employed and did receive employment certificates, 
the Legislature, the same year, • under the provisions of 
chapter 805, established continuation schools or classes. 

While the public day school was under the sole jurisdiction 
of the school committee of the city or town in which it was 
established, the continuation schools, under the provisions of 
St. 1913, c. 805, and of Gen. St. 1919, c. 311, were "to be 
approved by the board of education as to organization, con- 
trol, situation, equipment, courses of study, qualifications of 
teachers, methods of instruction, conditions of admission, 
employment of pupils and expenditures of money." 

That the Legislature intended to differentiate between 



1921.] PUBLIC DOCmiENT — No. 12. 171 

these schools is further apparent from Gen. St. 1919, c. 311, 
§ 1, par. (2), which provides "that upon application of the 
parent or guardian of the minor involved, instruction in the 
regular schools shall be accepted as instruction equivalent 
to that provided for by this act." By the term "regular 
schools" the Legislature referred to the public day schools 
as distinguished from the continuation schools. 

Gen. St. 1919, c. 311, § 1, provides for State reimbursement 
of cities and towns which maintain continuation schools, to 
an amount equal to one-half the total sum raised by local 
taxation and expended for the maintenance of such schools 
or courses of instruction. This act applies to continuation 
schools only. It does not apply to public day schools. Gen. 
St. 1919, c. 363, provides a different scheme of reimbursement 
in respect to "public day schools." If this term should be 
held to include continuation schools, it w^ould make both 
schemes of reimbursement applicable to such schools, al- 
though but one scheme of reimbursement would apply to 
regular public day schools. The regular public day schools 
are, however, the principal public school system, to which 
the continuation schools are merely a supplement. A con- 
struction of Gen. St. 1919, c. 363, which would apply both 
schemes of reimbursement to the supplementary system, and 
only a single scheme of reimbursement to the principal 
system, is so unreasonable that it should not be adopted 
unless the language of the act plainly requires it. I find 
nothing in Gen. St. 1919, c. 363, which constrains me to 
reach so unsatisfactory a conclusion. On the contrary, the 
Legislature, in enacting Gen. St. 1919, c. 363, seems to have 
employed the phrase "public day schools" in order to dis- 
tinguish those schools from the continuation schools, because 
the latter schools are, under Gen. St. 1919, c. 311, to be 
considered, for certain purposes, a part of the public school 
system. I am therefore of opinion that cities and towns 
which maintain continuation schools are not entitled, on 
account of such schools, to the reimbursement provided in 
Gen. St. 1919, c. 363, on account of expenditures for public 
day schools. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



172 ATTORNEY-GENERAL'S REPORT. [Jan. 



Cold Storage — Reports to Department of Public Health — 
Liability to Criminal Prosecution. 

A person holding in cold storage any article of food for a period longer 
than twelve calendar months, without the consent of the Department 
of Public Health, violates St. 1912, c. 652, § 5, as amended by Gen. 
St. 1917, c. 149, § 3, and is liable for such violation, whether or not 
a report is thereafter made to the Department. 

June 16, 1920. 

Eugene R. Kelley, M.D., Commissioner of Public Health. 

Dear Sir: — You have asked my opinion as to whether a 
warehouseman, reporting to your Department that food has 
been kept in cold storage for twelve calendar months, is 
because of such report, relieved from liability to criminal 
prosecution under the provisions of St. 1912, c. 652, as amended 
by Gen. St. 1917, c. 149, and by Gen. St. 1919, c. 28. 

St. 1912, c. 652, § 5, as amended by Gen. St. 1917, c. 149, 
§ 3, is as follows : — 

No person, firm or corporation shall hold any article of food in 
cold storage within this commonwealth which has been in cold storage 
for a period longer than twelve calendar months, except with the con- 
sent of the state department of health. The said department may, 
upon application, grant permission to extend the period of storage 
beyond twelve months for a particular consignment of goods, if the 
goods in question are found, upon examination, to be in proper con- 
dition for further storage at the end of twelve months. The length 
of time for which further storage is allowed shall be specified in the 
order granting the permission. A report on each case in which such 
extension of storage is permitted, including information relating to 
the reason for the action of the department, the kind and the amount 
of goods for which the storage period was extended, and the length of 
time for which the continuance was granted, shall be included in the 
annual report of the department. 

St. 1912, c. 652, § 9, is as follows: — 

The state board of health may make rules and regulations to secure 
a proper enforcement of the provisions of this act, including rules and 
regulations with respect to the use of marks, tags or labels and the 
display of signs, and may fix penalties for the breach thereof. 

Under the authority of this section you have made rules 
and regulations, under date of May 5, 1917. Rule 3 is as 
follows: — 



1921.] PUBLIC DOCUMENT — No. 12. 173 

When articles of food have been kept in cold storage for twelve 
calendar months, report of such fact shall be made to the State De- 
partment of Health by the persons having custody of such articles, 
and such articles shall not be removed from cold storage by the owners 
until they have been inspected by the agents of the State Department 
of Health, and released by order of the Department. 

The authority of the Department of Public Health, which 
has succeeded to the powers of the State Board of Health, 
under section 9, above cited, is limited to making "rules and 
regulations to secure the proper enforcement of the pro- 
visions" of said chapter 652, and fixing penalties for the 
breach thereof. It necessarily follows that it is beyond the 
scope of the authority of the Department, by any rule or 
regulation, to nullify the prohibition contained in section 5 
of said chapter 652, as amended by Gen. St. 1917, c. 149, § 3. 

If a person, firm or corporation has held in cold storage 
any article of food for a period longer than twelve calendar 
months without the consent of the Department of Public 
Health, such person, firm or corporation has violated the pro- 
visions of the act above cited, and is liable for such violation, 
whether or not a report is thereafter made to the Department 
of Public Health by the persons having custody of such 
articles. 

The language of the statute, "no person, firm or corpo- 
ration," is not controlled by any words of limitation, and is 
broad enough to include the owners of the goods in cold 
storage and the warehouseman in whose custody they are 
held. 

The purpose of rule 3 is to require the warehouseman to 
give notice to the Department of Public Health of articles 
held in cold storage more than a year, in order that the 
articles may be inspected, and to require their detention until 
such time as they have been inspected by the agents of the 
Department and duly released. The rule applies equally to 
goods which have been held in cold storage beyond the 
period of twelve calendar months by permission of the De- 
partment, as well as to goods which have been held longer 
than the prescribed period without the knowledge and per- 
mission of the Department. 

Without passing upon the validity of rule 3 of the rules 
and regulations established under date of May 5, 1917, as 



174 ATTORNEY-GENERAL'S REPORT. [Jan. 

applied to a case where the required report discloses a violation 
of law, I am of opinion that compliance by the warehouseman 
with said rule 3 in no respect relieves the warehouseman of 
liability for any offense disclosed by said report. 
Very truly yours, 

J. Weston Allen, AUorney -General. 



Schools — Superintendency Unions — Superintendent — Mini- 
mum Salary. 

Previous service in one superintendency union established under R. L., 
c. 42, § 43, and amendments thereof, is not to be counted in deter- 
mining the minimum salary which another union must pay to the 
same superintendent under R. L., c. 42, § 45, as amended by St. 1920, 
c. 371. 

June 22, 1920. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You ask my opinion upon the following 
case: — 

R. L., c. 42, § 43, provides that, under certain circum- 
stances, two or more towns shall form a union for the purpose 
of employing a superintendent of schools. Section 45 of the 
same chapter provided that when certain conditions had been 
satisfied the Commonwealth should contribute on account of 
such union the sum of $1,250, of which three-fifths, or $750, 
should be paid for the salary of said superintendent, and the 
remainder distributed in certain proportions among the towns 
which formed such union. By Gen. St. 1918, c. 109, the 
Legislature amended said section 45 by substituting therefor 
a new section, which provided, in substance, that when it was 
duly certified that the towns had unitedly employed a super- 
intendent of schools and had expended for his salary for the 
school year ending June 30 "a sum not less than eighteen 
hundred dollars," the sum of $1,250 should be apportioned 
among the towns forming such union, in proportion to the 
amounts paid by them for the salary of such superintendent, 
and should be expended for the support of the public schools. 
By St. 1920, c. 371, the Legislature further amended said sec- 
tion 45 by substituting therefor a new section, which contains 
the following provision: — 



1921.] PUBLIC DOCUMENT — No. 12. 175 

(a) The salary of the superintendent in such a union shall be not 
less than the amounts provided in the following schedule: Twenty- 
two hundred dollars for the first year of service, twenty-three hundred 
dollars for the second year, twenty-four hundred dollars for the third 
year, twenty-five hundred dollars for the fourth year. In case his 
salary is not in excess of twenty-nine hundred dollars, he shall also 
be reimbursed for his actual travelling expenses incurred in the dis- 
charge of his duties, but such reimbursement may be limited by the 
school committee to four hundred dollars a year. 

You inquire whether a union which employs for the first 
time a superintendent of schools W'ho has already served four 
years in another union in this state must pay such superin- 
tendent a minimum salary of $2,200 or of $2,500. 

The act, as amended, does not prescribe the salary of the 
superintendent of a union. It prescribes a minimum below 
which that salary must not fall. The union may pay as much 
more as it sees fit or as the parties may agree upon. The 
single question, therefore, is whether previous service in one 
union is to be considered in determining the minimum salary 
to be paid by another union. 

A town is a political subdivision of the State. This act is 
in effect a legislative grant which places a burden upon towns, 
a part of which is borne by the State. In case of doubt, such 
an act is to be construed in favor of the State and of the tow^n. 
Butchers Slaughtering, etc., Assn. v. Boston, 214 Mass. 254, 258. 
There is no express provision that previous service in another 
union is to be considered in determining the minimum salary 
which a union must pay. If such was the intention of the 
Legislature, it would have been easy to have so provided in 
unmistakable terms. To reach this result by construction not 
only resolves a possible doubt against the State and the towns, 
but also seems to require the addition of words by implica- 
tion. The payment is made for service "in such a union." 
The increase is for further years of service therein. Full effect 
is^given to the language used if service in the particular union 
is alone considered. I am not unmindful that by R. L., c. 8, 
§ 4, par. 4, "words importing the singular number may extend 
and be applied to several persons or things/' unless such con- 
struction would be inconsistent with the manifest intent of 
the Legislature or repugnant to the context of the same 
statute. But I do not find that this provision is applicable. 
I am therefore of opinion that previous service in another 



176 ATTORNEY-GENERAL'S REPORT, [Jan. 

union is not to be considered in fixing the minimum salary of 
a superintendent, and that in the case which you put the mini- 
mum salary is $2,200 rather than $2,500. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Fisheries and Game — Act of Fishing — Rowing Boat for An- 
other to troll. 

A man who is rowing a boat for his wife, while she is fishing by means of 
trolling, cannot be prosecuted for fishing without a license. 

If he also engaged in landing the fish, or otherwise assisted in the fishing 
operation, he might well be held to be engaged in fishing. 

July 1, 1920. 

Mr. William C. Adams, Director, Division of Fisheries and Game, De- 
partment of Conservation. 

Dear Sir: — You have requested my opinion as to whether 
or not, under the provisions of Gen. St. 1919, c. 296, relative 
to hunting and fishing licenses, a man who is rowing a boat for 
his wife, while she is fishing by means of trolling, needs a 
fishing license. You point out that under section 8 a woman is 
not required to take out a license to fish, and therefore you 
wish to know whether or not, if her husband rows a boat for 
his wife while she is fishing, he could be prosecuted for fishing 
without a license. 

Gen. St. 1919, c. 296, provides that it shall be unlawful for 
any person to hunt or to fish in any of the inland waters of 
the Commonwealth without having first obtained a certificate 
of registration. 

So far as your question is concerned, all that the statute 
makes unlawful is fishing without a license, and applies only 
• to the act of fishing. In my judgment, the statute cannot be 
construed to include a man who rows a boat for his wife, who 
is trolling for fish, any more than it would apply to an owner 
of a motor boat who for hire operated the boat on inland 
waters in order to enable a woman to fish therein. 

Just what constitutes "fishing," within the prohibition of 
the act, is a question of fact to be determined in view of all 
the circumstances in each individual case. If the person 



1921.] PUBLIC DOCmiENT — No. 12. 177 

rowing the boat also engaged in landing the fish, or otherwise 
assisted in the fishing operation, he might well be held to be 
engaged in fishing. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Fisheries and Game — Short Lobsters — Search without a 
Warrant — Hotel Kitchen, Ice Box, Connecting Parts of 
Building. 

Under St. 1904, c. 367, as amended by St. 1910, c. 548, officers of the 
Division of Fisheries and Game can, if there is reason to believe that 
short lobsters are being held, search without a warrant a hotel kitchen, 
ice box and such parts of connecting buildings as are not occupied 
for dwelling purposes. 

July 2, 1920. 

Mr. William C. Adams, Director, Division of Fisheries and Game, De- 
partment of Conservation. 

Dear Sir: — You have requested my opinion as to whether 
or not, under the provisions of St. 1904, c. 367, as amended 
by St. 1910, c. 548, your officers would be justified in search- 
ing without a w^arrant for short lobsters in a hotel kitchen, ice 
box or such parts of connecting buildings as are not used for 
sleeping quarters. 

The original statutory provision in point is found in R. L., 
c. 91, § 91. It deals with the right of search for short lobsters, 
and reads as follows: — 

For the purpose of enforcing the provisions of section eighty-eight 
(legal length of lobsters), any one of the commissioners on fisheries and 
game or their deputy or any member of the district pohce may search 
in suspected places for, seize and remove lobsters which have been 
unlawfully taken, held or offered for sale. 

Subsequently the Legislature passed a general law relative 
to the right of search relating to any game or fish. This 
statute is St. 1904, c. 367, as amended by St. 1910, c. 548, and 
reads as follows : — 

Section 1. Any commissioner on fisheries and game, deputy com- 
missioner on fisheries and game, or member of the district police, may, 
with or without a warrant, search any boat, car, box, locker, crate or 
package, and any building, where he has reason to believe any game 



178 ATTORNEY-GENERAL'S REPORT. [Jan. 

or fish taken or held in violation of law is to be found, and may seize 
any game or fish so taken or held, and any game or fish so taken or 
held shall be disposed of by the commissioners on fisheries and game 
as they may deem advisable for the best interests of the common- 
wealth: provided, however, that this section shall not authorize entering 
a dwelling house, or apply to game or fish which is passing through 
this commonwealth under authority of the laws of the United States. 

Section 2. A court or justice authorized to issue warrants in 
criminal cases shall, upon complaint under oath that the complainant 
believes that any game or fish unlawfully taken or held is concealed 
in a particular place, other than a dwelling house, if satisfied that there 
is reasonable cause for such belief, issue a warrant to search therefor. 
The search warrant shall designate and describe the place to be searched 
and the articles for which search is to be made, and shall be directed 
to any oflficer named in section one of this act, commanding him to 
search the place where the game or fish for which he is required to 
search is believed to be concealed, and to seize such game or fish. 



It is not necessary to make any extended argument to estab- 
lish the fact that lobsters are included within the designation 
"fish" in section 1 of the general act. The general law 
relating to fisheries, comprising R. L., c. 91, contains the pro- 
visions relative to lobsters, and section 91 of that chapter is 
undoubtedly superseded by St. 1904, c. 367. 

The remaining question is w^hether the provision in the 
statute which exempts dwelling houses from the right of 
search without a warrant makes it unlawful to search without 
a warrant a hotel kitchen, ice box or such parts of connecting 
buildings as are not used for sleeping quarters. The distinc- 
tion, as correctly indicated by your question, is not between a 
hotel and a dwelling house, but between such parts of a hotel 
as are not used for dwelling purposes; and the line of demar- 
cation, generally speaking, is between those parts of a hotel 
which are occupied by the guests, and w^hich have the privacy 
of a dwelling house, and those parts of a hotel which are pub- 
lic, where the privacy of a person living in a hotel would not 
be invaded. There can be no question that a restaurant could 
be searched, and it should make no difference whether the res- 
taurant is conducted as a part of a hotel or without provision 
for lodging guests. In the same way a room which might be 
exempt fron the right of search when used by a guest would 
not be exempt from search if it was not in use by a guest but 
was being used as a storeroom by the proprietor. 



1921.] PUBLIC DOCUMENT — No. 12. 179 

I am, accordingly, of the opinion that your officers would 
be justified in searching a hotel kitchen, ice box or such parts 
of connecting buildings as are not occupied for dwelling pur- 
poses. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Pardo7iing Power — Discharge of a Person committed to the 
State Hospital at Bridgewater after Trial for Murder. 

The pardoning power does not extend to one confined at the State 
Hospital at Bridgewater when such person has been committed after 
having been found not guilty of murder on account of insanity. 

Such person may be discharged, however, by the Governor, with the 
advice and consent of the Council, when, after an investigation by 
the Department of Mental Diseases, the Governor is satisfied that the 
person so confined may be discharged without danger to others. 

July 2, 1920. 

His Excellency Calvin Coolidge, Governor of the Commonwealth. 

Sir: — My opinion is requested by Your Excellency upon 
the question whether the Governor and Council have author- 
ity to consider an application for release from the Bridgewater 
State Hospital. The applicant was found not guilty of mur- 
der on account of insanity, and was committed for life to the 
Bridgewater State Hospital, on Oct. 9, 1916. He now applies 
for pardon on the ground that his sanity is restored. 

First of all, I am of opinion that this is not a case for the 
exercise of the pardoning power. Mass. Const., pt. 2d, c. II, 
§ 1, art. VIII, places "the power of pardoning offences" in the 
Governor, by and with the advice of the Council. The 
applicant in this case was found "not guilty" by the jury 
before whom he was tried; he has therefore committed no 
offence for which he may be pardoned. 

Relative to the question of discharge from confinement, as 
distinguished from pardon, St. 1909, c. 504, § 104, provides: — 

If a person who is indicted for murder or manslaughter is ac- 
quitted by the jury by reason of insanity, the court shall order him 
to be committed to a state hospital for the insane during his natural 
life, and he may be discharged therefrom by the governor, with the 



180 ATTORNEY-GENERAL'S REPORT. [Jan. 

advice and consent of the council, when he is satisfied after an in- 
vestigation by the state board of insanity that such person may be 
discharged without danger to others. 

The meaning of this statute is made very clear in the case 
of Gleason v. Inhabitants of West Boylston, 136 Mass. 489, 490, 
where the following language appears : — 

The practical effect of the St. of 1873 is to provide that, in case of 
an indictment for homicide, the insanity of the defendant is not a 
defence which entitles him to an unconditional acquittal, but that he 
shall be detained in confinement until it appears to the Governor and 
Council that he may be discharged and set at large without danger 
to others. He is not committed to the hospital for the purposes of 
treatment as a lunatic. He is not held there as other inmates are held; 
he cannot be discharged, as others can be, by the trustees, or by a 
court upon proof that he is not insane, or, if insane, can be sufficiently 
provided for by himself or his friends, or the town of his settlement. 
Pub. Sts. c. 87, § 40. He is confined in the hospital as a place of de- 
tention, because his being at large would be dangerous to the peace 
and safety of the communit3^ 

Gen. St. 1916, c. 285, § 1, provides: — 

The state board of insanity ... is hereby abolished. All the 
rights, powers and duties of said board are hereby transferred to 
. . . the commission on mental diseases. . . 

Gen. St. 1919, c. 350, § 79, provides that "the department of 
mental diseases shall consist of the Massachusetts commission 
on mental diseases. . . ." 

It appears, therefore, that the investigation provided for by 
St. 1909, c. 504, § 104, above quoted, is to be made by the 
Department of Mental Diseases. 

It is my opinion that Your Excellency, with the advice and 
consent of the Council, has authority to consider the appli- 
cation for discharge from the institution, but that no discharge 
can be granted unless, after an investigation by the Depart- 
ment of Mental Diseases, Your Excellency is satisfied that the 
applicant may be discharged without danger to others. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



1921.1 PUBLIC DOCOIENT — No. 12. 181 



Interstate Rendition — Information — Sworn Evidence of Flight 

from Justice. • 

An information is neither an indictment nor "an affidavit made before a 
magistrate charging the person demanded" with crime, one of which 
is required by § 5278 of the Revised Statutes of the United States 
as a condition of compliance with a requisition for the surrender of a 
fugitive from justice. 

Transcripts of testimony are not "sworn evidence" that the person de- 
manded is a fugitive from justice, as required by R. L., c. 217, § 11. 

July 6, 1920. 

« 
His Excellency Calvin Coolidge, Governor of the Com,monwealth. 

Sir: — You have referred to this department for examina- 
tion and report a requisition of the Governor of Vermont, with 
accompanying papers, for the arrest and extradition of certain 
alleged fugitives from justice charged with the crime of 
adultery. 

Pursuant to a request of counsel for the alleged fugitives, a 
hearing was held at this office on the first day of July, 1920. 
No testimony or argument was submitted at the hearing 
tending to show that the requisition of the Governor of Ver- 
mont should not be complied with. One of the alleged fugi- 
tives stated that she was "probably" in Vermont on the day 
when the crime is alleged to have been coriimitted, namely, 
the first day of April, 1919; and the other alleged fugitive 
stated that he was not in Vermont on that day, but admitted 
that he was there later in the month of April, 1919, and at 
various other times before and after the first day of April, 
1919. This testimony on the part of the demanded persons 
themselves tended to support rather than contradict the proof 
accompanying the demand that the persons demanded are 
fugitives from justice of the State of Vermont. 

I am of opinion, however, after a careful examination of all 
the papers, that Your Excellency would not be justified in 
complying with the demand of the Governor of Vermont so 
long as it is based upon the complaint which now accom- 
panies it. 

Except for certain provisions of our local statutes, which 
are procedural in their nature and supplemental to Federal 
law, the statutory law of interstate rendition is to be found in 
section 2 of article IV of the Constitution of the United 



182 ATTORNEY-GENERAL'S REPORT. [Jan. 

States and in the Revised Statutes of the United States, § 5278, 
(Compiled Statutes, § 10126). The latter provides: — 

Whenever the executive authority of any State or Territorj^ de- 
mands any person as a fugitive from justice, of the executive authority 
of any State or Territory to which such person has fled, and pro- 
duces a copy of an indictment found or affidavit made before a 
magistrate of any State or Territorj^, charging the person demanded 
with having conunitted treason, felony, or other crime, certified as 
authentic by the Governor or chief magistrate of the State or Ter- 
ritory from whence the person so charged has fled, it shall be the duty 
of the executive authority of the State or Territory to which such 
person has fled to cause him to be arrested and secured, and to cause 
not!ce of the arrest to be given to the executive authoritj' making 
such demand, or to the agent of such authority appointed to receive 
the fugitive, and to cause the fugitive to be delivered to such agent 
when he shall appear. If no such agent appears within six months 
from the time of the arrest, the prisoner may be discharged. All 
costs or expenses incurred in the apprehending, securing and trans- 
mitting such fugitive to the State or Territor}^ making such demand 
shall be paid b}^ such State or Territory. 

Your Excellency will observe that the statute requires the 
executive authority of the demanding State to produce "a 
copy of an indictment found or an affidavit made before a 
magistrate, charging the person demanded" with crime. The 
Governor of Vermont has produced a complaint. In my opin- 
ion, this complaint is not an affidavit, and therefore the 
demand of the Governor of Vermont is not brought within the 
terms of the Federal statute above quoted. 

In Cyclopedia of Law and Procedure, vol. 2, p. 4, an affi- 
davit is defined to be "a declaration on oath, reduced to 
writing, and affirmed or sworn to by affiant before some person 
who has authority to administer oaths." The complaint 
before me purports to be made by Ernest E. Moore, State's 
Attorney, "on his oath of office," and does not appear to have 
been sworn to before the magistrate whose signature authenti- 
cates it. Said magistrate does not state that it was sworn to 
before him, but states, on the contrary, that it "was exhibited 
to the court" on a date named. As appears from a certificate 
of the Governor of Vermont, which accompanies the requisi- 
tion, the State's Attorney has forwarded his oath of office to 
the Executive Department of the State; but it does not ap- 
pear that this oath was taken before the magistrate whose 



1921.] PUBLIC DOCUMENT — No. 12. 183 

name appears upon the complaint, or that it was taken with 
reference particularly to the facts alleged therein. I am of 
opinion, therefore, that the complaint does not come within 
the above-quoted definition of an affidavit. 

The document before me is an information rather than an 
affidavit. The State's Attorney, who executed it, does not 
profess to have any personal knowledge that would justify him 
in making an affidavit to the facts. This construction is sup- 
ported by the following quotation from an affidavit made by 
the State's Attorney, which accompanies the requisition: — 

That the court then directed that the matter be brought to the 
attention of the State's Attorney for prosecution. That no grand 
jury has been in session in Windsor County since said trial, and the 
matter has never been before the grand jury. 

The trial referred to was held upon a petition for divorce, 
out of which the prosecution for adultery arose, and the State's 
Attorney was not a witness in that proceeding. Moreover, the 
State's Attorney stated in conversation at the hearing in this 
office that he had no personal knowledge of the alleged crime, 
and had made his complaint at the suggestion of the court 
before whom the said trial of divorce was heard. 

Substantially the very question herein discussed was raised 
in State v. Richardson, 34 Minn. 115, and was decided by the 
Supreme Court of Minnesota in accordance with the view 
above expressed. At page 117 the court said: — 

But a complaint is not necessarily an affidavit, nor are they in legal 
practice or contemplation understood as convertible terms. For, 
though a complaint may be reduced to writing and subscribed, it 
need not necessarily be certified by the magistrate, for the fact may 
otherwise appear by his records. And so a complaint may be merely 
formal, and made or entered by one who has but little, if any, knowledge 
about the facts, and the examination consist of the deposition of other 
witnesses [State v. Armstrong, 4 Minn. 251, (355)], while an affidavit, 
as the term is ordinarily used in such cases, is understood to be a 
sworn statement of facts or a deposition in writing, and to include a 
jurat, which means a certificate of the magistrate, showing that it 
was sworn to before him, including the date and sometimes, also, the 
place. Young v. Young, 18 Minn. 72, (90). In this class of cases it 
will be implied from the executive authentication that the certifying 
officer is such magistrate. 

To the same effect is Ex 'parte Hart, 63 Fed. Rep. 249. 



184 ATTORNEY-GENERAL'S REPORT. [Jan. 

A second objection to compliance with the demand may 
possibly be raised. R. L., c. 217, § 11, provides that "such 
demand or application shall be accompanied by sworn evi- 
dence that the person charged is a fugitive from justice. ..." 
The testimony of the demanded persons at the hearing in this 
office was not taken under oath. The only sworn evidence 
before Your Excellency, therefore, upon the flight from justice 
is a transcription of the evidence heard by the court in the 
divorce trial above referred to. By tending to prove the 
adultery charged in the complaint, this evidence tends to prove 
also that the demanded persons were in Vermont at or about 
the time when the crime is alleged to have been committed, 
and that they are therefore fugitives from justice. I am of 
opinion, however, that this transcription, though doubtless 
correct and accurate in all respects, is a record or report of 
sworn evidence rather than sworn evidence itself. Had the 
witnesses in the divorce proceeding appeared before Your 
Excellenc}^ and testified under oath to the same effect as upon 
the trial of divorce, or had they made affidavits to the same 
facts as to which they had testified at said trial, Your Excel- 
lency would have had before him the sworn evidence directed 
by the statute. As the matter stands, however. Your Excel- 
lency has before him merely what the court reporter certifies 
to have been the testimony of certain persons in a proceeding 
entirely distinct from this extradition proceeding. This, in 
my opinion, is hearsay evidence not sworn to, and is not the 
** sworn evidence" which the Legislature has said the Governor 
shall have before him. A certified copy of an affidavit, while 
perhaps as persuasive as the affidavit itself, would not be 
''sworn evidence," and the transcript of testimony annexed to 
the demand of the Governor of Vermont is open to the same 
objection. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 185 



Insurance — Discrimination — Trust Fund of Unearned Pre- 
mium on Retroceded Business. 

A plan by which an insurance company accepts reinsurance from direct 
writing companies, and then retrocedes all but a small part of such 
reinsurance to companies allied with it, under a contract by which 
such retrocessionaire is bound to hold the premium paid in advance 
upon the retroceded business in trust to pay over such premium to 
itself as and when earned, the unearned portion of such premium 
to be applied to procure reinsurance of the retroceded business in 
some other company, in case the retrocessionaire becomes insolvent 
or suffers an impairment of its capital, is in conflict with the policy 
declared by St. 1908, c. 151, and may involve a discrimination for- 
bidden by St. 1912, c. 401, § 1, and therefore should not be approved 
by the Commissioner of Insurance. 

July 6, 1920. 

Hon. Clarence W. Hobbs, Commissioner of Insurance, 

Dear Sir: — I have the honor to acknowledge your letter 
in which you request my opinion on the following questions 
of law : — 

Under chapter 151 of the Acts of 1908 loss claims in the case of 
insolvency of a domestic fire insurance company are deemed to be 
preferred claims over claims for return premiums on uncompleted 
contracts. It is a not uncommon feature of contracts for reinsurance 
that the company which cedes reinsurance retains the unearned 
premiums as a deposit which, as the premiums are earned, enures to 
the benefit of the company accepting the reinsurance. Now that 
several reinsurance companies have been formed in this State, the 
question becomes of importance as to whether these companies, which 
are bound by the provisions of the statute above cited, can allow 
the unearned premiums upon the reinsurance ceded to them to be 
held in a special deposit, either in the hands of the ceding company 
or in the hands of trustees, with the proviso that only so much of the 
funds should be deliverable to the reinsuring company as exceeds the 
unearned premium reserve on the business ceded. The Insurance 
Commissioner is aware of no provision of law which definitely forbids 
the writing of insurance by a stock company upon the principle that 
the premium shall be paid over only when and as it is earned, although 
the form of annual statement set forth in section 101 of chapter 576 
of the Acts of 1907 provides for the reporting of gross and net premiums 
and of unearned premiums. 

The question, therefore, which is submitted is whether a 
Massachusetts company ma^' write reinsurance upon the basis 
outlined above. 



186 ATTORNEY-GENERAL'S REPORT. [Jan. 

I understand that your inquiry arises as a result of the 
submission to you for approval by the Eagle Fire Insurance 
Company of Newark, New Jersey, of a proposed agreement to 
be entered into by the Eagle Fire Insurance Company and 
certain Massachusetts reinsuring companies as retrocession- 
aires. The plan proposed by the Eagle Fire Insurance Com- 
pany is to accept reinsurance from direct writing companies 
and then to relieve itself of all but a small fractional part of the 
risks so assumed by retrocession to allied companies, under a 
form of reinsurance treaty which requires the retrocessionaires 
to hold unearned premiums as a trust fund for the reinsurance 
of the business placed with them by the Eagle Company, to 
be used in the event of the insolvency of the retrocessionaire 
or of the impairment of its capital. The evident purpose of 
this plan is to place the Eagle Company in a position where 
it will receive a preference with respect to unearned premiums 
upon the business ceded, as compared with creditors of the 
retrocessionaire, on account of actual fire losses. 

St. 1908, c. 151, reads as follows: — 

When a domestic fire insurance company, whether stock or mutual, 
becomes insolvent, or is unable to paj^ in full its liabilities as set forth 
in section eleven of chapter five hundred and seventy-six of the acts 
of the year nineteen hundred and seven, unpaid losses arising from the 
contingencies insured against bj^ its contracts shall, in the distribution 
of its assets, whether liquidation is effected by a receiver or otherwise, 
be deemed and treated as preferred claims over claims for return 
premiums on uncompleted contracts. But nothing in this act shall 
impair the obligations now or hereafter imposed by law upon the 
officers of a mutual company to make assessments to pay all legal 
obhgations of the company. 

I am informed by you that it is the usage of insurance 
companies to collect premiums in advance for the full period 
of each original policy, but that this usage does not invariably 
govern contracts of reinsurance. The effect of this usage is 
to create two classes of creditors, namely, creditors on account 
of actual fire losses, and creditors on account of the premium 
which has been already paid although not earned. The pur- 
pose of St. 1908, c. 151, is to give fire loss claimants a priority 
over creditors on account of premium which has been paid but 
not earned. The purpose of the proposed agreement is to 
avoid the operation of this statute, in that the premiums upon 



1921.] PUBLIC DOCUIVIENT — No. 12. 187 

the retroceded business, although paid in advance, are held in 
trust and paid over absolutely to the retrocessionaire only as 
and when earned. The unearned portion of such premium is 
repaid to the Eagle Company in the event that the retro- 
cessionaire becomes insolvent or suffers an impairment of its 
capital. This plan, when coupled with the custom of collect- 
ing premiums for the whole period of the policy in advance, 
results in making the premiums collected in advance from 
other parties available to pay losses which may be sustained 
upon the insurance procured from the retrocessionaire by the 
Eagle Company, although the Eagle premiums are not avail- 
able to pay the fire losses of those who have thus paid in 
advance, except in so far as the Eagle premiums have been 
actually earned. Even if the proposed plan does not conflict 
with the letter of St. 1908, c. 151, it is, in my opinion, in con- 
flict with the policy therein declared. 

But putting aside St. 1908, c. 151, another question is 
whether the provisions of the proposed agreement can be 
reconciled with St. 1912, c. 401, § 1, which reads as follows: — 

No insurance company transacting in this commonwealth any of 
the kinds of business specified in section thirty-two of chapter five 
hundred and seventy-six of the acts of the year nineteen hundred and 
seven, and no agent, sub-agent or broker shall pay or offer to pay or 
allow in connection with placing or attempting to place insurance 
any valuable consideration or inducement not specified in the policy 
contract of insurance, or any rebate of premium paj^able on the policy, 
or any special favor or advantage in the dividends or other benefits 
to accrue thereon; or give, sell or purchase or offer to give, sell or 
purchase in connection with placing or attempting to place insurance 
anything of value whatsoever not specified in the policy. 

The purpose of this act is to prohibit discrimination between 
those who procure insurance upon substantially similar con- 
ditions. In respect to collection of premiums in advance, is 
there any solid distinction between a direct contract of fire 
insurance and a contract of reinsurance? The two contracts 
differ in the nature of the interest insured. In the case of a 
direct contract of insurance against fire the insurable interest 
is an interest in the property exposed to the risk of fire. In 
the case of a contract of reinsurance the insurable interest is 
a contract of insurance previously made by the company which 
procures the reinsurance. But if a fire occurs, the payment is 



188 ATTORNEY-GENERAL'S REPORT. [Jan. 

made in each case on account of the loss suffered by reason of 
such fire. So far as payment of premium in advance is con- 
cerned, I do not discern any solid ground of distinction be- 
tween direct insurance and reinsurance by reason of the differ- 
ence in the insurable interest already pointed out. In any 
event, there certainly seems to be no reasonable distinction 
between contracts of reinsurance procured by the Eagle Com- 
pany and contracts of reinsurance procured by other com- 
panies. If other companies which procure reinsurance pay the 
reinsurance premium in advance, and so take the risk of in- 
solvency or of impairment of capital on the part of the retro- 
cessionaire, the Eagle Company surely obtains a discrimination 
if, through the plan already described, it avoids that risk upon 
the business ceded by it. 

I am therefore of opinion that the plan described is not 
only in conflict with the policy declared by St. 1908, c. 151, 
but also may involve a discrimination forbidden by St. 1912, 
c. 401, § 1, and should, therefore, not be approved. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Taxation — War Poll Tax — Exemption — Persons summoned 
in Draft who were discharged before being mustered into the 
Federal Service — Abatement of Three Dollar Poll Tax — 
How to be certified and allowed. 

A state of war continues to exist in point of law until terminated by a 
treaty of peace or by a proclamation of peace, even though an armis- 
tice has ended actual hostilities. 

Gen. St. 1918, c. 49, as amended by Gen. St. 1919, c. 9, continues in force 
until the war is terminated either by a treaty of peace or by a procla- 
mation of peace. 

The exemption from all poll taxes granted by Gen. St. 1919, c. 9, does not 
include persons summoned in the draft who reported for duty but 
were discharged before they were mustered into the Federal service. 

St. 1920, c. 609, does not extend to those within its provisions the 
exemption from all poll taxes conferred by Gen. St. 1919, c. 9. 

St. 1920, c. 609, does extend to those within its provisions a right to the 
abatement of the war poll tax of S3 imposed by Gen. St. 1919, c. 283, 
§ 9, but application for such abatement must be made within ninety 
days of the date of the tax bill, as required by St. 1920, c. 608, § 2. 

Abatements of the war poll tax of $3, made under Gen. St. 1919, c. 283, 
§ 9, to those within the provisions of St. 1920, c. 609, may be certified 
and allowed under St. 1920, c. 552. 



1921.] PUBLIC DOCmiENT — No. 12. 189 

July 8, 1920. 

Hon. William D. T. Trefry, Commissioner of Corporations and Taxation. 
Dear Sir: — In your letter of June 14, 1920, you ask my 
opinion upon the following questions: — 

1. Is Gen. St. 1918, c. 49, as amended by Gen. St. 1919, c. 9, still 
in force ? 

2. Are persons summoned in the draft, who duly reported for duty 
but who were discharged by reason of physical or mental disability 
before being mustered into the Federal service, entitled to the ex- 
emption from all poll taxes granted by said Gen. St. 1919, c. 9? 

3. Are persons within the provisions of St. 1920, c. 609, entitled to 
an abatement of war poll taxes under Gen. St. 1919, c. 283, § 9, and if 
so must the application be made as required b}' St. 1920, c. 608, § 2 ? 

4. May the abatements made under Gen. St. 1919, c. 283, § 9, 
pursuant to St. 1920, c. 609, be certified and allowed under St. 1920, 
c. 552 ? 

1. Gen. St. 1918, c. 49, as amended by Gen. St. 1919, c. 9, 
applies ''during the continuance of the war." The latter act 
was approved on Feb. 17, 1919, over three months subsequent 
to the armistice. The phrase "during the continuance of the 
war" cannot, therefore, be construed to mean continuance of 
hostilities. It must refer to the legal termination of the war. 
X state of war legally continues until terminated by a treaty 
of peace or by a proclamation of peace. Hamilton v. Ken- 
tucky Distilleries Co., 251 U. S. 146, 161; Hijo v. U7iited States, 
194 U. S. 315, 323. Neither of these events has as yet oc- 
curred. It follows that Gen. St. 1919, c. 9, was still in force 
on April 1, 1920, and operated to exempt those within its 
terms from the So poll tax imposed under Gen. St. 1919, 
c. 283, § 10. To avoid misconception, I may add that a dis- 
charge from the service prior to April 1, 1920, does not affect 
the operation of the act. The clause "and thereafter up to 
and including the year of their discharge" refers to a discharge 
subsequent to the termination of the war. 

2. Gen. St. 1919, c. 9, applies to those "engaged in the 
military or naval service of the United States." In my opinion 
those who have not been mustered into the service are 
not "engaged" therein, within the meaning of this provision. 
Those who were sent to camp but failed to pass the physical 
tests, and so were not mustered into the service, are not 
entitled to the exemption from poll taxes conferred by Gen. 
St. 1919, c. 9. 



190 ATTORNEY-GENERAL'S REPORT. [Jan. 

3. St. 1920, c. 609, § 1, provides as follows: — 

Every person who was enlisted or inducted into the military service 
or who was called into the naval service of the United States during 
the war with Germany and who reported for duty at a mobilization 
camp, cantonment or naval station subsequent to February third, 
nineteen hundred and seventeen, and prior to November eighteenth, 
nineteen hundred and eighteen, shall be deemed to have been mustered 
into the federal service and to have reported for active duty within 
the meaning of section two of chapter two hundred and eighty-three 
of the General Acts of nineteen hundred and nineteen, notwithstand- 
ing the fact that such person was subsequently discharged from the 
draft or from further service on account of phj^sical or mental dis- 
ability, and if otherwise qualified shall be entitled to the benefits of 
said chapter two hundred and eigh ty- three : provided, that no benefit 
shall accrue under this act to a person who was discharged from the 
said service within thirty days after reporting for duty at such mobili- 
zation camp, cantonment or naval station. 

I cannot find in St. 1920, c. 609, anything which extends 
to those within its provisions the exemption from taxation 
conferred by Gen. St. 1919, c. 9. Exemptions from taxation 
are not to be lightly inferred, but must appear plainly, either 
from the express words or necessary intendment of the statute. 
Milford V. County Commissioners, 213 Mass. 162, 165; Wheel- 
wright V. Tax Commissioner, 235 Mass. 584. Every section of 
St. 1920, c. 609, confers on the persons therein defined "the 
benefits of" Gen. St. 1919, c. 283. No section refers to Gen. 
St. 1919, c. 9. If it was the intention of the Legislature to 
confer as well the exemption from taxation granted by the 
latter act, it would have been easy to have so provided in un- 
mistakable terms. In my opinion, the provision of St. 1920, 
c. 609, § 1, that the persons therein defined "shall be deemed 
to have been mustered into the federal service," was inserted 
for the limited purpose of extending to such persons the bene- 
fits of Gen. St. 1919, c. 283, and is not broad enough to in- 
clude the exemption from taxation conferred by Gen. St. 1919, 
c. 9. • ' 

4. Assuming that St. 1920, c. 609, is constitutional, those 
persons who come within its terms are "entitled to the benefits 
of" Gen. St. 1919, c. 283, provided that such persons either 
actually possess the qualifications prescribed by the latter act 
or are "deemed" to possess them under the provisions of St. 
1920, c. 609. Gen. St. 1919, c. 283, §§ 9 and 10, provide for 



1921.] PUBLIC DOCmiENT — No. 12. 191 

the levy of a poll tax of $5 in the years 1920, 1921, 1922 and 
1923, which is in effect an additional icar poll tax of S3 levied 
during those years. Gen. St. 1919, c. 283, § 9, further pro- 
vides, in part : — 

An}^ person entitled to the benefits of this act shall, upon apphca- 
tion to the board of assessors of the city or town in which he resides, 
receive an abatement of the additional war poll tax assessed upon 
him under the provisions of this section. 

Clearly, the right to apply for and receive an abatement 
of this war poll tax of $3 is one of the benefits of Gen. St. 
1919, c. 283. I am therefore of opinion that all persons to 
whom those benefits are extended by St. 1920, c. 609, are 
entitled to apply for and receive such abatement. 

St. 1920, c. 608, § 2, provides as follows: — 

No appUcation for an abatement under this act, and no application 
for abatement made by a veteran of the world war under section nine 
of chapter two hundred and eightj-three of the General Acts of nine- 
teen hundred and nineteen, shall be considered unless made within 
ninety days from the date of the tax bill. 

It places a limitation upon the right to abatement con- 
ferred by Gen. St. 1919, c. 283, § 9. It may be that the word 
"veteran" is not altogether apt as applied to some, at least, 
of the persons to whom St. 1920, c. 609, extends the benefits 
of Gen. St. 1919, c. 283. But those who thus receive the 
benefits of section 9 of said chapter 283 must take them sub- 
ject to the limitation placed thereon by section 2 of said 
chapter 608. 

I am therefore of opinion that those who by virtue of St. 
,1920, c. 609, claim the abatement permitted by Gen. St. 1919, 
o. 283, § 9, must apply within the ninety days prescribed by 
St. 1920, c. 608, § 2. 

St. 1920, c. 552, expressly applies to abatements granted 
under Gen. St. 1919, c. 283, § 9. St. 1920, c. 609, grants 
to those within its terms the benefit of the abatement con- 
ferred by Gen. St. 1919, c. 283, § 9. I am of opinion that 
abatements made under said section 9, pursuant to St. 1920, 
0. 609, may be certified and allowed under St. 1920, c. 552. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



192 ATTORNEY-GENERAL'S REPORT. [Jan. 



Public Health — Tuberculosis Hospitals — Construction by 
Counties — Temporary supplying of Hospital Facilities — 
Counties of less than 50,000 Population. 

Gen. St. 1916, c. 286, § 2, gives temporary authority to the county com- 
missioners of any county to make an original contract for the care 
of tuberculosis patients up to April 1, 1921. 

Gen. St. 1916, c. 286, § 5, gives permanent authority which may be 
exercised subsequently to April 1, 1921, by counties having a popula- 
tion of less than 50,000. 

July 9, 1920. 

Eugene R. Kelley, M.D., Commissioner oj Public Health. 

Dear Sir: — You ask for a construction of Gen. St. 1916, 
c. 286. You state that ''the Department of Public Health 
maintains that section 2 is to be considered a temporary 
measure which enables a county to contract for the care of its 
tubercular citizens for the period until the county may build 
its own hospital. The department also maintains that section 
5 is to be a permanent arrangement for the counties whose 
population is less than 50,000. The county commissioners of 
Middlesex County have taken the ground that section 2 ap- 
plies only to the counties mentioned in section 5, namely, 
those whose population is under 50,000, and that therefore 
they could not legally contract for the care of their tubercular 
citizens, under section 2, as their population is over 50,000." 
You request an interpretation of these two sections. 

Section 2 reads as follows: — 

A contract entered into before Januarj^ first of the year nineteen 
hundred and seventeen for a term of years not less than five nor more 
than twenty-five, and approved by the state department of health 
after a petition made to the said department and a public hearing 
thereon, between (a) boards of county commissioners of two adjoining 
counties, or (b) boards of county commissioners of any count}^ and 
the legally constituted authorities of any city within the same county, 
or (c) either county commissioners or the legally constituted authorities 
of cities of fifty thousand or more inhabitants and the trustees or 
authorities of any existing or future privately endowed tuberculosis 
institution, or the trustees of any fund available for the purpose of 
suppljdng hospital facilities for persons suffering from consumption, 
for the express purpose of supphing, within a reasonable time as 
provided in the conditions of approval of the state department of 
health, and guaranteeing adequate hospital provision for consumptives 



1921.] PUBLIC DOCUMENT — No. 12. 193 

coming under the provisions of this act, shall be held to be satisfactory 
compliance with the provisions of this act for such counties, sections 
of counties, or for such cities or classes of individuals, as the case may 
be, as are designated in the contract; and such contracts shall, sub- 
ject to the approval of the state department of health, be renewable 
upon such terms as shall be satisfactory to the contracting parties: 
provided, however, that if such contracts are not renewed and approved 
by the state department of health at least nine months before their 
expiration, or if the contracts are renewed and the state department 
of health shall refuse approval on the ground that by reason of changed 
circumstances the contract will be inadequate properly to protect the 
public health of the communities affected by it, and the contracting 
parties fail within six months before the time when the previous con- 
tract expires to agree to a renewal of the contract upon terms approved 
by the state department of health, the duties and obligations relative 
to suppljdng adequate hospital care for such counties, or sections of 
counties, cities or classes of individuals imposed upon county com- 
missioners and cit}' govermnents bj^ this act shall be in full force and 
effect. 

In my opinion, section 2 authorizes the county commis- 
sioners of any county to make an original contract for the care 
of tuberculosis patients up to the expiration of the period 
provided in said section, which was January 1, 1917. This 
date has, however, been extended by Gen. St. 1919, c. 32, § 1, 
to April 1, 1921. The clause of said section which reads, 
"or the legally constituted authorities of cities of fifty thou- 
sand or more inhabitants," applies, in my opinion, to cities 
alone. This view is in accord with two opinions rendered by 
my predecessor to Commissioner of Health McLaughlin on 
June 29, 1916, and July 6, 1916, respectively. 

The question then arises whether Gen. St. 1916, c. 286, § 5, 
limits this authority. Section 5 reads as follows: — 

County commissioners are authorized and directed, subject to the 
approval of the state department of health, to erect one or more 
hospitals within their respective counties to carrj' out the provisions 
of this act, or they may in the case of counties ha\dng a total popula- 
tion of less than fifty thousand inhabitants, as determined by the 
latest United States census, arrange to obtain tuberculosis hospital 
care for those consumptives coming within their jurisdiction by en- 
tering into a contract with a tuberculosis institution in a neighboring 
countj^ in accordance with the provisions of section two. No new 
tuberculosis hospital shall be erected under the provisions of this act 
having a total capacity of less than fifty beds. 



194 ATTORNEY-GENERAL'S REPORT. [Jan. 

In my opinion this section does not affect the temporary 
authority which may be exercised under section 2 by all coun- 
ties. It does provide a permanent authority which may be 
exercised subsequently to the date fixed by section 2, or any 
extension thereof, by counties having a population of less than 
50,000. This special grant of authority to counties of less 
than 50,000 cannot be construed to repeal by implication the 
more general authority conferred by section 2. 

I therefore advise you that the county commissioners of 
Middlesex County have authority to make an original con- 
tract for the care of tuberculosis patients up to April 1, 1921. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Constitutional Laic — Appropriation by Legislature — Date of 
going into Effect. 

An act of the Legislature, authorizing the payment of an annuity, which 
contains no provision declaring it to be an emergency law, and which 
provides for the payment of the annuity out of a particular item of 
an appropriation previously made, is not an appropriation of money, 
within the meaning of Mass. Const. Amend. XLVIII, The Referendum, 
pt. Ill, § 2, and does not go into effect until ninety days after it be- 
comes a law. 

July 9, 1920. 

George Lyman Rogers, Esq., Secretary, Metropolitan District Commission. 
Dear Sir: — You request my opinion as to the date on 
which Res. 1920, c. 56, takes effect. Said chapter 56 provides 
as follows: — 

Resolved, The metropolitan district commission may pay the sum 
of six hundred dollars a year for three j-ears to Isabel M. Ellis, wife of 
James B. Ellis, a police officer in the employ of the commission, but 
now incapacitated from the further performance of active duty; 
also the sum of six hundred dollars a year for three years to Catherine 
F. McCarthy, -widow of Richard M. McCarthy, who died December 
eighteen, nineteen hundred and eighteen, from illness contracted in 
the performance of his duties as a member of the metropolitan park 
police force. Should Catherine F. McCarthy die leaving any minor 
child or children before the expiration of three years, any balance 
remaining shall be paid to the guardian of such child or children to the 
end of the term. The amounts provided for in this resolve shall be 
paid out of item six hundred and thirtj'-five of the general appropria- 
tion act for the current vear. 



1921.] PUBLIC DOCUMENT — No. 12. 195 

Mass. Const. Amend. XLVIII, The Referendum, pts. I and 
II, provide as follows: — 

I. 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 made the subject of a 
referendum petition, as herein provided. 

II. A law declared to be an emergency law shall contain a preamble 
setting forth the facts constituting the emergency, and shall contain 
the statement that such law is necessary for the immediate preserva- 
tion of the public peace, health, safety or convenience. . . . 

Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, 
§ 2, provides: — 

No law that relates to religion, religious practices or religious in- 
stitutions; 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 appropriates money for the current or 
ordinary expenses of the commonwealth or for any of its departments, 
boards, commissions or institutions shall be the subject of a referendum 
petition. 

Res. 1920, c. 56, authorizes the payment of annuities by 
the Metropolitan District Commission to the wife of a former 
employee of the commission and to the widow of another 
employee of the said commission. It does not set aside any 
money with which to pay these annuities. It makes reference 
to a particular item of appropriation previously made b}^ the 
Legislature (St. 1920, c. 225, item 635) and thereby merely 
designates a particular appropriation out of which the money 
may be paid. I am of the opinion that such designation is 
not within the constitutional provision of Mass. Const. 
Amend. XLVIII, The Referendum, pt. Ill, § 2, and that 
said Res. 1920, c. 56, does not appropriate money, within 
the meaning of said section. 

As the said resolve contains no provision declaring it to 
be an emergenc}^ law, and as it has no relation to any of the 
excluded matter contained in said section 2, I am of the 
opinion that Res. 1920, c. 56, does not go into effect until 
ninety days after it became a law. 
Very truly yours, 

J. Weston Allen, Atiorney-GeneraL 



196 ATTORNEY-GENERAL'S REPORT. [Jan. 



Elementary, Junior High and High Schools — Compulsory 
Courses in Civics and History. 

Under the provisions of St. 1920, c. 411, all pupils in the elementary schools 
in the Commonwealth are obliged to take a course in history and a 
course in civics prior to their graduation from said schools, and at 
least one course in each of said subjects during their attendance at 
the public high school. The first two grades of the "junior high 
schools," so called, are considered as a part of the elementary schools, 
and the last grade as being a part of the pubhc high schools. 

July 10, 1920. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — I am in receipt of your letter in which you 
request my opinion as to the meaning of St. 1920, c. 411, 
which provides as follows: — 

There shall be taught in all public elementary and high schools in 
the commonwealth courses in American history and civics for the 
purpose of promoting civic service and a greater knowledge of American 
history and of fitting the pupils, morally and intellectually, for the 
duties of citizenship. All pupils attending the said schools shall be 
required to take one or more of the courses herein specified at some 
time during their attendance at said schools. 

Under the provisions of R. L., c. 42, § 1, the teaching of 
American history in the public elementary schools was re- 
quired, while the teaching of civics in said schools was left 
within the discretion of the local school committees. The 
provisions of said section were amended by Gen. St. 1917, c. 
169, by virtue of which civil government was removed from 
those courses which were discretionary with the school com- 
mittee and made a required course, the same as American 
history. x\s pupils in the said elementary schools are obliged 
to take all of the courses given therein, the efPect of the said 
amendment was to make it obligatory upon all pupils therein 
to take a course in each of the said subjects prior to their 
graduation from said schools. 

As regards the public high schools, until the enactment of 
said chapter 411 the teaching of American History and civics 
was entirely discretional with the school committee of each 
city and town. The intention of the Legislature, therefore, 
in enacting said St. 1920, c. 411, was to extend the provisions 
of said Gen. St. 1917, c. 169, so as to apply to the public 



1921.] PUBLIC DOCUMENT — No. 12. 197 

high schools and to the pupils of the said schools. That 
being so, I am of the opinion that the word "courses," as 
used in the first sentence of said chapter 411, was unques- 
tionably intended by the Legislature to mean at least one 
course in American history and at least one course in civics, 
rather than more than one course in American history and 
civics combined. 

As the words "said schools," in the second sentence of said 
chapter 411, refer to the public elementary and to the public 
high schools, and as the courses specified are American 
history and civics, I am further of the opinion that all pupils 
attending the public elementary schools must take at least one 
course in both subjects during their attendance at said 
schools, and at least one course in both of said subjects 
during their attendance at the public high schools. 

No provision for the establishment of junior high schools 
is made in our statutes. Their establishment is of recent 
date, and is entirely discretional with the local school com- 
mittees. As as present constituted, the said schools consist 
of a three-year course. The first two years are equivalent 
to the two highest grades of the elementary schools, and 
the courses of study given therein are the same as those pro- 
vided for in the said upper grades. The last year is equiva- 
lent to the first year in the high school and the courses of 
study are similar to those given in the first year of the 
high school. In the city of Boston these schools are known 
as intermediate schools. The mere fact that these schools 
are called junior high schools in some of the cities and towns 
of the Commonwealth does not necessarily constitute them 
high schools within the common and well-understood meaning 
of the said term and as the term is used in said act. 

They are, in fact, a combination of the elementary and 
high schools, and inasmuch as the first two grades are equiva- 
lent to the two upper grades of the elementary schools, I am 
of the opinion that the first two upper grades of the said 
schools are to be considered as a part of the elementary 
schools, and included within the provisions of the said act 
which apply to the elementary schools, and the last grade as 
being a part of the public high schools, and included within 
the provisions of the said act which apply to the high schools. 
Very truly yours, 

J. Weston Allex, Attorney-General. 



198 ATTORNEY-GENERAL'S REPORT. [Jan. 



State Police — Pension — Consolidation Act. 

The provisions of St. 1911, c. 675, § 1, apph^ to former officers of the Dis- 
trict Police who are appointed to the State Police under the pro- 
visions of Gen. St. 1919, c. 350, § 101. 

July 10, 1920. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You have requested my opinion as to whether 
or not the provisions of St. 1911, c. 675, § 1, apply to officers 
appointed by you under the provisions of Gen. St. 1919, 
c. 350, § 101. 

St. 1911, c. 675, § 1, provides: — 

Any member of the district police who, in the judgment of the 
governor, is disabled for useful service in that department, and who is 
certified by a physician, designated by the governor, to be permanently 
incapacitated either physicallj^ or mentally, by injuries sustained 
through no fault of his own, in the actual performance of his duty, for 
the further performance of his duty in the department, and any member 
of the said department who has performed faithful service for the com- 
monwealth for not less than twenty years, and is, in the judgment of 
the governor, incapacitated for further service as a member of the said 
department, shall, if he so requests, be retired, and shall annually re- 
ceive a pension equal to one half of the compensation received by him 
at the time of his retirement. 

Gen. St. 1919, c. 350, § 101, provides: — 

The commissioner shall be the executive and administrative head of 
the department. He shall have charge of the administration and en- 
forcement of all laws, rules and regulations which it is the duty of the 
department to administer and enforce, and shall direct all inspections 
and investigations except as is otherwise provided herein. He shall 
organize the department in three divisions, namely, a division of state 
police under his own immediate charge, a division of inspection under 
the charge of a director to be known as chief of inspections, and a divi- 
sion of fire prevention under the charge of a director to be known as 
state fire marshal. The state fire marshal and the chief of inspections 
shall be appointed by the governor, with the advice and consent of the 
council, for the term of three years, and may, with like approval, be 
removed. The directors shall receive such annual salary, not exceeding 
four thousand dollars, as the governor and council may determine. 
The commissioner may, subject to the civil service law and rules where 
they apply, appoint, transfer and remove oflScers, inspectors, experts, 
clerks and other assistants, and, subject to the provisions of chapter two 



1921.] PUBLIC DOCmiENT — No. 12. 199 

hundred and twenty-eight of the General Acts of nineteen hundred and 
eighteen, and the rules and regulations made thereunder, and to the 
approval of the governor and council where that is required by law may 
fix the compensation of the said persons. 

Section 4 of said chapter 350 provides as follows: — 

Persons who, at the time when this act takes effect, are appointed to 
or employed bj^ an office, board, commission or other governmental 
organization or agencj^ abolished by this act, and are appointed to 
positions in any of the departments established hereb}^, shall retain all 
rights to retirement with pension that shall have accrued or would 
thereafter accrue to them, and their services shall be deemed to have 
been continuous, as if this act had not been passed. This act shall not 
be construed to reduce the compensation of present employees who are 
appointed to positions under the terms of the act where the compensa- 
tion of such employee is specifically fixed by statute. 

Accordingly, it is my opinion that the provisions of said 
section 1 of chapter 675 do apply to those officers appointed 
by you under section 101 of said chapter 350, said officers 
having been appointed by you to take the place of the district 
police force which w^as abolished by section 99 of said chapter 
350. 

Yours very truly, 

J. Weston Allex, Attorney-GeneraL 



Constitutional Law — Referendum — Appropriation Act. 

St. 1920, c. 424, § 1, which increases the salary of certain oflficers, is not 
an act which ''appropriates money for the current or ordinary expenses 
of the Commonwealth or for any of its departments, boards, com- 
missions or institutions," within the meaning of Mass. Const. Amend. 
XLVIII, The Referendum, pt. Ill, § 2. 

An appropriatic^n act defined. 

An act which contains no emergency preamble and which may be the 
subject of a referendum petition takes effect ninety days after it 
becomes a law. 

July 10, 1920. 

Mr. William D. Hawley, Deputy Auditor of the Commonwealth. 

Dear Sir: — You request my opinion as to whether St. 
1920, c. 424, being an act relative to the practice of dentistry, 
which was approved by His Excellency the Governor on May 
7, 1920, is subject to the ninety-day clause of the Constitution. 



200 ATTORNEY-GENERAL'S REPORT. [Jan. 

St. 1920, c. 424, § 1, provides: — 

Chapter three hundred and one of the General Acts of nineteen hun- 
dred and fifteen is hereby amended by striking out section three and 
substituting the following: — Section 3. The chairman and secretar}^ 
of the board of dental examiners shall each receive an annual salary of 
eight hundred dollars, and the other members of the board shall each 
receive an annual salary of six hundred dollars. Each member of the 
board shall receive in addition to his salary his necessary travelling 
expenses actually incurred in attending meetings of the board : provided, 
that he files an itemized account thereof with the auditor of the com- 
monwealth. The said salaries and expenses shall be paid out of the 
treasury of the commonwealth. ... 

Mass. Const. Amend. XLVIII, The Referendum, pts. I 
and II, provide as follows: — 

I. 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 made the subject of a refer- 
endum petition, as herein provided. 

II. A law declared to be an emergency law shall contain a preamble 
setting forth the facts constituting the emergency, and shall contain 
the statement that such law is necessary for the immediate preservation 
of the public peace, health, safety or convenience. . . . 

Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, 
§ 2, provides that — 

No law that relates to religion, religious practices or rehgious insti- 
tutions; or to the appointment, qualification, tenure, removal or com- 
pensation of judges; or to the powers, creation or aboHtion 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 common- 
wealth; or that appropriates money for the current or ordinary expenses 
of the conamon wealth or for any of its departments, boards, commis- 
sions or institutions shall be the subject of a referendum petition. 

The mere passage of an act by the Legislature, the carry- 
ing out of which will necessitate the expenditure of moneys 
from the treasury of the Commonwealth, does not of itself 
constitute an appropriation. What is necessary is explicit 
language setting apart or making available a sum of money 
to be applied towards the carrying out of the particular 
purposes of the act, or a general appropriation bill in w^hich a 



1921.] PUBLIC DOCUMENT — No. 12. 201 

sum of money is set apart or made available to be applied 
towards expenditures in a particular department or for a 
particular purpose, as mentioned therein. 

St. 1920, c. 424, § 1, increases the salary of the chairman, 
secretary and members of the Board of Dental Examiners. 
It does not set aside or make available any money with 
w^hich to pay these increases. If no further steps had been 
taken the additional salaries could not be paid. This ad- 
ditional step was later taken by St. 1920, c. 225, item 405. 
By this later enactment the Legislature recognized that St. 
1920, c. 424, § 1, is not an act which "appropriates money," 
within the constitutional provision. 

As St. 1920, c. 424, § 1, is not an emergency measure and 
does not contain any provision w^hich fixes the date when 
the increases shall take effect, and as it does not come within 
any of the excluded matters contained in said section 2 of 
part III, quoted above, and is therefore the subject of a 
referendum petition, I am of the opinion that this statute 
does not take effect until ninety days after it became a law, 
and that the increases do not become effective until that 
time. 

Very truly yours, 

J. Weston Allex, Attorney-General. 



Constitutional Laiv — Political Party — Offices — Women. 

Members of ward, town and city committees and delegates to State con- 
ventions are not public officers, and the selection of such members 
and delegates is subject to no constitutional inhibition. 

St. 1913, c. 835, as amended by Gen. St. 1919, c. 269, does not prohibit 
the selection of women to be members of ward, town or city com- 
mittees or delegates to State conventions. 

Under U. S. Const., art. II, § 1, cl. 2, a State Legislature may permit the 
appointment of a woman as a presidential elector, or to be a delegate 
to a convention which nominates such electors. 

July 12, 1920. 

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

Dear Sir: — You have requested my opinion as to the 
right of women to be members of ward and town committees 
and to be delegates to a State convention. 

St. 1913, c. 835, § 89, as last amended by Gen. St. 1919, 
c. 269, § 9, provides: — 



202 ATTORNEY-GENERAL'S REPORT. [Jan. 

Each political party shall, in every ward and town, elect at the 
primaries before each biennial state election, a committee to be called 
a ward or a town committee, to consist of not less than three persons, 
who shall hold office for two years from the first day of January next 
following their election and until their successors shall have organized. 

The members of the several ward committees of a political party in 
a city shall constitute a committee to be called a city committee. 

Each town committee shall, between the first day of January and the 
first day of March next follo\ving their election, and each ward and city 
committee shall, within thirty days after the beginning of its term of 
office, meet and organize by the choice of a chairman, a secretary, a 
treasurer and such other officers as it may decide to elect. At such 
meeting the committee may add to its numbers. 

The secretary of each citj^ and town committee shall, within ten days 
after its organization, file with the secretary of the commonwealth, 
with the city or tow^i clerk and with the secretary of the state committee 
of the pohtical party which it represents, a list of the officers and mem- 
bers of the committee. 

A vacancy in the office of chairman, secretary or treasurer of a city, 
ward or town committee shall be filled by the committee, and a vacancy 
in the membership of a w^ard or to\\Ti committee shall be filled by such 
committee, and a statement of any such change shall be filed as in the 
case of the officers first chosen. 

St. 1913, c. 835, § 92, provides: — 

A state, city or town committee may make rules and regulations, not 
inconsistent with law, for its proceedings and relative to caucuses called 
by it, and may fix the number of persons of whom it shall consist, which 
number shall be announced in the call for the meeting at which they are 
to be chosen. Each city or town committee may make reasonable 
regulations, not inconsistent with law, to determine membership in the 
party, and to restrain persons not entitled to vote at caucuses from at- 
tendance thereat or taking part therein. But no political committee 
shall prevent any voter from participating in a caucus of its party for 
the reason that the voter has supported an independent candidate for 
political office. A state committee may make rules and regulations, 
not inconsistent with law, for calling conventions. 

Section 126 of said chapter 835 reads as follows: — 

A political part}^ may, upon the call of its state committee, but not 
earlier than one week nor later than two weeks, after the holding of the 
primaries, hold a state convention for the purpose of adopting a plat- 
form, electing such number of members at large of the state committee 
as may be fixed by the state committee, nominating presidential elec- 



1921.] PUBLIC DOCUMENT — No. 12. 203 

tors, and for such other purposes not inconsistent with this act as the 
state committee or the convention may determine. Such convention 
shall consist of the delegates elected at the state primary (in number not 
less than one for each ward and town), the members of the state com- 
mittee, the United States senators from Massachusetts who are mem- 
bers of the party, the nominees of the party for all offices to be filled at 
the state election, and in years in which no elections are held for such 
offices, the incumbents of those offices who are members of the party. 

Ward, town and city committees are political committees 
in which is vested a share of the government of a political 
party; but since the members of such committees exercise no 
portion of the sovereign power, they are not public officers, 
and the fact that the Legislature regulates their conduct by 
statute does not make them public officers. Attorney -Gene red 
V. Drohan, 169 Mass. 534. Lewis and Putney Handbook on 
Election Law^ § 18. 

The election laws, which include the regulation of political 
committees, are intended '*to enable those who have the 
elective franchise to exercise it freely and safely and to make 
it certain that the will of the electors thus exercised shall be 
truly ascertained and given effect." Jaquith v. Selectmen of 
Wellesley, 171 Mass. 138, 142. Delegates to a State con- 
vention also exercise a share in the government of a political 
party, but are not entrusted with any portion of the sovereign 
power. 

Broadly speaking, the convention is the judge of its mem- 
bership. Our statutes in the case of both local committees 
and State conventions provide that the party shall control the 
membership in such committees and conventions. St. 1913, 
c. 835, §§ 92 and 126. Such statutory regulations as exist 
go no farther "than to prevent error and fraud, to secure 
order and regularity in the conduct of elections, and thereby 
give more security to the right itself." Capen v. Foster, 12 
Pick. 485; Kinneen v. Wells, 144 Mass. 497; Commonwealth 
V. Rogers, 181 Mass. 184. 

The Constitutions both of the United States and of the 
Commonwealth of Massachusetts are concerned with public 
officers and the right of the elective franchise by w^hich 
certain public officials are chosen, but they contain no mention 
of political parties or the committees or conventions thereof. 
Except as limited by the provisions of the Fifteenth Amend- 
ment to the Constitution of the United States, the qualifica- 



204 ATTORNEY-GENERAL'S REPORT. [Jan. 

tions of voters are determined either by our own Constitution 
or, in certain special cases, by statute. Kinneen v. Wells, 
144 Mass. 497; Opinion of the Justices, 115 Mass. 602; II Op. 
Atty.-Gen. 469. But as the officers in question are not 
public, and as the incumbents thereof are not public officials, 
it is clear that there is no constitutional inhibition against 
choosing as a committeeman or delegate whatever person the 
party members desire. The person so chosen exercises in the 
performance of his duties and privileges no elective franchise. 

Since there is no constitutional objection to women serving 
on ward or town committees or as delegates to a State con- 
vention, we must examine the statutes to see if they are in 
any way precluded thereby from acting as such. 

St. 1913, c. 835, § 89, quoted above, provides that the 
committee shall consist of "not less than three persons," and 
section 92 provides that "such committee may make regu- 
lations not inconsistent with law for its proceedings and to 
determine membership in the party.'' 

The word "person" is not made the subject of special 
definition in the election laws, and so has no narrow and 
technical signification. The provisions as to the elective 
franchise depend not upon membership in a political party 
but upon being a "voter," which is defined as a "registered 
male voter." Mass. Const. Amend. Ill; St. 1913, c. 835, § 1. 

The word "person," like the word "citizen," is broad 
enough to include both men and women. See Minor v. 
Happersett, 21 Wall. 162. I find no good reason for reading 
a sex limitation into the present section. But cf. an opinion 
of the Attorney-General, dated Feb. 10, 1920, to His Excel- 
lency Calvin Coolidge. In some instances the rules and 
regulations adopted by the committee or convention may be 
so drawn as to exclude women, but that is a matter for it to 
decide. 

It is therefore my opinion that neither the Federal nor the 
State Constitution nor the laws of the Commonwealth forbid 
women to be members of ward or town committees or dele- 
gates to a State convention. 

Assuming that women delegates have been elected, a 
question might arise as to their right to nominate presidential 
electors. This question is not directly raised by your in- 
quiry, but the answer thereto is pertinent to the issue already 
considered in this opinion. 



1921.] PUBLIC DOCUMENT — No. 12. 205 

U. S. Const., art. II, § 1, par. 2, provides tnat "each state 
shall appoint, in such manner as the legislature thereof may 
direct," electors for president and vice-president. As this 
power is conferred upon the States by the Federal Constitu- 
tion, it must be exercised in conformity therewith. But a 
wide choice as to the mode of exercise is given to the State 
Legislatures. Such appointment may be made by the Legis- 
lature directly or by popular vote in districts or by general 
ticket, as the Legislature may provide. McPherson v. BlackcTf 
146 U. S. 1. As a practical matter, most of the States ap- 
point such electors by popular vote, either by districts or 
by general ticket, some States having one provision and 
some the other. 

Under the doctrine of McPherson v. Blacker, supra, the 
Legislature might, in my opinion, appoint a woman as a 
presidential elector. It might equally permit the people to 
appoint her by their ballots. If so, it seems clear that the 
Legislature may permit a woman to sit and vote in the con- 
vention which nominates such electors. It has already been 
shown that our Legislature allows the party to determine 
who shall sit in the party convention. It follows that women 
may sit as delegates if the party so permits. I am therefore 
of opinion that the appointment of an elector could not 
successfully be assailed because women participated as dele- 
gates in the convention which nominated such elector. More- 
over, unless a candidate actually lost the nomination as elector 
through the votes of women delegates, he would have no 
ground for complaint. Mansfield v. Hutchings (House, 1886); 
Hoivard v. Neill (Senate, 1889); Andrews v. Gardner (House, 
1900); all reported in Massachusetts Election Cases. And 
if he did complain it would seem that the action of the con- 
vention in seating such delegates may well be conclusive. 
Walliiig V. Lansdon, 15 Ida. 282; State v. Liudahl, 11 N. D. 
320; In re Fairchild, 151 N. Y. 359. On all grounds, there- 
fore, it is my opinion that women may be admitted by a 
party to its part^' convention, and if so admitted, may 
lawfully participate in nominating presidential electors. 
Very truly yours, 

J. Westox Allex, Attorney-General. 



206 ATTORNEY-GENERAL'S REPORT. [Jan. 



Taxation — Income Tax — Stock Dividend. 

A stock dividend paid before Jan. 1, 1919. omitted from a taxpaj^er's 
return, is taxable after the passage of St. 1920, c. 352, exempting stock 
dividends received in 1919 and thereafter. 

There is nothing in the Federal law or decisions forbidding this Com- 
monwealth to tax stock dividends. 

July 14, 1920. 

Irving L. Shaw, Esq., Income Tax Director, Department of Corporations 

and Taxation. 

Dear Sir: — A foreign corporation declared on Nov. 30, 
1917, a stock dividend in new common stock of the same 
company. A Massachusetts taxpayer who received this 
stock omitted to include it in his tax return for 1918, and the 
omission has been discovered by a recent audit. You ask my 
opinion as to whether he is now taxable on account of said 
dividend. 

In 1918, Gen. St. 1916, c. 269, § 2, par. (b), was in force. 
This paragraph, in combination with the first sentence of 
section 2, reads, in part, as follows : — 

Income of the following classes received by any inhabitant of this 
commonwealth during the calendar year prior to the assessment of the 
tax shall be taxed at the rate of six per cent per annum : 

(b) Di\qdends on shares in all corporations . . . organized under the 
laws of any state . . . other than this commonwealth, except . . . 

The constitutionality of this provision was upheld in Tax 
Commissioner v. Garfield, 227 Mass. 522. In that case a 
stock dividend, declared out of an accumulation of earnings 
invested, prior to the passage of the income tax act in perma- 
nent plant additions, was held taxable as income, wathin the 
meaning of Mass. Const. x\mend. XLIV. 

On March 8, 1920, the Supreme Court of the United States, 
in deciding the case of Eisner v. Macomber, 252 U. S. 189, 
followed the reasoning of Toicne v. Eisner, 245 U. S. 418, 
and held that dividends in stock of the issuing corporation 
were not income, within the meaning of the Sixteenth Amend- 
ment to the Constitution of the United States. 

On April 23, 1920, chapter 352 of the Acts of 1920 was 
approved by the Governor. This act amended paragraph (6), 
supra, so as to read: — 



1921.] PUBLIC DOCUMENT — No. 12. 207 

Dividends, other than stock dividends paid in new stock of the com- 
pany issuing the same, on shares in all corporations . . . organized 
under the laws of any state . . . other than this commonwealth, 
except . . . 

Section 2 of the same act provided: — 

This act shall take effect as of the first day of January, nineteen 
hundred and twenty, and shall apply to dividends received in the year 
nineteen hundred and nineteen as well as in the current year and in all 
subsequent years. 

From the limitation in section 2 it is clear that the pro- 
visions of paragraph (b) of section 2 of the 1916 act, so far 
as they provide for the taxation of stock dividends, are not 
repealed but are made inoperative only as regards such 
dividends received in 1919 and subsequent years; and that 
the taxpayer mentioned in your letter is liable for a tax 
under the provisions of the 1916 law unless Eisner v. Macomher 
overrules Tax Commissioner v. Garfield. 

Although "the Massachusetts income tax amendment . . . 
is substantially identical with the Federal amendment" (dis- 
senting opinion of Justice Brandeis, Eisner v. Macomber), the 
majority of the court, while refusing to accept the reasoning 
in the cases of Tax Commissioner v. Putnam and Tax Com- 
missioner V. Garfield, 227 Mass. 522, remarked that ''the 
Massachusetts court was not under any obligation like the 
one which binds us, of applying a constitutional amendment 
in the light of other constitutional provisions that stand in 
the way of extending it by construction." Earlier in their 
opinion the majority discussed at some length the "other 
constitutional provisions" (Federal Income Tax Service, 1920, 
§§ 2584 to 2588, inclusive), and also distinguished the case 
of Swan Brewery Co., Ltd., v. Rex (1914), A. C. 231. 

The Garfield case determined the meaning of the word 
"income," as used in our State Constitution. That is a 
question of State law upon which the Supreme Court accepts 
the decision of the State court. Smiley v. Kansas, 196 U. S. 
447, 455. The Federal question which would then arise 
under the Garfield case is whether the State Constitution, 
as so construed by the State court, is in conflict w^ith the Federal 
Constitution. Eisner v. Macomber does not decide that 



208 ATTORNEY-GENERAL'S REPORT. [Jan. 

question, and does not warrant any inference that the Federal 
Constitution forbids Massachusetts to tax stock dividends. 

It therefore follows that the taxpayer referred to should be 
required to pay a tax on such stock, and should be assessed 
therefor under the provisions of Gen. St. 1916, c. 269, § 14. 
Very truly yours, 

J. Weston Allen, Attorney-GeneraL 



Taxation — Income Tax — Exemption — Stock Dividend by 
Trust, the Beneficial Interest in which is represented by 
Transferable Shares. 

St. 1920, c. 352, exempts from taxation as income a stock dividend de- 
clared in 1919 by an association, the beneficial interest in which 
is represented by transferable shares. 

July 14, 1920. 

Irving L. Shaw, Esq., Income Tax Director, Department of Corporations 

and Taxation. 

Dear Sir: — An association, the beneficial interest in w^hich 
is represented by transferable shares, issued in 1919 a dividend 
in new stock of the association. The association has not 
filed an agreement to pay taxes, and dividends paid to share- 
holders are taxable in accordance with the provisions of 
Gen. St. 1916, c. 269, § 2, par. (c). You have asked my 
opinion whether the stock dividend declared in 1919 is 
taxable. 

The material portion of Gen. St. 1916, c. 269, § 2, para- 
graphs (6) and (c), prior to the amendment of said section 
by St. 1920, c. 352, provided as follows: — 

Income of the following classes received by any inhabitant of this 
commonwealth during the calendar year prior to the assessment of the 
tax shall be taxed at the rate of six per cent per annum. 

(b) Dividends on shares in all corporations and joint stock com- 
panies organized under the laws of anj^ state or nation other than this 
commonwealth, except, . . . 

(c) Dividends on shares in partnerships, associations or trusts, the 
beneficial interest in which is represented by transferable shares, ex- 
cept ... 

In Tax Commissioner v. Putnam, 227 Mass. 522, decided in 
June, 1917, it was held that a stock dividend paid in new 



1921.] PUBLIC DOCUMENT — No. 12. 209 

stock of the corporation issuing the same was "income," 
within the meaning of Mass. Const. Amend. XLIV, and was 
taxable under this section. 

The material portion of St. 1920, c. 352, entitled "An 
Act to exempt stock dividends from taxation as income,'' 
provides as follows: — 

Section 1. Section two of chapter two hundred and sixty-nine of 
the General Acts of nineteen hundred and sixteen, as amended by 
chapters seven and one hundred and twenty of the General Acts of 
nineteen hundred and eighteen and as affected by chapter one hundred 
and fifty of the General Acts of nineteen hundred and eighteen, is 
hereby further amended by inserting after the word "dividends," in 
the first line of paragraph (6), the words: — other than stock dividends 
paid in new stock of the companj^ issuing the same, — so that said 
paragraph will read as follows : — (b) Dividends, other than stock 
dividends paid in new stock of the company issuing the same, on 
shares in all corporations and joint stock companies organized under 
the laws of any state or nation other than this commonwealth, . . . 

Section 2. This act shall take effect as of the first day of January, 
nineteen hundred and twenty, and shall apply to dividends received in 
the year nineteen hundred and nineteen as well as in the current year 
and in all subsequent years. 

It will be observed that said chapter 352 in terms amends 
paragraph (6) of section 2 of said chapter 269, and is silent 
as to paragraph (c) of said section. 

The stock dividend in question was paid in 1919 by an 
association described in paragraph (c). The question, there- 
fore, is whether the exemption conferred by St. 1920, c. 352, 
includes by implication stock dividends paid in the shares 
of the partnership, association or trust which issues them. 

Exemptions from taxation are not to be lightly inferred 
but must appear plainly, either from the express words or 
necessary intendment of the statute. Miljord v. County Com- 
missioners, 213 Mass. 162, 165; Wheelwright v. Tax Com- 
jnissioner, 235 Mass. 584. But the manifest intention of the 
Legislature, as gathered from its language, considered in con- 
nection with the existing situation and the object aimed at, 
is to be carried out. Moore v. Stoddard, 206 Mass. 395, 398; 
Bergeron, Petitioner, 220 Mass. 472, 475. The title of the act 
{Wheelwright v. Tax Commissioner, supra) and the state of 
the law prior to its passage {Bergeron, Petitioner, 220 Mass. 
472, 475) may both be considered in order to ascertain the 



210 ATTORNEY-GENERAL'S REPORT. [Jan. 

legislative purpose. If that intent can be determined with 
reasonable certainty, and a literal construction of the act 
would produce an unreasonable and unjust result, inconsistent 
with such intent, the intent must prevail over the strict 
letter. Staniels v. Raymond, 4 Cush. 314, 316; Somerset v. 
Dighton, 12 Mass. 383, 384; Burlingame v. Bell, 16 Mass. 
318, 319; Church of Holy Trinity v. Uriited States, 143 U. S. 
457, 461. 

The state of the law prior to the passage of St. 1920, 
c. 352, is very significant. As has already been pointed out. 
Tax Commissioner v. Putnam, 227 Mass. 522, decided in June, 
1917, held that stock dividends paid by a corporation in its 
own stock were ''income," and were taxable under Gen. St. 
1916, c. 269, § 2. Towne v. Eisner, 245 U. S. 418, decided 
in January, 1918, held that such stock dividends were not 
"income," within the meaning of the Federal income tax 
act of Oct. 3, 1913, 38 Stat. 114, 166, 167, and were not 
taxable thereunder. Eisner v. Macomher, 252 U. S. 189, 
held that such stock dividends were not "income," within the 
meaning of the Sixteenth Amendment to the Federal Con- 
stitution, and could not constitutionally be taxed thereunder. 
The reasoning of the court in both cases was that such a stock 
dividend does not enrich the stockholder, since it leaves un- 
changed his proportional interest in the corporation, and 
simply evidences a transformation of surplus and undivided 
profits into capital by additional stock certificates. Neither 
decision, of course, controls or modifies Tax Commissioner v. 
Putnam, supra, since neither determines the power of Massa- 
chusetts to tax income under its own Constitution. The 
result, therefore, was that Massachusetts taxed such stock 
dividends, while the United States did not. 

St. 1920, c. 352, was approved on April 23, 1920, about 
seven weeks after the decision in Eisner v. Macomher, supra, 
was rendered. It is entitled "An Act to exempt stock divi- 
dends from taxation as income." The language of the title 
is broad enough to include stock dividends issued by partner- 
ships, associations and trusts having transferable shares. 
The words inserted by the amendment, namely, "other than 
dividends paid in new stock of the company issuing the 
same," in no way exclude stock dividends paid by partner- 
ships, associations and trusts, since the word "company" 
is broad enough to apply both to incorporated and unin- 



1921.] PUBLIC DOCmiENT — No. 12. 211 

corporated associations. These circumstances, and the broad 
language of both title and amendment, indicate, in my 
opinion, that the intention of the Legislature was to exempt 
all stock dividends from taxation as income, and thereby to 
bring our tax law into harmony in this respect with the 
Federal income tax law. 

To construe the exemption as applicable to stock dividends 
paid by corporations and joint stock companies only wpuld 
produce results so unjust and unreasonable that such an in- 
tention should not be imputed to the Legislature, if it can be 
avoided. A stock dividend paid by a partnership, association 
or trust in its own shares differs in no essential particular 
from a similar dividend paid by a corporation or joint stock 
company. Under this narrow construction the one would be 
taxable as "income," the other would not be taxable as 
^'income." The distinction would be based, not upon any 
difference in the nature of the dividend or in the nature of 
the property from which it is derived, but solely upon the 
legal form of the organization which pays it. If the tax 
were upon the organization, such a distinction may be sup- 
ported. Eliot V. Freeman, 220 U. S. 178. But where the tax 
is upon the thing paid and not upon the party who makes 
the payment, a distinction which makes the taxability of 
stock dividends depend upon whether the organization which 
pays them does or does not possess a charter or franchise is 
not to be supported if the act is susceptible of a more just 
construction. 

Indeed, such a construction would raise a very serious 
constitutional question. Mass. Const. Amend. XLIV, pro- 
vides, in part: — 

Full power and authority are hereby given and granted to the general 
court to impose and levy a tax on income in the manner hereinafter 
provided. Such tax may be at different rates upon income derived 
from different classes of property, but shall be levied at a uniform rate 
throughout the commonwealth upon incomes derived from the same 
class of property. The general court may tax income not derived from 
property at a lower rate than income derived from property, and may 
grant reasonable exemptions and abatements. 

The tax on dividends is a tax upon income derived from 
invested capital. It is therefore a tax upon income derived 
from property. The amendment permits the tax to be "at 



212 ATTORNEY-GENERAL'S REPORT. [Jan. 

different rates upon income derived from different classes of 
property," but requires that it be uniform ''upon income 
derived from the same class of property." See Tax Com- 
missioner V. Putnam, 227 Mass. 522, 531, 532. The con- 
struction suggested does not classify stock dividends with 
reference to the nature of the property from which they are 
derived, but with reference to whether the organization 
which pays them is incorporated or unincorporated. It may 
well be that such a classification is not permitted by Amend- 
ment XLIV. Conceivably, also, such a classification might 
be held to be arbitrary, under the Fourteenth Amendment to 
the Federal Constitution. As the evident purpose of the 
Legislature was to rectify what it deemed to be an injustice, 
I do not feel justified in placing upon the act a construction 
which not only lays it open to serious constitutional attack, 
but also perpetrates a still greater injustice. 

I therefore advise you that, in my opinion, the " necessary- 
intendment" of St. 1920, c. 352, is to exempt stock dividends 
paid by partnerships, associations and trusts in the shares 
of the company issuing the same, and therefore that the 
dividend in question is not taxable. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Public Health — Notice of Contagious Diseases — Physician. 

The notice of contagious disease, required by R. L., c. 75, § 50, to be given 
by the attending physician, should be given to the authorities of the 
city or town in which the patient is under treatment, rather than to 
the authorities of the city or town where the patient resides. 

July 22, 1920. 
Bernard W. Carey, M.D., Deputy Commissioner of Public Health. 

Deae Sir: — R. L., c. 75, § 50, as amended by St. 1907, 
c. 480, § 1, provides: — 

If a physician knows that a person whom he is called to visit is 
infected with smallpox, diphtheria, scarlet fever or any other disease 
declared by the state board of health to be dangerous to the public 
health, or if one or both eyes of an infant whom or whose mother he 
is called to visit become inflamed, swollen and red, and show an un- 
natural discharge within two weeks after the birth of such infant, he 
shall immediately give notice thereof in writing over his own signature 



1921.] PUBLIC DOCmiENT — No. 12. 213 

to the selectmen or board of health of the town; and if he refuses or 
neglects to give such notice, he shall forfeit not less than fifty nor more 
than two hundred dollars for each offence. 

In reply to your question whether the report required shall 
be made to the authorities of the town where the physician 
practices or of the town where the patient dwells, I am of 
opinion that it should be made to the authorities of the 
town where the patient is under treatment. The purpose of 
the act is to afford protection to a community against an 
infection, and so safeguard the public health, and it is there- 
fore clear that the information should be given to the select- 
men or board of health of the town in w^hich he is attending 
the patient. 

Very truly yours, 

J. Weston Allen, Attorney -GeneraL 



Wrentham State School — Temporary Leave of Absence — 

Discharge. 

An inmate who is permitted to leave the Wrentham State School tem- 
porarily, in the custody of her father, and who wilfully absents her- 
self from such custody within one year, remaining absent from the 
school for more than a year, is not deemed to be discharged under 
the provisions of St. 1909, c. 504, § 75, as amended. 

July 22, 1920. 

Ellerton James, Esq., Secretary, Trustees of the Wrentham State School. 

Dear Sir: — You state the following facts: An inmate of 
the Wrentham State School is permitted to leave the institu- 
tion temporarily, in charge of her father, and before the 
expiration of a year she absents herself from her father's 
home and custody and remains absent until more than a year 
has elapsed since she left the school. You request my opinion 
w^hether she shall be deemed to be discharged. 

St. 1909, c. 504, § 75, as finally amended by Gen. St. 1917, 
c. 48, § 1, provides: — 

The superintendent or manager of any hospital or receptacle de- 
scribed in section seven may permit any inmate thereof temporarily to 
leave such institution in charge of his guardian, relatives, friends, or by 
himself, for a period not exceeding twelve months, and maj^ receive him 
when returned by any such guardian, relative, friend, or upon his own 



214 ATTORNEY-GENERAL'S REPORT. [Jan. 

application, within such period, without any further order of commit- 
ment. The superintendent may require as a condition of such leave of 
absence, that the person in whose charge the patient is permitted to 
leave the institution shall make reports to him of the patient's condition. 
Any such superintendent, guardian, relative or friend may terminate 
such leave of absence at any time and authorize the arrest and return 
of the patient. The officers mentioned in section eighty-six shall cause 
such a patient to be arrested and returned upon the request of any 
such superintendent, guardian, relative or friend. Any patient who has 
not returned to the institution at the expiration of twelve months shall 
be deemed to be discharged therefrom. 

Assuming that the superintendent was informed of the 
escape, if I may call it that, before the expiration of a year, 
and promptly attempted to recover custody of the former 
inmate, the superintendent would be deemed to have ter- 
minated the leave of absence, within the meaning of the 
statute, and when he located the patient he could resume 
custody of her without further proceedings. Her situation 
after termination of her leave of absence would be the same 
as that of any other escaped inmate. 

Assuming, however, that the superintendent did not take 
steps to recover the girl until he learned of her whereabouts, 
perhaps more than a year after her departure from the school, 
I should still be of opinion that he might resume custody of 
her. The quoted statute permits the superintendent to 
substitute for his own active control the control of a parent, 
guardian, relative or friend; the patient is not discharged by 
the temporary release, but the superintendent's control over 
her is qualified while she remains absent. An escape from this 
qualified control is still an escape. The statute plainly con- 
templates that the period of release not exceeding one year 
shall be passed by the patient in the charge of the person 
designated by the superintendent and under the qualified 
control of the superintendent, so that she may be closely 
observed and her leave of absence terminated if her best 
interests so require. A year passed under conditions that do 
not permit this observation and do not permit any control 
whatever by the superintendent or the person designated by 
him to be in charge of the patient does not satisfy the re- 
quirements of the statute. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 215 



Parks and Reservations — Delegation of Duty to enforce Game 

Laws. 

The officials in charge of reservations, parks, etc., cannot delegate to the 
Division of Fisheries and Game the duty imposed upon them by 
St. 1909, c. 362, § 2, to prevent hunting without a license in such 
reservations, parks, etc. 

But the Division of Fisheries and Game must enforce the game laws in 
such reservations, parks, etc., as in other parts of the Commonwealth. 

July 27, 1920. 

Mr. William C. Adams, Director, Division of Fisheries and Game, Depart- 
ment of Conservation. 

Dear Sir: — St. 1909, c. 362, § 1, provides that no person 
shall hunt or destroy wild birds or game ^'v^^ithin the exterior 
boundaries of any state reservation, park, common or any 
land held in trust for public use," except that the authorities 
having control of such lands may issue licenses to hunt birds 
or game "not now protected by law." Section 2 provides 
that "the boards, officials and persons having charge of 
reservations, parks, commons and lands held for public use 
shall enforce the provisions of this act." In your letter of 
July 8, 1920, you request my opinion whether such boards, 
officials and persons may delegate their authority and duty 
to enforce the act to the Division of Fisheries and Game. 

I am of opinion that the duty imposed by the statute upon 
officials in charge of public parks and other public lands is 
unconditional and very definite, and that such officials can- 
not delegate their statutory duty to the Division of Fisheries 
and Game or any other agency. If the law were otherwise, 
any public officer could avoid performing his duties by the 
expedient of delegating them to some other person or agency, 
perhaps even to a private individual. Moreover, the pro- 
visions of our Constitution and statutes relative to the 
duties of public officers, departments and boards and to the 
distribution of governmental powers would be set at naught, 
and various persons would be exercising governmental powers 
with no legislative authority therefor. I think there is no 
escape from the principle that public officers who have duties 
imposed upon them by law must perform those duties, and 
persons who do not have duties imposed upon them by law 
are not authorized to perform the duties imposed upon others. 

This does not mean, however, that the Division of Fisheries 



216 ATTORNEY-GENERAL'S REPORT. [Jan. 

and Game has no jurisdiction to protect wild birds and game 
within the boundaries of public parks and similar lands. 
R. L., c. 91, § 4, provides: — 

The commissioners and their deputies, members of the district police 
and all officers qualified to serve criminal process may arrest without 
warrant any person whom they find violating any of the fish or game 
laws, except that persons engaged in the business of regularly dealing 
in the buying and selling of game as an article of commerce shall not be 
so arrested for having in possession or selling game at their usual places 
of business. 

It will be observed that this statute contains no words 
excepting from its operation the lands in question. It will 
also be observed that the act of 1909 does not impose upon 
persons in charge of public parks and similar lands a duty to 
enforce the game laws, but rather a duty to prevent any 
killing of wild birds within the boundaries of lands controlled 
by them, whether such killing is or is not done in violation 
of the game laws. It follows that the Division of Fisheries 
and Game, which is the legal successor of the Commissioners 
on Fisheries and Game, may exercise within the boundaries of 
public parks, reservations, et cetera, whatever powers it has 
to enforce the game laws, although, if the game laws are not 
violated, only the persons in charge of parks, reservations, 
et cetera, have power to prevent the killing thereon of wild 
birds and game. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxation — War Poll Tax — Abatement — Persons who re- 
ceive Bonus payable to Dead Soldier or Sailor, had he 
lived. 

A person who becomes entitled under Gen. St. 1919, c. 283, § 3, to the 
bonus to which a dead soldier or sailor would have been entitled under 
section 2 of said act if he had lived, is not entitled to the $3 abate- 
ment of war poll taxes allowed by section 9 of said act. 

July 28, 1920. 
Hon. William D. T. Trefry, Commissioner of Corporations and Taxation. 
Dear Sir: — You inquire whether persons who, under Gen. 
St. 1919, c. 283, § 3, receive the $100 bonus which would 



1921.] PUBLIC DOCUMENT — No. 12. 217 

have been payable, had he lived, to a person within the pro- 
visions of section 2 of said act, are entitled to the $3 abate- 
ment of war poll taxes allowed by section 9 of said act. 
Section 2 of said act provides as follows: — 

Upon application, as hereinafter provided, there shall be allowed and 
paid out of the treasury of the commonwealth, to each commissioned 
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, war- 
rant officer, nurse and enhsted man, who enlisted or was enrolled in, or 
was mustered into the federal service and who had 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 enumer- 
ated, as provided in section three, the sum of one hundred dollars : pro- 
vided, that every person on account of whose service the application is 
filed had been a resident of the commonwealth for a period of not less 
than six months immediately prior to the time of his entry into service; 
and further provided, that no benefits shall accrue under this act because 
of the service of any person appointed to or inducted into the military 
or naval forces who had not reported for duty on or prior to November 
eleventh, nineteen hundred and eighteen at the military cantonment 
or the naval station to which he was ordered, or who was discharged 
from service or reheved from active duty and not recalled to the colors 
prior to January fifteenth, nineteen hundred and eighteen, but in all 
cases of death in service or discharge for physical incapacity received in 
the line of duty the full amount of one hundred dollars shall be payable 
notwithstanding the provisions of this section. 

Section 3 of said act provides as follows: — 

In the case of the decease of any person who would if alive be entitled 
to the benefits of this act, the sum named therein shall be paid to his 
dependents, if any, and otherwise to his heirs-at-law : provided, that if 
there is more than one dependent, or heir-at-law, payments shall in 
either case be made in such proportions as the treasurer and receiver- 
general shall determine, and in determining the order of precedence so 
far as practicable the following order shall be observed: mfe and 
children, mother or father, brother or sister, other dependents; pro- 
vided, however, that no right or payment under this act shall be subject 



218 ATTORNEY-GENERAL'S REPORT. [Jan. 

to the claims of creditors, capable of assignment, regarded as assets 
legal or equitable of the estate of the deceased or made the basis for 
administration thereof. 

The material portion of section 9 of said act provides: — 

. . . Any person entitled to the benefits of this act shall, upon 
application to the board of assessors of the city or town in which he 
resides, receive an abatement of the additional war poll tax assessed 
upon him under the provisions of this section. 

Section 10 amends St. 1909, c. 490, pt. I, § 1, so as to read 
as follows: — 

In and for the years nineteen hundred and twenty, nineteen hundred 
and twenty-one, nineteen hundred and twenty-two and nineteen hun- 
dred and twenty-three a poll tax of five dollars and thereafter a poll 
tax of two dollars shall be assessed on every male inhabitant of the 
commonwealth above the age of twenty years, whether a citizen of the 
United States or an alien. 

The precise question, therefore, is whether the person or 
persons w^ho under sections 2 and 3 receive the bonus which 
would have been payable to the dead soldier or sailor, had he 
lived, are persons "entitled to the benefits of this act," within 
the meaning of section 9. 

There can be no question as to the class for whose benefit 
the act w-as passed. It is entitled " An Act to provide suitable 
recognition of those residents of Massachusetts who served 
in the army and navy of the United States during the war 
with Germany." The title is, in a legal sense, a part of every 
act, and may be considered in determining its construction. 
Wheelwright v. Tax Commissioner, 235 Mass. 584. The title 
is reinforced by the preamble, which declares that the purpose 
of the act is " to provide prompt recognition of Massachusetts 
men upon their discharge from the military and naval forces 
of the United States." Section 1 further declares: — 

In order to promote the spirit of patriotism and loyalt}^, in testimony 
of the gratitude of the commonwealth, and in recognition of the serv- 
ices of certain residents of Massachusetts in the army and navy of the 
United States during the war with Germany, to the full extent of the 
demands made upon them and of their opportunity, the paj^ments here- 
inafter specified are hereby authorized. 



1921.] PUBLIC DOCUMENT — No. 12. 219 

Section 2 requires that the recipient of the bonus, in his 
own right, shall have been actually mustered into or enrolled 
in certain designated branches of the Federal service, and 
have reported for active duty subsequent to Feb. 3, 1917, and 
prior to Nov. 11, 1918, and further, must not have been dis- 
charged therefrom prior to Jan. 15, 1918, except by death or 
on account of physical incapacity received in line of duty. 
See opinion rendered to you under date of July 9, 1920. Tak- 
ing these provisions together, it is plain, in my opinion, that 
the Legislature intended that those who, in their own right, 
should be entitled to the benefits of the act should be those 
who were mustered into the Federal service and reported for 
active duty therein. 

The right to the bonus conferred by section 3 is of purely 
derivative character. Those within this section have not ren- 
dered the active service which the Legislature intended to 
recognize and reward. They must claim, either as dependents 
or heirs-at-law, under one "who would if alive be entitled to 
the benefits of this act." By this significant phrase the 
Legislature has, in my opinion, distinguished between those 
who by reason of active service are entitled "to the benefits 
of this act" and those who receive the bonus or some part 
thereof in a purely representative capacity. 

This representative right to the bonus is not absolute. If 
there be more than one dependent or heir-at-law, the Treasurer 
and Receiver-General determines not only who shall receive 
the bonus, but the proportions in which it shall be paid. 
Until he acts no one is "entitled" to anything. I cannot 
believe that the Legislature intended that a discretionary 
award of some part of the bonus to a relative, conceivably 
quite remote in point of blood, should carry as an incident an 
exemption from the war poll tax. Indeed, a contrary conclu- 
sion might well cause the derivative right to rise higher than 
its source. The dead soldier or sailor would have been en- 
titled, had he lived, to an abatement of his own war poll tax 
only. If the bonus be distributed among several relatives and 
carry to each, as an incident, a right to the abatement of the 
war poll tax, several abatements might well be engrafted on 
the single original stem. 

Finally, we may inquire what was the purpose of the abate- 
ment authorized by said section 9. Section 9 provides for 
special taxes to raise part of the $20,000,000 required to meet 



220 ATTORNEY-GENERAL'S REPORT. [Jan. 

the bonus. Among these special taxes was a " civilian war poll 
tax" of $3 which, under section 10, is to be levied in the 
years 1920, 1921, 1922 and 1923. The plain intent is to place 
a special tax upon those males of twenty years and upwards 
who stayed at home for the benefit of those Massachusetts 
residents who went to war. Those who take under section 3 
are civilians who, if males of over twenty, would be required 
to pay this additional poll tax unless exempted. Exemptions 
from taxation are not to be lightly inferred, but must appear 
plainly from the express words or necessary intendment of the 
statute. Milford v. County Commissioners, 213 Mass. 162, 
165; Wheelwright v. Tax Commissioner, 235 Mass. 584. I am 
unable to reach the conclusion that the necessary intendment 
of the act is to exempt these civilians simply because they 
profit financially through the death of some soldier or sailor 
upon active service. 

I therefore advise you that those who receive the bonus, 
or some part thereof, under section 3 are not entitled to the 
abatement allowed by section 9. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Retirement — Veteran. 



A veteran, as defined in St. 1920, c. 574, is eligible to remain a member 
of the Retirement Association established by St. 1911, c. 532. 

One who is eligible to retire both under St. 1920, c. 574, and under St. 
1911, c. 532, must elect as to whether he will retire under the one or 
under the other. 

If a veteran eligible to retire under St. 1920, c. 574, is also a member of 
the Retirement Association established by St. 1911, c. 532, and elects 
to retire and is retired under St. 1920, c. 574, he is entitled to the 
refund granted by St. 1911, c. 532, § 6, par. A, cl. (a). 

July 28, 1920. 

Division of Board of Retirement, Department of the Treasurer and Receiver- 
General. 

Gentlemen: — You request my opinion as to whether a 
person who is a member of the Retirement Association 
established by St. 1911, c. 532, as amended, is eligible to 
remain a member of said association if he is a veteran, as 



1921.] PUBLIC DOCUMENT — No. 12. 221 

defined by St. 1920, c. 574, and if he is not, whether the 
Board of Retirement is required to release his membership 
and refund to him the money paid in by him as a member of 
said association. 

By St. 1911, e. 532, and subsequent amendments, a con- 
tributory retirement system was established for the civil 
employees of the Commonwealth. All employees of the 
Commonwealth on the date when the system was established 
were enabled to become members thereof, if they so desired. 
Unless said employees notified the Insurance Commissioner, 
in writing, within thirty days of the date when the system 
was established, that they did not desire to join the associa- 
tion, said emplo3-ees automatically became members thereof. 
All employees who entered the service of the Commonwealth 
after the date when the retirement system was established, 
with certain exceptions which it is unnecessary here to 
enumerate, became members of the Retirement Association 
after completing ninety da^^s' service in the employ of the 
Commonwealth. 

St. 1911, c. 532, § 3, pars. (3), (4) and (5), provide: — 

(3) No officer elected by popular vote may become a member of the 
association, nor any employee who is or will be entitled to a pension 
from the commonwealth for any reason other than membership in the 
association. 

(4) Any member who reaches the age of sixty years and has been in 
the continuous service of the commonwealth for a period of fifteen 
years immediately preceding may retire or be retired by the board of 
retirement upon recommendation of the head of the department in 
which he is employed, and any member who reaches the age of seventy 
must so retire. 

(5) Any member who has completed a period of thirty-five years of 
continuous service nisiy retire, or may be retired at any age by the 
board of retirement upon recommendation of the head of the depart- 
ment in which he is employed, if such action be deemed advisable for the 
good of the service. 



The question, therefore, is whether an employee who is 
also a veteran, within the meaning of St. 1920, c. 574, § 4, 
"is or will be entitled to a pension for any reason other than 
membership in the retirement association," within the meaning 
of said St. 1911, c. 532, § 3, par. (3). 



222 ATTORNEY-GENERAL'S REPORT. [Jan. 

The pension conferred upon veterans by St. 1920, c. 574, 
§ 4, is non-contributory. But the right to it is not absolute, 
and does not necessarily become absolute even upon com- 
pletion of the term of service prescribed. Under sections 2 
and 3 the veteran is not retired save upon his own petition 
or request. Under sections 1, 2 and 3 the approval or con- 
sent of the retiring authority is in each case required. Under 
sections 1 and 2, also, no pension can be paid if the total 
income of the veteran from all sources, exclusive of such 
pension, exceeds $500. One or more of these conditions may 
never be fulfilled. Thus, while such veteran may become 
entitled to such non-contributory pension if all conditions are 
fulfilled, I am of opinion that it cannot presently be said that 
he "either is or will be entitled" thereto within the meaning 
of St. 1911, c. 532, § 3, par. (3). It follows that he is not 
presently rendered ineligible to membership in the Retire- 
ment Association established by said St. 1911, c. 532. 

In my opinion, St. 1920, c. 574, confers a right of choice 
upon the veteran. He may, and indeed must, retain his 
membership in the Retirement Association established by St. 
1911, c. 532, until the time for retirement arrives. But 
when that time comes he must choose between the two 
systems. He cannot retire under both, even assuming that he 
can qualify under both. If he chooses to retire and is retired 
under St. 1911, c. 532, he gives up any right to retire under 
St. 1920, c. 574. If, however, he elects to retire and is 
retired under St. 1920, c. 574, he may, in my opinion, claim 
the refund granted by St. 1911, c. 532, § 6, par. A, cl. (a), 
which provides as follows: — 

Should a member of the association cease to be an employee of the 
commonwealth for any cause other than death before becoming en- 
titled to a pension, there shall be refunded to him all the money paid in 
by him under section five, (2) A, with regular interest. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 223 



Citizenship — Expatriation — Taking Oath of Allegiance to 
Foreign State — Entering Military Service of Foreign 
State — Effect of War upon Right of Expatriation — 
Summary Method of regaining Lost American Citizenship. 

The inherent right of a citizen of the United States to expatriate himself 

is recognized by the act of July 25, 1868, c. 249, 15 Stat, at L., 223, 

U. S. Rev. Sts., § 1999. 
Under the act of March 2, 1907, § 2, 34 Stat, at L., 1228, U. S. Comp. 

Stats., 1916, § 3959, an American citizen forfeits his citizenship by 

taking the oath of allegiance to any foreign State at a time when 

this country is not at war. 
An American citizen who, prior to the entry of the United States into the 

war, entered the military or naval service of a foreign nation, and 

as an incident thereof took an oath of allegiance to such nation, 

forfeited his citizenship. 
Quaere, whether entry into the military or naval service of a foreign nation, 

but w^ithout taking an oath of allegiance, would forfeit American 

citizenship. 
An American citizen who, after the entry of the United States into the 

war, entered the military or naval service of a foreign nation, and as 

an incident thereof took an oath of allegiance to such nation, did not 

forfeit his American citizenship. 
The act of May 9, 1918, c. 69, § 1, cl. 12, 40 Stat, at L., 542, 545, U. S. 

Comp. Stats., 1916, Supp. 1919, § 4352, cl. 12, provides a summary 

method of regaining American citizenship lost in the manner above 

set forth. 

July 31, 1920. 

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

Dear Sir: — You ask my opinion upon the following 
questions: — 

1. Are men who, while citizens of Massachusetts and before the entry 
of the United States into the war, entered the military or naval service 
of an allied nation still to be regarded as citizens of this Commonwealth, 
and as such entitled to vote? 

2. Are men who, while citizens of Massachusetts, after the entry of 
the United States into the war and after having been rejected for mili- 
tary or naval service by the United States because of physical disability, 
entered the military or naval service of an allied nation still to be re- 
garded as citizens of this Commonwealth, and as such entitled to vote? 

3. What steps must be taken by these men in order that they may 
again be regarded as citizens and entitled to the right to vote? 

1. There is authority to the effect that, at common law, a 
man could not expatriate himself without the consent of his 



224 ATTORNEY-GENERAL'S REPORT. [Jan. 

country and thereby renounce his allegiance to and citizen- 
ship in such country. See Miller v. The Resolution, 2 Dall. 1; 
Mclhvaine v. Coxe, 4 Cranch, 209, 213-214; Shanks v. 
Dupont, 3 Pet. 242, 246-247; Ai7islie v. Martin, 9 Mass. 
454, 461; Ex Parte Griffin, 237 Fed. Rep. 445, 449. But the 
right of expatriation has definitely been established by Federal 
statute. Act of July 25, 1868, c. 249, 15 Stat. 223, R. S. 
§ 1999; In re Look Tin Sing, 21 Fed. Rep. 905; Mackenzie 
V. Hare, 239 U. S. 299. Prior to the passage of the act of 
March 2, 1907, 34 Stat. 1228, U. S. Comp. Sts. 1916, §§ 3958, 
3959, there was conflict as to whether or not expatriation was 
effected by taking the oath of allegiance to a foreign power. 
Van Dyne Naturalization, p. 338; Broione v. Dexter, 66 Cal. 
39, 4 Pac. 913 (1884). Prior to the passage of said act the 
weight of authority seems to have been that merely entering 
the military or naval service of a foreign State did not of 
itself work expatriation. Van Dyne Naturalization, p. 358; 
Calais V. Marshfield, 30 Me. 511; State v. Adams, 45 la. 99; 
see also The Santissima Trinidad, 7 Wheat. 283. But it has 
also been held that one who took the oath of allegiance to a 
foreign country and thereafter entered its military service 
thereby lost his citizenship. Juando v. Taylor, 2 Paine, 652; 
Fed. Cas. No. 7558 (1818). 

The act of March 2, 1907, § 2, 34 Stat. 1228, U. S. Comp. 
Stats. 1916, § 3959, provides as follows: — 

Any American citizen shall be deemed to have expatriated himself 
when he has bepn naturalized in any foreign state in conformity with its 
laws, or when he has taken an oath of allegiance to any foreign state. 

When any naturalized citizen shall have resided for two years in the 
foreign state from which he came, or for five years in any other foreign 
state it shall be presumed that he has ceased to be an American citizen, 
and the place of his general abode shall be deemed his place of residence 
during said years: Provided, however, That such presumption may be 
overcome on the presentation of satisfactory evidence to a diplomatic 
or consular officer of the United States, under such rules and regula- 
tions as the Department of State may prescribe: And provided also, 
That no American citizen shall be allowed to expatriate himself when 
this country is at war. 

This statute expressly provides that taking the oath of 
allegiance to any foreign State works expatriation. The act 
is silent, however, as to the effect of entering the military or 
naval service of another nation. It may be that the au- 



1921.] PUBLIC DOCUMENT — No. 12. 225 

thorities which hold that merely entering such service does 
not effect expatriation remain unshaken. But these au- 
thorities do not aid any citizen of this country who takes an 
oath of allegiance to a foreign State or sovereign as an incident 
of such enlistment. In Ex Parte Griffin, 237 Fed. Rep. 445 
(D. C. N. Y. 1916), it was held, under this very act, that an 
American citizen who in 1916 went to Canada, enlisted in 
the Canadian Expeditionary Forces, and as an incident of 
such enlistment took the oath of allegiance to the King of 
Great Britain, thereby forfeited his American citizenship and 
might be deported as an undesirable alien when he deserted 
from such forces a few days later and attempted to return to 
this country. See also Browne v. Dexter, 66 Cal. 39, 4 Pac. 
913 (1884); Juando v. Taylor, 2 Paine, 652; Fed. Cas. 7558 
(1818). I therefore advise you that any citizen of this 
Commonwealth who prior to the date when this country 
declared war (April 6, 1917) took the oath of allegiance to 
any foreign king or State, whether as an incident of enlist- 
ment in the military or naval forces of such State or not, 
thereby expatriated himself, lost his American citizenship, 
and ceased to be entitled to vote in this State. 

2. You further inquire as to the effect of such foreign enlist- 
ment subsequent to April 6, 1917, the date when war was 
declared upon Germany. The act of March 2, 1907, § 2 
(supra), contains the following proviso: — 

And provided also, That no American citizen shall be allowed to 
expatriate himself when this country is at war. 

In view of this proviso, I am of opinion that after war 
was declared American citizens lost the power to expatriate 
themselves by taking the oath of allegiance to a foreign 
government. I understand that this is the view taken by the 
Federal Immigration Bureau. It follows that those American 
citizens who subsequent to April 6, 1917, enlisted in any 
foreign army or navy, and as an incident of such enlistment 
took an oath of allegiance to such foreign king or State, 
could not and did not thereby terminate their citizenship or 
lose their right to vote. 

3. On Oct. 5, 1917, Congress passed an act (40 Stat. 340) 
which provided a summary method by which those who had 
lost their American citizenship by reason of taking the oath 



226 ATTORNEY-GENERAL'S REPORT. [Jan. 

of allegiance to "any foreign state engaged in war with a 
country with which the United States is at war," in order to 
enter the military or naval service of such State, might 
regain their citizenship without complying with the usual 
requirements for naturalization. This act was expressly re- 
pealed by the act of May 9, 1918, c. 69, § 1, cl. 12, 40 Stat. 
542, 545, U. S. Comp. Stats. 1916, Supp. 1919, § 4352, cl. 12, 
which provides as follows: — 

Any person who, while a citizen of the United States and during 
the existing war in Europe, entered the military or naval service of any 
country at war with a country with which the United States is now at 
war, who shall be deemed to have lost his citizenship by reason of any 
oath or obligation taken by him for the purpose of entering such service, 
may resume his citizenship by taking the oath of allegiance to the 
United States prescribed by the naturalization law and regulations, 
and such oath may be taken before any court of the United States or of 
any State authorized b}^ law to naturalize aliens or before any consul of 
the United States, and certified copies thereof shall be sent by such court 
or consul to the Department of State and the Bureau of Naturalization, 
and the Act (Public fifty-five, Sixty-fifth Congress, approved October 
fifth, nineteen hundred and seventeen), is here repealed. 

The Federal Bureau of Immigration informs me that as a 
condition precedent to taking the oath of allegiance prescribed 
by this section the applicant must produce satisfactory proof 
that at the time of his enlistment in the foreign military or 
naval service he was an American citizen, either by birth or 
naturalization, and that he was honorably discharged from 
such foreign service. If he complies with these requirements 
and takes the prescribed oath, he immediately resumes his 
American citizenship. His right to vote then depends upon 
whether he possesses the qualifications required by our 
Constitution and laws. Your third question assumes that 
such person was a duly qualified voter of this Common- 
wealth at the time of his temporary loss of citizenship. If 
so, his right to vote immediately revives if he either is regis- 
tered or registers anew, if that be necessary. Capen v. Foster, 
12 Pick. 485. His temporary loss of citizenship does not 
necessarily affect any residence which he may previously 
have had in this Commonwealth. An alien may be a resident 
of this State. Kinnec7i v. Wells, 144 Mass. 497. His residence 
or continued residence must be proved by competent evidence. 



1921.] PUBLIC DOCUMENT — No. 12. 227 

But he fulfils the residence requirements of Mass. Const. 
xA-mend. Ill, if at the time he registers (if that be necessary) 
he has resided in this State for one year, and in the city or 
town in which he claims the right to vote for six months, 
even though he has become naturalized within thirty days 
prior to such registration. Kinneen v. Wells, 144 Mass. 497. 
I therefore advise you that w^hen such temporary alien has 
complied with the act of May 9, 1918, supra, and has thereby 
recovered his citizenship, his residence is to be determined ac- 
cording to the ordinary rules of law. His temporary loss of 
citizenship is simply one circumstance to be considered in 
connection with all the other facts of each particular case. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Amendment to Federal Constitution — 
When it becomes operative. 

A proposed amendment to the Federal Constitution becomes operative 
when ratified by three-fourths of the States. 

Proclamation of such ratification by the Secretary of State of the United 
States certifies that ratification has already taken place, and is not 
itself a condition precedent to the adoption of the amendment. 

Aug. 2, 1920. 

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

Dear Sir: — You inquire whether the proposed suffrage 
amendment to the Federal Constitution will, if ratified, be- 
come operative upon ratification by the thirty-sixth State or 
upon official proclamation of such ratification. 

U. S. Const., art. V., provides in part as follows: — 

The congress, whenever two-thirds of both houses shall deem it 
necessary, shall propose amendments to this constitution, or, on the 
application of the legislatures of two-thirds of the several states, shall 
call a convention for proposing amendments, which, in either case, shall 
be valid to all intents and purposes, as part of this constitution, when 
ratified by the legislatures of three-fourths of the several states, or by 
conventions in three-fourths thereof, as the one or the other mode of 
ratification may be proposed by congress; . . . 



228 ATTOKNEY-GENERAL'S REPORT. [Jan. 

Congress did not in this case ''propose" that ratification 
should be by convention in the several States. The proposed 
amendment will, therefore, '' be valid to all intents and purposes^ 
as part of this constitution, when ratified by the legislatures 
of three-fourths of the several states." As there are at present 
forty-eight States, it follows that the proposed amendment 
will become a part of the Federal Constitution when duly 
ratified by the Legislatures of thirty-six States. See Hawke 
V. Smith, 253 U. S. 221; Rhode Island v. Palmer, 253 U. S. 
350; opinion of the Attorney-General to Hon. Edwin T. 
McKnight, ^President of the Senate, Jan. 21, 1920. 

When a State ratifies the amendment, that fact is officially 
certified to the Secretary of State of the United States. When 
the requisite number of ratifications have been thus certified, 
the Secretary of State officially proclaims that the amend- 
ment has become a part of the Federal Constitution. I find 
nothing in the Constitution which in any way makes the 
validity of the amendment depend upon such proclamation. 
In my opinion, the proclamation simply certifies to a. fact 
which already exists. In this respect it is not unlike the 
registration of a voter, which officially establishes that he 
already possesses the constitutional qualifications for the 
ballot. See Capen v. Foster, 12 Pick. 485. It is for you to 
determine, in the exercise of a sound discretion, what prepara- 
tions shall be made in advance in order to comply with this 
amendment, in the event of its adoption. Until the Secretary 
of State makes official proclamation that the amendment has 
become a part of the Federal Constitution, your department 
will have no official knowledge of that fact. In the perform- 
ance of your official duties you should not assume that it has 
become a part of the Federal Constitution until the Secretary 
of State shall so proclaim. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 229 



Public Utilities — Railroads — Commutation Tickets — Price 
of Fares — Regulation and Establishment of Fares — 
Abandonment of Passenger Stations — Relocation of Pas- 
senger Stations and Freight Depots — Regulation of Equip- 
ment, Appliances aiid Service — Repeal of Inconsistent 
Acts, 

The provisions of St. 1908, c. 649, § 2, relative to certain railroad cor- 
porations selling commutation tickets at certain prices, are incon- 
sistent with the provisions of St. 1913, c. 784, § 22, which vested in 
the Board of Railroad Commissioners (now the Department of Public 
Utilities) complete power to regulate and establish fares on railroads, 
and to determine the just and reasonable rates, fares and charges 
to be charged. Being inconsistent, such provisions of St. 1908, 
c. 649, § 2, were repealed by the provisions of St. 1913, c. 784, § 29. 

The provisions of St. 1906, c. 463, pt. II, § 137, regulating the abandon- 
ment of passenger stations by a railroad corporation, and the fol- 
lowing section, § 138, relative to the relocation of passenger stations 
and freight depots by a railroad corporation, are inconsistent with 
the provisions of St. 1913, c. 784, § 23, which gave the Board of Rail- 
road Commissioners (now the Department of Public Utilities) un- 
conditional authority to correct equipment, appliances and service 
which is unjust, unreasonable or inadequate. Being inconsistent, 
said sections 137 and 138 of part II of chapter 463 of the Acts of 
1906 were repealed by St. 1913, c. 784, § 29. 

August 13, 1920. 

Hon. Henry C. Attwill, Chairman, Department of Public Utilities. 

Dear Sir: — On behalf of the Department of Public Utili- 
ties you request my opinion upon the following questions 
of law: — 

1. Does St. 1913, c. 784, repeal or modify in any way St. 
1908, c. 649, § 2, and, if so, to what extent? 
St. 1908, c. 649, § 2, reads as follows: — 

Every railroad corporation which has a terminus in Boston, except 
the Boston, Revere Beach and Lynn Railroad Company, shall sell a 
commutation ticket good for not more than twelve rides between Bos- 
ton and each station on its lines within fifteen miles of its terminal sta- 
tion in Boston, at a price not exceeding the average rate for each trip 
which was charged between said points for the twenty-five-ride com- 
mutation tickets in use on the first day of January in the year nineteen 
hundred and eight, excepting that the minimum fare shall be five cents. 
The said tickets, before issuance, shall be subject to approval by the 
board of railroad commissioners both as to the rate of fare and the con- 



230 ATTORNEY-GENERAL'S REPORT. [Jan. 

ditions named therein. So far as is practicable, the rates of fare on all 
roads for like distances from their terminal stations shall be equal. In 
any city or town where the said twelve-ride ticket shall exceed in price 
the price now charged per trip for the twenty-five-ride ticket, then 
thereafter in the said city or town the said railroad companies shall 
continue to have for sale a twenty-five-ride ticket at the existing price. 

St. 1913, c. 784, § 29, reads, in part, as follows: — 

This act shall be deemed and construed as a remedial act and in 
enlargement and extension of all previous acts and existing laws confer- 
ring upon or vesting in the commission any jurisdiction, powers or dis- 
cretion with respect to any subject or matter treated in this act. Ex- 
cept as above provided all acts and parts of acts inconsistent with any 
provision of this act, and all acts and parts of acts which would in any 
way limit or prevent the exercise to the fullest extent of any of the 
jurisdiction, powers, authority or discretion delegated herein to the com- 
mission are hereby repealed: . . . 

In your letter you state that — 

Tickets issued under the provisions of the act of 1908 were abrogated 
by the United States Railroad Administration. Obviously, the United 
States while operating the railroads could charge whatever the Rail- 
road Administration saw fit, but if the 1908 act was not repealed by the 
Public Service Commission act it would seem that upon the complete 
return of the railroads to the control of the railroad companies the 
commutation tickets must be restored at the same rates as were in effect 
prior to the taking over of the control of the railroads by the United 
States government. 

In answer to your question I direct your attention to the 
language used by Chief Justice Rugg in the case of Arlington 
Board of Survey v. Bay State Street Railway Co., 224 Mass. 
463, at 469, where he said: — 

That act (St. 1913, c. 784) marked a radical change in the poHcy of 
the Legislature in the regulation of street railways. It conferred upon 
the Public Service Commission far greater powers over the operation 
and accommodations to be provided by such common carriers than had 
been vested in any board by earher acts. Summarilj^ stated, it clothed 
the commission with full power to require safe, reasonable and adequate 
service to the public from all common carriers. The authority of the 
commission as to supervision and regulation in other respects is ample. 
It is manifest that such broad powers justly cannot be exercised to the 



1921.] PUBLIC DOCUMENT — No. 12. 231 

extent conferred by the words used except when joined either with 
equally full power to regulate charges, rates and fares, or with freedom 
of action by the carrier in these respects, so as to enable the carrier to 
receive a fair return for the service required. This power expressly is 
conferred by section 22, which after subjecting the rates and fares 
actually charged or demanded to their supervision, enacts that whenever 
the commission is of opinion "that the rates, fares or charges or any of 
them chargeable by any such common carrier are insufficient to yield 
reasonable compensation for the service rendered and are unjust and 
unreasonable, the commission shall determine the just and reasonable 
rates, fares and charges to be charged" and shall fix the same by order 
binding upon the carrier. That these words were intended to be inter- 
preted according to their full natural scope is obvious from the provision 
of section 29. . . . It is impossible to give the act a narrow or con- 
stricted construction as to the subject of fares. 



Accordingly, it is my opinion that the provisions of St. 
1913, c. 784, give complete powers to the Board of Railroad 
Commissioners (now the Department of Public Utilities, 
Gen. St. 1919, c. 350) over the regulation and establishment 
of fares on railroads, to determine the just and reasonable 
rates, fares and charges to be charged, and to fix the same 
b\^ appropriate order, and, in my judgment, the provisions 
of St. 1908, c. 649, § 2, are inconsistent w^ith this complete 
. power, and, accordingly, under the provisions of section 29 
of chapter 784, being inconsistent, were thereby repealed. 

2. Do the provisions of St. 1913, c. 784, § 29, repeal the 
provisions of St. 1906, c. 463, pt. II, §§ 137 and 138? 

Sections 137 and 138 read as follows: — 

Section 137. A railroad corporation which has estabhshed and 
maintained a passenger station throughout the year for five consecutive 
jTars at any point upon its railroad shall not abandon such station, 
unless it is relocated under the provisions of the following section, nor 
substantially diminish the accommodation furnished by the stopping of 
trains thereat as compared with that furnished at other stations on the 
same railroad. The supreme judicial court, upon an information filed 
by the attorney-general at the relation of ten legal voters of the city or 
towm in which such station is located, shall have jurisdiction in equity 
to restrain the violation of the provisions of this section. 

Section 138. A railroad corporation may relocate passenger sta- 
tions and freight depots, with the approval in vvriting of the board of 
railroad commissioners and of the board of aldermen of the city or the 
selectmen of the town in which such stations or depots are situated. 



232 ATTORNEY-GENERAL'S REPORT. [Jan. 

St. 1913, c. 784, § 23, reads in part as follows: — 

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

Section 137 of part II of said chapter 463 forbids the 
abandonment of a station which has been maintained for five 
years, unless the same is relocated. But if such station must 
be relocated it is in effect merely moved, and not abandoned. 
Moreover, such relocation cannot be made without the consent 
of the bodies described in said section 138. Section 137 
further forbids absolutely the curtailment of trains which stop 
at such station as compared with other stations on the same 
road. In other words, the train service at any station cannot 
be diminished unless the train service at other stations is 
curtailed at the same time. Such a provision necessarily- 
restricts the power to rearrange train service in order to meet 
the reasonable needs created by changed conditions. But 
section 23 of said chapter 784 vests in the Commission an 
unconditional authority to correct service which is " unjust, 
unreasonable or inadequate." Excessive train or station 
service at any one point is clearly unjust or unreasonable 
service. It is necessarily an unjust or unreasonable burden 
upon the road. It may cause either inadequate service else- 
where or else higher rates. The conditions imposed by said 
sections 137 and 138 of part II of chapter 463 are clearly 
"inconsistent" with the broad and unconditional authority 
conferred by section 23 of said chapter 784. In my opinion, 
section 29 of said chapter expressly repeals said sections 137 
and 138. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 233 



Fisheries and Game — Nuisance — Destruction of Fish by 

Chemicals. 

Deposits of poison in great ponds, which destroy fish life, may be a public 
nuisance which the Division of Fisheries and Game has no right to 
authorize. 

Aug. 17, 1920. 

William C. Adams, Esq., Director, Division of Fisheries and Game, De- 
'partment of Conservation. 

Dear Sir: — You have asked whether an ice company has 
the right to treat a pond with copper sulphate for the purpose 
of removing algfe from the water, which has resulted in the 
past in wholesale destruction of fish in the pond. 

You further inquire if there is any authority vested in the 
Department of Conservation to grant a permit to any persons 
to place chemicals in a great pond where the Board has 
reason to believe injury to the fish life will result. 

The Supreme Judicial Court has said in Hittinger v. Fames, 
121 Mass. 539, that — 

By the law of Massachusetts, great ponds, not appropriated before 
the Colony Ordinance of 1647 to private persons, are public property, 
the right of reasonably using and enjoying which, for taking ice for use 
or sale, as well as for fishing and fowling, boating, skating, and other 
la^\^ul purposes, is common to all, and in the water or ice of which, or 
in the land under them, the owners of the shores have no peculiar right, 
except by grant from the Legislature, or by prescription, which implies 
a grant. 

In the case of Fay v. Salem & Danvers Aqueduct Co., 
Ill Mass. 27, the court declared not only that great ponds 
were public property, but that their use for ''taking water 
or ice, as well as for fishing, fowling, bathing, boating or 
skating, may be regulated or granted by the Legislature at 
its discretion." In the case referred to I assume that there 
has been no act of the Legislature taking away from the 
public the right of fishing in the pond in question. 

The poisoning of waters stocked with fish, thereby killing 
the fish, was held to be a public nuisance in People v. Truckee 
Lumber Co., 116 Cal. 397. Whether the use of poison, which 
results in the killing of a few fish of no particular value, 
would constitute a nuisance may be a matter of doubt, but 
it is a question of fact to be determined in every case. The 



234 ATTORNEY-GENERAL'S REPORT. [Jan. 

creating and maintenance of a public nuisance, however, is 
an indictable offence in this Commonwealth. Rowe v. Granite 
Bridge Corpn., 21 Pick. 344, 346. 

It is my opinion that the deliberate deposit of copper 
sulphate or other poisonous substance in a great pond con- 
taining quantities of fish, with knowledge or reasonable 
expectation of fatal results to the fish therein, may w^ell be a 
public nuisance and an indictable offence. But, as above 
indicated, there must be some real injury in order to con- 
stitute a nuisance. There is no authority in your Department 
to authorize the commission of a nuisance anywhere; hence 
your second question must be answered in the negative. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Soldiers' Home in Massachusetts — Money paid out for JJ^ork — 
Vouchers — Approval by Majority of Trustees. 

Where work has been done at the Soldiers' Home in Massachusetts, it is 
necessary that a majority of the trustees of said Soldiers' Home 
shall have personally passed upon and approved the required vouchers 
before money can be paid out under the appropriation act, St. 1920, 
c. 629, item 147. 

Aug. 23, 1920. 

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

Dear Sir: — You ask my opinion as to whether money 
paid out under St. 1920, c. 629, item 147, for work at the 
Soldiers' Home in Massachusetts, must be on vouchers ap- 
proved by a majority of the trustees. 

It is my opinion that you w^ould not be justified in ac- 
cepting the approval of persons other than a majority of the 
trustees, even if such persons might be authorized to act by 
the trustees. The act specifically confers this duty and 
power upon the trustees. They cannot delegate such au- 
thority. Dillon, Municipal Corporations, 5th ed., § 244. 
Where joint authority is conferred upon public officers, in 
order to have a valid act a majority must approve. R. L., 
c. 8, § 4, as amended by Gen. St. 1919, c. 301, § 1. The 
physical act of approving, of course, may be done by a clerk 
of the trustees, provided that a majority of the trustees 



1921.] PUBLIC DOCUMENT — No. 12. 235 

personally pass upon and approve the voucher. The respon- 
sibility is placed upon the trustees and cannot be undertaken 
by any one else. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Taxation — Interest Rate — Additional Rate by Way of Penalty. 

The additional rate of interest of 2 per cent per annum imposed on taxes 
unpaid after three months from the date on which they become pay- 
able applies only to those taxes in excess of $200 assessed to any 
taxpayer in any one city or town; but taxes assessed in a fire, water, 
watch or improvement district, placed for convenience upon the tax 
bill of a city or town, are not to be considered in computing the $200 
limit. 

The additional 2 per cent runs from the date on which the taxes were 
payable. 

Where payments on a tax exceeding $200 are made so that the balance 
at the end of the three months is less than $200, the balance is not 
subject to the 2 per cent penalty. 

Aug. 25, 1920. 

Hon. William D. T. Trefry, Commissioner of Corporations and Taxation. 
Dear Sir: — In accordance with the provisions of St. 1909, 
c. 490, pt. Ill, § 5, you have requested my opinion as to 
certain questions raised by the Massachusetts Tax Collectors' 
Association, which I will quote and answer. All of these 
questions relate to the provisions of St. 1920, c. 460. This 
act reads as follows: — 

Taxes shall be payable in every city and town and in every fire, water, 
watch or improvement district in which the same are assessed, and bills 
for the same shall be sent out, not later than the fifteentli day of October 
of each year, unless by ordinance, by-law or vote of the city, town or 
district, an earlier date of payment is fixed. On all taxes remaining un- 
paid after the expiration of seventeen days from said October fifteenth, 
or after such longer time as may be fixed by any city, town or district 
which fixes an earlier date for payment, but not exceeding thirty days 
from such earlier date, interest shall be paid at the following rates com- 
puted from the date on which the taxes become payable : — At the rate 
of six per cent per annum on all taxes and, by way of penalty, at the 
additional rate of two per cent per annum on the amount of all taxes 
in excess of two hundred dollars assessed to any taxpayer, in any one 
city or town, if such taxes remain unpaid after the expiration of three 
months from the date on which they became payable, but if, in any case, 
the tax bill is sent out later than the day prescribed, interest shall be 



236 ATTORNEY-GENERAL'S REPORT. [Jan. 

computed only from the expiration of such seventeen days or said longer 
time. In no case shall interest be added to taxes paid prior to the 
expiration of seventeen days from the date when they are payable, nor 
shall any city or town so fix an earlier date of payment and longer time 
within which taxes may be paid wdthout interest as would permit the 
payment of any taxes without interest after the first day of November 
in the year in which they are due. Bills for taxes assessed under the 
provisions of section eighty-five of Part I shall be sent out not later 
than December twenty-sixth, and such taxes shall be payable not later 
than December thirty-first. If they remain unpaid after that date, 
interest shall be paid at the rates above specified, computed from 
December thirty-first until the day of payment, but if, in any case, the 
tax bill is sent out later than December twenty-sixth, the said taxes 
shall be payable not later than ten days from the date of the bill, and 
interest shall be computed from the fifteenth day following the date 
when the tax becomes due. In all cases where interest is payable it 
shall be added to and become a part of the tax. 

1. On what class of taxes is the additional 2 per cent rate of 
interest to be applied ? 

The provisions of chapter 460 on this point are that interest 
shall be paid at the following rates computed from the date 
on which the taxes become payable: — 

At the rate of six per cent per annum on all taxes and, by way of 
penalty, at the additional rate of two per cent per annum on the amount 
of all taxes in excess of two hundred dollars assessed to any taxpayer, 
in any one city or town, . . . 

Penal statutory provisions of this character are to be con- 
strued strictly, and not extended by implication to any taxes 
not clearly within their provisions. It is clear, from the 
language of the statute, that the additional rate of 2 per cent 
per annum, by way of penalty, applies only to those taxes in 
excess of $200 assessed to any taxpayer in any one city or 
town. It does not, in my opinion, apply to taxes assessed in 
a fire, water, watch or improvement district. It follows, 
therefore, that if such taxes are for convenience placed upon 
the tax bill of a city or town they are not to be considered 
in computing the $200 limit. 

2. Does the additional 2 per cent run from the date on which the 
taxes were payable, or only from the expiration of the three months 
mentioned in the act? 



1921.] PUBLIC DOCUMENT — No. 12. 237 

From an examination of the wording of the above provision 
it appears that the 2 per cent rate of interest is a penalty 
which attaches to taxes in excess of $200 which are not. paid 
within three months from the due date, and that such penalty 
is to be figured back to such due date. The collection of 
taxes is so essential to the support of government that the 
Legislature may pass very strict laws in regard to their collec- 
tion. No man has a right to postpone the payment of his 
taxes and, prior to the passage of St. 1920, c. 460, the penalty 
was a uniform 6 per cent. The apparent object of the 1920 
act is to secure the payment of the great bulk of the taxes 
within a reasonable time after they are due. It is my opinion 
that the Legislature has aptly provided that the 2 per cent 
penalty shall attach as of the due date of the tax, provided 
that the tax exceeds $200 and remains unpaid for three months. 

3. A person assessed for taxes in one municipality for over $200 
makes payments under the provisions of St. 1909, c. 490, pt. II, § 19, as 
amended by Gen. St. 1916, c. 20, so that at the expiration of three 
months less than $200 remains unpaid. Is this amount subject to the 
2 per cent penalty? 

In my opinion, it is not. The penalty attaches to all taxes 
in excess of $200 assessed to any taxpayer which remain 
unpaid after the expiration of three months from the due 
date. As there is no amount in excess of $200 unpaid at the 
expiration of three months, I do not see how the amount less 
than $200 can be held subject to the penalty provision. The 
act treats all alike on taxes up to $200, but to say that 
because a man originally had a $300 tax, on which $100 had 
been paid, he should pay a penalty, while a man with an 
original $200 tax, on which nothing had been paid, should 
pay no penalty for more than three months' delay in pay- 
ment, would be a discrimination which I believe the Legis- 
lature cannot be presumed to 'have intended. 

This answer applies with equal force to the case where a 
taxpayer was assessed a tax exceeding $200 on several parcels 
of real estate and had paid off on certain parcels so that the 
'tax remaining unpaid was less than $200. 

4. Does interest on taxes of 1919 and prior years remaining unpaid 
at the date when chapter 460 goes into effect come within these pro- 



visions 



238 ATTORNEY-GENERAL'S REPORT. [Jan. 

The act was approved May 14, 1920, and takes effect 
ninety days after its passage, as it contains no emergency 
preamble. The act merely substitutes a new section 71 for 
the original section 71 in part I of chapter 490 of the Acts of 
1909, The title is, " An Act relative to interest on unpaid 
taxes," which indicates an intention that it is an act of 
general applicability. Any taxpayer owing taxes assessed 
prior to the passage of the act has ninety days from May 14, 
1920, in which to pay his taxes with 6 per cent interest. 
Taxes which have been assessed and remain unpaid in an 
amount exceeding $200 at the date when the act goes into 
effect bear interest at the rate of 6 per cent to the date when 
the act goes into effect, and at the increased rate of 8 per cent 
thereafter. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Signatures — Use of Rubber Stamp Facsimile. 

Judges of probate have authority to use a rubber stamp facsimile of signa- 
ture on commitment papers of insane persons. 

Aug. 28, 1920. 
George M. Kline, M.D., Cornmissioner of Mental Diseases. 

Dear Sir: — You ask if a judge of probate can lawfully 
use a rubber stamp facsimile of his signature on commitment 
papers of insane persons. 

In an opinion rendered to the Secretary of the Common- 
wealth on July 21, 1903, by Hon. Herbert Parker, then 
Attorney-General, it was held that the Secretary of the 
Commonwealth might affix his signature to licenses by means 
of a stamp. The word "signature" is defined in Sweet's Law 
Dictionary as follows: — 

In the primary sense of the word, a person signs a document when he 
writes or marks something on it in token of his intention to be bound 
by its contents. In the case of an ordinary person, "signature" is 
commonly performed by subscribing his name to the document, and 
hence "signature" is frequently used as equivalent to "subscription; " 
but any mark is sufficient if it shows an intention to be bound by the 
document. 



1921.] PUBLIC DOCimiENT — No. 12. 239 

In the case of In re Covington Lumber Comyany, 225 Fed. 
Rep., 444, the court said: — 

Signatures adopted by persons are sufficient to give validit j^ to instru- 
ments, and it is immaterial whether the signature be printed or not, if 
it is adopted and recognized as the signature of the party. 36 Cyc. 448. 

In the case of orders of commitment, about which you 
inquire, the statute makes the incumbent of the office of 
judge of probate the magistrate empow^ered with the authority 
to sign commitment papers, and I am of the opinion that in 
■ such capacity the signature made by the use of a rubber 
stamp is a lawful signature, and that it is the duty of the 
State hospital authorities to honor orders of commitment so 
signed, unless they have reason to beUeve that the signature 
has not been affixed by the magistrate. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Public Charitable Institution — Boston Consumptives' Hospital. 

The words "public charitable institution," as used in St. 1920, c. 306, 
should be confined to charitable institutions supported by the State, 
county or municipality to which persons are committed. 

Aug. 30, 1920. 

Dr. Eugene R. Kelley, Commissioner of Public Health. 

Dear Sir: — You have asked my opinion as to whether 
the words ^'public charitable institution," as used in St. 1920, 
c. 306, include the Boston Consumptives' Hospital. 

St. 1920, c. 306, amends R. L., c. 75, § 48, in certain 
particulars not pertinent to your inquiry. Section 48, as 
amended, reads, in part, as follows: — 

An inmate of a public charitable institution or a prisoner in a penal 
institution who is afflicted with syphilis, gonorrhoea or pulmonary tuber- 
culosis shall forthwith be placed under medical treatment, ... If, at 
the expiration of his sentence, he is afflicted with syphilis, ... or if, in 
the opinion of the attending physician of the institution ... his dis- 
charge would be dangerous to public health, ... he shall be . . . 
cared for . . . in the institution where he has been confined. . . . The 
expense of his support . . . shall be paid by the place in which he has 
a settlement. ... 



240 ATTORNEY-GENERAL'S REPORT. [Jan. 

R. L., c. 75, § 48, is based on St. 1891, c. 420. Section 1 
of that act reads, in part, — 

Any person who is confined in, or an inmate of, any state penal or 
charitable institution, a common jail, house of correction or municipal 
or town almshouse. . . . 

The definition of "public charitable institution" must be 
derived from the context of the statute. The words have no 
fixed meaning. Taken alone on« might give to them a far 
broader definition than w^ould be warranted by the language 
of the statute in which they were used. Of the word "in-. 
stitution" alone one will find almost as many definitions as 
there are cases, and it has been held that the term "institu- 
tion" implies a foundation by law, and that a private school 
or college may not be called an institution because one cannot 
properly be said to "institute it." Bodge v. Williams, 46 Wis. 
70. In New^ York a statute conferring on the State Board 
of Charities the right of visitation and inspection of all 
charitable institutions was held by the court to be limited to 
those charitable institutions which received public money 
raised by taxation for the support and maintenance of indigent 
persons. People v. Neio York Society for the Prevention of 
Cruelty to Children, 162 N. Y. 429. 

In St. 1920, c. 306, the expressions "at the expiration of 
his sentence," "in the institution w^here he has been con- 
fined" and "inmate" indicate that the act is limited to 
prisons and other institutions w^here a person is subject to a 
greater or less legal restraint in his personal liberty, and St. 
1891, c. 420, except for prisons, refers only to State charitable 
institutions and municipal and town almshouses. The 
wording of this statute and its later amendments all indicate 
that the words "public charitable institution" should be 
confined to charitable institutions supported by the State, 
county or municipality to which persons are committed and 
are usually known as "inmates." 

Unless persons in the Boston Consumptives' Hospital are 
subject to a certain legal restraint and are there as paupers. 
State charges or by court commitment, St. 1920, c. 306, does 
not give the hospital either the right or the duty to apply the 
provisions of the act to patients therein. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 241 



Taxation — Exemption — Property of Commonicealth — Better- 
ments. 

Land owned by the Commonwealth is not subject to assessment by a 
city for benefits. 

Sept. 4, 1920. 
Mr. Robert W. Kelso, Commissioner of Public Welfare. 

Dear Sir: — The city of Lowell has assessed the Common- 
wealth for betterments in the form of sidewalks abutting on 
land owned by the Commonwealth and held through the 
Homestead Commission under authority of Gen. St. 1917, 
c. 310. You have asked my opinion as to whether you should 
authorize the payment of these bills. 

R. L., c. 12, § 5, par. 2d, reads: — 

The following property and polls shall be exempted from taxation : — 

Second. The property of the commonwealth, except real estate of 
which the commonwealth is in possession under a mortgage for condition 
broken. 

It is clear from the language of the statute that the Com- 
monwealth is not liable for real property taxes assessed by a 
city (Corcoran v. Boston, 185 Mass. 325), but there is no 
case deciding the point as to betterments. 

In Worcester County v. Worcester, 116 Mass. 193, the court 
held that the court house and jail, the property of Worcester 
County, were not liable for a sewer assessment levied by the 
city of Worcester. Devens, J., at page 194, argues: — 

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. This property of the petitioners is not, indeed, 
in legal form, the property of the Commonwealth, but the authority by 
which the county holds it is derived from the statutes by which the duty 
is imposed upon the various counties of providing suitable courthouses, 
jails and houses of correction. 

The court house and jail were property appropriated to a 
public use, but it would seem that land purchased by the 
Commonv/ealth through the Homestead Commission, under 



242 ATTORNEY-GENERAL'S REPORT. [Jan. 

authority of the Legislature, was also appropriated to a public 
use, in view of Mass. Const. Amend. XLIII. 

The reasoning, therefore, of Devens, J., would apply with 
greater force to the present case, where the land is owned 
directly by the Commonwealth and not by a county. As the 
only remedy given for collection of the assessment is by sale 
of the property, the courts have hesitated to subject estates of 
the Commonwealth or its political subdivisions to liens for 
taxes unless the intent of the Legislature to do so is clear. 
Worcester County v. Worcester, 116 Mass. 193; Burr v. Boston, 
208 Mass. 537; I Op. Atty.-Gen. 606. 

It is therefore my opinion that you should not authorize 
payment of the tax bills. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Support of an Inmate of a County Training School. 

When a boy has been committed to a training school under an order of 
court directing that the parents pay the cost of his support while in 
said school, the provision of St. 1920, c. 40, which requires a city or 
town from which a boy is committed to pay S2 per week toward his 
support, does not apply. 

Sept. 7, 1920. 

Mr. Theodore N. Waddell, Director of Accounts, Department of Cor- 
porations and Taxation. 

Dear Sir: — You state that St. 1920, c. 40, provides that a 
city or town shall pay S2 per week for the support of a boy 
committed from such city or town to a county training school. 
You then draw my attention to a case where a boy has been 
committed to such a school under an order of the court, 
entered pursuant to St. 1913, c. 779, § 9, directing that the 
boy's parents pay the cost of his support while in said school; 
and you request my opinion whether the said provision of 
chapter 40 applies in this case. 

Chapter 40, amending the last paragraph of section 1 of 
chapter 46 of the Revised Laws, as amended, provides: — 

The city or to\Mi from which an habitual truant, absentee or school 
offender is committed to a county training school shall pay to the county 
or counties maintaining the same two dollars a week toward his support, 
and reports of the condition and progress of its pupils in said school shall 



1921.] PUBLIC DOCUMENT — No. 12. 243 

be sent each month to the superintendent of schools of such city or town; 
but the town of Winthrop and the cities of Revere and Chelsea shall pay- 
to the county of Middlesex, for the support of each child committed to 
the training school of said county, two dollars and fifty cents a week, 
and such additional sums for each child as will cover the actual cost of 
maintenance. 

St. 1913, c. 779, § 9, amending R. L., c. 46, § 6, provides: — 

The court or magistrate by whom a child has been committed to a 
county training school may make an order relative to the payment by 
his parents to the county of the cost of his support while in said school, 
and may from time to time revise and alter such order or make a new 
order as the circumstances of the parents may justify. 

Chapter 40, like other statutory provisions, must be con- 
strued so as to effectuate the intent of the Legislature. The 
chapter does not merely impose a charge of $2 a week for 
each boy committed, but it provides that the money shall be 
paid "toward his support." If the boy is already being 
supported by his parents, pursuant to an 'order of court, it is 
difficult to see how the city of his residence could or should 
pay $2 per week more "toward his support." I am of opinion 
that the Legislature intended a city to pay $2 per week 
tow^ard the support of a boy being maintained by the county, 
but not toward the support of a boy being maintained by his 
parents. 

I am confirmed in this view by the last clause of chapter 
40, w^hich provides that Winthrop, Revere and Chelsea shall 
pay to the county of Middlesex, for each child committed to 
the training school, $2.50 per week, "and such additional 
sums for each child as will cover the actual cost of main- 
tenance." This clause is a further indication that the charge 
is imposed to provide support not otherwise provided for, 
and for no other purpose. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



244 ATTORNEY-GENERAL'S REPORT. [Jan. 



Sealers of Weights and Measures — Authority to seal Comput- 
ing-Measuring Device — Arithmetical Correctness of Price 
computed to the Nearest Cent. 

Under St. 1907, c. 535, § 1, as amended by Gen. St. 1917, c. 8, § 1, a sealer 
of weights and measures may lawfully seal for use in this Common- 
wealth a device designed to measure fabrics in eighths of yards, and 
to indicate the price of the fabric so measured, if he finds that said 
device indicates the linear measure correctly, and correctly computes 
the corresponding price to the nearest cent. 

The computation of price may be found to be arithmetically correct, even 
though the odd fraction of a cent is not indicated, if that odd fraction 
of a cent is apportioned to dealer or customer in accordance with 
the arithmetical test prescribed by commercial custom. 

Sept. 9, 1920. 
E. Leroy Sweetser, Esq., Commissioner of Lahor and Industries. 

Dear Sir: — You inquire whether, under St. 1907, c. 535, 
§ 1, as amended by Gen. St. 1917, c. 8, § 1, and construed 
in Money iceight Scale Co. v. McBride, 199 Mass. 503, a 
sealer of weights and measures may lawfully seal a computing- 
measuring device of the description hereinafter set forth, 
assuming that all indications of linear measurement are 
accurate, and that corresponding prices are correctly indicated 
to the nearest cent. The device is described in your letter as 
follows : — 

An instrument designed to be used for the determination of linear 
measure of textile fabrics in yards and eighth yards only, including a 
chart to be used in establishing a money value or sales price for any 
number of yards or eighth yards up to tw^elve yards, this being the 
maximum capacity of the device. In operation the quantity of fabric 
measured is indicated upon a dial, while the money value of the quan- 
tity measured is shown by figures upon a chart which revolves in con- 
junction mth the measuring mechanism. There are no figures, gradua- 
tion lines, or other indicating marks upon the dial which would permit 
measurements other than yards and eighths of yards to be made. Com- 
putations of value appear upon chart at intervals of eighth j^ards only, 
all fractions of one-half cent or over being figured as one cent. 

St. 1907, c. 535, § 1, as amended by Gen. St. 1917, c. 8, § 1, 
provides: — 

The provisions of chapter sixty-two of the Revised Laws relating to 
the adjusting, testing and sealing of weights, measures and balances 



1921.] PUBLIC DOCUMENT — No. 12. 245 

shall apply to all scales, balances, computing scales and other devices 
having a device for indicating or registering the price as well as the 
weight or measure of the commodity offered for sale. All such comput- 
ing devices shall be tested as to the correctness of both weights or 
measures and values indicated by them. 

Moneyioeight Scale Co. v. McBride, supra, decided, first, that 
under St. 1907, c. 535, the duty and authority to determine 
whether or not a computing scale was correct as to w^eights 
and corresponding values was vested in the several sealers of 
weights and measures; second, that St. 1907, c. 535, was 
constitutional in that the accuracy of computing scales as to 
w^eight was to be determined by the standard weights pre- 
scribed by law, and the accuracy of such computing scales 
as to corresponding values w^as to be tested by arithmetic. In 
this connection the court said, at p. 515: — 

For these reasons we are of opinion that the General Court when it 
enacted St. 1907, c. 535, by which the correctness of self -computing 
scales and the other devices therein mentioned was committed to the 
final decision of the sealers of weights and measures for the several 
cities and towns of the Commonwealth, must (in our opinion) have 
intended that the values to be placed on such charts should be arith- 
metically correct. So construed, St. 1907, c. 535, is a valid statute, and 
the decree dismissing the bill must be affirmed. 

The computing-measuring device in question here is designed 
to measure fabrics in yards and eighths of yards, and at a 
given price per yard to indicate to the nearest cent the 
corresponding value of the goods so measured. The smallest 
fraction of a yard which can be measured is one-eighth of a 
yard, and the corresponding values are indicated to the 
nearest cent for eighths of yards only. It is not designed to 
perform the converse operation, namely, to determine how 
much fabric the seller shall deliver, at a given price per yard, 
for a designated sum in money. Indeed, I am informed that 
fabrics are seldom if ever sold in this manner. For both 
reasons the difficult questions incident to determining the 
^'commercial" accuracy of a device designed to indicate how 
much cloth the merchant should deliver, at a given price 
per yard, in exchange for a fixed sum are entirely eliminated. 
The sole question is whether a device w^hich measures the 
length of the fabric in eighths of yards and indicates the 



246 ATTORNEY-GENERAL'S REPORT. [Jan. 

corresponding values to the nearest cent may lawfully be 
tested, and, if found to be accurate, may be sealed under 
authority of St. 1907, c. 535, § 1, as amended by Gen. St. 
1917, c. 8, § 1. 

Our smallest coin is one cent. If the price of goods sold 
includes a fraction of a cent, the settled commercial custom 
is to pay to the nearest cent. If the fraction be less than a 
half cent it is disregarded. If the fraction equal or exceed 
one-half cent it is treated as a cent, and the customer pays 
accordingly. This custom is recognized in the Moneyweight 
Scale case. It obtains, whether the price be computed with 
pencil and paper or by a mechanical device. Since the 
purpose of computation either with pencil and paper or 
mechanically is to determine the number of cents which the 
customer should pay, the device is, in my opinion, arithmet- 
ically accurate, within the meaning of the Moneyiceight 
Scale case, if the price be determined correctly in accordance 
with the commercial custom above described. It is true 
that the statute confers no discretion upon the sealer. He 
must test the device according to the rules of arithmetic. 
Those rules determine the number of even cents in the price 
to be paid. The custom, w^hich has the force of law, deter- 
mines by a strictly arithmetical test what disposition shall be 
made of the additional fraction of a cent. The test to be 
applied does not cease to be a purely arithmetical one or 
involve any exercise of discretion because the arithmetical 
rule imposed by the custom is applied in order to determine 
the proper disposition of the fraction of a cent involved. I 
therefore advise you that if the computing-measuring device 
correctly measures the length of the fabric in accordance with 
the standards prescribed by law, and correctly computes the 
price for each eighth of a yard which is measured, in ac- 
cordance with the commercial custom above described, such 
computing-measuring device may lawfully be sealed for use in 
this Commonwealth. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.] PUBLIC DOCUMENT — No. 12. 247 



Savings Banks — Power to establish Safe Deposit Department — 
Power to make a Business of receiving Securities for 
Safekeeping. 

A savings bank is not authorized to establish a safe deposit department. 

A savings bank is not authorized to make a business of receiving securities 
for safekeeping except to the extent and under the conditions pre- 
scribed by Gen. St. 1919, c. 60. 

Sept. 10, 1920. 
Mr, Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You have asked my opinion as to the right 
of savings banks to establish safe deposit departments. The 
formation and conduct of savings banks are primarily regu- 
lated by St. 1908, c. 590, with numerous amendments thereof 
and additions thereto. This act contains over seventy 
sections and goes into great detail in regard to incorporation, 
management, deposits and investments. I find no provision 
of law which expressly or impliedly authorizes a savings 
bank to establish a safe deposit department, although section 
69, subsection 9, expressly regulates the purchase of a suitable 
site and the erection of a suitable building for the convenient 
transaction of its business. This omission is very significant 
in view of the fact that R. L., c. 116, which regulates trust 
companies, expressly authorizes by section 12 the receipt on 
deposit and storage of stocks, bonds, jewelry and valuable 
papers, and by section 38 defines in detail the procedure for 
collecting the unpaid rent of safe deposit boxes. The effect 
of this omission is emphasized by Gen. St. 1919, c. 60, which 
provides as follows: — 

Savings banks and institutions for savings may, with the written 
permission of and under regulations approved by, the bank commis- 
sioner, receive and hold for their depositors any securities issued by the 
United States. 

If savings banks had implied or incidental power to establish 
a safe deposit department, or even to make a business of re- 
ceiving securities for safekeeping, Gen. St. 1919, c. 60, would 
have been wholly superfluous. I am therefore constrained to 
advise you that in my opinion savings banks are not au- 
thorized to establish a safe deposit department, or even to 
make a business of receiving securities for safekeeping, except, 
of course, to the extent permitted by Gen. St. 1919, c. 60. 



248 ATTORNEY-GENERAL'S REPORT. [Jan. 

You do not ask, and I do not decide, whether, under excep- 
tional circumstances, as a matter of accommodation, a savings 
bank might receive securities for temporary safekeeping until 
they could be placed in safety elsewhere. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Chiropody — Registration — Failure to register before Date set 
by Statute — Requirements for Registration and Issuance 
of Certificate. 

Under Gen. St. 1917, c. 202, § 5, as amended by Gen. St. 1918, c. 15, a 
person who had been engaged in the practice of chiropody in this 
Commonwealth for a period of more than two years prior to the 
passage of Gen. St. 1917, c. 202, and who failed to make application 
for registration on or before May 1, 1918, is obliged to comply with 
the provisions of Gen. St. 1917, c. 202, § 5, par. (3), before being 
registered and receiving a certificate as a chiropodist. 

Sept. 15, 1920. 

Dr. Walter P. Bowers, Secretary, Division of Chiropody, Department 
of Registration in Medicine. 

Dear Sir: — You request my opinion on the following: — 
Paragraphs (l), (2) and (3) of section 5 of chapter 202 of 

the General Acts of 1917, as amended by chapter 15 of the 

General Acts of 1918, read as follows: — 

Registration under this act shall be granted as follows: — (1) Any 
chiropodist who shall furnish the board with satisfactory proof that he 
is twenty-one years of age or over, and of good moral character, who 
shall make application for registration on or before the first day of May, 
nineteen hundred and eighteen, and who proves to the satisfaction of 
the said board that he has been engaged in the practice of chiropody in 
this commonwealth for a period of two years or more next prior to the 
passage of this act, shall, upon the payment of a fee of ten dollars, be 
registered without examination, and shall receive a certificate as a 
chiropodist registered under this clause, signed by the chairman and 
secretary of the board. 

(2) Any person who is engaged in the practice of chiropody in this 
commonwealth at the date of the passage of this act, but who has so 
been engaged for a period of less than two years next prior to the said 
date shall, upon furnishing the board with satisfactory proof that he is 
twenty-one years of age or over, and of good moral character, and upon 
the payment of a fee of fifteen dollars, be examined as provided in sec- 
tions three and eight of this act, and if found qualified, shall be regis- 



1921.] PUBLIC DOCUMENT — No. 12. 249 

tered, and shall receive a certificate as a chiropodist registered under 
this clause, signed by the chairman and secretary. 

(3) Any person not entitled to registration as aforesaid, who shall 
furnish the board with satisfactory proof that he is twenty-one years of 
age or over, and of good moral character, and that he has received a 
diploma or certificate from a reputable school of chiropody, or from 
some other institution of equal standing, having a minimum require- 
ment of one year's course of at least eight months shall, upon payment 
of a fee of fifteen dollars, be examined as provided in sections three and 
eight of this act, and if found qualified, shall be registered, and shall 
receive a certificate as a chiropodist registered under this clause, signed 
b}' the chairman and secretary. 

At the time of the passage of this act, on x\pril 24, 1917, a 
woman residing in Lowell had been practicing chiropody in 
this Commonwealth for a considerable number of years, but 
had neglected to make application for registration until she 
was complained of for violating the law, and she now desires 
to be examined under paragraph (2) rather than under 
paragraph (3), w^hich requires that an applicant for registra- 
tion shall have received a diploma or certificate from a 
reputable school of chiropody or from some other institution 
of equal standing having a minimum requirement of one 
year's course of at least eight months. 

The Legislature, by the provisions of paragraphs (1) and 
(2), made provision for those persons engaged in the practice 
of chiropody at the date of the passage of the act. They 
were divided into two groups, those who had been engaged 
in practice for a period of two years or more next prior to 
the passage of the act, and those w^ho had been engaged for 
a period of less than two years. Those falling in the first 
group, who made application before the first day of May, 
1918, were entitled to be registered without examination 
upon the payment of a fee of $10, and note here that the 
act placed the date on or before which applicants in this 
class should register as on or before Oct. 1, 1917. This date 
was later extended by Gen. St. 1918, c. 15, to May 1, 1918, 
and for those persons absent from the Commonwealth by 
reason of military or naval service, by Gen. St. 1919, c. 316, 
to Oct. 1, 1919. 

Those persons who were engaged in practice for less than 
two years at the date next prior to the passage of the act 
were entitled to be examined upon the payment of a fee of 
$15, and, if found qualified, to be registered. 



250 ATTORNEY-GENERAL'S REPORT. [Jan. 

The person in question came within the first group, as she 
had been engaged in practice for more than two years next 
prior to the passage of the act, and, under the provisions of 
paragraph (1), she should have made application on or before 
the first day of May, 1918, to receive the privileges of that 
paragraph. The provisions of paragraph (2) in no way 
apply to her. Not having availed herself of the privileges of 
paragraph (1), she must now comply with the provisions of 
paragraph (3). 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Credit Unions — Membership — Corporations — Loans. 

A corporation cannot be a member of a credit union organized under the 
provisions of Gen. St. 1915, c. 268. 

A credit union must confine its membership to individuals, and, as it must 
limit its loans to its own members, it cannot loan money to a cor- 
poration. 

Sept. IS, 1920. 
Hon. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You request my opinion on the question as 
to whether or not a Massachusetts corporation may be a 
member of a credit union established under the provisions of 
Gen. St. 1915, c. 268, and if such a corporation, as a member, 
could legally borrow money from such a credit union. 

In the by-laws of a certain credit union, a business corpora- 
tion is set forth as a member of the credit union. Being set 
forth as a member, the compan^^ has been borrowing money 
from the credit union, the practice having been to lend the 
surplus funds to the company on demand notes at current 
rates. The clerk of the credit union reports that the company 
now holds $1,900 of the outstanding loans of the credit union 
which amount in all to $2,811. Another loan to the company 
is being considered, and the clerk desires to know if there is 
any advisable limit to the percentage of the funds of the 
union which may be loaned to the company. 

The law of this Commonwealth relative to credit unions 
provides that the capital, deposits and surplus funds may be 
invested in loans to members where approved by the credit 
committee, and any excess over approved loans shall be de- 
posited or invested only in accordance with certain regulations 



1921.] PUBLIC DOCUMENT — No. 12. 251 

set forth in the act. (Gen. St. 1915, c. 268, § 11.) Under no 
circumstances may loans be made to persons who are not 
members of the union. 

An examination of the history and purpose of credit unions 
and the provisions of the present law of the Commonwealth 
relative thereto clearly indicates that it was not intended that 
corporations should be included in the membership. The 
fundamental principles of credit unionism contemplate the 
association of individuals for the purpose of promoting thrift 
among members. 

The pamphlet which you have furnished me, in which your 
Department outlines the growth of the credit union, quite 
plainly points to this proposition. For instance: — 

The association shall be one of men and not of shares. 

As loans are made only to members, and as any member may become 
a borrower, care must be taken to admit to membership only men and 
women of honesty and industry. 

Personal knowledge of the character of the members is essential. 

In making loans it should be recognized that character and industry 
are the basis of credit. 

Members must be scrutinized as to character before they are ad- 
mitted. 

The credit committee must examine into the habits of the borrower 
in order to ascertain his ability and willingness to repay the loan. Un- 
less the moral security is good, the loan should be refused in order that 
the necessity for honest, industrious and respectable living should be 
brought home to the members. 

Turning to the provisions of chapter 268, further evidence 
may be adduced to establish the intent that membership shall 
be limited to individuals. 

Section 6 provides, in part, that the by-laws — 

shall prescribe . . . the conditions of residence or occupation which 
qualify persons for membership. 

Section 24 provides, in part, that the board of directors 
may expel any member — 

who has been convicted of a criminal offence ... or whose private 
life is a source of scandal, or who habitually neglects to pay his debts, or 
who shall become insolvent or bankrupt, or who shall have deceived the 
corporation or any committee thereof with regard to the use of borrowed 
money. 



252 ATTORNEY-GENERAL'S REPORT. [Jan. 

It Is further to be observed that membership in the board 
of directors of the credit committee and the supervisory 
committee is restricted to members of the credit union. 

If a director or a member of any of these committees ceases to be a 
member of the credit union, his office should thereupon become vacant. 
(See section 14.) 

No provision is made for a representation either upon the 
board of directors or upon the committees by corporations. 
It is further provided that — 

Unless the number of members of a credit union is less than eleven, 
no member of said board shall be a member of either of said commit- 
tees . . . 

If corporations were eligible to membership, a credit union of 
eleven members, a majority of which were corporations, could 
not effect its organization. 

Upon the foregoing considerations, I am of the opinion 
that a corporation may not be a member of a credit union 
organized under the provisions of Gen. St. 1915, c. 268. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Election Lav: — Political Designation by IndepGndent Candidates. 

A candidate whose name appears on an official ballot through nomina- 
tion papers cannot attach the name of a political party thereto unless 
he receives a nomination by such party. 

Sept. 25, 1920. 

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

Dear Sir: — The following inquiries relative to election 
laws have been received from your Department: — 

Gen. St. 1917, c. 250, § 1, amending St. 1913, c. 835, § 201, prc- 
vides that "if a candidate is nominated otherwise than by a political 
party, the name of a political party shall not be used in his political 
designation. ..." 

1. Under this provision of law, can a regular republican candidate, 
having been nominated by a political party, use the designation "demo- 
cratic independent" on nomination papers as a candidate for the same 
office? 

2. Can a woman sign nomination papers for candidates for public 
office? 



1921.] PUBLIC DOCUMENT — No. 12. 253 

St. 1913, c. 835, § 198, provides: — 

Nominations of candidates for any offices to be filled by all the voters 
of the commonwealth may be made by nomination papers, stating the 
facts required by section two hundred and one and signed in the aggre- 
gate bj^ not less than one thousand voters for each candidate. Nomina- 
tions of all other candidates for offices to be filled at a state election, and 
of all candidates for offices to be filled at a city election, except in Boston, 
and in other cities where city charters provide otherwise, may be made 
by like nomination papers, signed in the aggregate, for each candidate, 
by two voters for every one hundred votes cast for governor at the 
preceding annual state election in the electoral district or division for 
which the officers are to be elected, but in no case by less than fifty nor 
more than one thousand qualified voters. In Boston the nomination 
of candidates for any municipal elective office to be voted for at the 
municipal election in said city shall be made by nomination papers, 
prepared and issued by the election commissioners, signed in person by 
at least five thousand registered voters in said city qualified to vote for 
such candidates at said election. Nominations of candidates for offices 
to be filled at a town election may be made by nomination papers, signed 
b}^ at least one voter for every fifty votes polled for governor at the 
preceding annual state election in such town, but in no case by less than 
twenty voters. ... 

1. The statute above quoted w^as enacted to prevent inde- 
pendent candidates for public office from securing undue ad- 
vantages over candidates nominated by parties in the regular 
manner. The intention of the law is clear, that no person 
shall be entitled to use a political party designation after his 
name unless he receives a nomination by such political party. 
Thus, an independent candidate is not entitled to attach the 
name "republican" or "democrat" to his political designation. 
The fact that a candidate has received a party nomination 
cannot entitle him to use the political designation of another 
party when filing independent nomination papers. 

2. The law provides that nomination papers shall be 
signed by qualified voters. The Nineteenth Amendment to 
the Federal Constitution provides that the right of citizens of 
the United States to vote shall not be denied or abridged on 
account of sex. St. 1920, c. 579, which took effect upon the 
ratification of the Nineteenth Amendment, has extended to 
women w^ho possess the requisite qualifications the right to 
vote. I am of opinion that the right to vote includes as an 
incident a right to participate in the nomination of candidates. 



254 ATTORNEY-GENERAL'S REPORT. [Jan. 

and therefore to sign nomination papers. I therefore advise 
you that a woman who has been duly registered as a voter 
may sign such papers. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Trust Company - — Savings Department — Extra Dividend — •' 

Payment. 

A savings department of a trust company cannot pay an extra dividend 
other than under and in accordance with St. 1908, c. 590, § 63. 

The provisions of St. 1908, c. 590, § 63, do apply where an extra dividend 
was declared prior to the date that St. 1920, c. 563, became operative, 
and which was payable subsequent to that date. 

Sept. 28, 1920. 

Hon. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You ask my opinion on the following ques- 
tions: — 

1. Ma}^ the savings department of a trust company pay an extra 
dividend other than as provided by St. 1908, c. 590, § 63? 

2. Would said section 63 affect an extra di\idend declared prior to 
the date that St. 1920, c. 563, became operative, and which was payable 
subsequent to that date? 

St. 1920, c. 563, § 6, provides, in regard to savings de- 
partments of trust companies, in part as follows: — 

Ordinary dividends in such a department shall not exceed the 
rate of five per cent a year, and extra dividends may be paid as by 
savings banks, under and in accordance mth section sixty-three of 
chapter five hundred and ninety of the acts of nineteen hundred and 
eight. 

It is evident from this provision of St. 1920, c. 563, that the 
answer to question 1 is in the negative. 

Prior to the enactment of St. 1920, c. 563, no express 
provision had been made by statute for payment of dividends 
by the savings department of a trust company. The au- 
thority to pay interest or dividends upon savings deposits 
must be found in the general provisions relating to the pay- 
ment of dividends by trust companies, or implied from St. 
1908, c. 520, § 5, which provides: — 

All income received from the investment of funds in said savings 
department, after deducting the expenses and losses incurred in the 



1921.] PUBLIC DOCUMENT — No. 12. 255 

management thereof and such sums as may be paid to depositors therein 
as interest or dividends, shall accrue as profits to such corporation and 
may be transferred to its general funds. 

By St. 1920, c. 563, § 6, the distinction is made between 
ordinary and extra dividends. Prohibition is put upon pay- 
ment of ordinary dividends in excess of 5 per cent, and a 
provision is made that extra dividends may be paid under 
the same provisions governing payment of extra dividends by 
savings banks. The payment of extra dividends is not made 
compulsory, as in the case of savings banks, under the pro- 
visions of St. 1908, c. 590, § 63, but it is the clear intent of 
the statute that no extra dividend shall be paid by the 
savings departments of trust companies other than under the 
same conditions which obtain in the case of savings banks. 

The answer to your second question is to be found in the 
language of the statute, which determines when and under 
what conditions extra dividends "may be paid,'' and it 
follows that any dividend paid subsequent to the time that 
St. 1920, c. 563, became operative could be paid only under 
the authority of that act. Dividends declared are not divi- 
dends paid, and if a dividend is paid contrary to the statutory 
limitations governing payment, it can make no difference 
when the dividend was declared. It follows that the answer 
to your second question must be in the affirmative. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Optometry, Practice of — Assistance in Use of Eyeglass Tester. 

Where one possesses an appliance and lends manual assistance in the 
operation of the same, which requires no technical knowledge of the 
science of optometry, said assistance being rendered to a customer 
in the use of the appliance by turning a disc to enable the customer 
to look through a series of lenses, it cannot be said that the lending 
of such assistance constitutes the practice of optometry, within the 
meaning of St. 1912, c. 700, § 1. 

The use of such an appliance, and its operation as indicated, by a seller 
does not come within the prohibition of St. 1912, c. 700, if neither 
advice nor instruction is given the customer. 

Oct. 1, 1920. 

Division of O-ptometry, Department of Civil Service and Registration. 

Gentlemen: — You state certain facts relating to the use 
of an appliance called the auto eye tester, and request my 
opinion upon the following question of law: — 



256 ATTORNEY-GENERAL'S REPORT. [Jan. 

Does the fact that the possessor of this apphance provides a "method 
or means" of making an examination of the eyes mean that the seUer 
is thereby practicing optometry? 

It appears from the papers accompanying your letter that 
a complaint was received by the Division of Optometry to 
the effect that a firm dealing in spectacles or eyeglasses was 
using an appliance called the auto eye tester, and was ad- 
vertising that by the use of the appliance persons could fit 
their eyes to glasses. Investigation by the State Police, at 
the instance of your Division, confirmed the statements con- 
tained in the complaint, and also disclosed the fact that 
clerks employed by this firm assisted customers in the use of 
the appliance by turning a disc to enable the customer to 
look successively through a series of lenses. 

It is the contention of the manufacturer that the use of 
this appliance by customers to assist them in determining 
what eyeglasses are suited to their eyes does not constitute 
a violation of law, in that its use by the customer is not, in 
any legal aspect, different from the use by the customer of 
numerous pairs of eyeglasses in trying the lenses to make a 
selection. 

The company claims that it merel}^ facilitates the selection 
of eyeglasses best suited to the customer. 

St. 1912, c. 700, § 1, reads as follows: — 

The practice of optometry is defined to be the employment of any 
method or means other than the use of drugs for the measurement of 
the powers of vision and the adaptation of lenses for the aid thereof. 

It is further provided in section 5 of said chapter that no 
person shall practice optometry until he shall have passed an 
examination and shall have received a certificate of registra- 
tion. Certain persons are exempted from the provisions of 
the act under section 10, including "persons who neither 
practice nor profess to practice optometry, but who sell 
spectacles or eyeglasses or lenses, either on prescription . . . 
or as merchandise from permanently located and established 
places of business." No question is raised upon the record 
that the seller has a permanently located and established 
place of business, and that the persons who sell the spectacles 
or eyeglasses do not profess to practice optometry. 

The question submitted to me, therefore, turns upon what 
is meant by "practicing optometry." Obviously there is no 



1921.] PUBLIC DOCUMENT — No. 12. 257 

restraint imposed by the statute upon a customer trying on 
any number of pairs of glasses for the purpose of testing 
which one most assists the vision. No objection could be 
made to the use by the customer of a series of trial glasses, 
with different lenses and numbers, furnished by the seller to 
enable the customer to test his vision. There is no valid 
distinction between the use by the customer of a series of 
eyeglasses in testing the vision, and the use of an appliance 
containing a series of lenses which enables the customer to 
make a selection with greater facilit^^ 

Nor does it make any difference that the seller assists the 
customer in the use of the appliance by turning a disc to 
present the lenses in succession. It this were true, a child 
could practice optometry, and it would cease to be a skilled 
profession. 

It is not necessary to attempt to lay down an exact rule 
to determine in all cases what is or is not included in the 
practice of optometry. It is sufficient in the present case to 
say that manual assistance in the operation of a mechanism 
which requires no technical knowledge of the science does not 
constitute the practice of optometry, within the meaning of 
the act. I am of the opinion that the use of tliis appliance 
and its operation by the seller does not come within the pro- 
hibition of the statute if neither advice nor instruction is 
given to the customer. 

The form of your question suggests that caution should be 
used in an^^ representation that this appliance provides a 
method or means of making an examination of the eyes which 
will afford a complete test of the vision. From the papers 
accompanying your letter it would appear that the so-called 
auto eye tester operates only to test the eyes as to far- 
sightedness, nearsightedness and failing eyesight due to old 
age. It apparently does not test the eyes for astigmatism or 
other defects of vision. If this assumption is correct, the 
name of the appliance is itself misleading. Unless it is made 
clear in any advertisement or representation that the ap- 
pliance affords only a partial test of the eyes, a customer 
suffering from astigmatism might* be induced to purchase 
eyeglasses which afforded some relief w^ith respect to far or 
near sight in the belief that the appliance afforded a full test 
of defects of vision. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



258 ATTORNEY-GENERAL'S REPORT. [Jan. 



Insurance — Mutual Fire Insurance Comjjajiy — By-Jaws — 
Election of Directors — Rights of Policyholders and 
Guaranty Stockholders in Such Election. 

A by-law of a mutual fire insurance company, which provides that the 
board of directors shall be chosen, one-half by and from the policy- 
holders, and one-half by and from the guaranty stockholders, is 
invalid because it is in conflict with the provisions of St. 1907, c. 576, 
§ 43, as amended by Gen. St. 1915, c. 7. 

The policyholders and the guaranty stockholders of a mutual fire insur- 
ance company have equal rights in electing the entire board of di- 
rectors. 

Oct. 11, 1920. 

Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Deae Sir: — You request my opinion on the following 
question of law: A mutual fire insurance company having a 
guaranty capital of $100,000, in accordance with the pro- 
visions of St. 1907, c. 576, § 45, has had since 1872 a by-law 
as follow^s, viz. : — 

Section 1 of Article II. 

There shall be elected by ballot a board of not less than eight nor 
more than twe]ve directors, one -half of whom shall be chosen by and 
from the members and one-half by and from the stockholders. 

Your question is as to whether or not this by-law^ and the 
election of directors, half by and from the policyholders and 
half by and from the guaranty stockholders, is the proper 
mode of procedure. 

A fundamental and one of the most important features of 
a mutual fire insurance company is the provision that every 
person insured by such a company is a member while his policy 
is in force, and entitled to one vote for each policy that he 
holds. The power of such a member to vote as to w^hom he 
desires to be upon the board of directors of such a company 
is an essential feature of the mutual fire insurance business. 

The statutory provisions pertinent thereto are found in 
St. 1907, c. 576, § 43, as amended by Gen. St. 1915, c. 7. 
Said section 43, as amended, provides, in part, as follows: — 

4- 

Every person insured by a mutual fire insurance company shall be a 
member while his policy is in force, entitled to one vote for each pohcy 
he holds, and shall be notified of the time and place of holding its meet- 
ings by a Amtten notice. 



1921.] PUBLIC DOCmiENT — No. 12. 259 

Every such companj^ shall elect b}^ ballot a board of not less than 
seven directors, who shall manage and conduct its business. . . . 

A majority at least of the directors shall be citizens of this common- 
wealth, and, after the first election, members only shall be eligible, but 
no director shall be disqualified from serving the term for which he was 
chosen by reason of the expiration or cancellation of his poHcy : provided, 
that, in compmiies icith a guaranty capital^ one-half of the directors shall 
be chosen from the stockholders. 

The provisions as to companies with a guaranty capital are 
found in section 45 of said chapter 576. 

The guaranty stockholders' power to vote, as provided in 
the above section, is as follows: — 

Shareholders and members of such companies shall be subject to the 
same provisions of law relative to their right to vote as apply respec- 
tively to shareholders in stock companies and policy holders in purely 
mutual companies. 

It is my opinion that the provisions of the by-law^ of 
the insurance company in question are not in accord with the 
requirements of the statute. The policyholders and the 
guaranty stockholders of a mutual fire insurance company 
have equal rights in electing the entire board of directors. It 
is true that the policyholders of such a compan\' greatly out- 
number the guaranty stockholders, and doubtless this was the 
reason that the proviso was added to clause 8 of section 43 of 
said chapter 576, requiring that in companies with a guaranty 
capital, one-half of the directors should be chosen from the 
stockholders. To go further and attempt to read into the 
statute a right of the guaranty stockholders to elect the stock- 
holder directors, without participation in the vote by the 
policyholders, is not only to make an implication that is 
not w^arranted, but it violates the rights secured to the 
policyholders by the statute, because "every person insured" 
is a member "entitled to vote" in the election of directors. If 
the Legislature had intended that one-half of the directors 
should be chosen from and by the stockholders, it would 
have so provided. 

Very truly yours, 

J. Westox Allex, Attorncy-GencraL 



260 ATTORNEY-GEXERAL'S REPORT. [Jan. 



Citizenship — Status of American Women married to Aliens 
prior to March 2, 1907. 

American women married to aliens prior to March 2, 1907, retain their 
American citizenship, while those subsequently married to aliens take 
the nationality of their husbands. 

Oct. 13, 1920. 

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

Dear Sir: — You request my opinion as to whether a 
woman who w^as an American citizen, and w^ho, prior to 
]March 2, 1907, married an alien, retains her American citizen- 
ship and is entitled to register and vote. 

On March 2, 1907, Congress enacted a statute, the third 
section of which provides: — 

That an}^ American woman who marries a foreigner shall take the 
nationality of her husband. At the termination of the marital relation 
she may resume her American citizenship, if abroad, by registrating as 
an American citizen within one j^ear with a consul of the United States, 
or by returning to reside in the United States, or, if residing in the 
United States at the termination of the marital relation, by continuing 
to reside therein. 

The question you have raised, namely, what is the status 
of an American woman w^ho married a foreigner prior to the 
statute of 1907, has been the subject of more or less con- 
troversy for many years, and there has been no judicial 
determination of this precise point by the highest court of 
either this Commonwealth or the United States. 

In the case of Shanhs v. Dupont, 3 Pet. 242 (1830), the 
plaintiff, a woman, under age, resided with her father in 
Charleston, S. C, when that city was captured by the British 
forces in 1780. She married a British officer in 1781, left 
America with him the following year, went to England, and 
remained there until her death in 1801. The question of her 
citizenship was involved, and the court held that her removal 
from the United States operated as a virtual dissolution of 
her allegiance, and fixed her future allegiance to the British 
Crowm by the Treaty of Peace of 1783. 

The question presented by your inquiry was not before the 
court, but Mr. Justice Story, in his opinion, after stating that 
the capture and possession of Charleston did not annihilate or 
destroy the allegiance of the captured inhabitants, said: — 



1921.] PUBLIC DOCOIENT — No. 12. 261 

Neither did the marriage vdih Shanks produce that effect; be- 
cause marriage \nth an alien, whether a friend or an enemy, produces 
no dissolution of the native allegiance of the ^Yiie. It may change her 
civil rights, but it does not affect her political rights or privileges. The 
general doctrine is, that no persons can by any act of their own, mthout 
the consent of the government, put off their allegiance, and become 
aliens. 

The rule stated by Mr. Justice Story, that no person, by 
any act of his, without the consent of the government, can 
put off his allegiance and become an alien, was declared 
otherwise by Congress in the act of July 27, 1868, now U. S. 
Rev. St. § 1999, which reads as follows: — 

Whereas the right of expatriation is a natural and inherent right of 
all people, indispensable to the enjojmient of the rights of life, liberty, 
and the pursuit of happiness; and whereas in the recognition of this 
principle this Government has freely received emigrants from all 
nations, and invested them with the rights of citizenship; and whereas 
it is claimed that such American citizens, 'with their descendants, are 
subjects of foreign states, owing allegiance to the governments thereof: 
and whereas it is necessary to the maintenance of public peace that this 
claim of foreign allegiance should be promptly and finally disavowed: 
Therefore any declaration, instruction, opinion, order, or decision of 
any officer of the United States which denies, restricts, impairs, or 
questions the right of expatriation, is declared inconsistent with the 
fundamental principles of the Republic. 

In 1883 it was held by the United States Circuit Court 
that a French woman who had become naturalized under the 
statute by a marriage with an American citizen will again 
become an alien by a second marriage to a French citizen 
residing in this country. Pequignot v. Detroit, 16 Fed. Rep., 
211 (C. C. 1883). 

In that case Judge Brown expressed doubt as to the binding 
force of Shanks v. Dupont, in view of the act of July 27, 
1868, which expressly recognizes the inherent right of ex- 
patriation, and of the act of Feb. 10, 1855, which provides 
that any woman married to an American citizen should be 
deemed a citizen, and observed that — 

It seems to me . . . that we ought to apply the maxim "cessante 
ratione, cessat lex" to this case, and are not bound to treat it as con- 
trolling authority. 



262 ATTORNEY-GENERAL'S REPORT. [Jan. 

He added: — 

We should regard the sections above quoted as announcing the 
views of Congress upon this branch of international law, and ought to 
apply the same rule of decision to a case where a female American citi- 
zen marries an alien husband, that we should to a case where an alien 
woman marries an American citizen. 

The reasoning of Judge Browm, however, has not met with 
approval in later decisions. In Comitis v. Parkerso7i, 56 Fed. 
Rep., 556 (C. C. 1893), the plaintiff, a native citizen of 
Louisiana, married a native-born subject of Italy, who had 
come to Louisiana and engaged in business. The husband 
never became naturalized, but they resided in Louisiana until 
his death, and the plaintiff thereafter continued to reside there. 
The court, referring to the act of July 27, 1868, said: — 

But, even if Congress, in the preamble to the act of 1868, had 
meant to declare that there might be expatriation effected in connection 
with other means than bj^ naturalization abroad, the settled doctrine as 
to expatriation would prevent the plaintiff from being regarded as 
expatriated. Expatriation must be effected by removal from the country. 
It cannot be denied that whatever right of expatriation Congress meant 
to declare by the act of 1868 is in the express language of the preamble 
based entirely upon the inborn right to seek happiness by free removal 
from one country to another. It could not, therefore, have been in- 
tended by Congress in that act that citizens should expatriate them- 
selves, and remain permanently within the countr3^ . . . 

My conclusion, therefore, is that . . . even if Congress meant to 
imply that expatriation from the United States might be effected by 
means other than naturahzation in a foreign country, it must have 
meant that it should be conditioned upon actual departure from the 
country. 

It does not affect the conclusion that the domicil of the wife was 
controlled bj^ that of the husband. Whether decided by her or by one 
whom she had authorized to decide for her, the fact of her residence 
here, with the purpose on the part of her husband and herself to remain 
here always, is, as it seems to me, both upon principle and authority, 
an insuperable obstacle in the way of her ceasing to be considered a 
citizen of the United States. 

The court referred to Pequignot v. Detroit, supra, and said: — 

But in that case the facts characterizing the residence of the husband 
and wife may have made it what the public wTiters term temporary 
residence, whereas the intent of the plaintiff and her husband (in this 
case) was to remain in the United States always. 



1921.] PUBLIC DOCUMENT — No. 12. 263 

The question at issue was referred to in the case of Ruck- 
gaher v. Moore, 104 Fed. Rep., 947. The precise point in- 
volved in this case, which was before the Circuit Court of 
New York, was the status of a native-born American woman 
marrying a citizen of France and removing with him to his 
country; and the court held that her citizenship followed 
that of her husband. In the discussion of the case, however, 
the court said: — 

By the several statutes of America, France, and Great Britain, 
the marriage of a citizen of such country with an alien wife confers upon 
the latter the citizenship of the husband; and this policy of three great 
powers, in connection with section 1999 of the Revised Statutes, which 
proclaims that expatriation is an inherent right, establishes that the 
political status of the wife follows that of her husband, ^vith the modi- 
fication that there must be withdrawal from her native country, or equiva- 
lent act expressive of her election to renounce her former citizenship as a 
consequence of her marriage. 

In 1908 the United States Circuit Court in Nebraska 
heard the case of WaUenburg v. Mo. Pac. Rwy. Co., 159 Fed. 
Rep. 217, involving the citizenship of an American woman 
who had married an alien prior to 1907 and remained in this 
country. The court, after citing authorities, said : — 

Without undertaking to review the reasons given for the conclusions 
reached in each of the foregoing cases, I am clearly of the opinion that 
a woman, a citizen of the United States, does not lose that citizenship 
by marriage to an alien, at least so long as she continues to reside in the 
United States. ... 

It will be observed that the foregoing case was decided 
after the passage of the act of 1907, but dealt with a situa- 
tion arising before that year. 

The case of Mackenzie v. Hare, 239 U. S., 299, decided in 
1915, involved the status of an American w^oman who married 
an alien after the passage of the act of March 2, 1907, but 
continued to reside in the United States. It was argued by 
the plaintiff, who sought to be registered as a voter in Cali- 
fornia, that her American citizenship was an incident to her 
birth in the United States, and that under the Constitution 
and laws it became a right, privilege and immunity which 
could not be taken away from her except as a punishment 
for crime or by her voluntary expatriation. In holding that 
under the act of March 2, 1907, the plaintiff, by her marriage 



264 ATTORNEY-GENERAL'S REPORT. [Jan. 

to an alien, had elected to give up her American citizenship, 
even though both the plaintiff and her husband continued 
to reside here, the court said: — 

Only voluntary expatriation, as she defines it, can divest a woman 
of her citizenship, she declares; the statute provides that by marriage 
with a foreigner she takes his nationality. . . . There need be no 
dissent from the cases cited by plaintiff; there need be no assertion 
of ver}^ extensive power over the right of citizenship or of the imperative 
imposition of conditions upon it. It may be conceded that a change of 
citizenship cannot be arbitrarily imposed, that is, imposed ^^dthout the 
concurrence of the citizen. The law in controversy (March 2, 1907) 
does not have that feature. It deals with a condition voluntarily 
entered into, with notice of the consequences. . . . The marriage of 
an American woman with a foreigner has consequences of like kind, may 
involve national complications of like kind, as her physical expatriation 
may involve. Therefore, as long as the relation lasts it is made tanta- 
mount to expatriation. This is no arbitrary exercise of government. 
It is one which, regarding the international aspects, judicial opinion has 
taken for granted would not only be vaUd but demanded. It is the 
conception of the legislation under review that such an act may bring 
the government into embarrassments, and, it may be, into contro- 
versies. It is as voluntary and distinctive as expatriation, and its con- 
sequence must be considered as elected. 

Upon a consideration of the foregoing cases, even if we put 
aside Shanks v. Dupont as inapplicable because of the act of 
July 27, 1868, the weight of authority seems to establish 
that an American w^oman who, prior to March 2, 1907, 
married an alien but still continued to reside in this country 
did not lose her citizenship. 

It may be observed that, giving to the language of the 
statute of March 2, 1907, its ordinary signification, it appears 
to refer to future marriages. The words are "any w^oman 
who marries a foreigner." There is now^here in the statute 
any indication that it was intended to be retroactive, and the 
rule of construction, that a statute will not be held to be 
retroactive unless such a purpose appears in the statute 
itself, must apply. Nor is there anything in the language of 
the statute to indicate that it was intended to be declaratory 
of the then existing law. 

The provisions for the resumption of citizenship, after the 
termination of the marital relation, make a change in existing 
law. 

Until the Supreme Court of the United States shall declare 



1921.] PUBLIC DOCOIENT — No. 12. 265 

otherwise, I am of the opinion that the case of Wallenhurg v. 
Mo. Pac. Ricy. Co., supra, following the weight of authority 
and decided after the passage of the statute in respect to a 
marriage which took place before the passage of the statute, 
must be held to declare the then existing law, and should be 
followed. 

I therefore advise you that an American woman who, 
prior to March 2, 1907, married an alien, if she has con- 
tinued to reside in this country, retains her American citizen- 
ship, and is entitled to register and vote if domiciled here 
and otherwise qualified. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Set-off — Defunct Trust Company — Set-off of Deposit in 
Commercial Department against Debt due to Commercial 
Department — Set-off of Deposit in Savings Department 
against Debt due to Commercial Department — Set-off of 
Deposit in Commercial Departmeiit against Debt due to 
Savings Department — Time whe7i Set-off may be made by 
Commissioner of Banks — Equitable Set-off. 

The principle upon which set-off rests is that in all final adjustments 
between debtor and creditor the actual balance, after setting off all 
mutual demands against each other, is the true debt. 

A set-off does not constitute a preference. 

The rules of set-off are applicable to a trust company in process of liquida- 
tion under St. 1910, c. 399. 

Where a trust company is in process of liquidation under St. 1910, c. 399, 
a deposit in the commercial department may be set off against a debt 
due to the commercial department, in accordance with the rules 
prescribed by R. L., c. 174, §§ 1-11. 

Under similar conditions a deposit in the savings department may be set 
off against a loan due to the commercial department. 

Since St. 1908, c. 520, makes the depositors in the savings department of 
a trust company preferred creditors with respect to deposits in such 
department and the investments or loans of such deposits, a deposit 
in the commercial department of a trust company in process of 
liquidation under St. 1910, c. 399, cannot be set off against a loan due 
to the savings department of such trust company. 

AVhere a trust company is in process of liquidation under St. 1910, c. 399, 
a set-off which is otherwise proper may be made at any time if it 
results in a debt due to the trust company, but if the allowance of 
the set-off would result in a dividend to the creditor, it cannot be 
made until the provisions of St. 1910, c. 399, §§8 and 11 are complied 
with. 



266 ATTORNEY-GENERAL'S REPORT. [Jan. 

Oct. 14, 1920. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — By letters supplemented by oral interviews 
you state that, pursuant to authority conferred by St. 1910, 
c. 399, you have taken possession of certain trust companies 
and are proceeding to liquidate the same. You then make 
the following inquiries: — 

1. Is a depositor in the commercial department of such a trust com- 
pany entitled to set off such deposit against a debt presently due to such 
department? 

2. Is a depositor in the commercial department entitled to setoff 
that deposit against a loan presently due to the savings department? 

3. Is a depositor in the savings department entitled to set off such 
deposit against a loan presently due to the commercial department? 

4. If set-off is required in any or all of these cases, may the depositor 
require that the set-off be made now, or may the Commissioner post- 
pone it until after claims have been duly proved in accordance mth 
St. 1910, c. 399, § 8? 

1. The principle upon which set-off rests is "that in all 
final adjustments betw^een debtor and creditor the actual 
balance, after setting off all demands against each other, is 
the true debt." Commomvealth v. Phamix Bank, 11 Met. 129, 
137, per Shaw, C.J. It is a principle of wdde apphcation. It 
had its origin in equity, but has been apphed by statute 
(R. L., c. 174, §§ 1-11) to actions at law. It apphes to com- 
mercial transactions between banker and customer {Wood v. 
Boijlston Bank, 129 Mass. 358; Natiojial Mahaiwe Bank v. 
Peck, 127 Mass. 298), as well as to actions at law betw^een 
them. Commonwealth v. Phoenix Bank, 11 Met. 129; Bemmon 
V. Boylston Bank, 5 Cush. 194; Colt v. Brown, 12 Gray, 233; 
Clark V. Northampton Bank, 160 Mass. 26. But if business 
is carried on upon the assumption that the net obligation, 
after setting off mutual demands, constitutes the true debt, 
it would be unjust if the principle ceased to apply in case 
one party or the other becomes bankrupt or insolvent. If 
one party must pay his obhgation in full, while receiving in 
return only a dividend upon the obligation due to him, the 
amount of the true debt would be increased by the bank- 
ruptcy or insolvency. Such is not the law. The principle of 
set-off was applied expressly to insolvency proceedings by 
R. L., c. 163, § 34, and still governs in bankruptcy under 



1921.] PUBLIC DOCUMENT — No. 12. 267 

section 68 of the Federal bankruptcy act. A set-off, there- 
fore, does not constitute a preference either in bankruptcy or 
under the State insolvency act, which was superseded by the 
Federal law. 

Banks were expressl}^ excepted from the State insolvency 
law (R. L., c. 163, § 143) and are now excepted from the 
operation of the Federal bankruptcy act by section 4. 
Formerly insolvent banking corporations under State juris- 
diction were hquidated under statutes which authorized a 
petition in equity praying for the appointment of receivers. 
Atlas Bank v. Nahant Bank, 23 Pick. 480; 3 Met. 581; 
Hubbard v. Hamilton Bank, 7 Met. 340. In such proceedings 
the principle of set-off has been uniformly applied, even 
though no statute expressly made it applicable. Common- 
wealth V. Phamix Bank, 11 Met. 129; Colt v. Broum, 12 Gray, 
233; see also Commonwealth v. S>hoe & Leather Dealers l7is. 
Co., 112 Mass. 131; Jones v. Arena Publishing Co., Ill 
Mass. 22, 28, 29; Merrill v. CaiM Ann Granite Co., 161 Mass. 
212. Generally the court followed the analogy of set-off at 
law (see cases last cited), but it possesses inherent power as 
a court of equity to apply the principle of equitable set-off 
more broadly in order to prevent injustice. Merrill v. Cape 
Ann Granite Co., 161 Mass. 212, 217. In the case of insolvent 
savings banks there is an express statutory provision au- 
thorizing set-offs (St. 1878, c. 261; R. L., c. 113, § 37; St. 
1908, c. 590, § 49), but this enactment has been held to be 
merely declaratory. Barnstable Sav. Bank v. Snoiv, 128 Mass. 
512; North Bridgetcater Sav. Bank v. Soule, 129 Mass. 528. 
The procedure provided by St. 1910, c. 399, is a substitute 
for the proceeding in equity referred to above. In my opinion, 
the analogy of set-off at law (see R. L., c. 174, §§ 1-11), 
which was applicable to the equity proceeding, is still ap- 
plicable to the hquidation proceeding under St. 1910, c. 399. 

To avoid misconception, let me add that I leave for future 
consideration the question as to whether any particular set-off 
would be proper. That must be decided under the particular 
circumstances of each case, considered in the light of R. L., 
c. 174, §§ 1-11. I further suggest that if in any case the 
somewhat broader principles of equitable set-off should be 
invoked (see Merrill v. Cape Ann Granite Co., 161 Mass. 212), 
it would be proper to refer the matter to the court for its 
determination. 



268 ATTORNEY-GENERAL'S REPORT. [Jan. 

2. Savings banks are forbidden to occupy the same or even 
a connecting office with a national bank, trust company or 
other bank of discount, and must not have certain executive 
officers in common with any such banking institution (St. 
19P8, c. 590, §§ 19, 20). St. 1908, c. 520, § 1, permits trust 
companies to maintain a savings department, but subject, 
nevertheless, to the stringent restrictions upon the manage- 
ment of the assets of such department which are imposed by 
sections 2, 3, 4 and 5 of said act. In Old Colony Trust Co. 
V. Commonwealth, 220 Mass. 409, 410, the court, by Chief 
Justice Rugg, said: — 

The conduct of savings departments by trust companies is regulated 
by St. 1908, c. 520. All deposits made in such departments ^dth the 
accounts relating thereto must be kept distinct from the general busi- 
ness of the corporation, except that the net profits accruing may be 
transferred to the general funds. All such deposits must be maintained 
separate from other deposits and invested in accordance with laws 
governing the investment of deposits in savings banks. 

And the restrictions upon loans by a savings department of 
a trust company have been considered in III Op. Atty.-Gen., 
454; IV ibid., 8. Although there is no doubt that the relation 
between the savings department and depositors therein is 
that of debtor and creditor (gee J. S. Lang Enq. Co. v. 
Commomvealth, 231 Mass. 367), it is also clear that such 
depositors are preferred creditors with respect to the assets 
of the savings department. Section 3 of said chapter 520 
provides as follows : — 

Such deposits and the investments or loans thereof shall be appro- 
priated solely to the security and payment of such deposits, and shall 
not be mingled vdth. the investments of the capital stock or other money 
or property belonging to or controlled by such corporation, or be liable 
for the debts or obligations thereof until after the deposits in said 
savings department have been paid in full. The accounts and trans- 
actions of said sa^ings department shall be kept separate and distinct 
from the general business of the corporation. 

Construing the restrictions imposed upon trust companies 
by St. 1908, c. 520, §§ 1 to 5, in regard to the management 
of the savings departments which they are thereby permitted 
to establish, in the light of the prohibitions which St. 1908, 
c. 590, §§19 and 20, impose upon savings banks, I am of 



1921.] PUBLIC DOCOIEXT — Xo. 12. 269 

opinion that a trust company holds the assets of its savings 
department in a special capacity for special purposes, which 
purposes are not accomplished until the savings depositors are 
paid in full. 

Set-off at law is in essence a cancellation of mutual credits. 
It is a mode of making a settlement between the parties. 
It cannot be applied so as to prejudice third parties or to 
deprive them of any rights. A credit due to A in his personal 
capacity cannot be set off against or canceled by a debt 
owed by A in his representative capacity. R. L., c. 174, § 6. 
Seaver v. Weston, 163 Mass. 202; Rochester Tumbler Works v. 
Mitchell Woodbury Co., 215 Mass. 194, 198. To do so would in 
effect make A's beneficiary pay A's debt. These considera- 
tions are, in my opinion, decisive of your second question. 
To permit the owner of a deposit in the commercial depart- 
ment of a trust company- in liquidation to set it off at law 
against a debt due to the savings department would deplete 
the assets of the savings department to the possible prejudice 
of other savings depositors, since the two obligations would 
be canceled either wholl}^ or pro tanto without restoring to 
the savings department the money borrowed from it. It 
may be that in a proper case a court of equity might direct 
that the amount ulitimately due in liquidation to the com- 
mercial depositors should be transferred to the savings de- 
partment in order to reduce the depositors' indebtedness to 
it pro tanto. See Merrill v. Cape Ann Granite Co., 161 Mass. 
212, 217; Perry x. Pye, 215 Mass. 403; Cromivell v. Parsons, 
219 Mass. 299. But this is not a cancellation of cross demands 
which is a substitute for payment, but an actual payment. 
I am therefore of opinion that in the ordinary case, unmodi- 
fied by special circumstances, a debt due from A to the 
savings department of a trust company in liquidation cannot 
be canceled at law by a deposit due to A in the commercial 
department of the same trust compan}-. 

3. Other considerations govern the converse case of a 
deposit in the savings department and a debt due to the 
commercial department. In this case no prejudice to the 
savings department can result from a cancellation of one debt 
against the other. Indeed, the savings depositors benefit, 
since the obligations of the savings department are reduced 
by the set-off and cancellation without any corresponding 
reduction of the assets of the savings department. Xor can 



270 ATTORNEY-GENERAL'S REPORT. [Jan. 

the other savings depositors complain because this particular 
savings depositor obtains the benefit of the face value of his 
obligation, while they, perhaps, receive less by way of divi- 
dend. A set-off, for the reasons already given, is not open 
to the objection that it operates as a preference. Nor can the 
depositors in the commercial department successfully object. 
St. 1908, c, 520, § 4, provides as follows: — 

The capital stock of such corporation with the liabilities of the stock- 
holders thereunder shall be held as securit}^ for the pajanent of such 
deposits, and the persons making such deposits or entitled thereto shall 
have an equal claim mth other creditors upon the capital and other 
property of the corporation in addition to the security provided for by 
this act. 

Savings depositors have "an equal claim with other creditors 
of the corporation upon the capital and other property of the 
corporation, iyi addition to the security provided by" said St. 
1908, c. 520. The fact that savings depositors are preferred 
over commercial depositors with respect to the assets of the 
savings department does not confer upon commercial de- 
positors a corresponding preference over savings depositors 
with respect to the other assets of the trust company. I am 
therefore of opinion that in the ordinary case, unmodified by 
special circumstances, a deposit by A in the savings depart- 
ment of a trust company in liquidation may be set off against 
a debt due from A. to the commercial department. 

4. Your fourth inquiry raises the question when a set-off, 
if proper, may be made. The material provisions of St. 1910, 
c. 399, are found in sections 4, 8 and 11, which read as 
follows: — 

Section 4. Upon taking possession of the property and business 
of such bank, the bank commissioner shall have authority to collect 
moneys due to the bank, and to do such other acts as are necessary to 
conserve its assets and business, and shaU proceed to liquidate its 
affairs as hereinafter provided. He shall collect all debts due and claims 
belonging to it, and upon the order or decree of the supreme judicial 
court, or any justice thereof, ma}^ sell or compound all bad or doubtful 
debts, and on like order or decree may sell aU, or any part of, the real 
and personal property of the bank on such terms as the court shall 
direct; and he may, if necessary to pay the debts of any such trust 
company, enforce the individual liability of the stockholders. 



1921.] PUBLIC DOCUMENT — No. 12. 271 

Section 8. The bank commissioner shall cause to be published 
weekly for three consecutive months, in such newspapers as he may 
direct, a notice calling on all persons who may have claims against such 
bank to present the same to the bank commissioner and to make legal 
proof thereof at a place and in a time, not earlier than the last day of 
publication, to be therein specified. The banlv commissioner shall mail 
a similar notice to all persons whose names appear as creditors upon the 
books of the bank, so far as their addresses are known. If the bank 
commissioner doubts the justice and validity of any claim, he may 
reject the same and serve notice of such objection upon the claimant 
either by mail or person. An affidavit of service of such notice, which 
shall be prima facie evidence thereof, shall be filed with the bank com- 
missioner. An action upon the claim so rejected shall not be enter- 
tained unless brought within six months after such service. Claims 
presented after the expiration of the time specified in the notice to 
creditors shall be entitled to share in the distribution only to the extent 
of the assets in the hands of the bank commissioner equitably appli- 
cable thereto. 

Section 11. At any time after the expiration of the date fixed for 
the presentation of claims the supreme judicial court, upon the appU- 
cation of the bank commissioner, may authorize him to declare out of 
the funds remaining in his hands, after the payment of expenses, one or 
more dividends, and, after the expiration of one year from the first 
publication of notice to creditors, the banls: commissioner may declare 
a final dividend, such dividends to be paid to such persons, in such 
amounts, and upon such notice as may be directed by the suprem.e 
judicial court for the county in which the principal office of such bank 
was located, or as may be directed by a justice of said court. Objec- 
tions to any claim not rejected by the bank commissioner may be made 
by any person interested by filing a copy of such objections with the 
bank commissioner, who shall present the same to the supreme judicial 
court at the time of the next application for leave to declare a dividend. 
The court to which such application is made shall thereupon dispose 
of said objections, or may refer them to a master for that purpose, and 
should the objections to any claim be sustained by the court or by the 
master no dividend thereon shall be paid by the bank commissioner 
until the claimant shall have established his claim by the judgment 
of a court of competent jurisdiction. The court may make proper 
provision for unproved or unclaimed deposits. 

I am of opinion that the question when a set-off, if proper, 
may be made depends upon whether the effect of the set-off, 
if made, will or will not result in a dividend to the depositor. 
Section 4, it will be observed, authorizes the commissioner 



272 ATTORXEY-GEXERAL'S REPORT. [Jan. 

"to collect moneys due to the ba?ik." If the true debt is the 
net amount due after making such set-off as may be proper, 
it seems plain that the authority to collect it must also include 
authority to determine the amount thereof and to allow such 
set-off as may be proper as an incident of collection. I am 
confirmed in this view by the consideration that the debtor 
might force such set-off by refusing to pay and compelling 
the commissioner to sue, in which case he, as the defendant, 
might plead any set-off permitted by R. L., c. 174, §§ 1-11, 
inclusive. On the other hand, it is plain that no dividend 
can be paid to any creditor of the trust company until St. 
1910, c. 399, §§ 8 and 11, have been complied with. If, 
therefore, all proper set-offs, if made, leave an amount still 
due to the depositor, he must, in order to collect, comply 
with section 8, and cannot collect except in the manner pro- 
vided by section 11. Any set-off must be made in those 
proceedings. I am therefore of opinion that the question 
when a proper set-off may properly be made depends upon 
whether the result of it is to leave the trust company a 
debtor or a creditor of the depositor. It may be made at any 
time as an incident of collecting a debt due to the trust 
company; it cannot properly be made except in connection 
with the payment of a dividend pursuant to sections 8 and 
11, if it results in a debt due from the trust company. 

I may add that the opinion rendered to your Department 
by my predecessor on Jan. 15, 1920, may well be confined 
to the latter situation. 

I therefore advise you in answer to your specific questions 
as follows: — 

1. In the absence of special circumstances, the answer to 
your first question is "Yes." I may add that, in view of 
R. L., c. 113, § 37, as re-enacted in St. 1908, c. 590, § 49, 
like considerations govern the set-off of a deposit in the 
savings department against a debt due to that department. 

2. In the absence of special circumstances, the answer to 
your second question is "No." I maj' add, however, that the 
court, in the exercise of its equity powers, might, through its 
control of the parties before it, work out some form of equi- 
table set-off even in such a case, if justice required it. 

3. In the absence of special circumstances, the answer to 
your third question is "Yes." 

4. In my opinion, the question as to when a proper set-off 



1921.] PUBLIC DOCUMENT — Xo. 12. 273 

should be made depends upon whether it results in a debt to 
or a debt from the trust compan}-. If it results in a debt 
to the trust company, it may be made at any time pursuant 
to the power to collect moneys due to the trust company, 
which is conferred by St. 1910, c. 399, § 4. If it results in a 
debt due from the trust company, it can only be made in 
connection with the payment of a dividend pursuant to St. 
1910, c. 399, §§ 8 and 11. 

Yours very trul\% 

J. Weston Allen, Attorney-General. 



Trust Company — Relation of Company to Holder of Safe 
Deposit Box — Right to hold Contents of Safe Deposit 
Box to meet Contingent Liability to Company. 

In view of R. L., c. 116, § 38, and St. 1910, c. 399, § 12, the relation between 
a trust company and the holder of a safe deposit box is that of land- 
lord and tenant. 

The contents of a safe deposit box rented from a trust company are not in 
the possession of the trust company. 

\Vhere the Commissioner of Banks has taken possession of a trust company 
under St. 1910, c. 399, he cannot refuse to a director of such trust com- 
pany, who has rented a safe deposit box, permission to remove the 
contents of such box, upon the ground that such director may be sub- 
ject to directors' liability. 

Oct. 19, 1920. 

Mr. Joseph C. Allen, Commissioner of Banks. 

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

A director in a trust company rented a safe deposit box 
from the trust company and placed in it certain securities 
and personal propert}^, the nature of which is unknown to 
you. The rental agreement provides that the relation of the 
trust company to the boxholder shall be that of landlord and 
tenant, and expressly disclaims any possession of the con- 
tents of the box, either as bailee or otherwise. The trust 
company reserves a right, in case possession of the box is 
not surrendered at the end of the term, to open the box 
forcibly, remove the contents and hold the same as a special 
deposit for safekeeping, and, in that event, claims a lien upon 
the contents for rent due and for its fair charges for storing 
the contents. Access to the box is obtained by simultaneous 
use of two different keys, one of which is kept by the trust 



274 ATTORNEY-GENERAL'S REPORT. [Jan. 

company and one by the boxholder. Neither the trust 
company nor the boxholder can unlock the box without em- 
ploying the key which is held by the other. You state that 
you have taken possession of the trust company under the 
authority conferred by St. 1910, c. 399, and that you have 
reason to believe that the director in question, who has 
rented the box, may be liable to the trust company by reason 
of his acts as director, but do not further indicate the nature 
or extent of such possible liability. You inquire w^hether you 
can properly deny to such director permission to remove the 
contents of such box, in order to retain such contents as se- 
curity for or as an offset to such possible liability. 

R. L., c. 116, § 38, authorizes corporations "organized for 
the purpose of letting vaults, safes or other receptacles" to 
take certain steps in case the "amount due for rent" is not 
paid. St. 1910, c. 399, § 12, authorizes the Bank Commis- 
sioner, after he has taken possession of the trust company, 
to take certain steps to cause the owner of any property 
deposited in such rented box or safe to remove the same. In 
my opinion, these provisions are a clear statutory recognition 
that the relation between the trust company and the box- 
holder is that of landlord and tenant. If so, the contents of 
the box are in no sense in the possession of the trust company 
by reason of that relation, nor can the trust company, or the 
commissioner in possession thereof, successfully maintain a 
right of lien upon the contents of said box, or a right of set-off 
against them, in order to satisfy a supposed liability of the 
boxholder to the trust company as director of such company. 

Other considerations confirm me in this conclusion. The 
so-called banker's lien upon the general deposit of a customer 
is reall}^ a right of commercial set-off. In the absence of 
some special agreement to the contrary, the banker may 
apply a general deposit to any matured debt of the customer 
which the banker may select, unless such debt is already 
fully secured by collateral. Furher v. Dane, 203 Mass. 108, 
117-118. But he cannot retain a general deposit or apply it 
in order to reduce an indebtedness not yet due. Wiley v. 
Bunker Hill National Bank, 183 Mass. 495; Spaulding v. 
Backus, 122 Mass. 553. So, also, collateral pledged to a bank 
to secure a specified demand cannot, in the absence of agree- 
ment, be held for other demands against the same debtor. 
Hathaivay v. Fall River National Bank, 131 Mass. 14; Brown 



1921.] PUBLIC DOCUMENT — No. 12. 275 

V. Neic Bedford Institution for Savings, 137 Mass. 262. And 
a bank which has a mere naked custody of notes, without 
authority to sell or dispose of them, cannot set them off even 
against a debt already due. Stetson v. Exchange Bank, 7 
Gray, 425. 

On the facts given it appears that the supposed liability 
has not been determined to exist. In this aspect of the case 
the trust company can scarcely stand better than if it held 
a definite but unmatured obligation. So, also, the trust com- 
pany has not even a naked custody of the contents of the 
director's safe deposit box. In this view of the matter the 
trust company is in a weaker position than the bank in 
the Stetson case. I am therefore constrained to advise you 
that no ground has been shown for retentioA of the contents 
of this director's safe deposit box. 

I leave for future consideration the question whether the 
trust compan}' could reach and apply the contents of such a 
box in equity under the provisions of R. L., c. 159, § 3, cl. 7, 
in order to satisfy a "debt" presently due and payable. 
Hoslwr-Platt v. Miller, 190 Mass. 285; Hopedale Mfg. Co. 
v. Clinton Cotton Mills, 224 Mass. 193. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Set-Off — Trust Company in Possession of Commissioner of 

Banks. 

Where a depositor in a trust company in the possession of the Commissioner 
of Banks under St. 1910, c. 399, is indebted to the company in a sum 
less than the amount of his deposit, the Commissioner may in his dis- 
cretion permit a set-off to the amount of the debt before the time 
limited for proof of claims. 

Oct. 27, 1920. 
IMr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — In connection with the opinion rendered to 
you on Oct. 14, 1920, you have orally requested my opinion 
on the following case: — 

The Commissioner of Banks has taken possession of a 
trust company pursuant to authority conferred by St. 1910, 
c. 399. A is presently indebted to the commercial depart- 
ment of the trust company upon a note for 81,000, secured 



276 ATTORNEY-GENERAL'S REPORT. [Jan. 

by collateral. A has a deposit of $1,050 in the commercial 
department of the trust company. Can the Commissioner of 
Banks set off $1,000 of such deposit against the note, and 
release the collateral, prior to the time when claims are 
proved and a dividend allowed under sections 8 and 11 of 
said act, or must he wait until the claim is proved under 
section 8 and a dividend is payable under section 11 before 
making any set-off whatsoever? 

In the opinion rendered Oct. 14, 1920, I advised you that 
if, in a case where set-off was proper, the set-off, if made, 
would result in an indebtedness from the customer to the 
trust company, the Commissioner, as an incident of collecting 
such indebtedness, might allow such set-off without waiting 
for proof of claims under section 8. I further advised you 
that if, in a case where set-off was proper, the set-off, if made, 
would result in a dividend to the depositor, the set-off could 
not be made until sections 8 and 11 were complied with and 
the liquidation was ripe for the payment of a dividend. 
The case which you now put is the case where a portion of 
the debt due from the trust company is sought to be can- 
celed against the whole debt due to the trust company, 
leaving the balance due from the trust company as the net 
claim to be proved on account of dividends. This is in 
accordance with the principle upon which set-off rests, namely, 
"that in all final adjustments between debtor and creditor, 
the actual balance, after setting off all mutual demands 
against each other, is the true debt." CommomceaUh v. 
Ph(rnix Bank, 11 Met. 129, 137. It is not, in my opinion, 
forbidden by section 8. The provision of section 8 which 
prescribes that the 7iotice shall call on claimants to make 
legal proof of claims ''at a place and in a time not earlier 
than the last day of publication, to be therein specified" 
should, in my opinion, be held to be directory, rather than a 
limitation upon the power of the Commissioner, in the 
exercise of a sound discretion, to allow a claim which is pre- 
sented at an earlier date. Nor is it in conflict with section 
11, since the partial set-off in question results in no dividend. 
Assuming, therefore, that the set-off is otherwise proper, I 
am of opinion that the Commissioner of Banks, in the exercise 
of a sound discretion, may make the partial set-off in question 
before the expiration of the time limited by the notice given 
under section 8 for the proof of claims. On the other hand. 



1921.] PUBLIC DOCUMENT — Xo. 12. 277 

he may, in any case where he deems it expedient, postpone 
the set-off until claims have been proved and the claim in 
question is ripe for dividend. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Massachusetts Society for the Prevention of Cruelty to Animals — 
Cruelty to Animals — Disposition of Fines. 

Being present at a place where preparations are being made for the exhibi- 
tion of the fighting of birds, which is made a crime subject to fine or 
imprisonment by R. L., c. 212, § 86, is not cruelty to animals, under 
R. L.,c.212, §76. 

The Massachusetts Society for the Prevention of Cruelty to Animals is not 
entitled, imder R. L., c. 212, § 76, to any part of fines collected from 
defendants upon convictions under R. L., c. 212, § 86, upon complaint 
of an agent of the Massachusetts Society for the Prevention of Cruelty 
to Animals for being present at a place where preparations were being 
made for the exhibition of the fighting of birds. 

Oct. 28, 1920. 

Mr. Theodore N. Waddell, Director of Accounts, Department of Cor- 
porations and Taxation. 

Dear Sir: — A number of defendants were found guilty 
and fined under R. L., c. 212, § 86, upon complaint of an 
agent of the Massachusetts Society for the Prevention of 
Cruelty to Animals that they were present "at a certain place 
. . . where preparations were being made for the exhibition 
of the fighting of birds." You inquire whether such fines 
are payable to the said society, under R. L., c. 212, § 76, 
which provides as follows : — 

Sheriffs, deputy sheriffs, constables and police officers shall prosecute 
all violations of the provisions of sections seventy to seventy-three, 
inclusive, which come to their notice, and upon all convictions for 
cruelty to animals the fines collected upon or resulting from the com- 
plaint or information of an officer or agent of the Massachusetts Society 
for the Prevention of Cruelty to Animals shall, except as provided in 
the following section, be paid over to said society after deducting there- 
from for the expense of prosecution such amount as the court or trial 
justice shall order. 

St. 1868, c. 212, being an act entitled "An Act for the more 
effectual prevention of cruelty to animals," defined and 
prescribed punishment for certain offences now included in 



278 ATTORNEY-GENERAL'S REPORT. [Jan. 

R. L., c. 212, §§ 70, 71 and 73. Section 8 of said act of 1868 
provided, in substance, that fines collected upon information 
or complaint of any officer or agent of said society "under 
this act" shall be paid over to said society. St. 1868, c. 212, 
was repealed, except as to prosecutions then pending there- 
under and offences theretofore committed, by St. 1869, 
c. 344, which act bore the same title, more fully defined and 
punished similar offences, and contained a similar provision 
for payment to said society of the fines and forfeitures "under 
this act" resulting from the complaint or information of any 
officer or agent of said society. St. 1869, c. 344, was codified 
in Pub. Sts., c. 207, §§ 52, 53, 54, 55 and 59, but such verbal 
changes as may have been incident to such codification are 
presumed not to have changed the meaning of the laws then 
in force, unless the intention to change clearly appears. 
Wright V. Dressel, 140 Mass. 147, 149. It follows that under 
Pub. Sts., c. 207, § 59, the Society for the Prevention of 
Cruelty to Animals was not entitled to receive the fines 
resulting from a complaint by an officer or agent of that 
society unless the conviction was obtained under Pub. Sts., 
c. 207, §§ 52 to 55, inclusive, to which sections R. L., 
c. 212, §§ 70, 71 and 73, now correspond. 

The right of said society to receive the fines upon a con- 
viction resulting from the complaint or information of an 
officer or agent of said society was, however, enlarged by St. 
1891, c. 304, which provides as follows: — 

In all cases of prosecution for cruelties inflicted upon dumb animals, 
the fines collected upon or resulting from the complaint or information 
of any officer or agent of the Massachusetts Society for the Prevention 
of Cruelty to Animals shall be paid to said society, less a sum equal to 
the expense of prosecution, which sum shall be determined by the court 
or trial justice. 

To this statute must be traced the provision of R. L., 
c. 212, § 76, that "upon all convictions for cruelty to animals 
the fines collected upon or resulting from the complaint or 
information of an officer or agent of" said society should be 
paid to said society. This requires that the words "cruelty 
to animals," as used in said section, be construed to mean 
"cruelties inflicted u'pon dumb animals." But these more 
restricted words can scarcely be held to include the offence 
of being "present" at a place where preparations are being 



1921.] PUBLIC DOCUMENT — No. 12. 279 

made for the fighting of birds, for which offence these de- 
fendants were convicted under R. L., c. 212, § 86. While 
such preparations may ultimately lead to the infliction of 
cruelty upon the birds, that point has not yet been reached. 
Such a conclusion is by no means satisfactory, since it de- 
prives a society organized to prevent cruelty to animals of 
fines which result from its vigilance in preventing such 
cruelty. The remedy must, however, be sought from the 
Legislature. I am therefore constrained to advise you that 
said society is not entitled to the fines in question. 

I may add that, in view of R. L., c. 212, § 77, the words 
"cruelty to animals," as used in section 76, cannot be con- 
strued to include the offence defined by section 72. 
Yours very truly, 

J. Weston Allen, Attorneij-General. 



Elections — Absent Voters' Ballots — When to he cast. 

Under the provisions of Gen. St. 1919, c. 289, an absent voter's ballot can 
neither be cast nor counted unless it arrives at the proper polling place 
upon the day of election, in time for delivery to the election officers 
before the polls are declared closed. 

Oct. 29, 1920. 

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

Dear Sir: — You state that you have received from the 
Board of Election Commissioners of the City of Boston an 
inquiry which reads as follows: — 

Can absent voters' ballots received at this office up to 5 p.m. Tuesday, 
November 2, the day of the State election, said 5 p.m. being the time 
for closing the polls of Boston, be then sent to the several precincts of 
the city, to be cast and counted by the election officers of the several 
precincts? 

The ballots in many cases would not reach the precincts until one-half 
to one hour after the polls are closed. 

This applies to section 9 of Gen. St. 1919, c. 289, entitled "An 
Act to permit absent voters to vote at state elections." 

You ask my opinion in regard to this question. 

The provisions for absent voting are contained in Gen. 
St. 1919, c. 289. Section 7 provides, in part, as follows: — 

A voter who has executed and filed an application for an official 
absent voting ballot with the clerk of the city or town in which he is a 



280 ATTORNEY-GENERAL'S REPORT. [Jan. 

registered voter, or, in the case of voters coming within the provisions 
of section five, with such city or town, clerk or the secretary of the com- 
monwealth, may, after his application is certified as provided in the 
preceding section, vote by mailing to such city or town clerk an official 
absent voting ballot, prepared under the provisions of section two. . . . 

Section 8 provides that all ballots cast under the provisions 
of section 7 ''shall be mailed on or prior to the day of elec- 
tion." Section 9 requires the city or towm clerk to attach 
the application to the ballot, and further provides: — 

Upon election day before the hour for the closing of the polls the 
said clerk shall deliver all envelopes received by him to the election 
officials in the several voting precincts in which the voters named 
therein assert the right to vote. 

Section 10 provides that ''immediately after the closing of the 
polls, and after the ballots cast have been removed from the 
ballot box, the warden or his deputy in each polling place" 
shall verify the envelopes and applications in the manner 
therein prescribed, and if he finds them to be correct "he 
shall make public announcement of the names of the absent 
voters, . . . and . . . shall deposit the ballots in the ballot 
box." Section 11 provides that "all ballots received by mail 
shall be subject to challenge when and as cast," for the 
causes defined in said section. Section 14 provides as 
follows: — 

All envelopes received by clerks of cities and towns after the hour 
fixed for the closing of the polls on the day of election shall be retained 
by them unopened until the time set by law for the destruction of ballots 
cast at the state election, at which time the envelopes shall likewise be 
destroyed, unopened and unexamined. 

Section 18 provides that the terms "city clerk" and "regis- 
trars of voters" shall in Boston apply to the board of election 
commissioners. 

The act leaves the question submitted in considerable 
doubt. Sections 9, 10 and 11 support a construction which 
would exclude all absent voting ballots which are not de- 
livered to election officials at the several polling places prior 
to the hour fixed for the closing of the polls. The provisions 
of these sections cannot, as a practical matter, be complied 
with if the ballots of absent voters can be delivered to the 



1921.] PUBLIC DOCUMENT — Xo. 12. 281 

several polling places after the polls close. It is to be ob- 
served that the act makes no provision for recording the 
moment of receipt by the city or town clerk. The absence 
of such a provision would indicate that the polling place is 
the depository of the ballots of all voters, present or absent, 
and that no ballots of either present or absent voters can be 
cast at any other place than the polling place, and the closing 
of the polls is effective to prevent the receipt of ballots of 
present or absent voters. The provision that the w^arden or 
his deputy at each polling place shall verify the envelopes 
and applications immediately after the closing of the polls 
obviously could not be complied with unless the envelopes 
and applications were in hand at the closing of the polls, and 
the right to challenge ballots received by mail when and as 
cast, upon public announcement of the names of absent 
voters, would be seriously affected if the polls were open for 
an indefinite period to receive the ballots of absent voters. 
An injury to the messenger on the way to the polling place 
might prevent delivery of the ballots for hours after the other 
ballots had been counted and the returns made to the city 
or town clerk. 

I am therefore of the opinion that the provisions of section 
14 cannot operate to control the clear import of sections 9, 
10 and 11. The absent voter takes the risk of delay in the 
mails, and, as the final depository of the ballot is the polling 
place, he also takes the risk of delay in delivery by the city 
or town clerk, or, in the case of the city of Boston, by the 
election commissioners, to the warden or his deputy at the 
polling place. It follows that the ballots of absent voters 
which do not arrive at the polling place in time for delivery 
before the polls are declared closed can neither be cast nor 
counted, but should be returned, to be held by the city or 
town clerk, or in Boston by the election commissioners, and 
destroyed unopened and unexamined, under the provisions of 
section 14. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



282 ATTORNEY-GENERAL'S REPORT. [Jan. 



Salaries — State Boxing Commission — State Police Officer. 

The compensation received by one who is deputized by the State Boxing 
Commission under St. 1920, c. 619, is not "salary," within the meaning 
of R. L., c. 18, § 11, providing that "a person shall not at the same time 
receive more than one salary from the treasury of the commonwealth." 
R. L., c. 6, § 58, forbids payment of extra compensation to an employee or 
officer for special work done in regular working hours, but does not 
forbid extra compensation for overtime service. 

Oct. 30, 1920. 
Col. Alfred F. Foote, Com,missioner of Public Safety. 

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

St. 1920, c. 619, establishes a State Boxing Commission. 
Section 2 provides in part as follows: — 

The chairman of the commission may deputize one or more persons 
to represent the commission and to be present at any match or exhibi- 
tion authorized to be held as hereinafter provided, who may receive such 
compensation for actual service as shall be fixed by rule or regulation of 
the commission, together with their travelling expenses actually and 
necessarily incurred in the discharge of their duties. 

You inquire whether, under this provision, you may depu- 
tize a member of the State Police and pay him the special 
compensation therein provided. 

R. L., c. 18, § 11, provides: — 

A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth. 

The compensation received by one who is deputized by 
the State Boxing Commission is not ''salary," within the 
meaning of this provision. See Maynard v. Royal Worcester 
Corset Co., 200 Mass. 1, 4; II Op. Atty.-Gen. 21. It is 
rather in the nature of a fee paid for special service. Pay- 
ment of such extra compensation for special service to one 
who already receives a salary from the Commonwealth is, 
therefore not forbidden by this section. II Op. x\tty.-Gen. 
21; II Op. Atty.-Gen. 309. 

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

Salaries payable from the treasury of the commonwealth . . . shall 
be in full for all services rendered to the commonwealth by the persons 
to whom they are paid. 



1921.] PUBLIC DOCUMENT — No. 12. 283 

This provision forbids payment of extra compensation to 
an employee or officer for special work done in regular work- 
ing hours, but by immemorial custom does not forbid extra 
compensation for overtime service. II Op. Atty.-Gen. 309. 
It is for you to determine in each case, in the exercise of a 
sound discretion, whether in point of fact the State police 
officer, in acting as deputy for the State Boxing Commission, 
is simply doing special work in regular working hours, or is 
rendering overtime service which he ought not reasonably to 
be asked to perform as a part of his regular duties. I see no 
objection to deputizing him in either case, but his right to 
extra compensation must depend upon whether the service 
is or is not overtime service. It is, of course, plain that you 
should not deputize a State police officer to perform overtime 
service for extra compensation if another officer may be 
called upon to perform the same service as a part of his 
regular duties. That is also a question of fact which you 
must determine in each case in the exercise of a sound dis- 
cretion. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Director of a Division of a State Department — Salary — 
Member of Advisory Board of Same Department — Ad- 
ditional Compensation . 

A person who has been appointed director of a division of a State depart- 
ment, and receives therefor a yearly compensation, may not receive 
any additional compensation for services rendered to the Common- 
wealth as a member of the advisory board of that department, unless 
such services as a member of the advisory board are rendered outside 
of working hours, or unless his duties as director are not sufficient to 
require his continuous service in that position. 

Nov. 1, 1920. 

Hon. George B. Wason, Finance Committee of the Executive Council. 
Dear Sir: — You request my opinion as follows: — 

Please give me, as a member of the finance committee of the Council, 
an opinion as to whether or not the paying to Leslie R. Smith of a per 
diem compensation of $10 a day as a member of the advisory board of 
the Department of Agriculture is contrary to the provisions of the 
Revised Laws prohibiting the receiving of two salaries by a State official. 
Mr. Smith, besides being a member of the advisory board, is the Direc- 
tor of the Division of Reclamation and Soil Survey. 



284 ATTORNEY-GENERAL'S REPORT. [Jan. 

Under the provisions of Gen. St. 1919, c. 350, § 35, the 
Governor appointed Mr. Smith a member of the advisory 
board of the Department of Agriculture. Section 36 of said 
chapter 350 provides in part that the advisory board "shall 
receive ten dollars a day while in conference and their actual 
traveling expenses incurred in the performance of their official 
duties." Under the provisions of section 37 the Commis- 
sioner of Agriculture appointed Mr. Smith Director of the 
Division of Reclamation, Soil Survey and Fairs. His com- 
pensation has been fixed by the Commissioner, with the 
approval of the Governor and Council, at $4,000 a year. 

R. L., c. 18, § 11, reads as follows: — 

A person shall not at the same time receive more than one salary 
from the treasury of the commonwealth. 

One of my predecessors in oflfice, referring to this provision 
of the Revised Laws, made this statement : — 

The undoubted intention of that statute was to prevent a person 
from being employed in two positions at the same time, receiving salary 
from each one. It does not prevent the payment of compensation for 
extra services not rendered during the usual hours of employment in 
the position for which the person is employed. It has been the im- 
memorial practice in the State House to permit the employment of 
those receiving salaries, during extra hours and for extra compensation. 
This, of course, would not apply to general State officers, but only to 
clerks, whose contract ordinarily is for services during regular office 
hours. II Op. Atty.-Gen. 309. 

It will not be disputed that the compensation of $4,000 a 
year received by Mr. Smith as Director of the Division of 
Reclamation, Soil Survey and Fairs is a salary which he re- 
ceives from the Commonwealth, within the meaning of R. L., 
c. 18, § 11. It is not necessary to quote authorities in defining 
what is meant by the word "salary" other than to point out 
that it is limited to compensation established on an annual or 
periodical basis and paid usually in installments, at stated 
intervals, upon the stipulated per annum compensation. It 
differs from the payment of a wage in that in the usual case 
wages are established upon the basis of employment for a 
shorter term, usually by the day or week, or on the so-called 
"piece work" basis, and are more frequently subject to 
deductions for loss of time. As thus defined, Mr. Smith's 



1921.] PUBLIC DOCUMENT — Xo. 12. 285 

compensation on a. per diem basis as a member of the ad- 
visory board of the Department of Agriculture is a wage 
paid him for the limited time in which he is engaged upon 
this special work. 

A further question arises, however, which has not been 
considered in the opinions previously rendered, to which 
reference has been made, but which follows naturally from 
the language employed by my predecessor in that portion of 
the opinion which has been quoted. 

By the provisions of R. L., c. 6, § 58, salaries payable 
from the treasury of the commonwealth "shall be in full 
for all services rendered to the commonwealth by the persons 
to whom they are paid." The clear intent of this statute 
would prohibit a person holding a salaried position which, 
by statutory enactment or because of the duties devolving 
upon him, required full-time service, from receiving com- 
pensation for any other services rendered during the usual 
hours of employment in the salaried position which he oc- 
cupies. 

There are, however, certain offices and commissions which 
do not, in law or in fact, require all the time of the incumbents 
in the performance of the required duties. There is no valid 
reason why officials and employees of whom only part-time 
service is required should not engage in other work, and 
receive compensation therefor, during their unemployed time; 
and, while they may not accept another salaried position from 
the Commonwealth, there is no prohibition on receiving 
other compensation for services rendered to the Common- 
wealth outside of the hours required in performing the duties 
in the salaried position. 

I am therefore of opinion that, subject to the limitation 
that a person may not hold two salaried positions in the 
service of the Commonwealth, any person engaged in work 
which requires full-time service may receive additional com- 
pensation for additional work performed outside of the usual 
working hours of his employment, and a person holding a 
position in the service of the Commonwealth which requires 
only part-time service may receive additional compensation 
for services to the Commonwealth during the time not re- 
quired in the full performance of the duties of his position. 

Applying this general principle to the special subject of 
your inquiry, it follows that Mr. Smith may not receive any 



286 ATTORNEY-GENERAL'S REPORT. [Jan. 

additional compensation for services rendered to the Common- 
wealth as a member of the advisory board of the Department 
of Agriculture unless such services are rendered outside of 
working hours, or unless his duties as a Director of the 
Division of Reclamation and Soil Survey are not sufficient 
to require his continuous service in that position. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Insurance — Fire Insurance — Massachusetts Standard Policy 
— • Modification — "Riders" — Replacement Value. 

A fire insurance company authorized to write insurance against fire in this 
Commonwealth cannot attach to the Massachusetts standard form of 
policy, established by St. 1907, c. 576, § 60, a rider which bases the 
liability of the company, not upon the value of the property at the 
time of the fire, but upon the replacement value of the property. 

Nov. 1, 1920. 
Hon. Clarence W. Hobbs, Comrnissioner of Insurance. 

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

Can a company authorized to write insurance against fire 
in this Commonwealth attach to the standard form of policy 
established by St. 1907, c. 576, § 60, a rider making the 
company liable for a sum in excess of the actual value of the 
building at the time any fire shall occur, and representing 
the sum required to restore the building or erect a new 
building, in accordance with the requirements of ordinances, 
statutes, building laws or orders of city authorities, of like 
size and character for purposes of occupancy or occupancies 
similar to the purposes for which the building may be oc- 
cupied at the time any loss prescribed in the policy shall 
occur? In other words, can a company base its liability 
not upon the value of the property at the time of the fire, 
but on the replacement value of the property? 

You point out that the provisions of the standard policy 
limit the liability of the company to the actual value of the 
insured property at the time any loss or damage happens, 
but the provisions of the standard policy may be modified 
by rider or endorsement written on the margin or across its 
face. The first clause of section 32 of chapter 576 authorizes 
companies to insure against loss or damage by fire, and you 



1921.] PUBLIC DOCUMENT — No. 12. 287 

state that the question would appear to be as to whether 
this authority is large enough to warrant the writing of in- 
surance based upon the replacement value of the property. 

Our statute relative to the use of the standard form of 
fire policy is St. 1907, c. 576, § 60, which reads as follows: — 

No fire insurance company shall issue fire insurance policies on prop- 
erty in this commonwealth, other than those of the standard form 
herein set forth, except as follows : 

Seventh, A company may ^\Tite upon the margin or across the face 
of a policy, or write, or print in tj^pe not smaller than long primer, upon 
separate slips or riders to be attached thereto, provisions adding to or 
modifying those contained in the standard form; . . . 

In the standard form of policy there is to be found this 
clause: ''This company shall not be liable beyond the actual 
value of the insured property at the time any loss or damage 
happens." 

Your Department has on file a ruling of this Department, 
rendered some time ago, that the standard form of policy set 
forth in said section 60 was not intended to be the sole 
permissible form of contract. 

Former Attorney-General Herbert Parker, in an opinion to 
the Insurance Commissioner under date of Oct. 31, 1904, said: — 

The Legislature has not attempted to make the provisions of the 
standard form compulsorj^ upon insurer or insured, nor to make such 
form the sole permissible form of contract. Section 60 does not forbid 
the making of a special contract embodying terms inconsistent with 
the terms contained in the standard form; indeed, it provides for saich 
modifications of the standard form as the parties may choose to make 
(cl. seventh) . The apparent purpose of the Legislature was to establish 
an approved form of contract, upon which the insured might confidently 
rely without the necessity of considering special stipulations which 
might be obscure or of doubtful import as to the obligations or limita- 
tions of the contract. II Op. Atty.-Gen. 545. 

The seventh excepting clause permits such additions to or 
modifications of the standard form as may be permissible on 
general principles of law. I Op. At*ty.-Gen. 104. 

The present inquiry, therefore, resolves itself into a question 
as to whether or not the modification of the clause that the 
company shall not be liable beyond the actual value of the 



288 ATTORNEY-GENERAL'S REPORT. [Jan. 

insured property, by substituting a replacement value for 
such actual value, is permissible under the general principles 
of our insurance law. In this connection I would call your 
attention to St. 1907, c. 576, § 57, which reads as follows: — 

No insurance company shall knowingly issue any fire insurance policy 
upon property within this commonwealth for an amount which with any 
existing insurance thereon exceeds the fair value of the property, . . . 

If buildings insured against loss by fire, and situated within this 
commonwealth, are totally destroyed by fire, the company shall not be 
liable beyond the actual value of the insured property at the time of 
the loss or damage; . . . 

It is not, therefore, in my opinion, permissible for an in- 
surance company writing insurance against fire in this Com- 
monwealth to modify our standard policy by substituting 
the replacement value for the actual value of the property 
at the time the loss occurs. The cost of replacing real 
property has been held in some jurisdictions to furnish a 
fair criterion for estimating the amount of loss. Mtna Ins. 
Co. V. Johnson, 21 Am. Rep. 223; Holier L. Co. v. Firemen'' s 
Fund Ins. Co. 45 Pac. 207. In Richards on Insurance Law 
it is pointed out that this line does not give a true measure of 
present value of damage in the case of an old building, and 
cites the cases of Scott v. Security Fire Ins. Co., 98 la. 67, 
and Hilton v. Phernix Assurance Co., 42 Atl. 412. Richards, 
** Insurance Law," p. 297. 

In a recent case in this Commonwealth, where there was a 
total loss, our Supreme Judicial Court held that the referees 
were justified in refusing to take into account as elements of 
loss the increased cost to the plaintiff of rebuilding after 
the fire, due to the fact that under the building laws the 
new structure must be of more expensive materials. This 
element of loss contended for was held to have no relation 
to the actual value of the insured property. Second Soc. of 
Ujiiverscdists v. Roijcd Ins. Co., 221 Mass. 518, 523. Con- 
siderations which might be germane to an inquiry as to the 
amount of damage resulting from a partial destruction of 
the building insured have no place where there is a total 
destruction by fire. Hewins v. London Assurance Corp., 184 
Mass. 177. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1921.] PUBLIC DOCUMENT — No. 12. 289 



Abatement of Tax — Duty of Collector. 

A city collector of taxes is bound to accept a certificate for abatement direct 
from the county commissioners ; he is not justified in conditioning his 
acceptance upon similar acceptance by the local assessors. 

Nov. 10, 1920. 
Hon. William D. T. Trefry, Commissio7ier of Corporations and Taxation. 
Dear Sir: — You ask if it is within the jurisdiction of the 
collector of taxes of a city to accept a certificate for abatement 
direct from the county commissioners, regardless of the local 
board of assessors. 

St. 1909, c. 490, pt. I, §§ 76 and 82, would seem to be so 
clear as to require no opinion from this Department. Section 
76 provides for an appeal to the county commissioners by a 
party aggrieved by the refusal of assessors to abate the tax, 
and further provides that the said county commissioners, if 
the board finds the property has been overrated, shall make 
a reasonable abatement and an order as to costs. Section 82 
sets forth that a person whose tax has been abated shall be 
entitled to a certificate thereof from the assessors, clerk of 
the commissioners or other proper officer. 

In the case of Inhabitants of Great Barrington v. County 
Commissioners, 112 Mass. 218, the court held, in substance, 
that the findings b}^ the county commissioners on matters of 
fact are conclusive. In the case of Lowell v. County Commis- 
sioners, 152 Mass. 372, 379, the court said: — 

The final judgment of the county commissioners is conclusive upon 
all the world as to the valuation to be put upon the property, for the 
purpose of the assessment for which the value is determined. . . . 

The county commissioners are substantially an appellate 
court, and their order of abatement supersedes any order by 
the lower tribunal. Hence, the collector of taxes is required 
to accept, and act accordingly upon, an order of abatement 
from said commissioners. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



290 ATTORNEY-GENERAL'S REPORT. [Jan. 



Taxation — Domestic Business Corporation — Tax imposed in 
Case of Sale of Assets. 

A corporation which sold all its assets in March, 1920, is liable, under 
St. 1910, c. 187, § 1, five days before such sale, to pay the taxes im- 
posed by Gen. St. 1919, c. 355, and by St. 1920, c. 550, as amended 
by St. 1920, c. 600. 

Nov. 23, 1920. 

Mr. Harold S. Lyox, Director, Division of Corporations, Department of 
Corporations and Taxation. 

Dear Sir: — In a recent letter you state the following 
facts : — 

A domestic business corporation sold all its assets on 
March 16, 1920, receiving in consideration of such sale three 
hundred shares of the stock of another corporation. On 
April 9, 1920, it filed its return as of April 1, showing its 
assets to be said three hundred shares of stock, and also 
showing its net income as reported to the Federal govern- 
ment for the year ending Dec. 31, 1919. Subsequent to April 
1 the corporation voted to dissolve. 

You state a second case, which is precisely like the preceding 
except that the vote to dissolve was taken prior to April 1, 1920. 

The question arising upon both cases is the same, that is 
to say, — are these corporations liable to pay the excises 
provided by Gen. St. 1919, c. 355, and by St. 1920, c. 550, 
as amended by chapter 600 of the acts of the same year? 

St. 1910, c. 187, § 1, as amended by Gen. St. 1919, c. 349, 
§ 19, provides: — 

The sale or transfer, otherwise than in the ordinary course of trade 
and in the regular and usual prosecution of the corporation's business, 
of any part or the whole of the assets of a corporation which is subject 
to the provisions of chapter four hundred and thirty-seven of the acts 
of the year nineteen hundred and three, and acts in amendment thereof 
and in addition thereto, and which is liable to taxation thereunder, 
shall be fraudulent and void as against the commonwealth, unless 
such corporation shall, at least five days before the sale or transfer, 
notify the tax commissioner of the proposed sale or transfer and of the 
price, terms and conditions thereof, and of the character and location 
of said assets. Whenever such a corporation shall make such a sale 
or transfer, the tax imposed by said chapter, or by acts in amendment 
thereof or in addition thereto, shall become due and paj^able at the 
time when the tax commissioner is so notified, or, if he is not so notified, 
at the time when he should have been notified. 



1921.] PUBLIC DOCUMENT — No. 12. 291 

This section seems to answer your question so far as the 
tax provided by Gen. St. 1919, c. 355, is concerned. Five 
days before each corporation's sale of its assets the excise 
became due; that is, on March 11, 1920. 

St. 1920, c. 550, as amended, imposes a further tax of 
three-fourths of one per cent on the net income shown in the 
corporation's Federal return filed next prior to April 1, 1920, 
and provides, further, that the tax so imposed shall be "ap- 
plicable to the net income of said corporations for the period 
covered by their return of income to the federal government 
next prior to the first day of April of the current year." 

In March, 1920, therefore, when these corporations sold 
their assets, the income upon which their taxes were to be 
measured, that is, their income for the year ending Dec. 31, 
1919, had accrued, and its amount had become fixed. Under 
the provisions of the section above quoted the tax provided 
by said chapter 550, like the excise provided by Gen. St. 
1919, c. 355, became due on March 11, 1920. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Schoolhouse — Building occupied by Young Mens Christian 
Association of New Bedford — License for Operator of 
Moving Pictures. 

That portion of premises occupied by the Young Men's Christian Asso- 
ciation of New Bedford which is used for educational purposes is a 
schoolhouse, within the meaning of St. 1914, c. 791, § 17, and a special 
license may be granted, as provided therein, for the operation of a 
moving-picture machine in connection with the educational classes 
conducted on the premises. 

Nov. 24, 1920. 

INIr. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You state that one of the employees of the 
Y'oung Men's Christian Association at New Bedford, which 
holds evening classes in different subjects during the winter 
months, where several classes of foreign-born persons are given 
instruction in English and other kindred subjects, has made 
application for examination as a moving-picture operator, 
claiming such application to be under the provisions of St. 
1914, c. 791, § 17. 

Y^ou request my opinion as to whether this association. 



292 ATTORNEY-GENERAL'S REPORT. [Jan. 

under these circumstances, can be said to be a school, within 
the meaning of St. 1914, c. 791, § 17. 

Section 1 of said chapter 791 places certain restrictions on 
the use of cinematographs or similar apparatus "in or upon 
the premises of a public building, public or private institution, 
schoolhouse, church, theatre, special hall, public hall, mis- 
cellaneous hall, place of assemblage, or place of public resort." 

Section 17 of said chapter 791 provides as follows: — 

Notwithstanding any of the provisions of this act, the chief of the 
district police may grant special licenses for operators of moving 
pictures in churches, schoolhouses, or public institutions in the cities 
and towTis of the commonwealth, except Boston, which, in his opinion, 
are in safe condition for said exhibitions, and he may prescribe regu- 
lations for the proper conduct of the same. A fee of two dollars shall 
accompany each application for such special license. 

The intention of the Legislature in permitting the granting 
of special licenses, under suitable regulations, for operators 
of moving pictures in churches, schoolhouses and public 
institutions, as distinguished from other places of public 
resort enumerated in section 1, was to favor the work or 
activity carried on therein rather than the moving-picture 
operator or the type or kind of building in which the pictures 
are to be shown. By the use of the term "schoolhouse" the 
Legislature intended not a school building, that is, a building 
used solely for school purposes, but any premises where in- 
struction is given in art, sciences, language or any species of 
learning. 

I am of the opinion that such portion of the premises of 
the Young Men's Christian Association of New Bedford as is 
used for educational purposes, as stated in your communica- 
tion, is included within the meaning of the term "school- 
house" as used in said section 17. Moving pictures shown in 
connection with or as part of the educational classes carried 
on therein form a part of the school curriculum. 

I am therefore of the opinion that in so far as the applicant 
for an operator's license is to limit his work to the operation 
of a moving-picture machine in connection with the educa- 
tional classes conducted on the premises, he may apply for 
an examination for a special license, under the provisions of 
said section 17. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



1921.1 PUBLIC DOCUMENT — No. 12. 293 



Interstate Rendition — Proof of Flight from Justice. 

A requisition for the surrender of an alleged fugitive from the justice of 
another State should be accompanied by evidence that the person 
demanded is in fact such fugitive from justice. 

Nov. 26, 1920. 

His Excellency Calvin Coolidge, Governor of the Cofnmonwealth. 

Sir: — I acknowledge receipt of a letter dated Nov. 23, 
1920, addressed to Your Excellency by Hon. Alfred Smith, 
Governor of the State of New York, and referred to this 
Department. 

In his letter Governor Smith states his dissent from the 
opinion rendered to Your Excellency by this Department on 
Nov. 20, 1920, to the effect that the requisition of the Execu- 
tive of the State of New York for the rendition of an alleged 
fugitive from justice could not lawfully be complied with. 
That opinion was based upon the fact that the usual affidavit 
containing proof of the flight from justice did not accompany 
the requisition. 

It is unnecessary to state that this Department has given 
earnest and respectful consideration to the yiews expressed 
by the Governor of the State of New York. Yet, with all 
deference, it feels constrained to adhere to its former opinion. 

The requisition was, indeed, accompanied by an indictment 
in due form, and by a petition, addressed by the district 
attorney of Columbia County to the Governor of the State of 
New York, in which it was stated that the accused could not 
be found in Columbia County and was in fact within this 
Commonwealth. Nevertheless, one may be indicted for and 
convicted of a crime for which he cannot be extradited 
because he was not within the demanding State at the time 
when said crime, or some part of it, was committed, hi re 
Cook, 49 Fed. Rep. 833; Roberts v. Reilly, 116 U. S. 80. 
A case of that type is where A, in Massachusetts, shoots B, 
who is standing across the line in New Hampshire. Another 
is where A, in Massachusetts, makes false representations to 
B, who, subsequently returning to New York, parts with his 
money or his goods as a result of the false and fraudulent 
representations made by A. It may be added that proof 
that the demanded person cannot be found in the demanding 
State at the time of the requisition is not proof that he was in 
the demanding State when the alleged crime was committed. 



294 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is not sufficient to say that Your Excellency is always 
justified in requiring proof of the flight from justice; an 
alleged fugitive arrested on an extradition warrant issued 
without such proof would be discharged upon his petition for 
habeas corpus. Ex parte Reggel, 114 U. S. 642; Roberts v. 
Heilly, 116 U. S. 80; McNichols v. Pease, 207 U. S. 100. 

A statute of this Commonwealth provides that a demand 
for rendition "shall be accompanied by sworn evidence that 
the person charged is a fugitive from justice . . ." R. L., 
c. 217, § 11. Whether this statute be mandatory, or directory 
only, this Department does not now deem it necessary to 
express an opinion, for it appears from the cases above cited 
that some proof, whether sworn or otherwise, must be pre- 
sented to the Executive upon whom a demand is made 
before that demand may lawfully be complied with. 

The letter of the Governor of the State of New" York 
states that "the Lieutenant Governor and Acting Governor 
of this State, after a careful examination of the papers, certi- 
fied to you that this man was a fugitive from the State of 
New York. . . ." As the requisition has been returned to 
the Governor of the State of New York, it has not been 
possible to examine it again, but a recent and similar requisi- 
tion has been examined, in which the Lieutenant-Governor 
and Acting Governor of the State of New York certified that 
the accompanying papers were "authentic and duly authenti- 
cated in accordance with the laws of this State," and that the 
offence charged was "crime under the laws of this State," 
but which, with reference to the flight from justice, certified 
only that it had "been represented to me" that the demanded 
person was a fugitive from the justice of the State of New 
York. This recital does not appear to be a certification, 
made upon the knowledge and responsibility of the Executive 
of the State of New York, that the person demanded was a 
fugitive from justice. In practice, a recital of the type last 
quoted, rather than a certification by the demanding Executive 
that the demanded person is a fugitive from justice, is usual; 
the flight from justice is usually showm by an accompanying 
affidavit made by some person having knowledge of the 
whereabouts of the alleged fugitive at the time the alleged 
crime was committed. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1921.1 PUBLIC DOCUMENT — No. 12. 295 



Tuition of State Minor Wards — Payvient by Town — Reim- 
bursement of Town by Commonwealth. 

It is unconstitutional for a town to appropriate money for the tuition of 

children in a private institution. 
A town may not be reimbursed by the Commonwealth for money expended 

by the town for tuition of State minor wards in a private institution. 

Dec. 1, 1920. 
Mr. Robert W. Kelso, Commissioner of Public Welfare. 

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

Can the Commonwealth legally reimburse the tomi of Monson for 
the cost of tuition for two State minor wards placed therein by this 
Department ? 

It appears that these two wards have been in attendance 
at Monson Academy, a private institution located in the 
town of Monson; that the tow^n of Monson, by specific 
exemption granted by the State Board of Education under 
St. 1914, c. 556, was relieved of the necessity of maintaining a 
public high school; and that the town of Monson has been 
using the Monson Academy in lieu of a public high school. 

I assume that the request for reimbursement is made under 
Gen. St. 1919, c. 291, which provides, in clause (6), for pay- 
ment by the Commonwealth to cities and towns for tuition 
in the public schools of children placed in such cities and 
towns by the State Board of Charity; and further provides, 
in clause (d) : — 

A child placed by the state board of charity or trustees of the Massa- 
chusetts training schools, or trustees for children of the city of Boston 
in a town which does not maintain a public high school offering four 
years of instruction, may attend the high school of another city or town 
under the same conditions that apply to a child whose parent or guard- 
ian resides in such town, except that the tuition of such child shall be 
paid as provided in paragraph (b) of this section, and that the common- 
wealth or the city of Boston, as the case may be, may reimburse the 
town in which the child is placed for the whole cost of his transportation. 

Obviously, this statute does not require or authorize pay- 
ment by the Commonwealth for the tuition of such a child in 
any other school than a public school. 



296 ATTORNEY-GENERAL'S REPORT. [Jan. 

To determine the question whether the Commonwealth can 
lawfully make such payment it is not necessary to resort to 
inference or reasoning from general principles. The State 
Constitution itself contains the answer. Mass. Const. Amend. 
XLVI, § 2, provides, in part, as follows: — 

All moneys raised by taxation in the to\Mis and cities for the support 
of public schools, and all moneys which may be appropriated by the 
commonwealth for the support of common schools shall be applied to, 
and expended in, no other schools than those which are conducted 
according to law, under the order and superintendence of the authorities 
of the town or citj^ in which the money is expended; . . . 

Section 3 of said article XLVI is as follows : — 

Nothing herein contained shall be construed to prevent the common- 
wealth, or any political division thereof, from paying to privately con- 
trolled hospitals, infirmaries, or institutions for the deaf, dumb or blind 
not more than the ordinary and reasonable compensation for care or 
support actually rendered or furnished by such hospitals, infirmaries 
or institutions to such persons as may be in whole or in part unable to 
support or care for themselves. 

Assuming, as I do from your statement, that Monson 
Academy is not conducted under the order and superintend- 
ence of the town authorities, this amendment makes payment 
by the town of Monson for tuition in Monson Academy 
illegal, and forbids expenditure out of the treasur^^ of the 
Commonwealth for the purpose of repaying money so spent. 
I am confirmed in this opinion by the exception contained in 
section 3, which expressly authorizes payment of compensation 
by the Commonwealth, or any political subdivision thereof, 
to privatel}' controlled hospitals, infirmaries or institutions for 
the deaf, dumb or blind, for care or support actually rendered 
or furnished. Private schools are not included in this ex- 
ception, which purports to state what payments may be 
made to institutions for the benefit of public charges. With 
respect to education the Commonwealth makes no distinction 
between such persons and others. Equal opportunity is 
given to all for education at the public expense in the public 
schools, but not elsewhere. 

This question has been considered and a like conclusion 
reached in former opinions of this Department. 

In an opinion given by Hon. Hosea M. Knowlton in 1896 



1921.] PUBLIC DOCUMENT — No. 12. 297 

(I Op. Atty.-Gen. 321) he held that in the light of Mass. 
Const. Amend. XVIII (containing the identical language 
quoted above from Mass. Const. Amend. XUVI, § 2), an act 
of the Legislature (St. 1895, c. 94, § 1) was unconstitutional, 
which provided as follows: — 

Any town in which a high school is not maintained, but in which an 
academy of equal or higher grade is maintained, may grant and vote 
money to pay the tuition of children residing in such town and attending 
such academy : provided, such academy is approved for that purpose by 
the state board of education. 

In the course of his opinion he said: — 

The purpose of the constitutional amendment was to prohibit the use 
of public funds for the education of the children of the Commonwealth 
in any institution, however conducted, and whether sectarian or not, 
the control of which is not in the municipal authorities. If the expendi- 
ture be for the purpose of the education of the children of the town, it 
is within the spirit of the prohibition of the amendment. 

... If this statute is allowed to stand, the policy of paying the tui- 
tion of school children may be further extended, and it might even be 
possible to provide for the education of all the children of a town in 
sectarian schools and at the public expense; a proposition which the 
people of the Commonwealth would be slow, I apprehend, to accept, 
and against which, indeed, the amendment in question may be said to 
have been principally directed. 

In another opinion on a similar question (II Op. Atty.- 
Gen. 98) he said: — 

If the town sees fit to expend money for tuition which it is not com- 
pelled to, it cannot ask reimbursement therefor from the treasury of the 
Commonwealth. 

My predecessor, Hon. Henry C. Attwill, in an opinion 
dated May 18, 1918 (Attorney-Generars Report, 1918, p. 39), 
follow^ing the reasoning in the opinions above quoted from, 
stated: — 

It seems to me plain, therefore, that under the later amendment 
(art. XLVI) cities and towTis will have no constitutional right to appro- 
priate funds for the maintenance of an academy not under the order and 
superintendence of the school committee, or to pay the tuition of pupils 
resident in such town and attending such an academy. 



298 ATTORNEY-GENERAL'S REPORT. [Jan. 

As I have stated, I am of the opinion that the Common- 
wealth may not reimburse the town of Monson for the cost 
of tuition of the two State minor wards placed therein by 
your Department. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxation — Corporation — Franchise Tax. 

The value of real estate purchased by a corporation after April 1, under an 
agreement made prior to April 1, providing that the corporation should 
pay the local taxes assessed thereon to the vendor, is not deductible 
in determining the amount of the franchise tax to be paid by the 
corporation. 

Dec. 6, 1920. 

Hon. WiLLiAivi D. T. Trefry, Comrnissioner of Corporations and Taxation. 

Dear Sir: — You have assessed a franchise tax for the 
year 1920 upon the New England Trust Company, having 
estimated the fair cash value of all the shares of stock con- 
stituting its capital on the first day of April, 1920, and 
having deducted therefrom the value of certain real estate 
owned by the corporation in the city of Boston and subject 
to local taxation, all as provided in St. 1909, c. 490, pt. Ill, 
§ 41. The trust company made application to you to deduct 
also the value of certain other real estate, purchased by it 
within the year 1920. You declined to make the deduction, 
and the trust company appealed to the Board of Appeal. 
The Board of Appeal desires my opinion as to whether the 
value of this real estate should have been deducted from the 
value of the corporate franchise. 

The trust company is clearly taxable under the provisions 
of the said statute (pt. Ill, §§ 40, 41 and 43). These sections 
require the Tax Commissioner to estimate the fair cash 
value of all the shares constituting the capital stock of a 
corporation subject to the act on the preceding first day of 
April (which value shall be taken as the true value of its 
corporate franchise), and to deduct therefrom, in the cases 
covered by section 41, clause fourth, which include trust 
companies, the "value as found by the tax commissioner of 
their works, structures, real estate, machinery, underground 
conduits, wires and pipes, subject to local taxation wherever 
situated." 



1921.] PUBLIC DOCUMENT — No. 12. 299 

The material facts relating to the purchase of the property 
by the New England Trust Company, as set forth in your 
letter and by counsel for the company, are as follows: — 

The trust company entered into an agreement prior to 
April 1, 1920, for the purchase of the property, agreeing to 
take over the property on or before April 15, 1920, and to pay 
the local taxes assessed thereon. The deed was signed on 
April 2, 1920. Delivery of the deed and payment of the pur- 
chase price were made on April 8, 1920, after the passage on 
April 7, 1920, of an act (St. 1920, c. 265) authorizing the 
New England Trust Company to hold additional real estate, 
and the trust company took possession on that date. This 
property was taxed locally to the vendor. The trust company 
paid the tax pursuant to its agreement. 

On this statement of facts the person who was the owmer 
of the property on April 1 was clearly the vendor, who was, 
therefore, primarily liable for the full amount of the tax. 
Consequently, the assessment of the tax to the vendor by the 
city was not only proper, but was the only method of assess- 
ment possible under the law. Hill v. Bacon, 110 Mass. 387; 
Richardson v. Boston, 148 Mass. 508; Webber Lumber Co. v. 
Shaw, 189 Mass. 366. 

The phrase appearing in clause fourth of section 41 — 
"the value as found by the tax commissioner of their works, 
structures, real estate, machinery, underground conduits, 
wires and pipes, subject to local taxation wherever situ- 
ated'* — clearly means taxation to the corporation as owner. 
The purpose of the deductions provided by section 41 is to 
avoid the double taxation which would result from the levying 
of a tax on the whole amount of the fair cash value of the 
stock of a corporation owning as a part of its assets property 
in the Commonwealth for which it was liable to be taxed. 

In Firemen's Insurance Co. v. Commonwealth, 137 Mass. 
80, 81, 83, the court said, with reference to a similar pro- 
vision for deductions in an earlier statute, that the object of 
the Legislature was "to prevent double taxation in fact, if 
not in form," and hence "to provide that the corporation 
should not be taxed, under the form of an excise upon its 
franchise, for any property on which it pays a local tax." 
The court accordingly held that the Tax Commissioner should 
deduct the value of mortgages on real estate held by the 
corporation for the local taxes on which it was liable. See 



300 ATTORXEY-GEXERAL'S REPORT. [Jan. 

also Tremont & Suffolk Mills v. Loivell, 178 Mass. 469; 
Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 160; II 
Op. iVtty.-Gen. 556. 

The fact that the corporation agreed in this instance to 
pay the taxes for 1920 makes no difference, either technically 
or as a matter of fairness. That agreement merely affected 
the consideration to be paid. The fact remains that the 
property was not the corporation's "real estate . . . subject 
to local taxation," within the meaning of the said statute, 
and that the tax on this property was assessed to the vendor 
and not to the trust company, both because on April 1, 1920, 
the real estate afterwards purchased was not a part of the 
trust company's assets, affecting the value of its shares on 
which the amount of the franchise tax was computed, and 
because that real estate was taxed to the vendor and not 
to the trust company. It is not a case of double taxation. 

I am therefore of opinion that the deduction asked for 
should not be made. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Boxing Exhibitions — Licenses not required from Munici- 
palities. 

The State Boxing Commission has exclusive authority to grant licenses for 
boxing exhibitions. 

Dec. 10, 1920. 

Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You inquire if a license to hold a boxing 
exhibition is required from the municipal authorities under 
the provisions of R. L., c. 102, § 172, and in Boston under 
St. 1908, c. 494, as amended by Spec. St. 1915, c. 348, in 
addition to the license required under the boxing law (St. 
1920, c. 619). 

The first-mentioned law reads in part as follows: — 

The mayor and aldermen of a city or the selectmen of a town may 
. . . grant a license for theatrical exhibitions, public shows, public 
amusements and exhibitions of every description . . . upon such terms 
and conditions as they deem reasonable. . . . 

The law with reference to Boston is not essentially different 
on the question at issue. 



1921.] PUBLIC DOCUMENT — No. 12. 301 

The boxing law, when accepted by a city or town, pro- 
vides that no boxing exhibition for a prize or fund at which 
admission is charged shall take place except in pursuance of 
a license granted by the Commission. Provision is made in 
the law that after payment of expenses incurred under the 
act the money received shall be distributed to the cities and 
towns in proportion to the amounts received (§§ 3, 19). 

There is no provision for the repeal or limitation of the 
laws above referred to which regulate the licensing of amuse- 
ments by municipal authorities, because these laws are still 
operative to control the granting of licenses for all other 
public amusements. 

A city or towm may accept the provisions of the boxing 
law if certain preliminary steps are taken and a majorit}^ of 
the votes cast on the proposition are in favor. Thus the law 
is permissive, not mandatory, and there is no attempt to 
limit the application of the principle of home rule by the act. 
As the boxing law makes ample provision for the licensing of 
these exhibitions, and as the municipalities receive a portion 
of the money derived from the license, it would appear that 
the former statutes were not intended to apply to boxing 
exhibitions. The receipts under the new act are in lieu of 
the license fees which, in the case of other public amusements, 
are paid directly to the municipality. 

There is no implied intent in St. 1920, c. 619, to extend 
the operation of the early statutes to boxing exhibitions. 
Such an intent must clearly appear. 

It may be observed in this connection that without an 
acceptance of the boxing law no licenses can be granted by 
any one for boxing exhibitions. The municipalities lose no 
authority by the act, for the local officials have no present 
right to license boxing exhibitions unless it can fairly be said 
that, while no authority can grant a license unless the law 
is accepted by a city or town, if accepted the law thereupon 
requires two licenses by two different boards before such 
exhibition can be held. I am of the opinion that such is not 
the true construction of the law, and that the State Boxing 
Commission alone has the right to grant licenses of this 
character. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



302 ATTORNEY-GENERAL'S REPORT. [Jan. 



Fire Prevention — License to store Gasoline — Decision on 
Application — "Order'' — Right of Appeal to Commis- 
sioner of Public Safety. 

The action of the State Fire Marshal in confirming the decision of a board 
of street commissioners, relative to an application for a license to store 
gasoline, falls within the definition of the word "order," as that word 
is used in Gen. St. 1919, c. 350, § 109, which gives a right of appeal to 
the Commissioner of Public Safety to any person affected by an order 
of the Department or of a division or office thereof. 

St. 1913, c. 577, as amended by St. 1914, c. 119, regulates the erection and 
maintenance of garages in the city of Boston. The provisions are dis- 
tinct and separate matters from those in St. 1914, c. 795, § 3, and are 
not repealed thereby. 

Dec. 14, 1920. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You desire my opinion on the following 
question: — 

A corporation applied to the board of street commissioners 
of Boston for a license to keep, store and sell gasoline in 
South Boston. After a public hearing before the board of 
street commissioners the applicant was given leave to with- 
draw. Acting under the authority of Gen. St. 1916, c. 138, 
the applicant then placed the matter before the city council 
of Boston, who approved the action of the street commis- 
sioners in rejecting the application. The mayor then dis- 
approved the action of the city council in approving the 
action of the street commissioners. The applicant then 
appealed to the State Fire Marshal from the decision of the 
street commissioners, and the State Fire Marshal approved 
the decision of the street commissioners. The applicant now^ 
appeals to you, as Commissioner of Public Safety, for a hear- 
ing relative to the decision of the State Fire Marshal affirming 
the denial of the board of street commissioners to issue said 
license. 

Your specific questions are as follows: — 

1. Was the action of the State Fire Marshal in confirming the deci- 
sion of the board of street commissioners an "order," within the mean- 
ing of Gen. St. 1919, c. 350, § 109? 

2. Did the board of street commissioners of the city of Boston act 
solely under delegated authority, or does it have rights of its own 



1921.] PUBLIC DOCUMENT — No. 12. 303 

granted to it by St. 1913, c. 577, and St. 1914, c. 119, or are these two 
acts repealed by St. 1914, c. 795, § 3? 

By the enactment of St. 1914, c. 795, the powers relative 
to the prevention of fires in the metropolitan district were 
transferred to and vested in the Fire Prevention Commis- 
sioner, and, as bearing particularly on the present question, 
all powers to license persons or to grant permits to keep, 
store or sell crude petroleum, or any of its products, were by 
section 3 of said chapter 795, transferred to and vested in 
said Commissioner. By section 4 of that chapter powder was 
given the Fire Prevention Commissioner to delegate the grant- 
ing and issuing of any licenses or permits authorized by this act 
to the head of the fire department or to any other designated 
officer in any city or town in the metropolitan district. 

Proceeding under this section. Fire Prevention Commis- 
sioner O'Keefe, on Sept. 10, 1915, delegated the power to 
license the manufacture, keeping and sale of gasoline to the 
mayor and board of street commissioners of the city of 
Boston, and on the same date delegated the power to issue 
permits for the keeping, storage, use and sale of gasoline 
within the city of Boston to the fire commissioner of Boston. 

Section 18 of said chapter 795 provides that the Fire Pre- 
vention Commissioner "shall hear and determine all appeals 
from the acts and decisions of the heads of fire departments 
and other persons, acting or purporting to act under au- 
thority of the commissioner, done or made or purporting to 
be done or made under the provisions of this act, and shall 
make all necessary and proper orders thereupon, and any 
person aggrieved by any such action of the head of a fire 
department or other person shall have an absolute right of 
appeal to the commissioner." 

Gen. St. 1919, c. 350, § 104, provides that the director 
(State Fire Marshal) in charge of the Fire Prevention Division 
shall perform the duties of the Fire Prevention Commis- 
sioner for the Metropolitan District. Section 109 of said 
chapter 350 provides: — 

Any person affected by an order of the department or of a division or 
office thereof, may, within such time as the commissioner may fix, which 
shall not be less than ten days after notice of such order, appeal to the 
commissioner, who shall thereupon grant a hearing, and after such 
hearing may amend, suspend or revoke such order. . . . 



304 ATTORNEY-GENERAL'S REPORT. [Jan. 

Taking up your first question as to whether or not the 
action of your State Fire Marshal in confirming the decision 
of the board of street commissioners in this case is to be con- 
strued as an order, within the meaning of said section 109, it 
is my opinion that the decision of the State Fire Marshal 
falls within the language of an order. This decision is arrived 
at in the light of the provisions of section 18 of the fire 
prevention act, which gave an absolute right of appeal to 
the Fire Prevention Commissioner, not only from orders of 
the Department instructing certain things to be done or not 
to be done relative to fire protection, but also to acts and 
decisions of persons acting or purporting to act under the 
authority of the Fire Prevention Commissioner. 

As to your second question, as to whether or not the 
board of street commissioners is acting solely under the 
authority delegated to it by the Fire Prevention Commis- 
sioner on Sept. 10, 1915, or is also acting under authority of 
St. 1913, c. 577, as amended by St. 1914, c. 119, and further, 
whether these two acts were repealed by section 3 of the 
metropolitan district fire prevention law, I would state that 
this question was covered in an opinion rendered by former 
Attorney-General Henry C. Attwill to Fire Prevention 
Commissioner O'Keefe, under date of June 28, 1915. That 
opinion read in part as follows: — 

The statute of 1913, as amended by St. 1914, c. 119, deals with the 
construction of garages. It makes it impossible for a garage to be 
erected within the limits of the city of Boston without the approval of 
the street commissioner. In him is lodged the authority of determining 
whether in a given location it is expedient for a garage to be constructed. 
He may lawfully refuse to license the erection of such a building in a 
residential, business or other section if he believes it to be detrimental 
to the interests of the community. This is true, even though the 
garage be intended for the use of electric motor cars or for the storage 
of other automobiles containing no gasoline. The act of 1913 is a dis- 
tinctly home rule measure, and in its enforcement the State officials have 
no concern. If such a garage is constructed and the occupant seeks to 
store gasoline therein, either in bulk or in the tank of a car, then, and not 
until then, is the Fire Prevention Commissioner given power to act. 

It is clear that St. 1913, c. 577, as amended by St. 1914, 
c. 119, was not repealed by section 3 of the fire prevention 
law. The duties and powers of the board of street com- 
missioners, proceeding under St. 1913, c. 577, as amended, 



1921.] PUBLIC DOCUMENT — No. 12. 305 

and the duties and powers delegated to it under the fire pre- 
vention law, are two separate and distinct matters. So far 
as this particular question at hand is concerned, we are only 
dealing with the action of the street commissioners as bearing 
upon their decision as to whether or not they would grant to 
the corporation in question a license to keep, store and sell 
gasoline at a point within the city of Boston. The power to 
make this decision has been delegated to them by your De- 
partment, and the applicant in turn has appealed to the 
State Fire Marshal, who has made a decision confirming the 
action of the street commissioners. But this decision is to 
be construed as an order, as pointed out above, and, ac- 
cordingly, the applicant, under the provisions of Gen. St. 
1919, c. 350, § 109, now has the right to appeal to you for a 
hearing. 

Yours very truly, 

J. Westox Allen, Attorney-General . 



Civil Service — State Aid and Pensions — Officers — Approval 
oj Governor aiid Council. 

The words "offices hereby established," as used in Gen. St. 1918, c. 164, 
§ 2, exempting incumbents from the civil service laws, are used to 
designate the three clerks and eighr. agents whose appointment was 
provided for in section 1 of that act. 

The offices of the clerks and agents whose appointment was provided for 
by Gen. St. 1919, c. 190, § 1, are not the offices created by Gen. St. 
1918, c. 164, § 1, and are subject to the civil service laws. 

The clerks and agents who, under Gen. St. 1919, c. 190, § 1, may be ap- 
pointed with the approval of the Governor and Council, are not officers 
whose appointment is subject to confirmation by the Executive Council, 
within the meaning of R. L., c. 19, § 9, exempting such officers from 
classification under the Civil Service Rules. 

Dec. 20, 1920. 
Mr. Payson Dana, Commissioner of Civil Service. 

Dear Sir: — You ask me to review the opinions rendered 
by former Attorney-General Henry C. Attwill, dated July 11, 
1919, and Aug. 13, 1919, relating to positions in the office of 
the Commissioner of State Aid and Pensions. These opinions 
involved a consideration of St. 1914, c. 587, § 1, Gen. St. 1918, 
c. 164, and Gen. St. 1919, c. 190. 

St. 1914, c. 587, is entitled "An Act relative to State and 
military aid and to the burial of indigent soldiers and sailors.'^ 



306 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 1 states the powers, duties and salaries of the Com- 
missioner of State Aid and Pensions and of the deputy com- 
missioner. It then continues: — 

The commissioner may appoint a chief clerk at a salary of fifteen 
hundred dollars a year, one agent at a salary of fourteen hundred dollars 
a year, one agent at a salary of thirteen hundred dollars a year, one agent 
at a salary of eleven hundred dollars a year, one special agent at a salary 
of nine hundred dollars a year, one clerk at a salary of twelve hundred 
dollars a year, one clerk at a salary of one thousand dollars a year, and 
two clerks each at a salary of not more than one thousand dollars a year. 

Gen. St. 1918, c. 164, § 1, amends section 1 of the former 
act as follows: — 

Section one of chapter five hundred and eighty-seven of the acts of 
nineteen hundred and fourteen is hereby amended ... by striking 
out all after the word "year", in the thirty-seventh line, and substi- 
tuting the words : — three clerks at salaries of not more than twelve 
hundred dollars a year each; and eight agents to be employed dur- 
ing the present war and for one year following its termination, at 
salaries of thirteen hundred dollars a year each, — so as to read as 
follows : — ... 

The remaining portion of said section consists of a restate- 
ment of section 1 of the former act in its amended form. 
The words following the word "year," in the thirty-seventh 
line of the former act, which were stricken out by this section 
were as follows: "and two clerks each at a salary of not 
more than one thousand dollars a year." 

Section 2 of Gen. St. 1918, c. 164, is as follows: — 

The offices hereby established shall not be subject to the civil service 
laws. 

Gen. St. 1919, c. 190, § 1, provides: — 

Chapter five hundred and eighty-seven of the acts of nineteen hun- 
dred and fourteen, as amended by chapter one hundred and sixty-four 
of the General Acts of nineteen hundred and eighteen, is hereby 
further amended by striking out section one and substituting the 
following : — ... 

The remaining portion of said section 1 is the substituted 
section 1 of the former statute (St. 1914, c. 587). It states 



1921.] PUBLIC DOCUMENT — No. 12. 307 

the powers, duties and salaries of the Commissioner of State 
Aid and Pensions and of the deputy commissioner. It then 
proceeds as follows: — 

The commissioner may, with the approval of the governor and 
council, appoint a chief clerk and not exceeding five other clerks and 
stenographers, and twelve agents. The salaries of said chief clerk, 
clerks, stenographers and agents shall be fixed in accordance with the 
provisions of chapter two hundred and twenty-eight of the General Acts 
of nineteen hundred and eighteen and within the limit of the amount 
annually appropriated by the general court. 

Gen. St. 1918, c. 228, referred to in said substituted section 
1, is entitled "An Act to provide for the classification of 
certain positions in the Commonwealth and to regulate 
promotion therein." It provides for the classification of "all 
appointive officers and positions in the government of the 
commonwealth, except those in the judicial and legislative 
branches," regulates the fixing of salaries attached to such 
offices and positions and contains, in section 5, the following 
provision: — 

Nothing contained herein shall be construed as placing employees of 
the commonwealth outside the civil service laws, rules and regulations. 

The opinion of former Attorney-General Attwill was in 
substance that section 2 of Gen. St. 1918, c. 164, exempted 
from the civil service laws all the offices established by 
section 1 of St. 1914, c. 587, as amended, and that said 
section 2, not having been repealed, had the same effect upon 
the offices established by the 1919 statute. 

The first question to be considered is as to the meaning of 
the words "the offices hereby established," in section 2. 
There are several possible interpretations of these words: — 

1. The word "offices" may be used in the restricted sense 
as opposed to "employments." In this sense "offices" 
would probably include the positions of the commissioner and 
deputy commissioner, but not of the clerks and agents. 
Brown v. Russell, 166 Mass. 14, 26; Attorney-General v. 
Tillinghast, 203 Mass. 539, 543; I Op. Atty.-Gen. 72; III 
Op. Atty.-Gen. 158. But in the Civil Service Rules the 
word "office" is used in a different sense, in contradistinction 
to positions involving mere manual labor; and in statutes 



308 ATTORNEY-GENERAL^S REPORT. [Jan. 

relating or referring to those rules the words are used in that 
broader sense. Gardner v. Lowell, 221 Mass. 150, 152; III 
Op. Atty.-Gen. 158, 160. Note St. 1911, c. 624; Gen. St. 
1919, c. 350, § 11. I am of opinion that the word "offices" 
in Gen. St. 1918, c. 164, § 2, is used in the broader sense, 
which includes the positions of clerks and agents. 

2. The words "offices hereby established" may refer to all 
the offices mentioned in section 1 of St. 1914, c. 587, as 
amended by section 1 of Gen. St. 1918, c. 164. This was the 
opinion of former Attorney-General Attwill. But the act of 
1918 merely amended the act of 1914, so far as it related to 
offices thereby established, by striking out the provision for 
the appointment of two clerks and substituting one for the 
appointment of three clerks and eight agents. 

3. It is therefore my opinion that no offices were established 
by the act of 1918 beyond those of three clerks and eight 
agents. 

The effect of the act of 1919 must now be considered. By 
this act section 1 of St. 1914, c. 587, as amended by Gen. 
St. 1918, c. 164, § 1, is entirely stricken out and a new section 
substituted. In this new section the offices of the three 
clerks and eight agents at certain definite salaries, not subject 
to the civil service laws, disappear, and in place of the offices 
of those clerks and agents and of other clerks and agents at 
certain definite salaries, referred to in the earlier statute and 
subject to the civil service laws, provision is made for the 
appointment of a "chief clerk and not exceeding five other 
clerks and stenographers, and twelve agents," whose salaries 
are to be fixed in accordance with the provisions of Gen. St. 
1918, c. 228. 

I am of opinion that the offices thus referred to in the act 
of 1919 are none of them offices established by the act of 
1918, and that therefore the provisions of section 2 of Gen. 
St. 1918, c. 164, have no application whatever. I am con- 
firmed in this opinion by the provision that the salaries of 
the chief clerk, clerks, stenographers and agents shall be 
fixed in accordance with the provisions of Gen. St. 1918, c. 228, 
which contains the provision, above quoted, that "nothing 
contained herein shall be construed as placing employees of 
the commonwealth outside the civil service laws." 

It remains to consider the effect of the words "with the 
approval of the governor and council," limiting the Com- 



1921.] PUBLIC DOCUMENT — No. 12. 309 

missioner's power of appointment, as provided in the act of 
1919. 

Under R. L., c. 19, § 9, "officers . . . whose appointment 
is subject to confirmation by the executive council'' are 
exempt from classification under the Civil Service Rules. The 
word "officers" is there used in the restricted sense to desig- 
nate persons holding public office as opposed to public em- 
ployment. Attorney-General v. TiUinghast, 203 Mass. 539; 
III Op. Atty.-Gen. 158. In my judgment, the clerks and 
agents who, under Gen. St. 1919, c. 190, may be appointed 
by the Commissioner with the approval of the Governor and 
Council are not such ofiicers, and therefore R. L., c. 19, § 9, 
is inapplicable. This construction is supported by the further 
provision in said section 9 expressly exempting "heads of 
principal departments of the commonwealth," justifying the 
inference that subordinates in those departments were not 
exempted, and by Gen. St. 1919, c. 350, § 11, which, recog- 
nizing that subordinates in departments may be "appointed 
to office by the governor with the advice and consent of the 
council," provides that "the heads of divisions of depart- 
ments established by or under authority of this act shall be 
exempt from the civil service law and the rules and regu- 
lations made thereunder," justifying a like inference. It is 
therefore not necessary to consider whether the words "with 
the approval of the governor and council" in the act of 1919 
have the same significance as the words "subject to con- 
firmation by the executive council" in said section 9. See 
in this connection III Op. Atty.-Gen. 129. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Bank — Fraudulent or Misleading Advertising — Poiver of 
Commissio7ier of Banks. 

If the Commissioner of Banks finds as a fact that a bank is soliciting de- 
posits by means of advertising which is either false and fraudulent or 
intentionally misleading, he can find that such bank is conducting 
its business in an unsafe and unauthorized manner, within the meaning 
of St. 1910, c. 399, § 2 (G. L., c. 167, § 22), even though the bank has 
not as yet impaired its capital or brought itself into an unsafe condition 
to transact its business. 

The Attorney-General advises upon questions of law; he cannot decide 
questions of fact, or control the exercise of a discretion vested by law 
in another oflBcer. 



310 ATTORNEY-GENERAL'S REPORT. [Jan. 



Dec. 23, 1920. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You have requested an opinion upon certain 
facts, which I understand from your oral statements are in 
substance as follows: — 

Successive advertisements have been published by a "bank,'* 
as defined in St. 1910, c. 399, § 1. You have evidence tending 
to show that statements in certain of these advertisements 
are not in accordance with the facts, and other statements 
are of a character likely to mislead the public as to material 
matters connected with the business of the bank. 

You inquire whether, if the series of advertisements con- 
tain false and misleading statements, you would be warranted 
in finding that said bank is conducting its business '*in an 
unsafe or unauthorized manner," within the meaning of St. 
1910, c. 399, § 2, even though it does not appear that its 
capital is impaired or "that such bank is in an unsound or 
unsafe condition to transact the business for which it is 
organized," within the meaning of said section 2. 

Before advising you in answer to your inquiry, it will 
clarify the situation to determine the duty of your Depart- 
ment and this Department in regard to it. St. 1910, c. 399, 
§ 2, confers broad powers upon the Commissioner. He must 
determine the truth of the evidence before him. When the 
truth of the evidence has been determined, there arises the 
question whether it is sufficient in law to warrant a finding 
that the conditions required by section 2 are satisfied, — 
e.g., that the corporation is conducting its business "in an 
unsafe or unauthorized manner." If that issue is decided in 
the affirmative, the Commissioner must then determine, in the 
exercise of a sound discretion, what action he shall take in 
the premises. This Department can neither decide questions 
of fact nor assume to determine what action the Commissioner 
shall take in the exercise of the discretion conferred upon 
him. The statute imposes both those duties upon the Com- 
missioner. This Department can only advise you upon the 
question of law, namely, whether certain evidence, if true, is 
sufficient to warrant a finding that the conditions required 
by section 2 have been satisfied. 

Banking is founded upon credit. Credit rests upon mutual 
trust between bank and customer. Mutual trust between 



1921.] PUBLIC DOCUMENT — No. 12. 311 

bank and customer cannot exist if either ceases to believe in 
the honesty, sound judgment and solvency of the other. 
Neither can long believe in the honesty or sound judgment of 
the other if that other ceases to be honest and to judge 
soundly. These two qualities enter into and mainly determine 
the "moral hazard '^ of every business transaction. No one 
will question that honesty and sound judgment on the part 
of the bank are essentials of "safe" banking, both in actual 
experience and under the statute. Solvency is not a substitute 
for either, and cannot long endure without both. 

It is essential to every bank to secure and to retain a suffi- 
cient number of depositors and a sufficient amount of deposits. 
An ordinary deposit constitutes a debt due from the bank to 
the depositor. Advertisements designed to secure new 
deposits are intended to persuade individuals to become 
creditors of the bank. Proof that an individual has obtained 
a loan by means of a representation of fact known by him 
to be false would warrant a conviction for larceny. R. L., 
c. 208, § 26; Commonwealth v. Lincohi, 11 Allen, 233; Com- 
monwealth V. Coe, 115 Mass. 481; Commonwealth v. Howe, 
132 Mass. 250. It is no defence that the defendant intended 
to repay (Commoriwealth v. Coe, 115 Mass. 481; Spauldiiig v. 
Knight, 116 Mass. 148), promised to repay and did in fact 
repay. Commonwealth v. Coe, 115 Mass. 481. It cannot be 
that a bank is "authorized" to do what, if done by an 
individual, would constitute larceny. Moreover, public dis- 
closure of such facts could be found to be destructive of the 
bank's credit. I am therefore of opinion that, if you find 
that a bank is attempting to procure deposits by means of 
false and fraudulent advertising, you would be warranted in 
finding that such bank "is conducting its business in an 
unsafe and unauthorized manner," within the meaning of 
said section 2. 

Similar considerations govern in the case of advertising 
which, while not actually false and fraudulent, is intentionally 
misleading. It differs only in degree from advertising which 
is false and fraudulent. The public does not draw fine distinc- 
tions. It is misled in either case, and will probably not stop 
to analyze the precise means by which the false impression 
is created. Banking experience has demonstrated how easily 
a run may be started and how quickly a panic spreads. A 
bank which intentionally misleads its customers is doing 



312 ATTORNEY-GENERAL'S REPORT. [Jan. 

business upon a charged mine. A casual word or even an 
unconsidered act may cause an explosion at any moment, 
and if public confidence is once destroyed, it is difficult if not 
impossible to regain it. I therefore advise you that, if you 
find that advertisements published for the purpose of securing 
deposits are intentionally misleading, even though not actually 
false and fraudulent, you would be warranted in finding that 
the bank is conducting its business in an "unsafe" manner, 
within the meaning of section 2. 

I am confirmed in these conclusions by the language of 
St. 1910, c. 399, § 2, which reads as follows: — 

Whenever it shall appear to the bank commissioner that any bank 
under his supervision has violated its charter or any law of the com- 
monwealth, or is conducting its business in an unsafe or unauthorized 
manner, or that its capital is impaired, or if it shall refuse to submit 
its books, papers and concerns to the inspection of said commissioner 
or of his duly authorized agents, or if any officer of such bank shall 
refuse to be examined upon oath by the commissioner or his deputies 
touching its concerns, or if it shall suspend pajanent of its obligations, 
or if from an examination or from a report provided for b}'' law the bank 
commissioner shall have reason to conclude that such bank is in an 
unsound or unsafe condition to transact the business for which it is 
organized, or that it is unsafe and inexpedient for it to continue business, 
the bank commissioner may take possession forthwith of the property 
and business of such bank and may retain possession thereof until the 
bank shall resume business or until its affairs shall finally be liquidated 
as herein provided. 

It will be observed that said section 2 enumerates several 
conditions, any one of which, if found by the Commissioner 
to exist, authorizes him to take possession forthwith of the 
property and business of the bank. The conditions expressly 
enumerated include the case where the bank is conducting 
its business in an unsafe or unauthorized manner, as well as 
the case where its capital is impaired and the case where such 
bank is in an unsound or unsafe condition to transact the 
business for which it is organized. A construction of the 
statute which would leave the Commissioner without power 
to act until the bank had either impaired its capital or was 
already in an unsound or unsafe condition to transact the 
business for which it is organized would render meaningless 
the authority to act if the bank was conducting its business 
in an unsafe or unauthorized manner. The latter provision 



1921.] PUBLIC DOCUMENT — No. 12. 313 

was clearly intended to give power to prevent the mischief 
from being done, and therefore cannot be so construed as to 
tie the hands of the Commissioner until after the mischief 
has already occurred. 

I am therefore of opinion that if the Commissioner finds 
that a bank is conducting its business in an unsafe or un- 
authorized manner he has power to act, even though the 
bank has not as yet impaired its capital or brought itself into 
an unsound or unsafe condition to transact the business for 
which it is organized. 

As already pointed out, it is neither the function nor the 
duty of this Department to control tne exercise of any dis- 
cretion vested in the Commissioner by law. But, in view of 
the broad powers vested in you by said section 2, a suggestion 
may be made as to the exercise of this discretion. Section 2 
authorizes the Commissioner to take possession of the property 
and business of a bank if it shall "appear" to him that one 
of the conditions enumerated in said section has been satisfied. 

This power is given for the protection of the public rather 
than to punish any wrongful or improper conduct on the part 
of the bank. For this reason the action taken should be 
examined from the public viewpoint, and should not be more 
drastic than proper protection of the public demands. Each 
case must, of course, be determined upon its own facts, but 
it may well be that if a bank is still in sound condition, in 
spite of conduct found by you to be improper, and the situa- 
tion does not require that the bank be closed in order to 
protect the public from the consequences of such conduct, a 
warning that continuance of such conduct may result in the 
exercise of the power conferred by section 2 may be all that 
the exercise of a sound discretion would require. It may be 
suggested that such warning, if it can be given with due 
regard for the interest of the public, would place the Com- 
missioner in a stronger position if he later determined that 
more drastic action was necessary. But, as I have already 
pointed out, the decision of this question rests in your dis- 
cretion, — a discretion which it is not within the province of 
this office to direct or control. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



314 ATTORNEY-GENERAL'S REPORT. [Jan. 



Prisoners — Female Life Prisoner — Power to hind out to 
Domestic Service. 

A female prisoner who is serving a life sentence cannot be bound out to 
domestic service under the provisions of G. L., c. 127, §§85 and 86. 

Dec. 29, 1920. 
Hon. Channing H. Cox, Lieutenant Governor of the Commonwealth. 

Deak Sir: — You have orally inquired whether a female 
prisoner, sentenced to death for murder, whose sentence w^as 
commuted to imprisonment for life in the Reformatory for 
Women at Sherborn, may be bound out to domestic service 
under R. L., c. 225, §§ 69 and 70, which, on Jan. 1, 1921, is 
replaced by G. L., c. 127, §§ 85 and 86. Section 85 provides 
as follows : — 

The commissioner may, with the consent of a woman serving a sen- 
tence in the reformatory for women or in a jail or house of correction, 
and with the consent of the county commissioners if she is in a jail or 
house of correction, contract to have her employed in domestic service 
for such term, not exceeding her term of imprisonment, and upon such 
conditions, as he considers proper with reference to her welfare and 
reformation. If in his opinion her conduct at any time during the term 
of the contract is not good, he may order her to return to the prison 
from which she was taken. 

Section 86 in substance provides that if the woman leaves 
her place of service, or, if ordered to return to prison, neglects 
or refuses so to do, she shall be deemed to have escaped from 
prison and may be arrested, convicted and sentenced to an 
additional term of not less than three months nor more than 
one year. 

After careful consideration, I am of opinion that female 
life prisoners are excluded by implication from these pro- 
visions. A life sentence differs In kind from a sentence for 
a definite term. It Is imposed only for the most abhorrent 
crimes, and because the safety of the public in such cases 
requires that the prisoner be permanently confined. It is 
the only sentence which the^ prisoner never completes — 
death overtakes him In the expiation of his crime. To such 
a sentence the provisions of law which authorize the parole 
board to grant permits to be at liberty do not apply. See 
G. L., c. 127, §§ 128-149. To bind a female prisoner out to 



1921.] PUBLIC DOCUMENT — No. 12. 315 

domestic service is in effect to permit her to be at liberty 
upon condition that she remain in that service. It is in 
effect a part of the parole system, and must rest upon the 
same considerations of public policy. I cannot believe that 
the Legislature intended that female life prisoners should be 
eligible to be bound out to service, when at the same time it 
denied parole to all life prisoners. 

I am confirmed in this conclusion by the provision for 
punishment in case of an escape. A life sentence cannot be 
increased. There can be no additional term. To the life 
prisoner the provision for an additional sentence in case of 
escape is a nullity. I therefore advise you that neither R. L., 
c. 225, §§ 69 and 70, nor G. L., c. 127, §§ 85 and 86, are 
applicable to a female prisoner who is serving a life sentence. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Board of Registration in Medicine — Quasi-judicial Body — 
Expense of securing Testimony for Hearings under Ge7i. 
St. 1917, c. 218 — Conduct of Hearings. 

The Board of Registration in Medicine, acting in its quasi-judicial capacity, 
is not authorized to expend money in the hire or employment of detec- 
tives for the procuring of evidence to formulate or support charges to 
be heard by it. 

The functions of investigating, prosecuting and hearing charges should not 
be vested in the same person or persons. 

Dec. 29, 1920. 
Board of Registration in Medicine. 

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

May the Board of Registration in Medicine incur the expense of 
securing testimony to be used at a hearing held under the pro- 
visions of Gen. St. 1917, c. 218? 

Gen. St. 1917, c. 218, § 1, provides, in substance, that the 
Board of Registration in Medicine, and certain other boards, 
may, by majority vote, suspend or revoke any certificate, 
registration, license or authority issued by the board "if it 
appears to the board" that the holder of such certificate is 



316 ATTORNEY-GENERAL'S REPORT. [Jan. 

insane or is guilty of certain offences described in the act. 
Said section further provides: — 

The different boards may make such rules and regulations as they 
deem proper for the filing of charges and the conduct of hearings. 

Section 2 authorizes said boards to summon witnesses in the 
manner therein defined, and further provides : — 

Any person against whom charges are filed may appear at the hearing 
thereof with witnesses and be heard by counsel. 

Section 3 provides: — 

The said boards shall not defer action upon any charge before them 
until the conviction of the person accused, nor shall the pendency of any 
charge before any of the said boards act as a continuance or ground for 
delay in a criminal action. 

Section 4 provides : — 

The supreme judicial court may, upon petition of a person whose 
certificate, registration, license or authority has been suspended, re- 
voked or cancelled, enter a decree revising or reversing the decision of 
the board, if it should appear that the decision was clearly wrong; but 
prior to the entry of such decree, no order shall be made or entered by 
the court to stay or supersede any suspension, revocation or cancellation 
of any such certificate, registration, license or authority. 

In my opinion, the boards named in this statute act in a 
quasi-judicial capacity. Each board has authority to revoke 
or suspend any certificate issued by it if it appears to the 
board that the holder of such certificate is either insane or 
has been guilty of any of the offences defined in section 1. 
But this authority is to be exercised in an orderly and judicial 
manner, though not with the technical precision of a trial at 
law. Unless the accused has left the Commonwealth or can- 
not be found, he is entitled, under section 2, to a hearing, at 
which he may appear w^th witnesses and be heard by counsel. 
While the Board may adopt rules for the filing of charges 
and the conduct of hearings and may summon witnesses, I 
find nothing in the statute which imposes upon the Board 
a duty to prepare and press the charge which it is to hear 
and decide. To do so would combine the conflicting functions 
of prosecutor and judge. I am therefore of opinion that the 



1921.] PUBLIC DOCUMENT — No. 12. 317 

statute does not authorize the Board to expend money for 
the services of detectives in order to formulate charges to be 
brought before it, or to support charges to be heard by it. 

I may add that R. L., c. 76, § 6, which requires the Board 
to investigate certain classes of complaints and to "report 
the same to the proper prosecuting officers," would seem, by 
implication, to exclude complaints upon which the Board is 
itself to pass in its quasi-judicial capacity. A different con- 
struction of the act might raise serious constitutional ques- 
tions. See Bill of Rights, art. XXIX. 

I am not unmindful that the public interest may suffer if 
the prosecution of charges before the Board is left to the 
public spirit and initiative of private complainants who may, 
and in many instances would, be reluctant to press charges. 
But this consideration cannot justify a procedure which might 
deprive the person charged with an offence of the right to 
have the charge heard and determined by an impartial 
tribunal. Efficient protection of the public would seem to 
require additional legislation which would require some 
officer of experience and special training to investigate pos- 
sible offences, and, if investigation gave reasonable cause to 
believe that an offence had been committed, to prosecute 
the same before the Board. I see no reason why this duty 
might not be imposed upon the secretary or any other official 
of the Board, provided that in investigating complaints made 
to the Board such official is not subject to the control or 
direction of the Board. Such legislation would, in my opinion, 
preserve the impartial character of the quasi-judicial body 
which is to hear and determine the charges, and, at the same 
time, give effect to what may well have been the intention of 
the Legislature in establishing this and similar registration 
boards, namely, to provide for efficient investigation as well 
as the prosecution of complaints before the Board, in order 
to protect the public. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



318 ATTORNEY-GENERAL'S REPORT. [Jan. 



INDEX TO OPINIONS. 



Absent voter; casting of ballots, ...... 

Aliens, right to possess guns; game laws, ..... 

Americanization classes by cities and towns; reimbursement, . 
Animals and birds on State reservations; right to kill in open season, 
Appropriation by Legislature; date of going into efifect, 
Automobile insurance ; discrimination ; rebates, .... 

Automobiles; registration; change of motors, .... 

Ballots; absent voters ; cast and counted, ..... 

Bank, possession of, by Bank Commissioner; liquidation; resumption of 
business, ......... 

"Bankers;" use of name by corporation or partnership, 

Banks; collections; collecting bank a debtor, .... 

Blind persons, fixing fares of, by Legislature, .... 

Bonds, port development; approval of purchase by Governor and Council 

Boston dry dock; distribution of proceeds from sale, 

Boston police boat; fireman; State employee, .... 

Boxing Commission; State police officer ; salary, .... 

Boxing; licenses not required from municipalities, 

Chiropody; date for registration, ...... 

Citizenship; American women married to aliens, .... 

Person entering military service of foreign nation; effect. 
Civil service ; female veteran, ....... 

Cold storage of food ; period for holding; prosecution, . 
Corporations; increase of capital stock; no par value; filing fees, 
Corrupt practices ; political committee, ..... 

County training school ; support of inmates, .... 

Credit unions ; right of corporation to be a member, 
Cruelty to Animals, Massachusetts Society for Prevention of; disposition 
of fines; prosecution for cock fights, .... 

Deficiency in appropriation; transfer from emergency fund; recommenda 
tion of Auditor, ........ 

Diseases, contagious; notice by physician, to whom given, 
Drinking cup; communion service, ...... 

Druggists' licenses; intoxicating liquor; eighteenth amendment. 
Elections; presidential primaries; group voting, .... 

Electric company; sale of plant; consent of Legislature, 
Emergency fund ; transfer to meet deficiency ; recommendation of Auditor 
Employment agency ; power of Legislature to fix fees, ... 
Extradition; information or complaint not sufficient, ... 

Proof of flight from justice, ....... 

Fall River, assistant treasurer and assistant collector of; civil service. 
Federal Constitution, amendment to; when operative, . . . , 

Fines in connection with cock fighting ; disposition, . . . , 

Fire department; call captain; promotion; civil service. 
Fire escapes; means of exit, ........ 

Fish and game, possession of, during closed season, . . 

Fisheries and Game, Division of; destruction of fish by chemicals, . 

Short lobsters; search without a warrant, . . . . 



PAGE 

279 
87 

161 
72 

194 

132 
28 

279 

152 
114 

51 

97 
157 

81 
118 
282 
300 
248 
260 
223 

90 
172 
158 

41 
242 
250 

277 

66 

212 

126 

104 

109 

29 

66 

74 

181 

293 

127 

227 

277 

60 

124 

107 

233 

177 



1921.] PUBLIC DOCUMENT — No. 12. 319 



PAGE 

Fishing; rowing boat for another; license, ...... 176 

Game laws, \'iolation of, in parks and reservations; enforcement of, . 215 

Garage license; appeal to Department of Public Safety, . . . 134 

Gasoline, license to store ; right of appeal to Commissioner of Public Safety, 302 

Power of Metropolitan District Commission to regulate discharge into 

sewers, .......... 148 

Hours of labor; employee of railroad ; interstate commerce ; regulation, 160 

Income tax; stock di\adend of foreign corporation, .... 206 

Stock dividend on trusts, ........ 208 

Inflammable liquid, license to store; appeal, ..... 45 

Insane person; commitment after trial for murder; pardon by Governor 

and Council, ......... 179 

Right to operate upon; vaccination; consent, . . . .54 

Insurance; Mutual company; premivun charge; deposit notes, . . 140 

Fire; replacement value, ........ 286 

Unearned premiums ; trust fund; discrimination, .... 185 

Insurance company; by-laws; election of directors, .... 258 

Interest on taxes; additional rate, ....... 235 

Intoxicating liquor; eighteenth amendment; druggists' licenses, . . 104 

Jurisdiction; crimes committed on Federal property, . . . .112 

Medicine, Board of Registration in; investigations; procuring evidence, . 315 

Right to summon physician con\acted of perjury, .... 139 
Military aid; soldier discharged for pre\'ious disability, . . .61 

Money received from bonding company as penalty, disposition of, . .113 

Motion-picture film, regulation by Commonwealth of use of, . . .163 

Nightwalker; discharge from house of correction, . . . .39 

Nomination papers ; independent candidate; political party, . . . 252 

Optometry, practice of; use of eyeglass tester, ..... 255 
Physician, con\dcted of offence outside of profession; removal, . . 139 

Plumber's license; renewal; holder not engaged in business, . . . 106 

Poll tax; persons not mustered into military service not exempt, . . 188 

Soldier; bonus; abatement, . . . . . . .216 

Prison sentence ; maximum; date of expiration, ..... 73 

Prisoners; female; life sentence; release for domestic service, . . . 314 

In houses of correction; discharge; nightwalker, . . . .39 

P*ublic charitable institution; Boston Consumptives Hospital, . . 239 

Railroads; fares, stations and regulations; Federal control; authority of 

Public Utilities Commission, ....... 229 

Referendum; application to appropriation act, ..... 199 

Religious worship in State institutions; "anti-aid" amendment, . . 100 

Retirement Association; employees; Department of Public Works, . 136 

Reinstatement of State employee upon return to the service of the 

Commonwealth, ......... 47 

Safe deposit box; contents of box not in possession of trust company, . 273 
Salary ; director of a department ; member of advisory board ; compensa- 
tion, 283 

State police officer deputized to attend boxing matches ; compensation, 282 
Savings bank; advertising; authority of Commissioner of Banks, . . 309 

Safe deposit vaults, ......... 247 

Savings deposits ; interest on note; income earned, . . . .34 

Schoolhouse; Young Men's Christian Association; moving pictures, . 291 
Schools; attendance; age limit, . . . . . . . .112 

Continuation; reimbursement of cities and towns, .... 168 
Elementary and high; compulsory courses, ..... 196 

Superintendency unions ; minimum salary of superintendent, . . 174 
Teaching of thrift 40 



320 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



Schools; Transportation of pupils living on islands, 

Tuition of pupils in private schools; reimbursement, 
Sealer of weights and measures; computing measuring device, 
Set-off; deposits in savings and commercial departments of trust com- 
panies, ......... 

Trust company; deposit and debt of depositor, 
Signature; rubber stamp; lawful, ...... 

Soldiers and sailors ; military aid ; discharged for previous disability 
Soldiers' Home of Massachusetts; money paid for work; approval of 
trustees, ........ 

State Aid and Pensions, Commissioner of; clerks and agents; civil service 
State bonds; contract; sinking funds, .... 

State House, room in, for veterans; appropriation of money; public 
purpose, ........ 

State institutions; clothing for indigent patients; cities and towns not to 
furnish, ........ 

State police; pensions; consolidation act, .... 

State prison, sentence to, by district court upon complaint, 
Sunday sports; application to park systems. 
Superintendent of Buildings; lease of quarters outside of Boston; juris- 
diction, ........ 

Supervisor of Administration; salary of deputy; approval by Governor 
and Council, ....... 

Surgery; insane person, right to operate upon; consent. 

Tax, franchise; deduction of real estate acquired after April 1, 

Interest on; additional rate, ..... 

Taxation; domestic corporation; deductions; mortgage of real estate 
held as collateral, ....... 

Exemption of property of the Commonwealth, 

Property owned by foreign goverrunent. 

Sale of assets prior to April 1, ..... 

War poll tax; abatement; bonus, .... 

Persons not mustered into service not exempt. 
Taxes; abatement; county commissioners; duty of collector, 

Discharge in bankruptcy ; liability, .... 

To pay bonds; not borrowed money; application to different pur 
poses, ......... 

Teachers' retirement system; part-time emplojonent. 

Town notes; appropriation in excess of amount in warrant, 

Training school, county; support of inmates. 

Trust company; relation of company to holder of safe deposit box 

Savings department; extra di\"idend, .... 

Set-off of savings and commercial deposits. 
Tuberculosis hospitals ; construction by counties, . 
Tuition of pupils in private schools ; reimbursement, 
Vaccination; insane person; consent, ..... 
Veteran, female; ci\al ser\'ice, . . . 

Retirement of, from service of the Commonwealth, 
Voter, legal; power of Legislature to define. 
Women; citizenship; status when married to aliens. 

Commissioner to qualify ciinl officers, . . . • 

Right to be members of ward and town committees and delegates to a 
convention, ........ 

Right to sign nomination papers, ..... 
Wrentham State School; temporary leave; discharge, . 



PAGE 

27 
295 
244 

265 
275 

238 
61 



1921.1 PUBLIC DOCmiEXT — Xo. 12. 321 



GEADE CEOSSINGS. 



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. 
Pittsiield, 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. 



322 ATTORNEY-GENERAL'S REPORT. [Jan. 

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. 

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. 



1921.] PUBLIC DOCUMENT — No. 12. 323 

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 aboli- 
tion of Mollis and Waushakum streets crossings. Pending. 

Framingham, Selectmen of, petitioners. Petition for the abo- 
lition of Claflin Street crossing. Pending. 

Framingham, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Willis Crossing. Pending. 

Lowell, Mayor and Aldermen of, petitioners. Petition foi 
abolition of grade crossings at Middlesex and Fletcher 
streets and Western Avenue. George F. Swain, Patrick 
H. Cooney and Nelson P. Brown appointed commissioners. 
Commissioners' report filed. Pending. 



324 ATTORNEY-GENERAL'S REPORT. [Jan. 

Marlborough, Mayor and Aldermen of, petitioners. Petition 
for abolition of Hudson Street crossing in Marlborough. 
Walter Adams, Charles A. Allen and Alpheus Sanford ap- 
pointed commissioners. Commissioners' report filed. 
Pending. 

Newton, Mayor and Aldermen of, petitioners. Petition for 
the abolition of Concord Street and Pine Grove Avenue 
crossings in Newton. George W. Wiggin, T. C. Menden- 
hall and Edmund K. Turner appointed commissioners. 
Pending. 

Somerville, Mayor and Aldermen of, petitioners. Petition for 
abolition of Park Street, Dane Street, and Medford Street 
crossings in Somerville. George W. Wiggin, George F. 
Swain and James D. Colt appointed commissioners. 
Commissioners' report filed. James D. Colt appointed 
auditor in place of Patrick H. Cooney deceased. Auditor's 
thirteenth report filed. Pending. 

Wakefield, Selectmen of, petitioners. Petition for abolition of 
Hanson Street crossing in Wakefield. Pending. 

Waltham, Mayor and Aldermen of, petitioners. Petition for 
abolition of South Street crossing in Waltham. Geo. F. 
Swain, and Geo. A. Sanderson appointed com- 
missioners. Pending. 

Waltham, Mayor and Aldermen of, petitioners. Petition for 
abolition of Moody Street, Main Street, Elm "Street, 
River Street, Pine Street, Newton Street and Calvary 
Street crossings in Waltham. Arthur Lord, Patrick H. 
Cooney and George F. Swain appointed commissioners. 
Pending. 

Watertown, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Cottage, Arlington, School, Irving 
and other streets in Watertown. Pending. 

Wayland, Selectmen of, petitioners. Petition for abolition of 
grade crossing at State Road. George F. Swain, Harvey 
N. Shepard and Arthur W. DeGoosh appointed commis- 
sioners. Pending. 

Weston, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Central Avenue, Conant Road, Church 
and Viles streets. P. H. Cooney, Louis A. Frothing- 
ham and Andrew M. Lovis appointed commissioners. 
Pending. 



1921.] PUBLIC DOCUMENT — Xo. 12. 325 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W\ 
AYiggin, 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 iVvenue and Dedham and 
Haven streets. Public Service Commission appointed 
commissioners. Pending. 

Needham, Selectmen of, petitioners. Petition for abolition of 
Charles River Street crossing in Needham. Pending. 

Quincy. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Saville and Water streets crossings in Quincy. John L. 
Bates, Winfield S. Slocum and Arthur H. Wellman ap- 
pointed commissioners. Commissioners' report filed and 
recommitted. Joseph B. L^'ons appointed commissioner 
in place of Winfield S. Slocum, deceased. Commissioners' 
second report filed. Henry A. Wyman appointed auditor 
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. 



326 ATTORNEY-GENERAL'S REPORT. [Jan. 



Plymouth County. 
Rockland, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Union and other streets in Rockland. 
Pending. 

Suffolk County. 

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. George W. Bishop 
appointed auditor. Auditor's first report filed. Pending. 

Revere, Selectmen of, petitioners. Petition for abolition of 
Winthrop Avenue crossing in Revere of the Boston, 
Revere Beach & Lynn Railroad. Pending. 

Worcester County. 

Auburn. Boston & Albany Railroad Compan\^, 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. 



1921.] PUBLIC DOCUMENT — No. 12. 327 

Southborough, Selectmen of, petitioners. Petition for aboli- 
tion of crossing on road from Southborough to Framing- 
ham. A. W. DeGoosh, Louis A. Frothingham and 
Eugene C. Hultman appointed commissioners. Com- 
missioners' report filed and recommitted. Pending. 

Southborough, Selectmen of, petitioners. Petition for aboli- 
tion of Main Street crossing at Fayville in Southborough. 
Pending. 

Southbridge, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Foster, Central and Hook streets. 
George F. Swain, P. H. Cooney and William F. Garcelon 
appointed commissioners. Commissioners' report filed. 
Pending. 

Webster, Selectmen of, petitioners. Petition for abolition of 
grade crossing at Main Street. Pending. 

West Boylston. Boston & Maine Railroad Company, peti- 
tioners. Petition for abolition of Prescott Street crossing. 
Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossings at Exchange, Central and Thomas 
and other streets. Arthur Lord, George F. Swain and 
Fred Joy appointed commissioners. Pending. 

Worcester, Mayor and Aldermen of, petitioners. Petition for 
abolition of Grafton Street crossing and eight other cross- 
ings, including alterations of Union Station. James R. 
Dunbar, James H. Flint and George F. Swain appointed 
commissioners. Commissioners' report filed. James A. 
Stiles appointed auditor. Auditor's seventy-third report 
filed. Pending. 



328 ATTORNEY-GENERAL'S REPORT- [Jan. 



EFLES 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. 



1921.] PUBLIC DOCUMENT — No. 12. 329 

(h) The nature of the crime charged, with a reference, when 
practicable, to the particular statute defining and punishing 
the same. 

(^) If the offence charged is not of recent occurrence, a satis- 
factory reason must be given for the delay in making the ap- 
plication. 

1. In all cases of fraud, false pretences, embezzlement or 
forgery, when made a crime by the common law, or any penal 
code or statute, the affidavit of the principal complaining wit- 
ness or informant that the application is made in good faith, 
for the sole purpose of punishing the accused, and that he does 
not desire or expect to use the prosecution for the purpose of 
collecting a debt, or for any private purpose, and will not di- 
rectly or indirectly use the same for any of said purposes, shall 
be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 
the Executive that the alleged criminal has fled from the jus- 
tice of the State, and is in the State on whose Executive the 
demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged 
crime was committed at the time of the commission thereof, 
and is found in the State upon which the requisition was 
made, shall be sufficient evidence, in the absence of other 
proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in dupli- 
cate, must accompany the application. 

4. If an indictment has not been found by a grand jury, the 
facts and circumstances showing the commission of the crime 
charged, and that the accused perpetrated the same, must be 
shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) 
It must also be shown that a complaint has been made, copies 
of which must accompany the requisition, such complaint to 
be accompanied by affidavits to the facts constituting the 
offence charged by persons having actual knowledge thereof, 
and that a warrant has been issued, and duplicate certified 
copies of the same, together with the returns thereto, if any, 
must be furnished upon an application. 

5. The official character of the officer taking the affidavits 
or depositions, and of the officer who issued the warrant, must 
be duly certified. 



330 ATTORNEY-GENERAL'S REPORT. [Jan. 1921. 

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, witli the circumstances attending the same. 

8. No requisition will be made for the extradition of any 
fugitive except in compliance with these rules.