Skip to main content

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

See other formats


Commonwealtli of MassacTiusetts 
/ATTORNEY- GENERAL'S REPORT 



1921 



Cdonsel to the Senate 
state house 

BOSTON 



Public Document 



No. 12 



®l)e ^cmmonioealtl) oi iVia5Bac[)iiBtttB 



REPORT 



ATTORNEY-GENERAL 



Year ending January 18, 1922 




BOSTON 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS 

32 DERNE STREET 



®l)c CommontDcoIth of ittoseacliusetts 



Department of the Attorney-General, 
Boston, Jan. 18, 1922. 

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-General. 



®[)e (JTotntnotxtDealtf) of itta00atl)U0rtt0 



DEPARTMENT OF THE ATTORNEY-GENERAL. 
State House. 



Attorney-General. 
J. WESTON ALLEN. 

Assistants. 
Edwin H. Abbot, Jr. 
Alexander Lincoln. 
Arthur E. Seagrave. ^ 
Jay R. Benton. 
Albert Hurwitz. 
Maynard C. Teall.2 
Lewis Goldberg.^ 
Charles R. Cabot. 
A. Chesley York.'' 

Chief Clerk. 
Louis H. Freese. 



1 Resigned Sept. 15, 1921. 3 Appointed March 10, 1921. 

2 Resigned March 31, 1921. * Appointed Oct. 1, 1921. 



STATEMENT OF APPROPRIATION AND EXPENDITURES. 



Appropriation for 1921 $83,000 00 

Appropriation, additional 12,000 00 

Appropriation from Governor's extraordinary appropria- 
tion, 5,000 00 

Appropriation for 1920, unexpended balance brought 

forward to pay 1920 biUs, 5,610 10 



$105,610 10 



Expenditures. 

For salary of Attorney-General $8,000 00 

For law library 655 82 

For salaries of assistants . . 36,189 29 

For clerks 7,523 33 

For office stenographers 6,388 13 

For telephone operator 923 33 

For legal and special services and expenses . . . 32,134 28 

For office expenses and travel 6,810 50 

For court expenses 1,959 28 



Total expenditures $100,583 96 



^ht CommDnroealtl) of iBassachusetts 



Department of the Attorney-General, 
Boston, Jan. 18, 1922. 

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 7,832, are tabulated below: — 

Corporate franchise tax cases 1,244 

Extradition and interstate rendition 242 

Grade crossings, petitions for abolition of 59 

Indictments for murder 43 

Inventories and appraisals o 

Land Court petitions 152 

Land-damage cases arising from the taking of land by the De- 
partment of Public Works 29 

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

politan District Commission 23 

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

House Building Commission 2 

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

Commissioners 1 

Land-damage cases arising from the taking of land by the De- 
partment of Mental Diseases 1 

Land-damage cases arising from the taking of land by the Pil- 
grim Tercentenary^ Commission 5 

Miscellaneous cases arising from the work of the above-named 

commissions 20 

Miscellaneous cases 490 

Petitions for instructions under inheritance tax laws ... 42 

Public charitable trusts 131 

Settlement cases for support of persons in State hospitals . . 30 
All other cases not enumerated above, which include suits to 
require the filing of returns by corporations and indi\dduals 

and the collection of money due the Commonwealth . . 5,313 



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: — 

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 were waived. The case was in charge of District 
Attorney Charles H. Wright. 

Saving Corsaro, alias, indicted in Essex County, May, 

1920, for the murder of Michele Laratonda, at Lawrence, on 
Jan. 24, 1920. He was arraigned April 4, 1921, and pleaded 
not guilty. John P. Kane, Esq., and Angelo G. Rocco, Esq., 
appeared as counsel for the defendant. In April, 1921, the 
defendant was tried by a jury before Fosdick, J. The result 
was a verdict of guilty of murder in the second degree. The 
defendant's motion for a new trial was denied on April 13, 

1921, and the defendant was thereupon sentenced to State 
Prison for life. The case was in charge of District Attorney 
S. Howard Donnell. 

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. Later the 
defendant retracted his former plea, and pleaded guilty to 
manslaughter. This plea was accepted by the Common- 
wealth, and the defendant was thereupon sentenced to State 
Prison for a term of not more than three years nor less than 



1922.] PUBLIC DOCUMENT — No. 12. ix 

two and one-half years. The case was 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 
L Gallagher, 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 
the house of correction for one year. The case was in charge 
of District Attorney Charles H. Wright. 

BiAZzo Maffeo, indicted in Suffolk County, August, 1919, 
for the murder of Vincenzo Giordanio, on July 20, 1919. 
He was arraigned March 23, 1921, and pleaded guilty to 
manslaughter. This plea was accepted by the Common- 
wealth, and the defendant was thereupon sentenced to the 
house of correction for one year. The case was in charge of 
District Attorney Joseph C. Pelletier. 

Charles Miller, indicted in Hampden County, Decem- 
ber, 1920, for the murder of Lillian Miller, 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. 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. 

Domenico Palermo, indicted in Suffolk County, Septem- 
ber, 1920, for the murder of Giuseppe Amato, on Aug. 9, 
1920. He was arraigned May 4, 1921, and pleaded not 
guilty. Thomas J. Grady, Esq., appeared as counsel for the 
defendant. On June 23, 1921, the defendant retracted his 



X ATTORNEY-GENERAL'S REPORT. [Jan. 

former plea, and pleaded guilty to manslaughter. This plea 
was accepted by the Commonwealth, and the defendant was 
thereupon sentenced to State Prison for a term of not more 
than six years nor less than three years. The case was in 
charge of District Attorney Joseph C. Pelletier. 

Frank Peegolizio, alias, indicted in Suffolk County, 
August, 1919, for the murder of John Frassica, on July 20, 

1919. He was arraigned May 25, 1921, and pleaded not 
guilty. Timothy F. Callahan, Esq., appeared as counsel for 
the defendant. On June 23, 1921, the defendant retracted 
his former plea, and pleaded guilt}^ to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 
was thereupon sentenced to the common jail for eighteen 
months. The case was in charge of District Attorney Joseph 
C. Pelletier. 

Joseph St. Savier, indicted in Essex County, September, 

1920, for the murder of Olvina St. Savier, at Lawrence, on 
Aug. 1, 1920. He was arraigned Sept. 26, 1921, and pleaded 
not guilty. Michael A. Sullivan, Esq., appeared as counsel 
for the defendant. In September, 1921, the defendant was 
tried by a jury before Cox, J. The result was a verdict of 
not guilty by reason of insanity. The defendant was there- 
upon committed to the Bridgewater State Hospital. The 
case was in charge of District Attorney S. Howard Donnell. 

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

Nicola Avellone, indicted in Bristol County, June, 1921, 
for the murder of Benny Tartaglia. He was arraigned June 
21, 1921, and pleaded not guilty. On Nov. 17, 1921, the 
defendant retracted his former plea, and pleaded guilty to 
manslaughter. This plea was accepted by the Common- 
wealth, and the defendant was thereupon sentenced to State 
Prison for a term of not more than four years nor less than 
three years. The case was in charge of District x\ttorney 
Joseph T. Kenney. 



1922.] PUBLIC DOCUMENT — No. 12. xi 

LuiGi Caroling, indicted in Middlesex County, June, 
1921, for the murder of John Fitzgerald, at Cambridge, on 
March 18, 1921. He was arraigned June 15, 1921, and 
pleaded guilty to manslaughter. This plea was accepted by 
the Commonwealth, and the defendant was thereupon 
sentenced to the house of correction for two and one-half 
years. Jerome J. Russo, Esq., and Felix Forte, Esq., ap- 
peared as counsel for the defendant. The case was in charge 
of District Attorney Nathan A. Tufts. 

Eugene R. Drioly, indicted in Middlesex County, April, 
1921, for the murder of Vincent Cunningham Paul Plancich, 
at Littleton, on March 20, 1921. He was arraigned May 13, 
1921, and pleaded not guilty. John D. Carney, Esq., ap- 
peared as counsel for the defendant. On June 30, 1921, 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. 

GiACOMO Ferrara, indicted in Plymouth County, Febru- 
ary, 1921, for the murder of Giambattista Condito, at Hing- 
ham, on Jan. 15, 1921. He was arraigned Feb. 17, 1921, 
and pleaded not guilty. John E. Crowley, Esq., appeared 
as counsel for the defendant. On Oct. 21, 1921, the defend- 
ant retracted his former plea, and pleaded guilty to man- 
slaughter. This plea was accepted by the Commonwealth, 
and the defendant was thereupon sentenced to the house of 
correction for one year. The case was in charge of District 
Attorney Frederick G. Katzmann. 

DoMENico FoNTASio and Antonio Parella, indicted in 
Suffolk County, January, 1921, for the murder of Giuseppe 
Tedesco, on Dec. 25, 1920. The defendants were arraigned 
June 7, 1921, and pleaded not guilty. Alfred B. Cenedello, 
Esq., and William C. Maguire, Esq., appeared as counsel 
for the defendant Domenico Fontasio, and Stephen B. Baci- 
galupo, Esq., appeared as counsel for the defendant Antonio 



xii ATTORNEY-GENERAL'S REPORT. [Jan. 

Parella. In October, 1921, the defendants were tried by a 
jury before O'Connell, J. During the progress of the trial 
the defendant Domenico Fontasio retracted his former plea, 
and pleaded guilty to manslaughter. This plea was ac- 
cepted by the Commonwealth, and the defendant Domenico 
Fontasio was thereupon sentenced to State Prison for a 
term of not more than five years nor less than two and one- 
half years. A verdict of not guilty was found in the case of 
the defendant Antonio Parella. The cases w^ere in charge of 
District Attorney Joseph C. Pelletier. 

Alfeed Fortier, alias, Emile Theberge and Lionel 
Theberge, alias, indicted in Middlesex County, February, 
1921, for the murder of David N. Tallen, at Lowell, on Jan. 
25, 1921. The defendants were arraigned Feb. 4, 1921, and 
pleaded not guilty. Edward J. Tierney, Esq., appeared as 
counsel for the defendant Alfred Fortier, Daniel J. Donahue, 
Esq., appeared as counsel for the defendant Emile Theberge, 
and Cornelius J. O'Neill, Esq., appeared as counsel for the 
defendant Lionel Theberge. In May, 1921, the defendants 
were tried by a jury before Cox, J. The result was a verdict 
of guilty of murder in the second degree in the case of the 
defendant Alfred Fortier, and verdicts of not guilty in the 
cases of the defendants Emile Theberge and Lionel Theberge. 
The defendant Alfred Fortier was thereupon sentenced to 
State Prison for life. The cases were in charge of District 
Attorney Nathan A. Tufts. 

Clarence W. Loud, indicted in Middlesex County, April, 
1921, for the murder of James A. Preston, at Wakefield, on 
April 9, 1921. He was arraigned May 13, 1921, and pleaded 
not guilty. John P. Feeney, Esq., and Malcolm F. Sturte- 
vant, Esq., appeared as counsel for the defendant. In 
January, 1922, the defendant was tried by a jury before 
John F. Brown, J. The result was a verdict of not guilty. 
The case was in charge of District Attorney Endicott P. 
Saltonstall. 



1922.] PUBLIC DOCUMENT — No. 12. xiii 

Michael Misiak, indicted in Hampden County, May, 
1921, for the murder of Stanislaw Sniezyk, at Chicopee, on 
March 27, 1921. He was arraigned May 16, 1921, and 
pleaded not guilty. Later the defendant retracted his former 
plea, and pleaded guilty to manslaughter. This plea was 
accepted by the Commonwealth, and the defendant was 
thereupon sentenced to State Prison for a term of not more 
than ten years nor less than eight years. The case was in 
charge of District Attorney Charles H. Wright. 

Salvatore Palumbo, indicted in Essex County, April, 
1921, for the murder of Francesco Monteforte, at Lawrence, 
on April 8, 1921. He was arraigned May 9, 1921, and 
pleaded not guilty. James J. Sullivan, Esq., and John A. 
O'Mahoney, Esq., appeared as counsel for the defendant. 
In June, 1921, the defendant was tried by a jury before 
Fosdick, J. The result was a verdict of guilty of man- 
slaughter. The defendant was thereupon sentenced to State 
Prison for a term of not more than twenty years nor less 
than ten years. The case was in charge of District Attorney 

5. Howard Donnell. 

Pasquale Pasuino, indicted in Bristol County, Novem- 
ber, 1921, for the murder of William B. Riley. He was 
arraigned Nov. 22, 1921, and pleaded not guilty. On Dec. 

6, 1921, the defendant retracted his former plea, and pleaded 
guilty to manslaughter. This plea was accepted by the 
Commonwealth, and the defendant was thereupon sentenced 
to State Prison for a term of not more than five years nor 
less than three and one-half years. The case was in charge 
of District Attorney Joseph T. Kenney. 

Felice Pirozzi, alias, indicted in Bristol County, 
February, 1921, for the murder of Grico Scaccia. He was 
arraigned June 20, 1921, and pleaded guilty to murder in 
the second degree. This plea was accepted by the Common- 
wealth, and the defendant was thereupon sentenced to State 
Prison for life. Frank Vera, Esq., appeared as counsel for 



xiv ATTORNEY-GENERAL'S REPORT. [Jan. 

the defendant. The case was in charge of District Attorney 
Joseph T. Kenney. 

Adolph Poskewicz, indicted in Norfolk County, Septem- 
ber, 1921, for the murder of Leon Statkus, at Stoughton, 
on Aug. 3, 1921, and Annie Statkus, indicted as accessory 
after the fact to the murder of Leon Statkus. On Oct. 22, 
1921, the defendant Adolph Poskewicz committed suicide 
in jail, and on Dec. 22, 1921, the court directed that a 
verdict of not guilty be entered as to the defendant Annie 
Statkus. The case was in charge of District iVttorney 
Frederick G. Katzmann. 

Dominic Regione, alias, Joseph Santucci, Joseph Del 
Vecchio, alias, and Michael Profido, alias, indicted in Suf- 
folk County, May, 1921, for the murder of Joseph DePesola, 
on April 21, 1921. The defendants were arraigned May 
10, 1921, and pleaded not guilty. William R. Scharton, 
Esq., appeared as counsel for all the defendants. In July, 
1921, the defendants were tried by a jury before Quinn, J. 
The result was a verdict of not guilty as to each defendant. 
The cases w^ere in charge of District Attorney Joseph C. 
Pelletier. 

Antonio I. Salvado, indicted in Middlesex County, 
November, 1921, for the murder of Paulos Torre, at Little- 
ton, on Oct. 13, 1921. He was arraigned Nov. 18, 1921, and 
pleaded not guilty. James T. Maguire, Esq., appeared as 
counsel for the defendant. On Nov. 28, 1921, 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 thereupon sentenced to State 
Prison for life. The case was in charge of District Attorney 
Endicott P. Saltonstall. 

Giovanni Scarfo, indicted in Hampden County, May, 
1921, for the murder of Pietro Barbieri, at West Springfield, 
on Jan. 25, 1921. He was arraigned May 16, 1921, and 
pleaded not guilty. Silvio Martinelli, Esq., and Thomas F. 



1922.] PUBLIC DOCUMENT — No. 12. xv 

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 Common- 
wealth, and the defendant was thereupon sentenced to State 
Prison for a term of not more than twelve years nor less 
than ten years. The case was in charge of District Attorney 
Charles H. Wright. 

Edward Semprini, indicted in Middlesex County, Septem- 
ber, 1921, for the murder of Angelo Dentino, at Lexington, 
on June 19, 1921. He was arraigned Sept. 14, 1921, and 
pleaded not guilty. Daniel J. O'Connell, Esq., appeared as 
counsel for the defendant. On Dec. 1, 1921, the defendant 
retracted his former plea, and pleaded guilty to manslaughter. 
This plea was accepted by the Commonwealth, and the 
defendant was thereupon sentenced to State Prison for a 
term of not more than five years nor less than three years. 
The case was in charge of District Attorney Endicott P. 
Saltonstall. 

Giovanni Vilardi, indicted in Hampden County, May, 
1921, for the murder of James Camoso, at Springfield, on 
Feb. 20, 1920. He was arraigned May 16, 1921, and pleaded 
not guilty. Milton L. Davis, Esq., and Thomas F. Moriarty, 
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 w^as thereupon sentenced 
to State Prison for life. The case w^as in charge of District 
Attorney Charles H. Wright. 

The following indictments for murder are now pending: — 

Julius B. Arthur, indicted in Norfolk County, Septem- 
ber, 1921, for the murder of John Bodey, at Quincy, on June 
18, 1921. The defendant has not yet been arraigned. The 
case is in charge of District Attorney Frederick G. Katzmann. 

Caleb Loring Cunningham, indicted in Norfolk County, 
April, 1921, for the murder of John Johnson, at Quincy, on 



xvi ATTORNEY-GENERAL'S REPORT. [Jan. 

Jan. 5, 1921. He was arraigned Dec. 30, 1921, and pleaded 
not guilty. No further action has been taken in this case. 
The case is in charge of District Attorney Frederick G. 
Katzmann. 

Paul Dascalakis, alias, indicted in Suffolk County, 
May, 1920, for the murder of Alice Arseneault, on Dec. 26, 
1919. He was arraigned Sept. 26, 1921, and pleaded not 
guilty. John W. Schenck, Esq., appeared as counsel for the 
defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Joseph C. Pelletier. 

John De Gregorio, indicted in Suffolk County, July, 1921, 
for the murder of Joseph Lopresti, on June 14, 1921. He 
was arraigned July 14, 1921, and pleaded not guilty. On 
Sept. 14, 1921, an entry of nolle prosequi was made on so 
much of said indictment as charged more than manslaughter, 
and the defendant was released in $3,000 bail. No further 
action has been taken in this case. The case is in charge of 
District Attorney Joseph C. Pelletier. 

Albert J. Duhaine and George E. Belanger, indicted 
in Hampden County, December, 1921, for the murder of 
Wallace L. Weber, at Springfield, on Sept. 17, 1921. They 
were arraigned Jan. 5, 1922, and pleaded not guilty. No 
further action has been taken in these cases. The cases are 
in charge of District Attorney Charles H. Wright. 

John Frongillo, indicted in Middlesex County, Decem- 
ber, 1921, for the murder of Rocco De Luca, at Framingham, 
on Dec. 4, 1921. He was arraigned Dec. 20, 1921, and 
pleaded not guilty. No further action has been taken in this 
case. The case is in charge of District Attorney Endicott P. 
Saltonstall. 

Elizabeth M. Kezer, indicted in Suffolk County, Decem- 
ber, 1921, for the murder of Eldon L. Kezer, on Nov. 30, 
1921. No further action has been taken in this case. The 
case is in charge of District Attorney Joseph C. Pelletier. 



1922.] PUBLIC DOCUMENT — No. 12. xvii 

Frank Lesnewski, indicted in Hampden County, Septem- 
ber, 1921, for the murder of Elliot Bobbaski, at Springfield, 
on July 31, 1921. He was arraigned Sept. 26, 1921, and 
pleaded not guilty. Thomas A. McDonnell, Esq., and Joseph 
F. Carmody, 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. In January, 

1921, the defendant was tried by a jury before Callahan, J. 
The result was a verdict of guilty of murder in the second 
degree. The defendant was thereupon sentenced to State 
Prison for life. The defendant's exceptions taken at the 
trial of the case are pending. The case is in charge of Dis- 
trict Attorney Charles H. Wright. 

Phillip J. McDermott, indicted in Essex County, Sep- 
tember, 1921, for the murder of Monica Morrill, at Lynn, 
on Sept. 9, 1921. No further action has been taken in this 
case. The case is in charge of District Attorney S. Howard 
Donnell. 

Giuseppe Parisi, indicted in Hampden County, December, 
1921, for the murder of Carlo Siniscalchi, at Springfield, on 
Dec. 20, 1921. He was arraigned Jan. 5, 1922, and pleaded 
not guilty. No further action has been taken in this case. 
The case is in charge of District Attorney Charles H. Wright. 

LuiGi Pecano, indicted in Hampden County, December, 
1921, for the murder of Carlo Muia, at Springfield, on Oct. 
21, 1921. He was arraigned Jan. 5, 1922, and pleaded not 
guilty. 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, 



xviii ATTORNEY-GENERAL'S REPORT. [Jan. 

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. In 
June, 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 de- 
fendant Sacco. J. J. McAnarney, Esq., and T. F. Mcx4nar- 
ney, Esq., appeared as counsel for the defendant Vanzetti. 
In May, June and July, 1921, the defendants were tried by 
a jury before Thayer, J. The result was a verdict of guilty 
of murder in the first degree against each defendant. The 
defendants' motions for a new trial were denied Dec. 24, 

1921. Supplementary motions for a new trial are now pend- 
ing. 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. Joseph T. Zottoli, Esq., appeared 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 first degree. 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 Endicott P. Saltonstall. 

Margherita Tarquinio, indicted in Middlesex County, 
November, 1921, for the murder of Pasquale Renno, at 
Cambridge, on Nov. 2, 1921. She was arraigned Nov. 22, 



1922.] PUBLIC DOCUMENT — No. 12. xix 

1921, and pleaded not guilty. Richard M. Walsh, Esq., and 
Felix Forte, Esq., appeared as counsel for the defendant. 
No further action has been taken in this case. The case 
is in charge of District Attorney Endicott P. Saltonstall. 

Charles A. Wells, alias, indicted in Suffolk County, 
September, 1921, for the murder of A. Louis Altmeyer, on 
Sept. 9, 1921. He was arraigned Sept. 13, 1921, and pleaded 
not guilty. Percy A. Katzman, Esq., appeared as counsel 
for the defendant. The defendant has been committed to 
the Bridgewater State Hospital for observation. The case 
is in charge of District Attorney Joseph C. Pelletier. 

Phillip E. Whelax, indicted in Suffolk County, Septem- 
ber, 1921, for the murder of Andrew B. Cuneo, on Aug. 13, 
1921. The defendant has been committed to the Bridge- 
water State Hospital for observation. The case is in charge 
of District Attorney Joseph C. Pelletier. 

Clarence H. Williams, indicted in Berkshire County, 
July, 1921, for the murder of Louis C. Decker, at Stock- 
bridge, on June 6, 1921. He was arraigned July 18, 1921, 
and pleaded not guilty. Robert M. Stevens, Esq., appeared 
as counsel for the defendant. On Nov. 4, 1921, an entry of 
nolle j)rosequi was made as to so much of said indictment as 
charged murder in the first degree, and the defendant was 
tried by a jury before Wait, J., on so much of said indict- 
ment as charged murder in the second degree. The result 
was a verdict of guilty of manslaughter, and the defendant 
was thereupon sentenced to State Prison for a term of not 
more than twelve years nor less than eight years. The 
defendant's motion for a new trial was denied, and his ex- 
ceptions taken at the trial of the case are pending. The case 
is in charge of District Attorney Charles H. Wright. 

John Williams, alias, indicted in Suffolk County, August, 
1921, for the murder of Edward F. Conley, on July 12, 1921, 
and Julius Evans, indicted as accessory before the fact to 



XX ATTORNEY-GENERAL'S REPORT. [Jan. 

the murder of Edward F. Conley. The defendants were 
arraigned Aug. 10, 1921, and pleaded not guilty. George 
E. Morris, Esq., appeared as counsel for the defendant John 
Williams, and John W. Schenck, Esq., appeared as counsel 
for the defendant Julius Evans. No further action has been 
taken in these cases. The cases are in charge of District 
Attorney Joseph C. Pelletier. 

The Supreme Judicial Court. 

1. During the last year the Judicature Commission has 
filed its second and final report (House, No. 1205). Among 
the problems considered by that commission was the prob- 
lem of affording relief to the Supreme Judicial Court from 
the constantly increasing pressure of business. A part of 
this pressure is due to the fact that the justices still sit in 
equity at nisi prius, in addition to discharging all the duties 
of the final appellate court of the Commonwealth. In order 
to relieve the growing burden of this work at nisi prius, the 
Judicature Commission has recommended a statute, which 
appears upon page 134 of its report. It provides, in sub- 
stance, (1) that every justice of the Supreme Judicial Court 
may sit in the Superior Court and exercise the powers and 
authority of a justice of that court; (2) that at the request 
of the chief justice of the Supreme Judicial Court a justice 
of the Superior Court may sit as a single justice of the 
Supreme Judicial Court and exercise all the powers and 
authority of such single justice; (3) that when a justice of 
either court sits in the other as above provided, that fact 
shall be noted on the record of the court, but need not be 
stated in the record of any case heard by him. 

The flexibility of this act is one of its great advantages. 
In years when the burden of appellate or 7iisi prius work is 
unusually heavy, the Supreme Judicial Court may draw 
upon the Superior Court for one or more judges to sit 
temporarily as single justices in the Supreme Judicial Court. 
The suggested interchange of duties has the further advan- 
tage of bringing the two courts into closer contact and of 
giving to judges in the Superior Court opportunity to be- 



1922.] PUBLIC DOCUMENT — No. 12. xxi 

come familiar with and demonstrate their capacity to admin- 
ister the duties of the Supreme Judicial Court. 

2. Another unnecessary burden upon the full court is the 
requirement that it go on circuit in the western part of the 
State and in Bristol County. This matter is dealt with on 
pages 61 to 63 of the report of the Judicature Commission. 
The statute recommended by that commission appears at 
page 145 of its report. I am of the opinion that it might 
be well to provide that there shall be an annual sitting for 
the four western counties, to be held in Springfield for a 
period of one week. A sitting in Springfield for the western 
part of the State would serve the same purpose as sittings 
in Boston for the eastern part of the State, and would enable 
counsel to go to Springfield for argument as well as litigants 
to attend the hearing if they desired and return on the same 
day. The Bristol session for southeastern Massachusetts 
might well be given up, as was the Essex session for north- 
eastern Massachusetts a few years ago. 

3. A further suggestion of the Judicature Commission 
for the transfer to the Superior Court of jurisdiction of 
proceedings in relation to which the Supreme Judicial Court 
has now exclusive original jurisdiction is fully considered 
in the report of the commission, accompanied by a draft of 
a bill which appears on page 133 of the report. This matter 
is before the joint committee on the judiciary upon petition 
of George L. Mayberry, accompanied by Senate Bill No. 154. 
The proposed legislation has not received the approval of 
the committee of the Bar Association, but it would seem 
that the jurisdiction of all matters relating to the dissolution 
of corporations, which now consume considerable time in 
the equity session of the Supreme Judicial Court, and 
possibly of some other proceedings, might well be transferred 
to the Superior Court. 

4. At the present time the Supreme Judicial Court is 
allowed $4,000 for clerical assistance, which permits the 
employment of two stenographers and provides partial 
compensation for a third. One of these stenographers is 
constantly engaged in the equity session during the sittings 



xxii ATTORNEY-GENERAL'S REPORT. [Jan. 

of the court and the time of another is occupied by the work 
of the chief justice in Worcester, and because of the inade- 
quacy of the appropriation a part of her compensation is 
paid by him out of his own salary. The other six justices 
are, for the most part, dependent upon one stenographer for 
clerical assistance, and, with the constantly increasing work 
devolving upon the court, a substantial increase in clerical 
assistance is imperatively demanded. A discussion of the 
need of additional assistance is contained on pages 63 to 66 
of the report of the Judicature Commission. 

If all the preliminary work incident to preparing an 
opinion devolves upon the justices of the court, it must 
follow that the number of cases that can be considered and 
decided by the court is greatly restricted. This preliminary 
work, which includes the examination of briefs, the verifica- 
tion of citations, the collecting of additional citations, and 
the examination of cases, should not devolve upon the 
justices. It is obvious that this work in its preliminary 
stages can be efficiently done by law clerks, who receive a 
relatively small salary, saving much time for the justices 
to devote themselves to the constructive work of preparing 
opinions. Such is the procedure in well-ordered law offices 
and in many of the courts in other States. In the Supreme 
Court of the United States each justice has a secretary, and 
I believe this practice obtains in the supreme courts of some 
of the States. 

I am of the opinion that the chief justice, at least, should 
be provided with a secretary, at an annual salary of not 
exceeding $2,500, and that the additional sum of S15,000 
should be placed at the disposal of the court to enable it to 
secure adequate clerical assistance. 

Increase in the Salary of the Clerk of the Supreme 
Judicial Court for the Commonwealth. 
The salary of the clerk of the Supreme Judicial Court for 
the Commonwealth has remained at S3,000 per annum since 
1859. It was established upon the theory that the duties of 
the office occupied only a part of the time of the clerk, in 
that he was permitted to use the balance of his time to 



1922.] PUBLIC DOCUMENT — No. 12. xxiii 

increase his income. For some years past it has been the 
practice of the clerk to sit as master or auditor in the trial 
of causes referred to him by the justices of the Supreme 
Judicial or Superior courts. With the increasing labors of 
the court the duties of the clerk have been correspondingly 
increased, and it has been more difficult for him efficiently 
to discharge his duties and at the same time devote himself 
to the necessary outside work to eke out his insufficient 
salary. The diminishing value of the dollar, with the rise in 
the cost of living, has made the present salary more inade- 
quate. 

I recommend that the salary of the clerk of the Supreme 
Judicial Court for the Commonwealth be established at 
$6,500 a year, which is the salary now paid to the clerk of 
the Supreme Judicial Court for the County of Suffolk and to 
the clerk of the Superior Court for that county. It is under- 
stood that at this salary he will be able and willing to devote 
his entire time during office hours to the work of the court. 

During the interval between the death of Clarence H. 
Cooper, Esq., clerk of the Supreme Judicial Court for the 
Commonwealth, which occurred during the past year, and 
the appointment of Walter F. Frederick, Esq., as his successor 
in office, John H. Flynn, Esq., who held the position of 
assistant clerk of the Supreme Judicial Court for the County 
of Suffolk, performed the additional duties of clerk of the 
Supreme Judicial Court for the Commonwealth, and re- 
ceived no additional compensation. 

I recommend that the sum of $450 be appropriated to 
compensate him for this additional labor. 

The Administration of the Criminal Law. 
A most serious problem is presented for your consideration 
because the machinery which has been provided for the 
administration of the criminal law, and which was sufficient 
for the prosecution of crime under the conditions existing 
at the time it was devised, is no longer adequate for the 
protection of the public. The increase in population under 
normal conditions brings an increase in the number of wrong- 
doers. This increase is greater than the percentage of growth 



xxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

in population. The farther apart men dwell the less are the 
occasions for friction. Congestion in population brings 
closer contacts between individuals, with the consequent 
inevitable causes of disagreement and disregard of personal 
rights. 

Again, increase in the amount of property to be protected, 
which follows upon the increase in population, requires pro- 
vision for correspondingly increasing the means of protecting 
property rights. The drift of population to our cities, with 
its consequent accumulation of increasing amounts of prop- 
erty within municipal limits, brings the same resultant 
causes for friction and disagreement with respect to property 
rights, w^hile at the same time it leaves the remaining prop- 
erty in our rural districts more isolated and more inade- 
quately protected. Such conditions render more difficult 
the problem of the administration of the criminal law in 
our several districts and furnish the opportunity and the 
excuse for nonfeasance by incompetent and malfeasance by 
dishonest public officials. 

In urging remedial legislation before the joint committee on 
the judiciary at the last session of the General Court, I 
stated that the administration of the criminal law in the two 
largest counties of the Commonwealth had broken down, and 
while that statement was challenged at the time by certain 
persons who appeared before the committee and successfully 
opposed remedial legislation in order that the lucrative 
exploitation of the agencies of law enforcement might not be 
interfered with, the disclosures of the past eight months 
have shown that the conditions were even more serious 
than was represented. It is not sufficient that corrupt 
officials should be removed, but the opportunity and the 
excuse for dishonest administration in the future must be 
removed. 

The failure to make provision for the adequate administra- 
tion of the criminal law, with the consequent congestion in 
the w^ork of the prosecuting officers of the several districts, 
has not only made corrupt practices easy and their detection 
difficult in the Suffolk and Northern districts, but has 
made the administration of the criminal business difficult in 



1922.] PUBLIC DOCUMENT — No. 12. xxv 

other districts where the congestion is hardly less serious, 
and has prevented the adequate consideration necessary for 
the proper trial and disposition of cases. 

This congestion in the district attorneys' offices invites 
appeal from the decisions of the justices of the lower courts, 
not onh^ by those who have committed serious offences and 
have been sentenced to terms of imprisonment or heavy 
fines, but also by those who have been found guilty of minor 
offences, because these defendants know that the rapid in- 
crease in the number of criminal cases in the Superior Court 
in recent years makes the trial of minor offences for the most 
part impossible under present conditions, and unscrupulous 
lawyers can advise their clients to appeal, with reasonable 
certainty that they can avoid a trial because of the crowded 
docket, and force the district attorney to nol pros or file the 
cases, or at least consent to a reduction in sentence. Because 
of this congestion in the work of the district attorneys' 
offices, the district attorneys in the Northern and Suffolk 
districts have been able to disclaim responsibility in the 
conduct and disposition of certain minor cases, and their 
guilt has been established mainly by proof of gross mis- 
conduct and shameless corruption in important cases. 

More Prompt Disposition of Criminal Cases in the 
Interest of Justice. 
To prevent in the future the appeal of criminal cases with- 
out merit, merely to take advantage of the congestion of the 
criminal docket in the Superior Court, I urge remedial 
action. Some method of despatching the criminal appeals 
which come up from the lower courts must be provided. 
When this is done the present situation will correct itself, 
for there will be no need to trade with attorneys for crim- 
inals in the disposition of cases. The motive for an appeal 
will be taken away when the person found guilty in the 
lower court finds that an appeal without merit avails him 
nothing, but, on the contrary, involves increased court 
costs, the expense of paying his attorney for a second trial, 
and the same or perhaps a heavier penalty if found guilty in 
the Superior Court. Under such conditions the only de- 



xx^d ATTORNEY-GENERAL'S REPORT. [Jan. 

fendants who will ordinarily appeal will be those who 
honestly believe that they have been wrongly convicted, or 
that their punishment is too severe. 

The report of the Judicature Commission, at pages 101 
and 102, contains certain recommendations for relieving the 
present congestion of criminal business. 

The commission suggests that all criminal appeals from 
the district courts and all indictments for misdemeanors 
and for felonies for which the punishment does not exceed 
five years' imprisonment in State Prison may be tried in the 
Superior Court, with juries, but with a district judge of the 
county, appointed by the chief justice of the Superior Court, 
presiding. It would be a sitting of the Superior Court for 
criminal business with juries, presided over by a district 
judge. Capital crimes and felonies, punishable by a sentence 
exceeding five years in the State Prison, would, as now, be 
tried by a jury presided over by a justice of the Superior 
Court. Prosecutions of all cases would, as now, be conducted 
by a district attorney or by his assistants. The great 
advantage of this extension of the jurisdiction of the district 
judge is that it would utilize existing machinery without the 
creation of new courts or officers, and would avoid the con- 
gestion of criminal business by providing the means for a 
speedy trial of all cases. At the same time it would release 
the judges of the Superior Court for needed work in the 
civil sessions. 

Any objection to the suggestion of the commission on the 
ground that it is a departure from precedent to extend ap- 
pellate jurisdiction to judges of courts of the first instance 
would seem to be no more serious than the objection made 
when it was proposed to extend the jurisdiction of the 
justices of the Municipal Court of the City of Boston to 
sit as a court of review. 

Under present conditions the plan of the commission 
appears to me to afford the best solution to accomplish the 
ends desired. I call attention to House Bill No. 698, which 
accompanies the petition of Frank W. Grinnell, Esq., and 
suggest that this bill appears in the main to accomplish the 
purpose of the commission, and recommend it for your con- 
sideration. 



1922.] PUBLIC DOCUMENT — No. 12. xxvii 

It may be necessary or advisable to provide that more 
than one district judge shall sit during a jury session in order 
that no case upon appeal may be tried before the judge who 
heard the case in the first instance. It may be found de- 
sirable to extend the proposed plan to include jury trials of 
criminal cases in the Suffolk District, presided over by judges 
of the Municipal Court of the City of Boston. 

Regulation of the Power of District Attorneys to 
NoL Pros Cases. 

The recent disclosure of corrupt practices in the Northern 
and Suffolk districts has given proof, if proof were needed, 
that the unlimited power of a district attorney to nol pros 
any case at pleasure is open to grave abuses. 

In discontinuing the prosecution of criminal cases, except 
liquor cases, all that is now required is an entry upon the 
indictment or complaint in substance as follows: "I will no 
further prosecute this indictment" (or complaint), followed 
by the initials of a district attorney or assistant district at- 
torney. No reason need be stated. If the entry be made 
by an assistant, there is nothing to indicate whether he acts 
upon his own responsibility or at the direction or with the 
approval of the district attorney. 

The failure to require any record of the reasons for discon- 
tinuance of the prosecution of a criminal case upon indictment 
or appeal has made it possible for a corrupt district attorney 
to exercise this great power of control over prosecution of 
crime without adequate restraint and with little fear of fu- 
ture accountability. It is easy to stay the ends of justice 
for improper motives when no record of the reasons for such 
action is required. Under the present practice, where it ap- 
pears to be taken for granted that an assistant can assume 
this grave responsibility of releasing a criminal from prosecu- 
tion without the knowledge or consent of his superior, to 
whom the responsibility has been entrusted by the electorate, 
it is possible for a corrupt official to hide behind his assist- 
ants, as was done in the Tufts case, and disclaim all re- 
sponsibility for the conduct of his office, except as to those 
acts with which it can be shown he was directly concerned. 



xxviii ATTORNEY-GENERAL'S REPORT. [Jan. 

The power of a district attorney to discontinue prosecution 
of a criminal is in effect as great a power as the power of 
pardon. Yet the Governor may not pardon a criminal with- 
out the consent of the Council, while a corrupt district 
attorney has the absolute power, by the nol prossing of 
cases, to turn murderers and other felons free upon the 
community, with no fear of punishment so long as they have 
the protection of the prosecuting officer. 

The importance of requiring a district attorney to state 
his reasons for discontinuing the prosecution of a case is 
disclosed in the opinion of the court in the recent decision in 
Attorney-General v. Tufts, in the case of the prosecution of 
Mozette, where a iiolle prosequi was entered. The reasons for 
discontinuing the prosecution were stated by the district 
attorney in a letter at the time, and the court found that 
the prosecution was stopped for improper reasons. In cer- 
tain other cases, where there was no record of the ground 
upon which the prosecution was dropped, the court held 
that improper motives for failing to prosecute had not been 
established. 

I recommend legislation placing the following limitations 
upon the exercise of the power to enter a nolle prosequi: 

1. In every case the reasons for such entry shall be filed 
with the papers, together with a statement of any previous 
criminal record of the accused. 

2. If the entry be made by an assistant, the district at- 
torney shall signify in writing that he approves the reasons 
assigned. 

3. In all cases above the grade of a misdemeanor the ap- 
proval of the court shall be required. 

Somewhat similar considerations apply to placing cases on 
file. Cases cannot be placed on file without the approval of 
the court, but at present, except in liquor cases, there is 
nothing to show that the facts are brought fully to the at- 
tention of the court. 

While under the law the responsibility for filing a case 
rests with the court, the responsibility for obtaining true and 
complete information to present to the court in recommend- 
ing the filing of a case must necessarily rest with the district 



1922.] PUBLIC DOCUMENT — No. 12. xxix 

attorney. The court cannot obtain the facts upon which to 
base its decision and must rely on the district attorney for 
the information. 

I therefore recommend that no case shall be placed on 
file: 

1. Without submitting to the court reasons in writing, 
signed by the district attorney or an assistant, together with 
a statement of any previous record of the accused, which 
reasons shall be filed with the papers. 

2. If the motion to file is made by an assistant, the dis- 
trict attorney shall approve in writing the reasons assigned 
therefor. 

Bail in Criminal Proceedings. 

At the hearing before the General Court at the last session 
relating to the conditions affecting the administration of the 
criminal law in the Northern and Suffolk districts, I called 
attention to the abuses in the practice of accepting bail with 
professional bondsmen and to the failure to enforce pay- 
ment by the sureties in defaulted cases. The abuses were 
most flagrant in the Suffolk District. I pointed out that a 
criminal under Mr. Pelletier's administration had three 
chances of avoiding imprisonment. If he was not success- 
ful in avoiding indictment he had an excellent chance of 
having the indictment nol prossed; if unsuccessful in this, 
upon pleading guilty or being found guilty there still re- 
mained the chance of having his case filed; but if imprison- 
ment was imminent he could default his bail and leave the 
Commonwealth at an average expense to his sureties of ap- 
proximately S25, which was generally far below the amount 
which the professional bondsman had received as a premium 
when the prisoner was admitted to bail. 

The special commission which was appointed under Re- 
solves of 1921, chapter 34, finds as follows: 

Little compfaint has come to us from the judges, district attorneys 
or clerks of court concerning the taking of bail except in the counties of 
Suffolk and Middlesex. Such troubles or abuses in connection with 
the taking of bail in criminal matters as may exist we believe are con- 
fined almost wholly to these two counties. 



XXX ATTORNEY-GENERAL'S REPORT. [Jan. 

And again: 

We have been informed, and the statistics which we have seen would 
seem to verify our information, that practicaUy 90 per cent of the bail 
business in the county of Suffolk is done by not more than six bail 
commissioners. 

It further appears from the report that at the present time 
there are over one hundred bail commissioners for the 
County of Suffolk. 

After treating at length the abuses which were practised 
upon ignorant persons by professional bondsmen, the com- 
mission states: 

From the foregoing we believe that a situation has grown up which 
tends toward contempt for the enforcement of the law, commerciahzes 
crime, and which should not be allowed to continue. 

The commission recommends that the po^ver of appoint- 
ment of bail commissioners be taken away from the Supreme 
Judicial Court and Superior Court and given to the mu- 
nicipal and district courts of the Commonwealth. 

As the commission recommends that rules and regulations 
should be required covering not only bail commissioners but 
also professional bondsmen, which rules and regulations are 
to be promulgated by the Superior Court, so that they may 
be uniform throughout the Commonwealth, it would seem 
to be advisable that appointments of bail commissioners by 
the municipal and district courts, as recommended by the 
commission, should be approved by the justices of the Su- 
perior Court, so that there might be some general super- 
vision and uniform practice in the appointment of commis- 
sioners throughout the Commonwealth. 

The commission further recommends that every statement 
made by a person offering himself as surety shall be deemed 
to be a material statement, and that the answers of the 
surety should disclose his exact financial condition. In the 
past a person having an equity in real estate has been ac- 
cepted as bondsman upon an unlimited number of bonds, 
using in many cases an equity of doubtful value in the same 
real estate. I recommend that when a person has been ac- 
cepted as a surety upon bonds the penal sum of wdiich is in 



1922.] PUBLIC DOCUMENT — No. 12. xxxi 

the aggregate equal to the value of the property offered as 
security, he shall not thereafter be permitted to qualify as 
surety in respect of such property so long as such liability 
continues, and such prohibition should be included in the 
terms of the statute or required by rules and regulations. 

POWEK OF THE AtTORNEY-GeNERAL WITH ReSPECT TO 

Grand Juries. 

I renew the recommendation in my last annual report, 
that the Attorney-General be given authority to cause special 
grand juries to be summoned whenever in his opinion the 
interests of the public shall so require. 

At the present time a grand jury is drawn to serve during 
a period of six months. Provision is made for a special 
session of the grand jury if occasion may arise, but the law 
contains no provision giving authority to cause a special 
grand jury to be summoned to meet special needs if occasion 
may require. Any special investigation in addition to its 
regular duties might prove a serious hardship to the grand 
jury, which is charged with attendance at monthly sessions 
for the consideration of the cases which arise in the ordinary 
course. A protracted hearing of evidence upon a matter 
which has been the subject of a special investigation might 
seriously interrupt the administration of ordinary criminal 
business. If a grand jury proves unfit there is no means 
under existing law to meet such a situation. 

A Judicial Council. 

I call to the attention of the Legislature an act recom- 
mended by the Judicature Commission, entitled "An Act to 
provide for a Judicial Council", which appears on page 135 
of the second and final report of the commission. 

The advantages which would accrue from the establish- 
ment of such a council to continue the work of the Judica- 
ture Commission are generally recognized by the bar, and I 
recommend the passage of this act as suggested by the Judi- 
cature Commission. 



xxxii ATTORNEY-GENERAL'S REPORT. [Jan. 



Change in Disbarment Proceedings. 

Prior to the passage of Gen. St. 1919, c. 260, disbarment 
proceedings were usually brought by some bar association 
and conducted by an attorney appointed by the court upon 
suggestion of the bar association, the question of compensa- 
tion to such attorney for services being left to the court in 
the exercise of a sound discretion. Burrage v. County of 
Bristol, 210 Mass. 299. 

Gen. St. 1919, c. 260, amended R. L., c. 165, § 44, by 
adding at the end of that section a sentence which, in G. L., 
c. 221, § 40, reads as follows: 

. . . Whenever a petition is filed for the removal of an attorne}' the 
proceedings thereafter shall be conducted by the attorney general, or 
such person as he maj^ designate ^\ith the approval of the court; but 
such person shall receive no compensation for his services. 

The effect of this provision is to place disbarment proceed- 
ings entirely within the control of the Attorney-General and 
to deprive any attorney selected by the Attorney-General, 
with the approval of the court, of compensation. In my 
opinion this amendment unduly restricts proceedings to 
purge the bar of unworthy members. It is essential for the 
protection of the public that attorneys who by their conduct 
have demonstrated that they are unfit to receive the trust 
and confidence necessarily reposed in an attorney should 
be deprived of opportunity to work injury to those who are 
so unfortunate as to trust them. Even if the limitation 
added in 1919 were removed, either the court or the At- 
torney-General could, in a proper case, cause proceedings 
to be instituted. There is, in my opinion, no sound reason 
for requiring the Attorney-General to pass upon and conduct, 
or cause to be conducted, every disbarment proceeding. On 
the other hand, there is merit in the suggestion that the 
attorney who conducts such proceedings be approved by the 
court. 

I therefore recommend that G. L., c. 221, § 40, be amended 
by striking out the sentence above quoted, and inserting a 
provision for approval by the court of the attorney desig- 



1922.1 PUBLIC DOCUMENT — No. 12. xxxiii 

nated to conduct the proceedings, so that said section shall 
read as follows: 

Section 40. An attorney may be removed by the supreme judicial 
or superior court for deceit, malpractice or other gross misconduct, and 
shall also be hable in damages to the person injured thereby, and to 
such other punishment as may be provided by law. Whenever a peti- 
tion is filed for the removal of an attorney, the proceedings thereafter 
shall be conducted by an attorney to be designated by the court. The 
expenses of the inquiry and proceedings in either court shall be paid as 
in criminal prosecutions in the superior court. 

Powers of the Attorney-General to conduct Inves- 
tigations AND TO SUMMON WITNESSES. 

I recommend the passage of an act giving to the Attorney- 
General the necessary authority to enable him to inquire 
into matters concerning the public peace, the public safety 
and the public welfare if at any time it appears to him that 
the laws are being violated, and, in connection with such 
inquiry, to summon witnesses and to examine them under 
oath, subject to the same provisions respecting the obligation 
of a witness to testify and the right of a witness to refuse to 
testify which govern the giving of testimony in the courts 
of the Commonwealth. 

A similar authority was vested in the Attorney-General by 
Gen. St. 1917, c. 318, with respect to making investigations 
where violation of law was alleged by reason of monopolies, 
unlawful discriminations or combinations or unlawful prac- 
tices in restraint of trade, but the provisions of that act 
continued in force only during the period of the war, and 
since the treaties of peace were duly ratified all authority 
given under the statute has ceased. 

The importance and value to the public of such authority 
was clearly shown in the investigation of the causes for the 
high price of sugar, conducted by the Department of the 
Attorney-General during the year 1920. In the course of the 
investigation wholesale and retail dealers in sugar, as well 
as officials and employees of the sugar-refining companies, 
were summoned and examined under oath. The investiga- 
tion was instituted because the price of refined sugar to 



xxxiv ATTORNEY-GENERAL'S REPORT. [Jan. 

consumers in this Commonwealth was being maintained at a 
higher rate than in New York, although the cost of raw 
sugars had rapidly declined. After the facts of the large 
surplus of sugar on hand and the conditions under which it 
was being held were disclosed by the investigation, a reduc- 
tion in price immediately followed, and successive reductions 
were made to meet the price in the New York market. 

If the authority now asked for had been vested in the 
Attorney-General during the past two years, investigations 
could have been conducted Avith respect to the financial 
operations of Ponzi, the exploitation of the public by the sale 
of silver stocks, the dealings in German marks, and alleged 
bucketing operations. The necessary authority to compel 
the giving of information with respect to these transactions 
would have made it possible to have checked fraudulent 
dealings , and saved a large part of the losses w^hich the 
public sustained. During the past year such authority 
would have been of even greater value in the investigation of 
the corruption which had been secretly practised for many 
years in the administration of the criminal law in Suffolk and 
Middlesex counties. The necessity of depending upon such 
information as could be gained from voluntary witnesses 
greatly delayed and seriously hampered the preparation of 
these cases. The authority now asked for may prove of 
incalculable value in preventing the recurrence of similar 
conditions. 

Penalties for Illegal Acts by Bank Officials. 

I renew the recommendation contained in my report for 
1920 for enactment of legislation to establish 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 institutions. At 
the present time there are a considerable number of prohibi- 
tions made by the banking law in the interest of safe bank- 
ing and in order to protect the property of depositors, which 
prohibitions carry no penalty. 

By reason of the inability of the Commissioner of Banks 
to enforce his orders to desist from illegal acts, such acts 



1922.] PUBLIC DOCUMENT — No. 12. xxxv 

have, in some instances, continued until public interest and 
the conservation of the assets of the bank require that it be 
closed. The closing of a bank, with the consequent hardship 
to the depositors, may in the future be forced upon the Com- 
missioner of Banks if illegal acts by officials in the conduct 
of a bank may be persisted in with impunity because no pun- 
ishment is imposed upon those who commit them. 

Amendment of the Blue Sky Law. 

St. 1921, c. 499, is commonly known as the "Blue Sky 
Law". Section 6 provides that, under certain circumstances, 
the commission may make a finding that the sale of a 
security is fraudulent or would result in fraud, and that 
thereupon it shall report such finding, accompanied by the 
evidence, to the Attorney-General or to a district attorney, 
who shall forthwith, if in his opinion the facts warrant, file 
a petition in the Supreme Judicial Court or in the Superior 
Court to restrain or enjoin the further sale of such security. 

Section 8 provides that, under certain circumstances, the 
commission may make a finding that a registrant is conduct- 
ing his business as a broker or salesman in a fraudulent 
manner or wilfully and purposely evading or seeking to 
nullify the provisions of the act, and that thereupon such 
finding, with the evidence, shall be reported to the Attorney- 
General or to a district attorney, who shall forthwith, if 
in his opinion the facts warrant, file a petition to restrain or 
enjoin the registrant. 

In my opinion the proceeding required by these sections 
to prevent the sale of fraudulent securities and to prohibit 
a registrant from conducting his business in a fraudulent 
manner is unduly cumbersome. In many cases the pro- 
moters of the fraudulent security or the registrants have no 
intention of resisting the finding of the commission. In 
many cases no parties can be found upon whom service in 
.«ili«---equity proceedings can be made. Yet, to give effect to 
the finding of the commission, it is necessary to bring a bill 
in equity. 

I recommend that section 6 be so amended as to prohibit 
the sale of any security after a finding by the commission 



xxxvi ATTORNEY-GENERAL'S REPORT. [Jan. 

that the sale of such security is fraudulent or would result 
in fraud, subject to appeal to the court by any person ag- 
grieved by the commission's finding. I recommend that 
section 8 be so amended as to authorize the commission to 
revoke the registration of a broker or salesman after a find- 
ing that he is conducting his business in a fraudulent manner 
or is wilfully and purposely evading or seeking to nullify 
the provisions of the act, subject to appeal to the court by 
the registrant if he deems himself aggrieved by such finding. 
Such simplification of the procedure would result in con- 
siderable saving in the administration of the law in that it 
would be unnecessary to copy and transmit extended records, 
and in some cases volumes of testimony, and burden the 
court with cases where the parties interested have no inten- 
tion of resisting the commission's findings. At a time when 
the courts are overtaxed with work, the act in its present 
form imposes upon them the consideration of a new class of 
cases, the majority of which are not necessary to enforce 
the decision of the commission. The adoption of these 
recommendations would furnish a practical and convenient 
method of relieving some of the congestion without creating 
any new or untried machinery. It would make the com- 
mission's findings immediately effective and thus prevent 
fraudulent sales pending action in court. It would further 
place the burden of going forw^ard in the courts upon the 
promoters of fraudulent securities and upon registrants who 
had been found to be conducting their business fraudulently 
or in evasion of the act, where such burden ought to rest, 
instead of upon the Attorney-General or a district attorney. 

Right of Search and Seizure under Fish and Game 

Law^s. 
G. L., c. 130, § 6, provides as follows: 

The director, a warden, deputy or state police officer, may, without 
a warrant, search any boat, car, box, locker, crate or package, and any 
building, where he has reason to believe any game or fish unlawfully 
taken or held may be found, and may seize any game or fish so taken 
or held, which shall be disposed of in such manner as the director deems 
for the best interests of the commonwealth; provided, that this section 



1922.] PUBLIC DOCUMENT — No. 12. xxxvii 

shall not authorize entering a dwelling house, or apply to game or fish 
passing through this commonwealth under authority of the laws of the 
United States. 

This section purports to authorize certain enumerated 
searches and seizures to be made tcithoid icarrant. In my 
opinion this section in its present form is unconstitutional. 

I recommend that the word " icithouV^ (a warrant) in the 
second line be stricken out and replaced by the word ''with'* 
(a warrant). 

Amendment of General Laws, Chapter 111, Section 31. 
G. L., c. Ill, § 31, which relates to local boards of health, 
now reads as follows: 

Boards of health may make reasonable health regulations which 
shall be published once in a newspaper if one is published in the town, 
otherwise in a newspaper published in the county. All regulations 
made hereunder which provide a penalty for violation thereof shall, 
before taking effect, be approved by the attorney-general. Such pub- 
lication shall be notice to all persons. 

It confers upon local boards of health a general and in- 
definite power to make regulations. If such regulations pro- 
vide a penalty for violation thereof, they are subject to the 
approval of the Attorney-General. 

In my opinion, G. L., c. Ill, §§ 122 and 127, confer ample 
power to make regulations. As those sections provide a 
penalty of not more than $100 for violation of the regulations 
made thereunder, such regulations do not require the ap- 
proval of the Attorney-General. 

I recommend that the additional, and, in my opinion, 
superfluous, power to make regulations, conferred by section 
31, be eliminated by amending section 31 so as to read as 
follows : 

Regulations made by boards of health shah be published once in a 
newspaper, if one is published in the towTi, otherwise in a newspaper 
pubhshed in the county. Such pubhcation shall be notice to all persons. 



xxxviii ATTORNEY-GENERAL'S REPORT. [Jan. 



Discretionary Power to refund Taxes improperly 

EXACTED. 

Cases sometimes arise where through a mistake of an in- 
dividual or corporation in the preparation of a tax return, or 
through a mistake of the Department of Corporations and 
Taxation in computing the amount of the tax, a larger in- 
heritance, corporation or income tax is assessed than the tax 
which ought to be paid. At the present time it is doubtful 
whether an error in preparing the return can be corrected 
even within the six months now allowed by law for recovery 
of taxes illegally assessed. It frequently happens, however, 
that the error in the return or in the assessment is not dis- 
covered until after the six months have expired. Indeed, if 
a test case be brought to determine a point important to the 
correct assessment of several taxes, the six months' period 
allowed for suit is so short that other taxpayers interested in 
the outcome of the test case cannot rely upon preserving 
their rights unless they actually commence action. This, in 
my opinion, involves needless trouble and expense both to 
the taxpayer and to the Department, and imposes a needless 
burden upon the already overcrowded courts. 

I recommend that the Commissioner of Corporations and 
Taxation be authorized, with the approval of the Attorney- 
General, to abate and repay any inheritance, corporation or 
income tax which, in their discretion, ought in equity and 
good conscience to be abated and repaid, provided that such 
tax might have been abated if the taxpayer had seasonably 
applied for an abatement, and provided that application for 
abatement be made within two years of the payment of the 
tax. I may suggest that the passage of such a statute might 
materially relieve the Legislature from the consideration of 
a considerable number of special acts providing for the return 
of taxes exacted under such circumstances. 



1922.] PUBLIC DOCUMENT — No. 12. xxxix 



Department of the Attorney-General. 

The number of official opinions rendered by the Depart- 
ment during the year, up to Jan. 1, 1922, was 229. There 
have .been 23 cases argued before the Supreme Judicial 
Court, and 66 hearings before a single justice of the Su- 
preme Judicial Court have been attended. The number of 
cases tried in the Superior Court was 42. There were 8 
cases tried in the Land Court. The number of cases tried 
in the Probate Court was 13. The number of cases tried 
before the Municipal Court of the City of Boston was 6, and 
5 cases were tried in other municipal and district courts of 
the Commonwealth. One case has been argued before the 
Supreme Court of the United States and one before the 
United States Circuit Court of Appeals. In the United 
States District Court 4 cases have been tried. In addition, 
the Department has been in attendance at 19 hearings be- 
fore the Industrial Accident Board, and 401 corporations 
have been restrained and enjoined from doing further 
business in the Commonwealth. 

The collections of the Department for the fiscal year 
amounted to $1,139,439.42. 

The official work of the Department, which showed a sub- 
stantial increase during the year 1920, has been still further 
increased by the extra duties devolving upon the Depart- 
ment during the year 1921. The additional burden upon 
the Department has been for the most part borne by the 
members of the staff, all of whom have given unstintingly of 
their time outside of the usual hours of employment when- 
ever the pressure of work has made it necessary. 

It may fairly be said that the extra duties which have de- 
volved upon the Department have required an equal amount 
of time and have been far more difficult than the routine 
work which is performed by the Department under normal 
conditions. 

The most important matters which have engaged the at- 
tention of the Department during the past year have been 
the preparation and prosecution of the proceedings instituted 



xl ATTORNEY-GENERAL'S REPORT. [Jan. 

in the Supreme Judicial Court for the Commonwealth for 
the removal of Nathan A. Tufts, Esq., from the office of 
district attorney for the Northern District, and the removal 
of Joseph C. Pelletier, Esq., from the office of district at- 
torney for the Suffolk District. But in addition to. these 
removal proceedings there have been other cases of more than 
ordinary importance, including the preparation and argu- 
ment in the Supreme Judicial Court of the case in support 
of the Constitution of 1780 against the contention that it 
was superseded by the Rearrangement which was submitted 
by the Constitutional Convention to the people in 1919, 
proceedings in the State and Federal courts involving the 
right of the Commonwealth to bring to trial Charles Ponzi 
for offences committed against the laws of the Commonwealth, 
the prosecution and conviction of Charles M. Brightwell and 
Raymond M. Meyers, who succeeded Ponzi in a scheme to 
defraud the public, the case of Commonwealth v. Kozlowsky, 
which established the authority of the Attorney-General as 
the chief law officer of the Commonwealth, the further 
prosecution of important cases affecting the enforcement of 
the laws relating to corporation, inheritance and income 
taxes, and other laws involving rights of the Commonwealth, 
the defence of the Commonwealth against the claim of the 
town of Stoneham for damages aggregating approximately 
$1,500,000, arising out of the taking of Spot Pond for water 
supply, and the many important matters with which the 
Department has been called upon to deal in the proceed- 
ings in liquidation of the closed trust companies. 

The decision of the Supreme Judicial Court for the Com- 
monwealth in the case of Attorney-General v. Tufts, in which 
the charges of misconduct in office were sustained and the 
district attorney was removed "for the public good", has 
reafiirmed the great principle that "public office is a public 
trust," to be administered for the benefit of all the people, 
and has defined anew in words that will endure the ethics 
of the legal profession and the ideals of public service. 

The disclosures in the case of iVttorney-General v. Pelletier 
have revealed the depths of intrigue and corruption to which 



1922.] PUBLIC DOCUMENT — No. 12. xli 

a public official may sink when he prostitutes his office to his 
own private and selfish ends. 

The able service rendered by Henry F. Hurlburt, Esq., as 
Special Assistant Attorney-General, in his investigation of 
automobile thefts and related matters in Middlesex County, 
was continued during the past year, and he has rendered 
valuable assistance in the preparation and prosecution of the 
proceedings for the removal of Nathan A. Tufts. William 
Flaherty, Esq., who participated in the trial on behalf of the 
Attorney-General, deserves commendation for his unsparing 
efforts in the preparation of this case, as well as the prepara- 
tion of the case against Joseph C. Pellet ier. 

In the preparation and prosecution of the proceedings for 
the removal of Joseph C. Pelletier, the Commonwealth is 
indebted to Robert G. Dodge, Esq., James J. McCarthy, 
Esq., and Andrew Marshall, Esq., for their efficient service, 
rendered without compensation. 

The resignations during the year of Arthur E. Seagrave 
and Maynard C. Teall, Assistant Attorneys-General, have 
caused changes in the personnel of the Department. On 
March 31, 1921, Maynard C. Teall, Esq., resigned to accept 
an offer to resume private practice with a leading law firm 
in Pittsburg, Pa. During his term of service he had become 
especially proficient in matters involving the extradition of 
prisoners. On Sept. 15, 1921, Arthur E. Seagrave, Esq., 
also resigned to associate himself with one of the leading 
law firms in Fall River, Mass., after eight years of continuous 
service in the Department under four Attorneys-General. 
By years of study he had become a recognized authority 
upon the laws governing town and city government, and he 
had rendered excellent service in the trial of cases. The 
successful defence before commissioners of the Common- 
wealth against the claim of the town of Stoneham for the 
taking of Spot Pond, in which he had the able co-operation 
of E. Irving Smith, Esq., was his last important service. 

On March 10, 1921, Lewis Goldberg, Esq., was appointed 
an Assistant Attorney-General, resigning as Assistant District 
Attorney for the United States to accept the appointment. 



xlii ATTORNEY-GENERAL'S REPORT. [Jan. 

On Oct. 1, 1921, A. Chesley York, Esq., resigned the position 
of city solicitor of Medford to accept the appointment to fill 
the vacancy caused by the resignation of Mr. Seagrave. 

Annexed to this report are such of the opinions rendered 
during the current year as it is thought may be of interest to 
the pubhc, and a statement of pending petitions for the 
abolition of grade crossings. 

Respectfully submitted, 

J. WESTON ALLEN, 

Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. xliii 



Cfte Commontoealtj) of ^a00ac{)U0ett0 



Department of the Attorney-General, 
Boston, May 25, 1922. 

To the Honorable Senate and House of Rej^resentatives. 

Pursuant to the provisions of section 11 of chapter 12 of 
the General Laws, I herewith transmit a supplement to my 
report for the year ending January 18, 1922. 

Powder of the Courts to advance for Speedy Trial. 

The attention of the General Court is hereby directed to 
the need for legislation during the present session in the 
interest of the many depositors of the closed trust companies. 
Pending the determination of questions which are now in 
litigation relating to these closed trust companies the collec- 
tion and distribution of the assets of these companies is 
delayed. The delay is due to the fact that the aforesaid 
cases await their regular turn upon a crowded docket. 
Where the interests of so large a number of the citizens 
are involved it is desirable that authority should be given 
to the courts to advance such cases for speedy trial. This 
authority should be general in its character in order that it 
may be applicable to other cases where there is adequate 
ground for similar action. The authority to advance cases 
for speedy hearing is not novel, and is already vested in our 
courts in certain instances and in the courts of other 
jurisdictions. 

The Superior Court has to-day only a limited power to 
advance cases for speedy trial. G. L., c. 231, § 59, provides 
that, under the circumstances therein defined, the court 
''shall" advance the action for speedy trial. Lnder this 
section the plaintiff can have the case advanced for speedy 
trial (1) in actions of contract where, as provided in this 



xliv ATTORNEY-GENERAL'S REPORT. [Jan. 1922. 

section, no defense is disclosed; (2) in actions appealed from 
district courts where the plaintiff seeks to recover solely for 
his personal labor. Under G. L., c. 79, § 34, upon request 
of any party to a proceeding to recover damages for property 
taken by eminent domain, the court ^' shall" advance the 
case so that it may be heard with as little delay as possible. 
It will be observed that, under these provisions, the court is 
required to advance certain cases if a proper showing of 
facts is made but is vested with little, if any, discretion to 
advance cases upon the ground that public policy or justice, 
under the special and peculiar circumstances of the particular 
case, requires a speedy decision. In my opinion, the court 
should possess this discretionary power in addition to the 
authority now vested in it. I therefore recommend that 
G. L., c. 231, be amended by inserting therein a new section, 
to be numbered section 59A, to read as follows: — • 

Section 59A. In any action at law or suit in equity in the supreme 
judicial court or in the superior court, the court may on motion for cause 
shown advance said action or suit for speedy trial. 

Unless the above or similar legislation is enacted, the trial 
of many cases which must be determined before the closed 
banks can be finally liquidated and dividends paid will 
probably be delayed for more than a year, and possibly for 
two years. 

Respectfully submitted, 

J. WESTON ALLEN, 

Attorney-General. 



OPINIONS. 



Civil Service — Supervisor and Assistant Supervisor of Accounts 
— Officers — Approval of Governor and Council. 

The supervisor and assistant supervisor of accounts are officers, within 
the meaning of R. L., c. 19, § 9, since their duties are public and not 
merely clerical, and involve in their performance the exercise of some 
portion of the sovereign power. 
They are also officers whose appointment is subject to confirmation by the 
Executive Council, within the meaning of R. L., c. 19, § 9, and there- 
fore they may be appointed without compliance with the civil service 
law and rules. 

Jan. 3, 1921. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You ask whether, in view of my opinion of 
December 20, in relation to certain employees in the office of 
the Commissioner of State Aid and Pensions, the supervisor 
and assistant supervisor of accounts are officers whose appoint- 
ment is subject to confirmation by the Executive Council, 
within the meaning of R. L., c. 19, § 9, and therefore may be 
appointed without compliance with the civil service law and 
rules. 

The offices of supervisor and assistant supervisor of accounts 
were created by St. 1908, c. 597, § 3, as amended by Gen. St. 
1919, c. 210, which provides as follows: — 

The auditor, with the consent of the governor and council, shall 
appoint a supervisor, and an assistant supervisor of accounts, whose 
salaries shall be fixed by him, with the approval of the governor and 
council. 

The duties of the supervisor of accounts are defined by St. 
1908, c. 597, § 4, as follows: — 

Under the direction of the auditor, the supervisor of accounts shall 
direct and control all the accounts in all departments, and shall have 
full authority to prescribe, regulate and make changes in the methods 
of keeping and rendering accounts, and shall see that they are properly 



2 ATTORNEY-GENERAL'S REPORT. [Jan. 

maintained, and that all items are correctly allocated between cap- 
ital receipts and disbursements and operating revenue and exj^ense. 
He shall establish in each department a proper system of accounts, 
which shall be uniform so far as is practicable. He shall establish a 
proper system of accounting for stores, supplies and materials, and may 
provide, where he deems it necessary, for a continuing inventory 
thereof. He may inquire into the methods of purchasing and handling 
such stores, supplies and materials by the departments, reporting to 
the auditor such changes as may in his judgment be deemed wise. 
He shall provide such safeguards and systems of checking as will in- 
sure, so far as is possible, the proper collection of all revenue due the 
commonwealth; and, w^here he deems it necessary, shall provide that 
forms and receipts shall be numbered consecutively, making the de- 
partments responsible for their use or cancellation. 

The duties of the assistant supervisor of accounts are not 
defined by statute. The word ''assistant," however, implies 
that his duties are to assist the supervisor of accounts, and, 
in the absence of the supervisor, or during a vacancy in that 
office, temporarily to discharge those duties. 

It is my opinion that the supervisor and assistant supervisor 
of accounts are "officers," within the meaning of that word as 
used in R. L., c. 19, § 9; that is, that they are officers whose 
duties are in their nature public and not merely clerical, in- 
volving in their performance the exercise of some portion of 
the sovereign authority of the State. Attorney-General v. 
Tillinghast, 203 Mass. 539. Their duties, as established by the 
statute quoted above, give them a large measure of responsi- 
bility. The fact that those duties are performed under the 
direction of the Auditor does not change their character. 

In Attorney-General v. Tillinghast, supra, p. 544, it was 
said: — 

The fact that the authority of one officer is subordinate to that of 
another does not prevent him from being an officer. A subordinate or 
inferior officer is none the less an officer. 

There is a further question whether these officers are "of- 
ficers . . . whose appointment is subject to confirmation by 
the executive council," wathin the language of R. L., c. 19, 
§9. 

A former Attorney-General held, with respect to St. 1904, 
c. 409, § 4, by which the State Forester was " empowered, sub- 
ject to the approval of the governor and council, to hire such 



1922.] PUBLIC DOCUMENT — No. 12. 3 

assistants as he may need in the performance of his duties, 
and to fix their salaries," that the approval required by the 
statute was rather an approval of a scheme for proposed ap- 
pointments and expenditures than a confirmation of the 
particular appointment to be made. Ill Op. Atty.-Gen. 129. 
But in the present instance the offices are created and the 
duties defined by statute. It is my opinion that the statute 
creates these offices, and that the required consent and ap- 
proval of the Governor and Council relate to the individuals 
appointed by the Auditor and the salaries fixed by him. 

I therefore advise you that said supervisor and assistant 
supervisor of accounts may be appointed without compliance 
with the civil service law and rules. 
Very truly yours, 

J. Westox Allex, Attorney-General. 



Bonds — Registers of Probate — Premiums. 

Registers of probate, being charged with the duty of receiving money 
which they are required to pay over to the Treasurer and Receiver- 
General, by G. L., c. 217, §§18 and 20, are officials charged with the 
duty of receiving and disbursing money, under G. L., c. 30, § 17, and 
are therefore entitled to be reimbursed for amounts paid by them for 
premiums on their official bonds, required by G. L., c. 217, § 12. 

The Commonwealth is under obhgation to reimburse registers of probate 
for payments of premiums on their official bonds, although no ap- 
propriation has been made and no money is available therefor. 

Jan. 4, 1921. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — You ask my opinion whether registers of pro- 
bate are entitled to have the premiums on their official bonds 
paid by the Commonwealth. 

G. L., c. 30, § 17, provides as follows: — 

If an official ha\'ing custody of property of the commonwealth, or 
charged with the duty of receiving or disbursing money, is required 
to give bond to the commonwealth for the faithful discharge of his 
duty, the commonwealth shall reimburse him for the amount paid by 
him to a surety company for becoming surety on his official bond. Pre- 
miums on all surety bonds paid by the commonwealth shall be paid 
out of the appropriations for expenses of the several officers and 
departments. 



4 ATTORNEY-GENERAL'S REPORT. [Jan. 

Each register of probate is required to give bond to the 
Treasurer and Receiver-General for the faithful performance 
of his official duties. The statute (G. L., c. 217, § 12) is as 
follows : — 

Each register shall give bond to the state treasurer for the faithful 
performance of his official duties, in a sum not less than one thousand 
nor more than ten thousand dollars, as ordered by the judge, with one 
or more sureties approved by him. 

It is therefore necessary to determine whether a register of 
probate is "an official having custody of property of the com- 
monwealth, or charged with the duty of receiving or dis- 
bursing money." 

The duties of the register are defined in said G. L., c. 217. 
Among those duties are the following: — 

Section 15. The register shall have the care and custody of all 
books, documents and papers pertaining to his court, or deposited 
with the records of insolvency or filed in the registry of probate, and 
shall carefully preserve them and deliver them to his successor. 

Section 18. The register shall furnish copies of records or other 
papers in his custodj^ and shall collect the legal fees therefor. 

Section 20. The register shall annually, on the first Mondays of 
January, April, July and October, account for and pay over to the 
state treasurer all fees and compensation which have been received by 
him otherwise than by salary. 

While it may be questioned whether, under section 15, reg- 
isters are given custody of property of the Commonwealth, it 
is clear that under sections 18 and 20 they are charged with 
the duty of receiving money which they are required to pay 
over directly to the Treasurer and Receiver-General. Reg- 
isters are therefore such officials as are described in G. L., 
c. 30, § 17. Accordingly, they are entitled to be reimbursed 
for amounts paid by them for premiums on their official 
bonds. 

It should be noted that the situation with respect to clerks 
of county courts is entirely different. Their bonds are given 
and accounting made to the treasurers of the respective 
counties (G. L., c. 221, §§ 12, 32). Their salaries also are 



1922.] PUBLIC DOCUMENT — No. 12. 5 

paid by the counties (G. L., c. 221, § 97), while the salaries of 
registers are paid by the Commonwealth (G. L., c. 217, § 35). 
G. L., c. 30, § 17, also provides that "premiums on all 
surety bonds paid by the commonw^ealth shall be paid out of 
the appropriations for expenses of the several officers and 
departments;" and you inform me that no appropriation for 
the expenses of registers of probate is made, and .therefore no 
money will be available for paying the premiums. It is my 
opinion that these facts would not relieve the Commonwealth 
of its obligation to the registers, declared by section 17, and 
that the Legislature should make an appropriation for the 
purpose of paying such premiums. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Salaries of Officers and Employees of the Commonwealth — 
Increases — Employees in Massachusetts Nautical School. 

G. L., c. 30, § 47, prohibits any increase in the salaries of officers and em- 
ployees classified under G. L., c. 30, §§ 45-50, and exceeding or to 
exceed $1,000, authorized thereunder between December 1 and May 
31 in any year, from taking effect until June 1 following. 

It follows that no increase can be made which will be retroactive. 

Jan. 4, 1921. 
Mr. Charles A. Southworth, Executive Secretary. 

Dear Sir: — You ask me to advise the Council whether 
or not the Board of Commissioners of the Massachusetts 
Nautical School may increase the salaries of ship's steward 
and ship's cook at the present time, and also whether, if such 
increases can be made, they may be retroactive. 

G. L., c. 30, §§ 45-50 (Gen. St. 1918, c. 228; Gen. St. 1919, 
c. 320), provide for the classification of certain State offices 
and positions. 

Section 45 defines the offices and positions subject to the 
statute as "all appointive offices and positions in the govern- 
ment of the commonwealth, except those in the judicial 
branch and those in the legislative branch other than the addi- 
tional clerical and other assistance in the sergeant-at-arms' 
office." 



6 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 47 is as follows: — 

Recommendations for increases in the salaries of officers and em- 
ployees whose salaries are required by the preceding section to be 
fixed in accordance Math such classification and specifications, shall be 
submitted in the first instance to the supervisor, and if approved by 
him shall take efi"ect upon notice by the super^^sor to the commis- 
sioner of ci\dl ser\ice and the state auditor. If the supervisor does 
not approve a proposed increase in salary, he shall report the recom- 
mendation of the department or institution with his owa recommenda- 
tion to the governor and council whose decision shall be final, except 
that the governor and council shall not grant an increase in salary 
greater than that recommended by the department or institution. 
Increases in salaries granted under this section shall conform to such 
standard rates as may be established by rule or regulation in accord- 
ance -with, the preceding section. No increase in salary shall be granted 
under this section unless an appropriation sufficient to cover such in- 
crease has been granted by the general court in accordance with esti- 
mates for the budget filed as required by law. No increase in a salary 
exceeding or to exceed one thousand dollars, authorized under this 
section between December first and May thirty-first, both inclusive, 
in anj^ year shall take effect until June first following or such later 
date as may be fixed by the department or institution recommending 
such increase, with the approval of the supervisor or the governor and 
council. 

The plain language of the last sentence in section 47 pro- 
hibits any increase in salary exceeding or to exceed $1,000, 
authorized between December 1 and May 31 in any year, 
from taking effect until June 1 following. 

It appears from the papers you enclosed that the salaries 
about which you ask, if increased as proposed, w^ould each 
exceed $1,000. It is clear, therefore, that by virtue of the 
express prohibition in section 47 such increase may not take 
effect until June 1, 1921. 

It follows, necessarily, that no increase can be made w^hich 
will be retroactive. 

Very trulj^ yours, 

J. Weston Allen, Attorney-General. 



1922/ PUBLIC DOCUMENT — No. 12. 7 

Motor Vehicles — Chauffeurs. 

A person operating his own motor vehicle who receives compensation for 
any work or services in connection therewith is a chauffeur, within 
the meaning of Gen. St. 1915, c. 16. 

A person operating his own motor vehicle who transports stock or materials 
in any way directly connected with his business, and who does not 
receive compensation for such transportation, is not a chauffeur. 

A salesman working for the ow^ner of a motor vehicle, who uses it in con- 
nection with the business of his employer, may be a chauffeur if he 
receives a portion of his pay for services in driving the motor vehicle. 

Such salesman may, at the discretion of the commission, be exempted 
from the definition of chauffeur and be designated as an operator, if 
his principal occupation is that of salesman and if his employer is a 
manufacturer or dealer. 

Jan. 7, 1921. 

Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — The following questions have been submitted 
to this department for answer: — 

1. Does the o^vner of a motor vehicle, who operates the same in 
connection with his business, transporting stock or materials or tools 
or finished products in any way directly connected with his business, 
require a chauffeur's license? 

2. Does a salesman working for the o^vner of a motor vehicle, who 
uses the said motor vehicle for purposes of transportation of goods 
from place to place, or for the purpose of carrying samples, or for any 
other use in connection with the business of the owiier of the motor 
vehicle, require a chauffeur's license? 

The word "chauffeur" was defined in St. 1909, c. 534, § 1, 
as follows : — 

'•'Chauffeur" shall mean any person w^io operates a motor vehicle 
other than his own and who directh" or indirectly receives pay or any 
compensation whatsoever for any work or services in connection with 
motor vehicles, except only manufacturers, agents, proprietors of 
garages and dealers, who do not operate for hire. An employee of a 
manufacturer or a dealer ^vhose principal occupation is that of a sales- 
man may at the discretion of the commission be exempted from this 
definition and be designated as an operator. 

This statute w^as amended by Gen. St. 1915, c. 16, by strik- 
ing out the words " other than his own." 

The purpose of the amendment apparently was to include 
within the definition of "chauffeur" persons operating their 



8 ATTORNEY-GENERAL'S REPORT. [Jan. 

own motor vehicles who receive compensation for any work 
or services in connection with motor vehicles, with the excep- 
tions stated in the act. For example, a taxicab driver owning 
his own vehicle would not be a chauffeur, within the terms of 
the original act, but would be a chauffeur according to the act 
as amended. But one who operates his own motor vehicle in 
connection with his business, transporting stock or materials 
or tools or finished products in any way directly connected 
with his business, unless he receives compensation for such 
transportation, is not, in my opinion, a chauffeur, within the 
amended definition. Therefore, with the qualification stated, 
I answer your first question in the negative. 

A salesman working for the owner of a motor vehicle, who 
uses it for purposes of transportation of goods from place to 
place, or for the purpose of carrying samples, or for any other 
use in connection with the business of his employer, may be a 
chauffeur if he receives a portion of his pay for his services in 
driving the motor vehicle. But if his principal occupation is 
that of a salesman, and if his employer is a manufacturer or 
a dealer, he may, by the terms of the statute, at the discre- 
tion of the commission, be exempted from the definition of 
chauffeur and be designated as an operator. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Commission appoiiited hy the General Court — Expenditures — 

Report, 

Where the General Court has appointed a commission to investigate and 
to report on a fixed date, the General Court may extend the time for 
filing or may receive the report after the date fixed. 

Expenditures from money appropriated for expenses incurred in the 
preparation of the report may be authorized, although the expenses 
are incurred after the time fixed for filing, if they are incurred before 
the report is actually received. 

Jan. 8, 1921. 

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

Dear Sir: — By Resolves of 1920, chapter 85, an unpaid 
special commission was created "to investigate the question 
of prenatal and postnatal aid and care for mothers and their 
children." That resolve contains the following provision: — 



1922.] PUBLIC DOCUMENT — No. 12. 9 

Said commission sliall report its recommendations to the special 
session of the general court not later than November fifteenth, nine- 
teen hundred and twenty, with drafts of such legislation, if any, as is 
recommended, with an estimate of the expense of carrying out its 
recommendations and may expend for the purposes of said investiga- 
tion and report such sums as the general court shall appropriate. 

By St. 1920, c. 629, item 27A-, a sum not exceeding $8,000 
was appropriated for expenses of said commission. 

I am informed by you that the commission proceeded with 
the investigation, but that it did not "report its recommenda- 
tions to the special session of the general court not later than 
November fifteenth, nineteen hundred and twenty," as 
directed; and that you have received bills for personal services 
of employees covering the period from December 1 to Decem- 
ber 11, inclusive. 

You ask my opinion as to the propriety of passing bills 
incurred after November 15, in this case, or after the date 
on which the commissions are required to report, in other 
cases. 

The term of office of the commission to which your inquiry 
is specifically directed and its authority to investigate the 
questions stated are expressly limited by the resolve to a 
period of time expiring on Nov. 15, 1920. 

By the established custom in the General Court, if a com- 
mittee or commission is not ready to make its report within 
the time directed, application may be made to the General 
Court for an extension of time w^ithin which the General 
Court will receive such report; but the General Court may 
receive the report after the date fixed by act or resolve creat- 
ing the commission when no application has been made and 
no order passed extending the time. 

In the present instance, application could not be made to 
the special session to extend the time fixed for filing the report 
beyond November 15, because the special session of the Leg- 
islature did not convene until after that date. The report 
w^as filed on December 7, which was the day when the special 
session convened, and the report was received and acted upon 
on that date. 

While the report could have been filed with the clerk of 
either branch of the General Court, if the commission had 
been prepared to report, on November 15 or any prior date, 



10 ATTORNEY-GENERAL'S REPORT. [Jan. 

the report was in fact filed on the earhest day upon which 
any action could be taken upon it. 

I understand you raise the question generally whether a 
commission appointed to investigate and report to the General 
Court on a fixed day may expend money thereafter without 
authorization so to do by an act or resolve of the General 
Court. The expenditure of public money, except for certain 
special purposes, cannot be authorized upon an order, but 
only by act or resolve which receives the signature of the 
Governor. It is to be observed, however, that your inquiry 
relates only to the payment of monej' the expenditure of which 
has already been authorized and the money appropriated. 
The authority of the Legislature to receive a report after the 
date upon which it was ordered to be filed cannot be ques- 
tioned. If, therefore, the Legislature by an order extends the 
time during which it will receive the report, I am of the 
opinion that any proper expenses incurred in the preparation 
of the report must be held to have the sanction of the Legis- 
lature, and to be legally incurred, if they are within the 
amount appropriated. This necessarily follows from the fact 
that the reason for extending the time, in the ordinary case, 
is because the report is unfinished and further work remains 
to be done by the commission. The same rule would gen- 
erally apply in a case where the General Court receives the 
report after the date fixed for filing, without having extended 
the time, although this might not be true in all cases. 

It is not necessary to determine whether a commission, after 
the date originally fixed for filing its report, could expend 
money already appropriated to conduct further investigations 
or for other purposes not incidental to the preparation of its 
report. A case might arise where further investigation was 
necessary, owing to new conditions arising after the investi- 
gation had been concluded and when the report was about 
to be filed. The need of further investigation might be the 
reason for extending the time for receiving the report. I leave 
this question to be determined if occasion may arise. 

A further question is presented by reason of the fact that 
the special commission in the present case filed its report on 
the seventh day of December, and you state that you have 
received "bills for personal services of employees covering 
the period from December 1 to December 11, inclusive." The 
filing of its report terminated the life of the commission, and 



1922.] PUBLIC DOCUMENT — No. 12. 11 

it could not thereafter authorize any expenditures. If, how- 
ever, prior to the fiHng of the report any proper expenditure 
was authorized for services which could not be completed 
at the time of filing, such as the return of papers and docu- 
ments used by the commission, such an expenditure would be 
properly incurred, and should be paid. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Insurance — Agreement by Company guaranteeing Credit Report 
as True Statemeiit of Facts set forth — Responsibility for 
Accuracy of Own JVork — Contract of Insurance. 

An agreement by a company guaranteeing that a credit report, at the 
date of such report, is a true statement of the facts which it sets 
forth, and limiting the responsibilitj^ of the company to any error of 
statement, advice or recommendation which misleads or causes loss 
to the subscriber, and further stipulating that payment shall be for 
the actual net loss caused by such error, is not a contract of insur- 
ance. 

Jan. 10, 1921. 

Hon. Clakence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — You have requested my opinion as to whether 
any features contained in a form of agreement of The Credit 
Clearing House involve insurance. The agreement reads as 
follows: — 

THE CREDIT CLEARING HOUSE. 

, President. 

Subscription for 



Guaranteed Credit Service. 

In consideration of $ , paid in advance, the subscriber hereto 

employs The Credit Clearing House with the use of its system of 
credit clearances and its guaranteed credit service to furnish the 
subscriber with warranted recommendations, reports, or expert advice 
concerning transactions and accounts of an aggregate amount not 

exceeding $ , upon which inquiries shall be made during the 

period ending — ■ , 192 , upon the conditions and warranties 

set forth hereinafter. 

Correct Information. 

The subscriber agrees that at the time he makes inquiries he will 
give correct information as to the amount of order, amount owing, 



12 ATTORNEY-GENERAL'S REPORT. [Jan. 

terms and manner of pajanent. The subscriber agrees to file with 
The Credit Clearing House a list of his active accounts, to report all 
orders received, to ansv:er all requests made by The Credit Clearing 
House for information within forty-eight hours from the time when 
the requests are received, to file on the 15th of each month a list of 
all past due accounts, and to notify said The Credit Clearing House 
immediately of any unfavorable changes in accounts ad^'ised upon. 
The subscriber further agrees to substantiate the information which he 
contributes, and to treat as confidential all recommendations or infor- 
mation received from the said The Credit Clearing House and t,o use 
same exclusively for his o-vm use and benefit. 

GUAIL\XTEED SERVICE. 

The Credit Clearing House warrants the accuracy and reliabihty of 
its service, and agrees to accept full responsibihty for any error of 
statement, advice or recommendation made in writing by itself or any 
agent negligently or otherwise which misleads and causes loss to the 
subscriber; provided, however, that in each transactio7i the following 
conditions are fulfilled: — 

1. The subscriber relied fully on said recommendation and acted 
without change in any detail or condition as directed therein, and 
was misled thereby, and suffered loss as a consequence. 

2. The subscriber in case of claim of loss returns said original 
written recommendation given by The Credit Clearing House with 
the forms for oath and conditions for proof of loss printed thereon 
filled out and sworn to and mailed by registered post to said The 
Credit Clearing House, four-forty Fourth Avenue, New York City, 
within thirty days after the account becomes due or payable, or when 
requested by The Credit Clearing House. 

3. There is no dispute, counterclaim, set-off, or defense whatsoever 
to said account or debt; and 

4. The account or debt is assigned without reservation and de- 
livered to The Credit Clearing House within thirty days after be- 
coming due or payable, and in case of unfavorable change of said 
account, and when requested by The Credit Clearing House. 

It is also agreed that this warrant}' be construed as a representation 
of accurate services and a promise to assume liability for net losses to 
the subscriber caused by error in misleading recommendations, re- 
ports or advice of The Credit Clearing House or its agents. 

Payment of Losses. 
It is agreed that The Credit Clearing House shall pay to the sub- 
scriber upon the terms and conditions herein set forth the actual net 
loss to the subscriber caused by error, advice or recommendation made 
in writing by itself or any agent negligently or other\\ise which mis- 



1922.] PUBLIC DOCUMENT — No. 12. 13 

leads and causes loss to the subscriber as hereinafter described and 
determined. The method of determining the amounts, if any, to be 
paid by. the Company to the subscriber shall be as follows : — 

1. All discounts, and credits of any nature, whether running from 
the debtor to the subscriber or to The Credit Clearing House, plus 

per cent for collection fees and profits shall be deducted from 

the loss claimed. 

2. The subscriber shall be paid said actual net loss less per 

cent "within days after the loss is finally determined by The 

Credit Clearing House. 

3. The subscriber will prove that he filed his claim of loss and 
assignment of the debt to The Credit Clearing House by producing 
written acknowledgment on the part of The Credit Clearing House 
or its agents of receipts of said claim and assignment. 

In order to make recoverj^ for loss simple and direct, it is under- 
stood that the sworn proof of loss and the assignment shall be deemed 
'prima facie e\idence of error or mistake on the part of The Credit 
Clearing House or its agents. The Credit Clearing House is hereby 
permitted to reserve to itself, in case the subscriber fails to fully co- 
operate, the right to terminate the subscription at any time on the 
repayment of the amount for the unexpired portion of this contract. 

G. L., c. 175, § 47, cl. 10, provides that a company may be 
incorporated — 

To carry on the business commonly known as credit insurance or 
guaranty, either by agreeing to purchase uncollectible debts, or other- 
wise to insure against loss or damage from the failure of persons in- 
debted to the insured to meet their liabilities. 

The statute defines insurance to be ''an agreement by 
which one party for a consideration promises to pay money 
or its equivalent, or to do an act valuable to the insured, upon 
the destruction, loss or injury of something in which the other 
party has an interest." G. L., c. 175, § 2. 

The essential element of insurance is that the insured 
receives indemnity from destruction, loss or injury by reason 
of the happening of events without his control or the control of 
the insurer. 1 Op. Atty.-Gen. 545. 

The agreement set forth in full above cannot be considered 
insurance, since it involves no risk or hazard w^hich is insured 
against, nor, employing the words of the statutory definition, 
the destruction, loss or injury of something in which the 
member has an interest. By the terms of the agreement The 



14 ATTORNEY-GENERAL'S REPORT. [Jan. 

Credit Clearing House merely guarantees that the report which 
it makes is, at the date of such report, a true statement of 
the facts which it sets forth, and limits its responsibility to 
any error of statement, advice or recommendation which mis- 
leads or causes loss to the subscriber, and stipulates that pay- 
meat shall be for the actual net loss caused by such error of 
such statement, advice or recommendation. 

Your attention is called to the case of People, ex rel. Daily 
Credit Service Corporation, v. May, 162 App. Div. [N. Y.], 215. 
In that case the facts were that a business corporation 
assumed a responsibility to its clients for the accuracy of its 
reports, and provided the measure of damages in case they 
proved to be inaccurate, and not otherwise, the damages not 
to exceed in any event the amount of credit extended by the 
client of the corporation to the customer on whom the cor- 
poration reported, and not to exceed the amount of loss 
actually sustained by the client. The court held in that case 
that such a corporation was not carrying on an insurance 
business. In discussing the case the court says: — 

This is not insurance; it is merely permitting the corporation to 
charge for and receive the value of its services in their relation to the 
responsibility assumed. It does not guarantee the solvency of any 
one; it merely guarantees that the report which it makes is, at the 
date of such report, a true statement of the facts which it sets forth, 
and limits its responsibility to such report, stipulating that in no 
event shall the damages exceed the amount of the credit which may 
be extended upon the basis of such report. This do3s not assume to 
pay any damages where the report is truthful and accurate; it does 
not assume any liability whatever for the credit extended, unless the 
credit was extended upon the basis of a report which was in fact in- 
accurate and false in material respects, and then it merely seeks to 
have the amount of the damages fixed by contract rather than by 
actions at law. It is one thing to guarantee the accuracy of one's own 
work, and quite another to assume the risk of future insolvency. 

The court, in summing up, points out that the corporation 
gives to its customers a guaranteed basis of fact: — 

It says, in a given case, John Smith on the 1st day of January, 
1914, had $10,000 in a certain bank; he had a stock of goods inven- 
toried at $15,000 on which there was a chattel mortgage for $5,000; 
he owned a store building of the value of $5,000, on which there was 
a lien of $2,500, and had bills receivable of $3,000, and bills payable of 



1922.] PUBLIC DOCUMENT — No. 12. 15 

$2,700. On this basis the merchant determines whether he wants 
to accept the risk of giving crecUt, and with this the corporation has 
no relation whatever. If the facts are as stated the corporation has 
performed its contract and has no further responsibihty in the premises; 
the risk — the insurance of the credit — is either carried by the mer- 
chant or by some corporation having a cliarter to carry on an insurance 
business. 

This line of reasoning, in my opinion, is sound, and applies 
with equal force to the agreement which you have submitted 
to me. Accordingly, I am of the opinion that the agreement in 
question will not, if executed, be a contract of insurance. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Taxation — Income Tax — Distribution of Capital of Domestic 
Corporation in Liquidation. 

Where a domestic corporation transfers all its assets to another, receiving 
in exchange cash and securities which it distributes among its stock- 
holders in liquidating its affairs, the stockholders receive no income 
which is taxable under either Gen. St. 1916, c. 269, § 2, or § 5, cl. (c), 
now G.L., c. 62, § 1, and § 5, cl. {c), respectively. 

Jan. 11, 1921. 

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

and Taxation. 

Dear Sir: — A Massachusetts corporation transferred all 
its assets to a newly organized Massachusetts corporation, 
receiving in exchange therefor cash, and securities of the new 
corporation. The old corporation liquidated and wound up 
its affairs by a distribution of the proceeds of the exchange 
among the stockholders. You ask whether the stockholders 
should be taxed on account of that transaction at 3 per cent, 
under Gen. St. 1916, c. 269, § 5, cl. (c), or whether the trans- 
action comes w^ithin the terms of section 2 of the act. 

Section 2 provides 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: 

{h) Dividends on shares in all corporations and joint stock com- 



16 ATTORNEY-GENERAL'S REPORT. [Jan. 

panies organized under the laws of any state or nation other than this 
commonwealth, . . . 

No distribution of capital, whether in liquidation or otherwise, 
shall be taxable as income under this section; but accumulated profits 
shall not be regarded as capital under this provision. 

Section 5 provides : — 

Income of the following classes received by an}'- inhabitant of this 
commonwealth during the calendar year prior to the assessment of 
the tax, shall be taxed as follows: 

(c) The excess of the gains over the losses received bj^ the taxpayer 
from purchases or sales of intangible personal propertj^, whether or 
not the said taxpayer is engaged in the business of dealing in such 
property, shall be taxed at the rate of three per cent per annum; . . . 

It is my opinion that the transaction does not result in in- 
come to the stockholders, taxable under section 5, clause (c). 
The stockholders have not bought, sold or exchanged their 
stock. They have merely received a distribution in liquida- 
tion of their proportionate shares of the assets of the old 
corporation. The form of the transaction distinguishes this 
case from Osgood v. Tax Commissioner, 235 Mass. 88. There 
the plaintiff stockholder exchanged shares of one corporation 
for shares of another, organized for the purpose of succeeding 
to the business of the former. In the present instance the 
stock of the old corporation was not exchanged, but its assets, 
in the form of cash and securities of the new corporation, 
were distributed among its stockholders in dissolution. 

Moreover, there seems to be no provision in section 2 au- 
thorizing the taxation of this distribution to the stockholders. 
Clause (6) provides for taxation of dividends on shares of for- 
eign corporations, but neither dividends nor other distribu- 
tions of profits of a domestic corporation are taxable under 
that section. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 17 



Collection Agency — Branch Office — Additional Bond. 

A person who conducts a collection agency and who has filed with the 
Treasurer and Receiver-General a bond in compliance with G. L. 
c. 93, § 24, is not required, upon opening a branch office, to file an 
additional bond. 

Jan. 12, 1921. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — You request my opinion on the following 
facts: — 

A person doing business under the name and style of ''Pil- 
grim Service," of Springfield, Mass., filed a collection agency 
bond for $5,000, under the provisions of St. 1910, c. 656, 
as amended by Gen. St. 1919, c. 101 (now G. L., c. 93, 
§§ 24-28). He now desires to open a branch office in the 
city of Worcester, and has requested a duplicate of the cer- 
tificate of acceptance of this bond, as issued by the Treasury 
Department, so that he may have proof of compliance with 
the law. Your specific question is whether or not the statute 
permits a person or persons to open a branch office to do a 
collection agency business without furnishing a bond for each 
branch. 

The statutory provisions relative to the giving of a bond by 
persons conducting collection agencies are now found in 
G. L., c. 93, §§ 24-28, inclusive. Section 24 of said chapter 
provides, so far as is pertinent to your question, that no person 
shall conduct a collection agency, collection bureau or collec- 
tion office, or engage in the Commonwealth solely in the 
business of collecting or receiving pa^'ment for others of any 
account, bill or other indebtedness, or engage in the Common- 
wealth solely in soliciting the right to collect or receive pa}^- 
ment for another of any account, bill or other indebtedness, 
or advertise for or solicit in print the right to collect or receive 
payment for another of any account, bill or indebtedness, 
unless such person, or the person, partnership, association or 
corporation for whom he may be acting as agent, has on file 
with the State Treasurer a good and sufficient bond. 

Section 27 provides: — 

The state treasurer shall keep a record, open to public inspection, 
of the bonds filed with him under the preceding section, with the 
names, places of residence, places of business of the principals and 
sureties, and the name of the officer before whom the bond was executed 
or acknowledged. 



18 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is my opinion that a person conducting a collection 
agency, and who has filed with your office a bond in com- 
pliance with the law, is not required, upon opening a branch, 
to file with you an additional bond. 
Yours very truly, 

J. ^YESTON Allen, Atiorney-Gcncrnl. 



Towns ^- Public Library — Support. 

A library in a town, to which the inhabitants have free access and of which 
they have the use, although it is not a town library owned and con- 
trolled by the town, is a public library for the maintenance of which 
a town may appropriate money under G. L., c. 40, § 5, cl. (18), and 
c. 140, § 172. 

Mass. Const. Amend. XLVI, § 2, does not prohibit the use of public money 
for a library primarily intended for the use of the public, and to which 
the public is freely admitted. 

Jan. 24, 1921. 

Mr. Charles F. D. Beldex, Director, Division of Public Libraries. 

Dear Sir: — The Worthington Library was organized as a 
corporation on June 28, 1900, under P. S., c. 40, § 16, "to 
establish and maintain a public library, with reading rooms 
communicating therewith," in the town of Worthington. It 
is not a town library owned and controlled by the town, but 
is, however, a library to which the inhabitants have free ac- 
cess and of which they have the use. You ask whether it is a 
library for the maintenance of which a town may appropriate 
money. 

G. L., c. 40, § 5, provides as follows: — 

A tovm may at any town meeting appropriate money for the fol- 
lowing purposes : 

(18) For the establishment, maintenance or increase of a public 
library therein, and for the erection or provision of suitable buildings 
or rooms therefor, or for maintaining a library therein to which the 
inhabitants have free access and of which they have the use, and for 
establishing and maintaining a public reading room in connection with 
and under the control of the managers of such library. 

G. L., c. 140, § 172, provides as follow^s: — 

Money received by a county treasurer under the preceding sections 
relating to dogs, and not paid out for damages, shall, in January, be 



1922.] PUBLIC DOCUMENT — No. 12. 19 

paid back to the treasurers of the to\Mis m proportion to the amounts 
received from such towns, and the money so refunded shall be ex- 
pended for the support of public libraries or schools. In Suffolk county, 
money so received by the town, treasurer and not so paid out shall be 
expended b}^ the school committee for the support of public schools. 

Similar provisions of the Revised Laws were considered in 
an opinion of a former Attorney-General (II Op. Atty.-Gen.316). 
That opinion reads as follow^s: — 

Your letter of January 16 requests the opinion of the Attorney- 
General upon the question whether a to"\\ai may lawfully appropriate 
money received from dog Kcenses to the support and maintenance of 
any librar}^ to which the inhabitants have free access and of which 
thej^ have the use, although such library is not owned and controlled 
by the town. 

R. L., c, 102, § 163, pro\ides that money received under the pro- 
visions relating to dogs shall be paid back to the treasurers of the cities 
and towns, "and the money so refunded shall be expended for the sup- 
port of pubHc hbraries or schools;" R. L., c. 25, § 15, provides that a 
town may appropriate money for the following purposes, among 
others: ''For the establishment, maintenance or increase of a pubhc 
library therein, and for the erection or provision of suitable buildings 
or rooms therefor;" and "For maintaining a hbrary therein, to which 
the inhabitants have free access and of which they have the use, and 
for establishing and maintaining a public reading room in connection 
with and under the control of the managers of such library." 

The question is, whether a library not o\Mied and controlled by the 
town, yet open to the free access and use of the inhabitants of the 
to'ttTi, is a public library within the meaning of c. 102, § 163. The ap- 
parent argument against including such a library mthin the phrase 
"pubhc library" is that in c. 25, § 15, above quoted, the Legislature 
seems to make a distinction between such library and a public hbrary, 
by providing, in separate paragraphs, for their maintenance. 

I am of opinion, however, that no such distinction was intended, 
and that, whether a library is owned by the town or not, dog license 
money may be appropriated to it so long as the inhabitants of the 
to\Mi have free access to it. 

The situation has changed since this opinion was rendered 
only by the passage of Mass. Const. Amend. XLVI, § 2, pro- 
viding, in part, that — 

No grant, appropriation or use of public money or property or loan 
of pubhc credit shall be made or authorized by the commonwealth or 
any political division thereof for the purpose of founding, maintaining 
or aiding any school or institution of learning, whether under public 



20 ATTORNEY-GENERAL'S REPORT. [Jan. 

control or otherwise, wherein any denominational doctrine is incul- 
cated, or any other school, or any college, infirmary, hospital, institu- 
tion, or educational, charitable or religious undertaking which is not 
publicly o%nied and under the exclusive control, order and superin- 
tendence of public officers or public agents authorized by the com- 
monwealth or federal authority or both, except that appropriations 
may be made for the maintenance and support of the Soldiers' Home 
in Massachusetts and for free public libraries in any city orto-^Ti. 

In the debates in the Constitutional Convention, vol. I, 
pp. 144-146, the question of the meaning of the words "free 
public libraries" was discussed. It was stated that the words 
were intended to designate libraries founded and primarily 
intended for the public, which are open to the public and in 
which the public has a beneficial interest; that the object of 
the exception was to allow appropriations of public money to 
libraries wholly or in part under private control. 

The words "public library" are not technical and are not 
generally limited to designate merely a library under public 
control, but are generally used as descriptive of any library 
to which the general public has free access. People v. Tax 
and Assessment Commissioner, 11 Hun, 505, 507; 32 Cyc. 1248. 

I am of opinion that the words "free public libraries," as 
used in this amendment, are used in the sense as defined in 
the opinion hereinbefore quoted and the other authorities cited 
above, and that they include all libraries which, as in the case 
of the Worthington Library, are primarily intended for the 
use of the public and to which the public is freely admitted. 
Very truly yours, 

J. Weston Allen, Attorney-GeneraL 



Boxing Exhibitions — Payment to the Commonivealth. 

The words ''total gross receipts" in G. L., c. 147, § 40, mean the total 
amount actually received and retained, and in determining that 
amount sums refunded on account of the illness of a boxer should be 
deducted. 

Jan. 25, 1921. 

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

Dear Sir: — A social and athletic club gave a boxing ex- 
hibition at which there was taken in from the sale of tickets 
or from admission fees the sum of $6,184. Because of the 



1922.] PUBLIC DOCUMENT — No. 12. 21 

illness of the boxer who was to take part in the main bout, 
the principal feature of the exhibition was not given. You 
state that the licensees claim that they have refunded a 
greater portion of the fees collected to the persons attending 
such exhibition, and that they also issued tickets to others 
good for the next exhibition. You ask me to advise you 
whether or not the 5 per cent due the Commonwealth on the 
total gross receipts of this entertainment, under G. L., c. 147, 
§ 40, should be computed on the sum taken in at the ex- 
hibition. 

G. L., c. 147, § 40, provides, in part, as follows: — 

Every licensee holding or conducting any such boxing or sparring 
match or exhibition shall, within seventy-two hours after its conclu- 
sion, pay to the state treasurer a sum equal to five per cent of the 
total gross receipts from the sale of tickets or from admission fees; . . . 

I cannot pass on the question of fact whether a portion of 
the receipts was refunded to persons attending the exhibition, 
and whether tickets were issued to others good for the next 
exhibition. Assuming, however, that such was the case, I ad- 
vise you that the words "total gross receipts," as used in 
G. L., c. 147, § 40, mean the total amount actually received 
and retained; that in determining that amount any sums re- 
turned to persons in attendance should be deducted; and that 
the 5 per cent should be calculated on the balance. It is 
obvious that where the admission was not returned, but 
tickets were issued for the next exhibition, the tax on the 
admission paid is due, but there will be no further tax on 
these tickets, as they will be used without any further pay- 
ment for admission. 

Very truly yours, 

J. Weston Allex, Attorney-General. 



22 ATTORNEY-GENERAL'S REPORT. [Jan. 



State Highways — Certificate of Layout — Order of Taking — 
Land outside Existiiig Public Way — Statutory Notice — 
Indemnification of the Commonwealth. 

The preliminary requirements referred to in G. L.,, c. 79, § 1, in the case 
of the laying out of State highways, are found in G. L., c. 81, § 5. 

There is no objection to incorporating the order of taking in the certificate 
required in laying out a State highway, if it is necessary to take land 
for the purposes of a State highway outside the limits of an existing 
public way. 

In cases where it is necessary to take land outside the limits of an 
existing public way, notice should be given in compliance w^ith G. L., 
c. 79, § 8; in such cases,* also, the provisions as to the indemnification 
of the Commonwealth are found in G. L., c. 81, § 7. 

Jax. 28, 1921. 
Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You request my opinion upon several ques- 
tions arising out of the interpretation of the provisions in the 
General Laws concerning the taking of land by eminent 
domain for the purposes of State highways. 

First. — You call attention to G. L., c. 79, § 1, which 
provides, in part, that — 

A board of officers upon whom authoritj' to take real estate by 
eminent domain on behalf of any body politic or corporate has been 
conferred by law, having first complied with all the preliminary re- 
quirements prescribed by law, may adopt an order of taking. 

You state that in the laying out of municipal or county 
ways there are various provisions as to certain preliminary 
requirements which are to be complied with before adopting 
an order of taking. In the case of State highways, however, 
you state that there seem to be no provisions of law which 
prescribe any arrangements preliminary to the order of taking 
for a State highway. Therefore, you ask as to what bearing 
the words ''having first complied with the preliminary re- 
quirements prescribed by law" have upon any orders of 
taking w^hich may be adopted by the Department of Public 
Works. 

To this question I reply that section 1, above quoted, con- 
tains the general provisions as to the taking of real estate by 
eminent domain on behalf of any body politic or corporate, and 
the words "having first complied with all the preliminary re- 
quirements prescribed by law^" are general, and apply to those 
boards of oflScers as to whom preliminary requirements are 



1922.] PUBLIC DOCUMENT — No. 12. 23 

prescribed by the statutes. The prehminary requirements in 
the case of the laying out of State highways are found in 
G. L., c. 81, § 5. 

Sc€07id. — You ask whether your department should include 
an order of taking of any land in your layout with the order 
that the department signs making the layout; in other words, 
if the certified papers required in laying out a State highway 
under the provisions of G. L., c. 81, § 5, can be included in 
the order of taking prescribed by G. L., c. 79, § 1, or whether 
there should be two separate documents. 

G. L., c. 81, § 5, provides that — 

If the division [of highways] determines that public necessity and 
convenience require that such way should be laid out or be taken 
charge of by the commonwealth, it shall file in the office of the county 
commissioners for the county where the way is situated a certified 
copy of a plan thereof, a copy of the petition therefor, and a certified 
copy of a certificate that it has laid out and taken charge of said way 
in accordance with said plan, and shall file in the office of the clerk 
of such town a copy of the plan showing the location of the portion 
hing in each town and a copy of the certificate that it has laid out 
and taken charge of said highway in accordance with said plan, and 
thereafter said way shall be a state highway. 

Section 7 provides, in part: — 

If it is necessary' to acquire land for the purposes of a state highway 
outside the limits of an existing public way, the division may take the 
same by eminent domain on behalf of the commonwealth under 
chapter seventj'-nine. 

Section 1 of said chapter 79 provides, in part, that — 

A board of officers upon whom authority to take real estate by 
eminent domain on behalf of any body politic or corporate has been 
conferred by law, having first complied with all the preliminary re- 
quirements prescribed by law, may adopt an order of taking, which 
shall contain a description of the land taken sufficiently accurate for 
identification, and shall state the interest therein taken. 

In my opinion, there is no objection to the incorporating in 
the certificates required in the laying out of a State highwa\' 
under the provisions of section 5 of chapter 81, the order of 
taking prescribed by section 1 of chapter 79, if it is necessary 
in a given case to take land for the purposes of a State high- 
way outside the limits of an existing public way. 



24 ATTORNEY-GENERAL'S REPORT. [Jan. 

Third. — You state that, under chapter 79 read in con- 
nection with chapter 81, it is difficult to see how the owner 
will receive any notification of the taking of his land until 
after the taking has been made and damages awarded. 

In reply to this question I would state that, as has been 
pointed out before, in case it is necessary to take land outside 
the limits of an existing pubHc way, the Division of Highways 
is to take the same by eminent domain under the provisions 
of G. L., c. 79, which is the chapter containing the general 
provisions relative to eminent domain. Section 8 of said 
chapter contains the provisions relative to notice. Com- 
pliance by the Division of Highways with the requirements 
set forth in that section will give the proper legal notification 
to the owner of property taken. 

Fourth. — You ask if, in making a layout for a State high- 
way, it is necessary to acquire land privately owned, it is 
sufficient to have the county, cit\' or town indemnify the 
State, they in turn assuming all reponsibility for land damages 
by that indemnification, or, in case of a taking involving such 
property, must the Commonwealth proceed under eminent 
domain and take the land itself, and, under section 7 of 
chapter 81, be indemnified by the county, city or town which 
guarantees reimbursement. 

In reply to this question, I would state that the provisions 
as to the indemnification of the Commonwealth in cases 
where it is necessary to take land outside the limits of an 
existing public way are found in G. L., c. 81, § 7, which reads 
as follows: — 

The mayor, if so authorized by the aldermen, or the selectmen, if 
so authorized by the to^ii, may stipulate in writing, in behalf of the 
city or town to indemnify and save harmless the commonwealth 
against all claims and demands for damages which may be sustained 
by any persons whose property has been taken for, or has been in- 
jured by the laying out or alteration of, any highway which the divi- 
sion proposes to lay out and construct or alter as a state highway, 
and thereupon such city or to-v\Ti shall be liable ultimately for the 
amount of any verdict against the commonwealth for such damages, 
and for costs, and the amount thereof may be recovered by the common- 
wealth in contract. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 25 



CommoniveaUh — Land of Massachusetts Institute of Technology 
— Eminent Domain. 

The Massachusetts Institute of Technology may sell to the Common- 
wealth the bare legal title to land conveyed to it by St. 1861, c. 183, 
but the land when so conveyed would be subject to the equitable 
easements arising from the restrictions contained in that act. 

The erection of a memorial column or a statue would not be inconsistent 
with the maintenance of a square "as an open space." 

St, 1861, c. 183, does not limit or infringe upon the right of the Common- 
wealth to exercise the power of eminent domain. 

Jan. 28, 1921. 

Soldiers' ajid-Sailors' Memorial Commission. 

Gentlemen: — You request my opinion upon the following 
questions: — 

1. Has the Massachusetts Institute of Technology the right to 
convey to the Commonwealth the "westerly two-thirds of the square 
between Newbury, Boylston, Berkley and Clarendon streets on the 
Back Bay in the city of Boston," to be used as a site for a memorial 
to Massachusetts soldiers and sailors who have served the nation in 
tiilie of war? 

2. Has the Commonwealth the right to take said property for the 
said purpose by eminent domain? 

I shall discuss these questions in the order in which I have 
just stated them. 

1. The land in question was conveyed to the Massachusetts 
Institute of Technology (hereinafter called the institute) by 
St. 1861, c. 183, Section 3 of said act contained a description 
of the square on which the buildings of the institute and of 
the Boston Society of Natural History were subsequently 
erected, and provided that it should be "reserved from sale 
forever, and kept as an open space, or for the use of such 
educational institutions of science and art as are hereinafter 
provided for", — i.e., the institute and the Boston Society of 
Natural History. The act contained certain other restrictions, 
among them one to the eflfect that the institutions named should 
not erect buildings covering more than one-third of the area 
granted to them, respectively (§7), and provided that, under 
certain circumstances, the Commonwealth might re-enter. 

By St. 1903, c. 438, § 1, the rights remaining in the Com- 
monwealth with reference to the westerly two-thirds of the 
square above described, which is the parcel under discussion, 
were released to the institute in the following language: — 



26 ATTORNEY-GENERAL'S REPORT. [Jan. 

All the proprietary right, title and interest by way of reversion, right 
of re-entry or otherwise, remaining to the Commonwealth in that tract 
of land, being the westeWy two-thirds of the square between Xewbury, 
Boylston, Berkley and Clarendon streets on the Back Bay in the city 
of Boston, which the Massachusetts Institute of Technology is author- 
ized by chapter one hundred and eighty-three of the acts of the year 
eighteen hundred and sixty-one to hold and improve, is hereby released 
to the said Massachusetts Institute of Technology, its successors and 
assigns. 

By section 2 the restriction contained in St. 1861, c. 183, 
§ 7, was cancelled or discharged " subject to the rights, if any, 
of other parties and to the restrictions hereinafter set forth." 

In 1904 the question arose whether the act of 1903 operated 
to permit the institute to cover with its buildings more than 
two-thirds of the area previously granted to it. The court 
held that it did not, because third persons had bought lots 
facing the said square in reliance upon the said restriction 
remaining in force, and the restriction therefore constituted 
an equitable easement appurtenant to said lots. JVilso?i v. 
Mass. Inst, of Technology, 188 Mass. 565; see also Riverbank 
Improvement Co. v. Chadwick, 228 Mass. 242. 

In Mass. Inst, of TechuGlogy v. Boston Society of Natural 
History, 218 Mass. 189, it was held that the words "shall be 
reserved from sale forever, and kept as an open space, or for 
the use of such educational institutions" created a similar 
equitable easement. Construing the words quoted, the court 
said that they did not prevent a sale of the ''bare legal title," 
but they did prevent a sale of the land that would defeat the 
purpose of the quoted words, which purpose was that the land 
should either be used by the educational institutions named 
in the act of 1861, or should be left as "an open space." 

The circumstances of the neighborhood may have changed 
considerably since these restrictions were created. If so, that 
fact might prevent a specific enforcement of the restrictions, 
but they would still remain in existence and would be the 
subject of pecuniary compensation. Mass. Inst, of Technology 
V. Boston Society of Natural History, supra, 196. 

It follows from what has been said that the institute may 
reconvey to the Commonwealth the "bare legal title" to this 
land, but when so reconveyed, the land w^ould be subject to 
the equitable easements arising from the restrictions con- 
tained in the act of 1861. That is to say, the land w^ould no 



1922.] PUBLIC DOCOIEXT — No. 12. 27 

longer be used by the institute, and therefore the Common- 
wealth would be required to maintain it "as an open space"; 
or, if the restrictions should be held not to be specifically 
enforceable on account of changes in the neighborhood, and 
the Commonwealth should erect buildings upon the land, then 
the Commonwealth would be obliged to compensate the owners 
of the equitable easements created by the various restrictions. 

Your letter does not state what type of memorial is pro- 
posed. I am of the opinion that the erection of a memorial 
column or statue would not be inconsistent with the main- 
tenance of the square "as an open space." However, that 
statement raises a question not susceptible of being definitively 
answered without all the details of the proposed memorial 
before me. 

I answer your first question affirmatively, but with the 
proviso that a reconveyance to the Commonwealth would, 
nevertheless, leave the land subject to all restrictions con- 
tained in the act of 1861. 

2. "The act (of 1861) did not attempt to bargain away or 
infringe upon the future exercise of any sovereign rights, and 
the cases which deal with such a state of facts have no ap- 
plication here." Mass. Inst, of Technology v. Boston Society 
of Natural History, supra, 191. That is to say, the Legislature 
did not intend, by enacting the statute of 1861, to limit or 
infringe the right of the Commonwealth to exercise later the 
power of eminent domain in respect to this property. If the 
act had been intended to have the effect suggested, it would 
probably have been unconstitutional in that respect. Penn- 
syhania Hospital v. Philadelphia, 245 L^. S. 20. 

Your second question, therefore, should be answered in the 
affirmative. But it should be added that if the land in ques- 
tion should be taken by eminent domain for a purpose which, 
when carried into effect, would violate the restrictions con- 
tained in the act of 1861, it would be necessary to compensate 
all owners of equitable easements in the land taken. These 
owners are "owners of the lots abutting on Boylston, Claren- 
don and Newbury streets and facing the square in question. 
They [the restrictions] were not intended for the benefit of 
the lots fronting on Berkeley Street, which had been sold before 
the passage of the act." Mass. Inst, of Technology v. Boston 
Society of Natural History, supra, 196. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



28 ATTORNEY-GENERAL'S REPORT. [Jan. 



Taxes — Abatement — Statutory Remedy Exclusive. 

An application for abatement of taxes claimed to have been illegally 
assessed, made more than six months after payment, cannot be granted. 

The remedies provided by statute for the correction of a tax illegally 
assessed are exclusive, and no reliefVan be had unless the method 
prescribed is followed. 

Jan. 31, 1921. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — As chairman of the Board of Appeal, applica- 
tion has been made to you for an abatement of taxes assessed 
upon the West End Street Railway under Gen. St. 1918, 
c. 252, and Gen. St. 1919, c. 342, upon the ground that in 
view of the decision in Attorney-General v. Boston & Albany 
R.R. Co., 233 Mass. 460, the company was not a corporation 
doing business for profit, and the assessment was consequently 
illegal. This application was not made until Jan. 13, 1921, 
which was more than six months after the payment of both 
said taxes. You ask my opinion whether, assuming that the 
taxes were improperly assessed, the Board of Appeal may 
properly grant the application. 

The remedies provided by Gen. St. 1918, c. 255, are an 
application within ten days to the Board of Appeal for a cor- 
rection of the tax (§4), and a petition w^ithin six months to 
the Supreme Judicial Court for an abatement (§ 7). This 
latter section provides that "said petition shall be the ex- 
clusive remedy." 

By Gen. St. 1919, c. 342, § 1, the statute of the previous 
year was revived and re-enacted, and thereby the same rem- 
edies were provided for a correction or abatement of a tax 
assessed for that year. 

Another remedy for abatement of an illegal tax is provided 
by Gen. St. 1919, c. 146 (G. L., c. 58, § 27), which is as 
follows: — 

If it shall appear that a legacy and succession tax or a tax or excise 
upon a corporation, foreign or domestic, which has been paid to the 
commonwealth, was in whole or in part illegally exacted, the com- 
missioner may, with the approval of the attorney general, issue a 
certificate that the party aggriei^ed by such exaction is entitled to an 
abatement, stating the amount thereof. The treasurer shall pay the 
amount thus certified to have been illegally exacted, with interest, 
\^'ithout any appropriation therefor by the general court. No certif- 
icate for the abatement of any tax shall be issued under this section 
unless application therefor is made to the commissioner within the 



1922.] PUBLIC DOCUMENT — No. 12. 29 

time prescribed by law for beginning legal proceedings to obtain a 
repajTiient of the tax. This section shall be in addition to and not 
in modification of anj^ other remedies. 

The Supreme Court has held in a number of cases that 
where a tax is illegally assessed, and even if the tax is uncon- 
stitutional and wholly void, the remedy provided by statute 
is exclusive, and the taxpayer can have no relief unless he fol- 
lows the method prescribed. Wheatland v. Boston, 202 Mass. 
258; Attorney-General v. East Boston Co., 222 Mass. 450; 
International Payer Co. v. Commonwealth, 232" Mass. 7; Lever 
Bros. Co. V. Commonwealth, 232 Mass. 22. 

By St. 1920, c. 462, the Legislature provided for an abate- 
ment of excise taxes levied upon foreign corporations under 
St. 1914, c. 724, which subsequently was held by the Supreme 
Court of the United States to be unconstitutional. 

It is my opinion that the Board of Appeal has no authority 
to allow an abatement of the taxes in question, and that the 
only remedy which the company has is by application to the 
Legislature for relief. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Public Health — Dispensary — Last National Census. 

G. L., c. Ill, § 57, requiring cities and towns having a population of 10,000 

or more, as determined by the last national census, to establish and 

maintain a dispensary, applies whenever by a national census a town 

has a population of 10,000 inhabitants. 

Jan. 31, 1921. 

Eugene R. Kelley, M.D., Commissioner of Public Health. 

Dear Sir: — You have asked if a tow^n whose population 
according to the 1920 census is more than 10,000, but which 
was below that number in the previous census, is subject to the 
provisions of St. 1911, c. 576, as amended by St. 1914, c. 408. 

The present law is to be found in G. L., c. Ill, § 57, and 
reads, in part, as follows: — 

Every city, and every town having a population of ten thousand 
or more, as determined by the last national census, shall establish and 
maintain within its limits a dispensary for the discover}", treatment 
and supervision of needy persons resident within its limits and af- 
flicted with tuberculosis. 

In the act of 1914 instead of the words "last national cen- 
sus" were the words ''latest United States census." It does 



30 ATTORNEY-GENERAL'S REPORT. [Jan. 

not appear that any substantive change was made in the law 
by the general revision, and the words "last" and "latest" 
are presumed to be synonymous. There is nothing to indi- 
cate that a particular census enumeration was intended to 
determine the duties of towns. If such had been the case the 
language of the statute would have been such as to make it 
clear. The reasonable interpretat^'on is that the Legislature 
intended to exempt towns of less than 10,000 inhabitants 
from the operation of the law, but when the growth of a town 
reached that figure, the statute would automatically operate. 

It is my opinion that the law applies whenever by a na- 
tional census a town has a population of more than 10,000 

inhabitants. 

Very truly yours, 

J. Westox Allen, Attorney-General. 



Civil Service — Assignment to Special Duty — Necessity for 

Examination. 

A person designated by the Commissioner of Public Safety to investigate 
into the causes of fires, pursuant to G. L., c. 148, § 4, need not take 
a civil service examination, since such designation is an assignment to 
special duty rather than an appointment or promotion. 

Jax. 31, 1921. 
Mr. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You inquire whether the person designated 
by the commissioner pursuant to G. L., c. 148, § 4, must take 
a competitive civil service examination as the condition of 
such designation. You state that with the concurrence of the 
Supervisor of Administration you allow to the person so desig- 
nated S300 a year to make up for the traveling and meal 
expenses received by fire-prevention inspectors upon active 
duty, in which the person designated does not participate be- 
cause his work confines him to the office. 

The material part of G. L., c. 148, § 4, provides as fol- 
lows: — 

The marshal shall investigate or cause to be investigated the 
cause and circumstances of all fires of which he has notice, as provided 
in the preceding section, by which property has been damaged, or de- 
stroyed, especially to ascertain whether the fire was caused by care- 
lessness or design. For these purposes the marshal or some person 
designated by the commissioner may summon and examine on oath 
any person supposed to know or have means of knowing any material 
facts touching the subject of investigation. . . . 



1922.] PUBLIC DOCUMENT — No. 12. 31 

It casts upon the marshal a duty to investigate or cause to 
be investigated the cause and circumstances of certain fires. 
If the marshal himself makes the investigation, there is, of 
course, no need for designating some other person to make it. 
Thus the duty to be performed by the person designated, if 
a designation be made, is both special and temporary. Even 
though a standing designation be made, which I infer is your 
intention, there appears to be nothing in the act which pre- 
vents alteration thereof at your pleasure. Under these circum- 
stances, such designation appears to be an assignment to per- 
form a special duty rather than an appointment to a position 
or a promotion. I am therefore of opinion that such designa- 
tion is not subject to the rules of the civil service, and does 
not require a civil service examination. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Prisoner — Successive Sentences — Parole — Expiration of 

Sentence. 
A prisoner in a jail or house of correction, whose sentence for another 
offence to the same institution is to begin "from, and after expiration 
of" the first sentence, is eligible to parole upon the first sentence when 
not more than six months of it remain unexpired. 
The successive sentences must be considered separately. 
A parole upon the first sentence does not cause that sentence to expire. 
Where a prisoner is paroled upon the first sentence, he cannot be committed 
. to the institution upon the second sentence until the first has expired. 

Feb. 1, 1921. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You state the following facts: — 

A person was committed to the Suffolk County House of 
Correction on Dec. 28, 1919, for a term of twelve months. 
Within a few days thereafter he was sentenced to two months 
in the house of correction ''from and after expiration of" the 
first sentence. You do not state by what courts these sen- 
tences were imposed. 

Upon these facts you ask my opinion whether the penal 
institutions commissioner of the city of Boston has power, 
with the permission of the probation officer and the district 
attorney, to parole said prisoner from the first sentence. 

The statute governing the matter was formerly R. L., 
c. 225, § 121, as amended by St. 1902, c. 227, and by St. 



32 ATTORXEY-GEXERAL'S REPORT. [Jan. 

1912, c. 158, § 1. It is now G. L., c. 127, § 141, which pro- 
vides: — 

A probation officer may, with the consent of the count j' commis- 
sioners, or, in Suffolk countj^, of the penal institutions commissioner 
of Boston, investigate the case of any person imprisoned in a jail or 
house of correction upon a sentence of not more than six months, or 
upon a longer sentence of which not more than six months remain 
unexpired, or for failure to paj" a fine, for the purpose of ascertaining 
the probability of his reformation if released from imprisonment. If 
after such investigation he recommends the release of the prisoner, and 
the court which imposed the sentence, or, if the sentence was im- 
posed by the superior court, the district attorney, certifies a concur- 
rence in such recommendation, the county commissioners or the penal 
institutions commissioner maj^, if they consider it expedient, release 
him on parole, upon such terms and conditions as they may prescribe, 
and may require a bond for their fulfilment. The surety upon any 
such bond may at any time take and surrender his principal, and the 
county commissioners or the penal institutions commissioner may at 
any time order any prisoner released by them to return to the prison 
from which he was released. This section shall not apply to persons 
held upon sentences of the courts of the United States. 

The meaning of the quoted language is clear where the 
prisoner is confined under one sentence only. The question 
raised, however, is whether, or how, the section applies to the 
case of a prisoner confined under one sentence and later sen- 
tenced for another offence to further confinement in the same 
institution ''from and after expiration of" the first sentence. 

The first possible solution that suggests itself is that, for 
purposes of parole, the two sentences shall be added together 
and considered as one. Section 133 of the same chapter makes 
express provision for this in the case where a convicted person 
is confined under two or more sentences in the State Prison, 
but no such provision is contained in section 141. Its omis- 
sion from that section may be due to the fact that persons 
confined in the State Prison are often confirmed criminals, 
while persons confined in jails and houses of correction are 
usually not of that character. At all events, the provision 
contained in section 133 has not been included in section 141, 
and it is therefore impossible to apply the latter section as if 
that provision were included. 

It follows that the prisoner's successive sentences must be 
considered separately. When they are so considered, the 
question arises whether the fact that a second sentence awaits 



1922.] PUBLIC DOCUMENT — Xo. 12. 33 

the prisoner upon expiration of the first renders section 141 
inapplicable. I am of the opinion that it does not. The 
section not only omits special provision for such a case, but 
it provides no express exception when it arises. After ex- 
amination of other sections of the same chapter, I am unable 
to find that the Legislature intended an exception to be 
implied. 

Considering the first sentence separately, as it must be 
considered, and in the absence of either a special provision or 
an exception when a second sentence awaits the prisoner upon 
expiration of the first, I am of opinion that the prisoner in 
question may be paroled upon his first sentence when not 
more than six months of it remain unexpired. 

I am aware that this conclusion leads to an unusual result. 
A parole upon the first sentence does not cause it to ''expire," 
as is shown by the fact that the person paroled may be re- 
turned to confinement upon a breach of parole. The effect 
of parole is merely to enlarge the prison to the limits within 
which the person released is required to remain. Conse- 
quently, if the prisoner is paroled upon his first sentence, he 
cannot be required to begin immediately confinement under 
his second. As that confinement is to begin from the expira- 
tion of his first sentence, a restraint of his liberty under the 
second sentence, prior to such expiration, that is, prior to 
twelve months from and after Dec. 28, 1919, would be illegal. 
Unless pardoned for the second offence, therefore, or again 
paroled, he would be required to return to prison Dec. 28, 
1920, to serve his second sentence. 

In my annual report to the General Court for the year 1920 
I have directed attention to the fact that confusion has arisen 
where persons are confined upon two or more sentences in 
penal institutions of the Commonwealth other than the State 
Prison, and that the opinions of officials charged with the 
administration of our State and county institutions differ 
as to the interpretation which should be given to the laws 
upon this subject. Although the intent of the Legislature is 
not clear from the language of the statutes, the foregoing 
opinion states the law as I understand it. It may well be 
that the Legislature, in passing the act, now embodied in 
G. L., c. 127, § 141, did not have before it for consideration 
the application of the law in the case of successive sentences. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



34 ATTORNEY-GENERAL'S REPORT. [Jan. 



Corporatio7is — Foreign Corporations — Doing Business — Ap- 
pointment of Unregistered Foreign Trust Company as 
Trustee of Real Estate under a Will. 

A trust company organized under the laws of another State which has not 
been authorized to do business in this Commonwealth, as required 
by G. L., c. 167, § 37, cannot be appointed trustee under a will dis- 
posing of real estate situated in this Commonwealth. 

QiKFve, whether, under G. L., c. 172, § 52, a foreign trust company author- 
ized to do business in this Commonwealth, as required by G. L., c. 167, 
§ 37, could be appointed trustee under a will disposing of real estate 
situated in this Commonwealth. 

Feb. 3, 1921. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You inquire whether a trust company organ- 
ized under the law^s of another State, which has not received 
authority to transact business in this State, may be appointed 
and become trustee under a will of property, real and personal, 
situated in this Commonwealth. 

G. L., c. 167, § 37, provides, in part: — 

No foreign banking association or corporation shall transact busi- 
ness in this commonwealth until it has received a certificate from the 
board of bank incorporation, authorizing it so to do. . . . 

There can be no doubt that a trust company organized 
under the laws of another State is a "foreign banking asso- 
ciation or corporation," within the meaning of this provision. 
The question therefore becomes whether such corporation, if it 
acts as trustee under a will of property situated in this State, is 
"transacting business in this commonwealth." In my opinion, 
it is. G. L., c. 172, §§ 1 and 52, provide: — 

Section 1. Whenever used in this chapter, unless the context 
otherwise requires, the words "trust company" or "such corporation" 
mean a trust company incorporated as such in the commonwealth, and 
the "commissioner" means the commissioner of banks. 

Section 52. Such corporation may be appointed executor of a 
will, codicil or writing testamentar}', administrator with the will an- 
nexed, administrator of the estate of any person, receiver, assignee, 
guardian, conservator or trustee under a \\ill or instrument creating 
a trust for the care and management of property, under the same cir- 
cumstances, in the same manner, and subject to the same control by 
the court having jurisdiction of the same, as a legally qualified indi- 
vidual. Any such appointment as guardian shall apply to the estate 



1922.] PUBLIC DOCUMENT — No. 12. 35 

and not to the person of the ward. Such corporation shall not be re- 
quired to receive or hold property or money or assume or execute a 
trust under this section or of section fifty without its assent. 

The corporate power of a domestic trust company to act as 
executor or trustee is derived from these provisions of law. 
Old Colony Trust Co. v. Wallace, 212 Mass. 335. See also 
First National Bank v. Fellows, Attorney-General, 244 U. S. 416. 
When a domestic trust company acts as trustee pursuant to 
these powers, it is manifestly transacting a part of the cor- 
porate business which it is authorized by law to transact. If a 
foreign trust company should act as trustee, it would likewise 
be "transacting business." As a trust of land situated in 
this Commonwealth is subject to the control of our courts, the 
principal business of the trust must be transacted here. It 
follows that a foreign trust company could not act as trustee 
of land situated in this State without " transacting business in 
this commonwealth," within the meaning of G. L., c. 167, § 37. 
As the trust company in question has not received authority 
to transact business in this Commonwealth, it follows that it 
cannot become such trustee or act as such. 

You do not ask, and I leave for future determination, 
whether a foreign trust company, admitted to transact busi- 
ness in this State under G. L., c. 167, § 37, et seq., could even 
then be appointed an executor, administrator or trustee in 
this Commonwealth, in view of the fact that G. L., c. 172, 
§ 52, expressly applies to domestic trust companies only. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Garage — Abutter. 

A parcel of land does not abut upon another unless it touches it. 

A parcel of land across the street from and opposite the site of a proposed 

garage is not land abutting thereon, within the meaning of St. 1913, 

c. 577, § 1, as amended by St. 1914, c. 119, § 1. 

Feb. 4, 1921. 
Mr. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — St. 1913, c. 577, § 1, as amended by St. 1914, 
c. 119, § 1, provides as follows: — 

In the city of Boston no building shall be erected for, or maintained 
as a garage for the storage, keeping or care of automobiles until the 
issue of a permit therefor by the board of street commissioners of the 



36 ATTORNEY-GENERAL'S REPORT. [Jan. 

city after notice and a public hearing upon an application filed with 
said board. The apphcation for the permit shall be made by the owner 
of the parcel of land upon which such building is to be erected or main- 
tained and shall contain the names and addresses of every owTier of 
record of each parcel of land abutting thereon. 

You request my opinion whether a parcel of land across the 
street from and opposite the site of a proposed garage is 
"land abutting thereon," within the meaning of the section 
quoted. 

In Corpus Juris, vol. I, p. 377, an abutter is defined as 
"one whose property abuts, is contiguous, or joins at a border 
or boundary, as where no other land, road, or street inter- 
venes." At page 376, "to abut" is defined as "to terminate 
or border; to be contiguous; to meet." The case of Hutchiyi- 
son V. Danley, 88 Kan. 437, is referred to, where it was said 
that "abutting" signifies a closer proximity than "adjacent." 

I am of opinion that one parcel of land does not abut upon 
another unless it touches it. 

When lots lying upon a street are bounded by the curb line, 
it is clear that a parcel of land on one side of the street does 
not abut upon a parcel lying opposite to it on the other side 
of the street. 

The presumption is, however, that w^here land is bounded by 
a street, the boundary line is the middle of the street. Where 
that presumption is borne out by the fact, it is true in a 
narrow and rather technical sense that lots opposite each other 
are contiguous. But as a practical matter, the two lots are 
separated by the street, for the owners can make no use of 
the ground over which the street extends that would interfere 
with its use by the public. The lots abut upon the street 
rather than upon each other. The definition from Corpus 
Juris, above quoted, includes the phrase "as where no other 
land, road, or street intervenes," and makes no distinction in 
the case where lot lines run to the middle of the street. 

In Holt V. SomcrmUe, 127 Mass. 408, it was held that w^here 
a street lay between certain lots and a park, the former did 
not abut upon the latter. The court did, indeed, remark that 
the boundary of the park was the side of the street, but they 
did not intimate that the result w^ould have been otherwise 
if such had not been the case. 

St. 1913, c. 577, § 3, as amended by St. 1914, c. 119, § 2, 
provides: — 



1922.] PUBLIC DOCUMENT — No. 12. 37 

At the time and place specified in the notice for the hearing the said 
board shall hear all parties interested, and after giving consideration 
to the interests of all owners of record notified, and the general charac- 
ter of the neighborhood in which is situated the land or building re- 
ferred to in the application, shall determine whether or not the applica- 
tion shall be granted and a permit issued. 

By the two sections quoted a distinction has clearly been 
made between abutters and "parties interested." The owner 
of a lot across the street from the site of a proposed garage is 
a party interested, but not an abutter. 

I am of the opinion that your question should be answered 
in the negative. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxes — Rate of Interest. 

Under G. L., c. 59, § 57, where taxes remain unpaid after the expiration 
of three months from the date on which they became payable, interest 
is chargeable from the due date at the rate of 6 per cent upon a tax 
not exceeding $200, and at the rate of 8 per cent upon that portion of 
the tax in excess of $200. 

Feb. 4, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You state that A's tax in one town in one 
year was S201, and that the whole amount remains unpaid at 
the end of three months from and after the due date. You 
then ask my opinion upon the following question: — 

Is interest to be charged from the due date at 6 per cent on $200 and 
at 8 per cent on $1, or is it to be charged at 8 per cent on $201? 

You have my opinion of Aug. 25, 1920, in which the statute 
(St. 1920, c. 460, now G. L., c. 59, § 57) is set out in full. I 
quote here, therefore, only that part of section 57 which is 
directly involved: — 

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 
amowit 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 become 
payable. 



38 ATTORNEY-GENERAL'S REPORT. [Jan. 

I have italicized certain words of the quoted portion of the 
section in order to indicate a very significant fact: in the 
clause prescribing a 6 per cent rate, the word ''amount" is 
not used, but it is used in the clause prescribing an 8 per cent 
rate. The 6 per cent rate is clearly to be applied to "all 
taxes." If the Legislature had intended to apply the 8 per 
cent rate to "all taxes in excess of two hundred dollars" after 
expiration of three months, it would probably have said so 
by employing the phrase quoted, which would have been 
similar to the language used in the preceding clause. But it 
inserted the word "amount". If the 8 per cent rate is to be 
applied to all taxes, provided only that they be in excess of 
$200, then the clause prescribing an 8 per cent rate is con- 
strued as if the word "amount" had been omitted entirely. 
It is an elementary principle of statutory construction, how- 
ever, that every word of a statute shall be given meaning and 
eifect if possible. In view of the language employed in the 
preceding clause, effect can be given to the word "amount" 
only by connecting it with the phrase "in excess," so that the 
8 per cent rate is to be applied only to that amount by which 
a tax is in excess of $200. 

A more compelling reason for the above interpretation of 
the statute is the discrimination which would result if the 
language of the statute were construed otherwise. There ap- 
pears to be no sound reason why a person whose tax is $199 
should pay interest at the rate of 6 per cent, and one whose 
tax is $201 should pay interest at the rate of 8 per cent upon 
the whole sum. To hold that all taxpayers shall pay at the 
rate of 6 per cent on the amount of their aggregate taxes up 
to .$200, and at the rate of 8 per cent on any amount in ex- 
cess of $200, is a more equitable basis of payment. 

For the reasons stated, I am of the opinion that, in the 
case you suggest, interest is chargeable from the due date on 
$200 at 6 per cent and on $1 at 8 per cent. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 39 



Banks — Private Banks — Posscssio7i by Commissioner of 

Banks. 

Concerns known as private banks, which are engaged in the business of 
taking deposits of money and making loans therefrom, as desciibed 
in G. L., c. 169, S 1, are doing a banking business. 

A concern engaged in such business is a "bank," within the definition of 
G. L., c. 167, § 1, and if it has violated the law, the Commissioner of 
Banks may take possession of its property and business, under G. L., 
c. 167, § 22. 

Feb. 7, 1921. 

Mr. Joseph C. Allen, Com,m,issioner of Banks. 

Dear Sir: — You have asked me to advise you whether,, 
under G. L., c. 167, § 22, you may take possession of the 
property and business of persons engaged in the selling of 
steamship tickets for transportation to or from foreign coun- 
tries, which, in conjunction therewith, carries on the business 
of receiving deposits of money for safe keeping or for the 
purpose of transmitting the same, or equivalents thereof, to 
foreign countries, or for some other purpose, so that this 
business comes under the description contained in G. L., 
c. 169, § 1. The concern is not bonded or licensed as re- 
quired by said chapter 169. It also transacts business under 
a name or title which contains the word "bank" as descrip- 
tive of said business, within the prohibition of G. L., c. 167, 
§ 12. You also ask generally whether you may take posses- 
sion of the property and business of individuals or corporations 
known as private banks, which engage in the business of 
receiving deposits of money and making loans therefrom, 
under the provisions of G. L., c. 167, § 22. 

G. L., c. 167, § 22, is as follows: — 

Whenever it shall appear to the commissioner that any bank has 
violated its charter or any law of the commonwealth, 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 con- 
cerns to the inspection of the commissioner or of his duly authorized 
agents, or if any officer of such bank shall refuse to be examined on 
oath by the commissioner or his deputies touching its concerns, or if 
it shall suspend payment of its obligations, or if from an examination 
or from a report provided for by law the 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 



40 ATTORNEY-GENERAL'S REPORT. [Jan. 

and inexpedient for it to continue business, the 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. 

Assuming that the persons in question have violated some 
law of the Commonwealth or in some way come within the 
terms of section 22, the question remains whether they are 
doing a banking business. 

The word "bank," as used in G. L., c. 167, is defined in 
section 1 as follows: — 

''Bank," a savings bank, co-operative bank, trust company or any 
person, partnership, association or corporation, incorporated or doing 
a banking business in the commonwealth, subject to the supervision of 
the commissioner of banks. 

The precise question is whether any private bank as above 
described is a ''person, partnership, association or corpora- 
tion, incorporated or doing a banking business in the com- 
monwealth." 

Is the taking of deposits of money and making loans there- 
from doing a banking business? 

The banking business has three different elements, — 
issuing negotiable notes, discounting notes and receiving 
deposits. Originally it consisted only of receiving deposits 
for safe keeping, and even now a bank is primarily a place 
for the deposit of money, and the receiving of the money of 
others is a distinctive feature of the business of banking. 
The exercise of any one or more of the three functions named 
constitutes a banking business. Bmik for Savings v. The 
Collector, 3 Wall. 495, 512; Oulton v. Savi7igs Institution, 
17 Wall. 109, 118, 119; Warren v. Shook, 91 U. S. 704, 710; 
Auten V. United States National Bank, 174 U. S. 125, 141, 
et seq.; Reed v. People, 125 111. 592; Western Investment 
Banking Co. v. Murray, 6 Ariz. 215; Dunn v. State, 13 Ga. 
Ap. 314; State v. Leland, 91 Minn. 321; Hamilton National 
Bank v. American L. & T. Co., 66 Neb. 67; Kiggins v. 
Munday, 19 Wash. 233; MacLaren. v. State, 141 Wis. 577; 
Parker v. Marchant, 1 Younge & C. Ch. 290, 300. In Engel 
V. O'Malley, 219 U. S. 128, 136, the court (Holmes, J.) held 
in a case involving the constitutionality of a State statute 
regulating the receipts of deposits of money, entitled "private 



1922.] PUBLIC DOCUMENT — No. 12. 41 

banking," that the receipt of money by a bank is a branch 
of the banking business. 

Decisions interpreting the meaning of the word "bank," 
as used in a note describing the place where the note is pay- 
able, have no significance. ^Vay v. Butterworth, 106 Mass. 
75; S. C, 108 Mass. 509, 513; Commonwealth v. Pratt, 137 
Mass. 98, 104; Xash v. Brown, 165 Mass. 384. 

It is true that G. L., c. 169, which is applicable to persons 
engaged in the selling of steamship or railroad tickets for 
transportation to or from foreign countries, who, in conjunc- 
tion with said business, carry on the business of receiving 
deposits of money, is entitled ''Deposits with Others than 
Banks." This title is found for the first time in the General 
Laws. The act which is now chapter 169 in its original form 
was entitled "An Act to regulate the taking of deposits by 
certain banks, associations and persons" (St. 1905, c. 428). 
In my opinion, the adoption of the present title in the Gen- 
eral Laws did not indicate an intention on the part of the 
Legislature that the business to which the chapter applies 
should be construed in every case to be outside the descrip- 
tion of the business of a "bank," as defined in G. L., c. 167, 
§ 1. It should be noted in that connection that the concerns 
doing such business have generally been known as private 

banks. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxation — Income Tax — Gains and Profits — Sale of Lease 
containing Option to purchase Reversion. 

Since an option to purchase the reversion after a lease for years is a covenant 
which runs with the land and passes as an incident of the leasehold 
estate, a profit realized from the sale of a lease which contains such 
an option is not taxable under G. L., c. 52, § 5, cl. (c), unless a profit 
realized from the sale of the leasehold would be taxable under said 
provision. 

Feb. 14, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You state in substance the following case: — 
A has a written lease of certain land and a building thereon 
for a term of years. The lease contains an option to pur- 
chase the reversion. A sells the lease and option to B, and 



42 ATTORNEY-GENERAL'S REPORT. [Jan. 

realizes a net gain of S50,000. There is no understanding as 
to the proportionate amount paid for the lease and the option, 
respectively. G. L., c. 62, § 5, cl. (c), provides, in part, as 
follows : — 

The excess of the gains over the losses received by the taxpayer 
from purchases or sales of intangible personal property, . . . shall be 
taxed at the rate of three per cent per annum; . . . 

You state that your department has construed this clause 
as including gains realized from the sale of options upon real 
estate, but not gains from the sale of leaseholds. You ask 
whether any tax is due under said clause (c) in respect of 
this option, and if so, how said tax is to be determined. 

A naked option to purchase the fee simple confers no 
interest in the land until it is exercised. Thacher v. Weston, 
197 Mass. 143. One who is a stranger to it cannot enforce it. 
Boyden v. Hill, 198 Mass. 477, 487. An assignee thereof 
stands in the shoes of the assignor. In other words, the 
obligation of such a covenant rests upon privity of contract. 
If, under its terms, such an option can be exercised at a 
period too remote, it is bad both under the rule against 
perpetuities and as a forbidden restraint upon alienation. 
Winsor v. Mills, 157 Mass. 362; Eastman Marble Co. v. Ver- 
mont Marble Co., 236 Mass. 138, 153. 

An option to purchase the reversion, contained in a lease, 
is a covenant which runs with the land. Peters v. Stone, 
193 Mass. 179, 186; Anheny v. Richardson, 187 Fed. 550; 
Prout V. Roby, 15 Wall. 471; Hagar v. Buck, 44 Vt. 285; 
Hollander v. Central Metal Co., 109 Md. 131. A covenant 
which runs with the land passes with the estate as an inci- 
dent thereof, and may be enforced by the assignee, by reason 
of privity of estate, even though the assignee is not a party to 
the covenant and there is no privity of contract between him 
and the covenantor. Donaldson v. Strong, 195 Mass. 429; 
Patten v. Deshoji, 1 Gray, 325, 329. It therefore partakes of 
the estate to which it is incident. Thus, the covenant to 
pay rent, which likewise runs with the land, is an incorporeal 
interest in land, although in form a contract. Winnisimmet 
Trust, Inc. v. Libby, 232 Mass. 491, 492. In this respect the 
law looks through the outward form to the substance. The 
distinction between a naked option and an option contained in 
a lease is emphasized by another line of authority. As above 



1922.] PUBLIC DOCUMENT — Xo. 12. 43 

noted, a naked option to purchase the fee is bad if it may be 
exercised at a period too remote. But the weight of American 
authority is to the effect that an option to purchase the 
reversion, contained in a lease, attached to the leasehold and 
exercisable only during the term, is valid even though the 
term exceed the period allowed by the rule against per- 
petuities. Hollander v. Central Metal Co., 109 Md. 131; 
Prout V. Roby, 15 Wall. 471; Hagar v. Buck, 44 Vt. 285, 
27 Yale L. J. 885; contra, Gray, Perp. 3d ed., § 2306. The 
rule in England is the other way. Woodall v. Clifton, 1905, 
2 Ch. 257; Worthing Corp. v. Heather, 1906, 2 Ch. 532. But 
our court has intimated that it would adhere to the American 
view. In Eastmaji Marble Co. v. Vermont Marble Co., 236 
Mass. 138, in holding that a naked option to purchase, exer- 
cisable at a period too remote, was a forbidden restraint on 
alienation. Chief Justice Rugg said: — 

The question presented on this record has nothing to do with options 
for purchase or renewal contained in leases. See in this connection 
Mann, Crossman & Paulin, Ltd. v. Registrar of Land Registry, (1918) 
1 Ch. 202, and cases collected in 27 Yale Law J. 885. 

Under these circumstances, I am of opinion that an option 
to purchase the reversion, contained in a lease, is an incident 
of the lessee's estate, and must be classified with it in re- 
spect of any tax to be levied under G. L., c. 62, § 5, cl. (c). 
If a gain from the sale of that estate is not taxable, a gain 
from the option which passes as an incident of that estate 
is not taxable. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Insurance — Foreign Mutual Fire Insurance Company — 
Admission — Requirement of Assessable Policy — Fixing 
of Contingent Mutual Liability. 

A foreign mutual fire insurance company cannot be admitted to transact 
business in this Commonwealth unless by its by-laws and policies it 
fixes the contingent mutual liability of its members. 

Feb. 14, 1921. 
Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — You request my opinion as to whether or not 
a foreign mutual fire insurance company which issues solely a 



44 ATTORNEY-GENERAL'S REPORT. [Jan. 

non-assessable policy can be admitted to transact the business 
of fire insurance in this Commonwealth, provided it complies 
with the conditions set forth in G. L., c. 175, § 151; in other 
words, assuming that a foreign mutual fire insurance company 
has, under chapter 151, paragraph second, clause (2) (a), 
*'net cash assets equal to the capital required of like com- 
panies on the stock plan," and has complied with all the 
other provisions set forth in section 151, can such a company 
be admitted to transact business in this Commonwealth of 
issuing a non-assessable policy, that is, a policy without a 
contingent liability. 

In answering your question I would first call your attention 
to G. L., c. 175, § 150, which provides: — 

Foreign companies, upon complying with, the conditions herein set 
forth applicable to such companies, may be admitted to transact in 
the commonwealth . . . any kinds of business authorized by this 
chapter, subject to all general laws now or hereafter in force relative to 
insurance companies, and subject to all laws applicable to the trans- 
action of such business by foreign companies and their agents; . . . 

You will note that foreign companies may be admitted to 
transact business in this Commonwealth, but such transaction 
of business is subject to all general laws now or hereafter in 
force relative to insurance companies. 

Turning to the provisions of the General Laws now in 
force relative to insurance companies, we find that by section 
81 of chapter 175 it is provided that — 

Mutual fire companies . . . shall charge and collect upon their 
policies a full mutual premium in cash or notes absolutely payable. 
Any such company may in its by-laws and poUcies fix the contingent 
mutual liability of its members for the payment of losses and expenses 
not provided for by its cash funds, but such contingent liability of a 
member shall not be less than an amount equal to and in addition to 
the cash premium WTitten in his policy. The total amount of the lia- 
bility of the poHcy holder shall be plainly and legibly stated upon the 
filing-back of each policy. WTienever any reduction is made in the 
contingent liability of members, such reduction shall apply proportion- 
ally to all policies in force. 

Accordingly, it becomes necessary to decide whether this 
section makes it mandatory upon a mutual fire insurance 
company to have a contingent liability. To determine this, 



1922.] PUBLIC DOCUMENT — Xo. 12. 45 

it is necessary to read section 81 together with section S3 of 
chapter 175. Section 83 provides, in part, that — 

If a mutual fire company is not possessed of assets above its un- 
earned premiums sufficient for the pajanent of incurred losses and 
expenses, it shall make an assessment upon its members liable to assess- 
ment therefor, in proportion to their several liabilities, for the amount 
needed to pay such losses and expenses. 

If b^^ reason of anj^ depreciation or loss of its funds or otherwise 
the assets of such a company, after providing for its other debts, are 
less than the unearned premiums upon its policies, it shall make good 
the deficiency by assessment in the mode above provided; . . . 

Each policy holder shall be liable to pay his proportional part of 
anj^ assessments laid by the company in accordance with law and his 
contract, on account of losses and expenses incurred while a member, 
if he is notified of such assessment within one year after the expiration 
or cancellation of his policy; ... 

In Sanjord v. Hamyden Paint & Chemical Co., 179 Mass. 10, 
a case involving an assessment levied by a mutual fire insur- 
ance company under the provisions of St. 1897, c. 197, the 
court used this language: — 

As a policy holder, the defendant became a member of the insurance 
company, and, as such, liable to an assessment for the payment of all 
just claims accruing against it during the continuance of the policies, 
or either of them; and the liability continued, notwithstanding the 
expiration of the policies. This liability was imposed by the statute 
upon the policy holder for the benefit of the other policy holders, and 
other creditors of the company. It was a part of the fund to which 
each of the other policy holders was entitled to resort for the pa\aiient 
of his own loss as well as for help in paying the loss of another. This 
obligation to contribute, if necessary, to pay the loss sustained by 
any other member, although created by statute, was of a contractual 
nature, and was a part of the contract between each stockholder and 
the compan^^ 

The wording of the provision in the statute applicable at 
the time this decision was handed down was as follows: — 

Any such company [mutual fire insurance companj^] may in its 
by-laws and policies fix the contingent mutual liability of its members 
for the pajanent of losses and expenses not provided for by its cash 
funds: provided, that such contingent liability of a member shall not 



46 ATTORNEY-GENERAL'S REPORT. [Jan. 

be less than a sum equal to and in addition to the cash premium 
written in his policy. The total amount of the liability of the policy 
holder shall be plainly and legibly stated upon the back of each policy. 
Whenever any reduction is made in the contingent liability of members 
such reduction shall apply proportionally to all policies in force. 

This is practically the exact language found in the present 
provisions in G. L., c. 175, § 81. 

It is my opinion that a contingent liability is imposed by 
this language upon the policy holder of a mutual fire insurance 
company, and that a domestic mutual fire insurance company 
is required to have an assessable policy. This being so, and 
being a requirement of the general laws now in force relative 
to insurance companies, a foreign mutual fire insurance com- 
pany cannot be admitted to transact business in this Common- 
wealth unless by its by-laws and policies it fixes the con- 
tingent mutual liability of its members. 
Yours very traly, 

J. Weston Allen, Attorney-General. 



Taxation — Return — Penalty for Failure to file — Power of 
Commissioner. 

The Commissioner of Corporations and Taxation has discretion, under 
G. L., c. 62, § 55, to abate the additional tax imposed for failure to 
file a return, which discretion is not exhausted by one exercise. 

Feb. 15, 1921. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — At the instance of the Income Tax Director 
you inquire, in substance, whether the Commissioner may 
reconsider and revise a refusal by him to abate penalties 
accruing under G. L., c. 62, § 55, on account of failure to 
file an income tax return, assuming said penalties have not 
been paid. 

G. L., c. 62, § 55, provides: — 

If any person required to file a return under this chapter fails to 
file the return within the time prescribed therein, the sum of five dol- 
lars for every day during which such person is in default shall be added 
to, and become part of the tax, as an additional tax; but the commis- 
sioner may, in his discretion, abate any such additional tax in whole 
or in part. 



1922.] PUBLIC DOCUMEXT — Xo. 12. 47 

The additional tax imposed by this section as a penalty 
differs from the tax to which it is added. The original tax 
is measured by the amount of income taxable; the additional 
tax is measured by the extent of the default, and is in no 
way dependent upon the amount of income taxable. In my 
opinion, the abatement of the latter tax is governed by sec- 
tion 55, rather than by sections 43 to 48, which prescribe 
the mode of abating the original tax. I am further of opinion 
that the discretion conferred by section 55 is not exhausted 
by one exercise. The Commissioner has power to reconsider 
and revise a previous refusal to abate the additional tax, 
provided that in the exercise of a sound discretion he con- 
siders that an abatement is warranted. You do not ask, 
and I do not decide, whether such an abatement could be 
made after the additional tax has been paid. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Obligations Redeemable in Numerical Order — Co-operative 
Banks — Loan and Home Purchasing Contracts. 

The business of issuing contracts in series, by the terms of which contract 
holders are to make payments in instalments and have the privilege 
of securing loans in the numerical order of their contracts, is in viola- 
tion of G. L., c. 107, § 7. 

A foreign organization doing such business in this Commonwealth may be 
enjoined, under G. L., c. 107, § 8, from further continuing its business 
in the Commonwealth. 

The doing of such business is not doing business in the manner of a co- 
operative bank, within the prohibition of G. L., c. 170, § 48. 

Feb. 15, 1921. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You have called my attention to the opera- 
tions of an organization called The Co-operative League of 
America operating under an agreement and deed of trust 
filed in Allegheny County, Pennsylvania, having its home 
office in Pittsburg, Pa., and having a branch office, where it 
does business, in Springfield, Mass. 

The purpose of the organization is stated to be to accumu- 
late small savings in a trust fund, to be loaned only to those 
who have created it. 

The business of the organization is done by issuing what 



48 ATTORNEY-GENERAL'S REPORT. [Jan. 

are called *'3 per cent loan and home purchasing contracts," 
each of which is one of a series, providing for the payment of 
monthly instalments; the creation of a trust fund, into which 
are paid all instalments less certain deductions, payments of 
loans and interest, forfeitures, payments on certificates, etc.; 
the making of loans to holders of contracts of the same series 
from the trust fund, in the order of the date of the respective 
contracts, or the sale of the loan privilege for their benefit; 
and the division of a portion of .the profits among holders of 
fully paid contracts and participating certificates. 

In its essence the business is in accordance with a plan by 
which contract holders are to pay the sums stated in their 
contracts, on instalments, and have the privilege of securing 
loans in the numerical order of their contracts. 

You ask my opinion regarding the legality of the operations 
of the trust in this State. 

The laws regulating the conduct of the business of savings 
banks appear to be inapplicable to the business done by the 
trust. In determining whether the business done by the trust in 
Massachusetts is in violation of law, two statutes are material. 

1. G. L., c. 170, § 48, prohibiting the doing of business in 
the manner of a co-operative bank, except by corporations 
incorporated in the Commonwealth for that purpose. Section 
48 is as fo lows : — 

No person, and no association or corporation, except foreign asso- 
ciations and corporations duly licensed by the commissioner prior to 
April fourteenth, eighteen hundred and ninety-six, to transact busi- 
ness in this commonwealth, shall transact the business of accumulat- 
ing the savings of its members and loaning to them such accumulations 
in the manner of a co-operative bank, unless incorporated in this com- 
monwealth for such purpose. Whoever violates any provision of this 
section shall be punished by a fine of not more than one thousand 
dollars, and the supreme judicial or superior court shall have jurisdic- 
tion in equity to enforce this section. 

2. G. L., c. 107, §§ 7 and 8, prohibiting the sale of obli- 
gations which by their terms are to be redeemed in numerical 
order or in any arbitrary order of precedence. Sections 7 and 
8 are as follows: — 

Section 7. No person shall issue, negotiate or sell any bonds, cer- 
tificates or obligations of any kind, which are by the terms thereof to 
be redeemed in numerical order or in any arbitrary order of precedence 
without reference to the amount previously paid thereon by the holder 



1922.] PUBLIC DOCUMENT — Xo. 12. 49 

thereof, whether they are sold on the instahnent plan or otherwise, nor 
shall any person redeem any bonds, certificates or obligations in such 
order, whether they are sold on the instalment plan or otherwise. 

Section 8. Violations of the preceding section shall be punished by 
a fine of not more than two thousand dollars or by imprisonment for not 
more than one year. Any such violation, if by a domestic corporation, 
shall operate as a forfeiture of its franchise and, if by a foreign corpora- 
tion, association or organization, as a discontinuance of its right to do 
business in the commonwealth; and the supreme judicial or superior 
court, upon the application of the commissioner of corporations and tax- 
ation, may enjoin such foreign corporation, association or organization 
from further continuing its business in the commonwealt^i. The court 
may appoint a receiver to take possession of the property of such cor- 
poration, association or organization, and to close up the business, sub- 
ject to the order of the court. 

The decision of the Supreme Court in Attorney-General v. 
Pitcher, 183 Mass. 513, clearly indicates that the business 
done in this State by The Co-operative League of America 
is not the business which is made illegal by G. L., c. 170, 
§ 48. In that case the defendants were doing business under 
a declaration of trust, under the name of the "New England 
Home Buyers' Association." Contracts w^ere issued which were 
quite similar in form to those used in the present instance. 
Regarding this business the court says as follows (p. 516): — 

The Attorney-General contends that this business violates R. L., 
c. 114, § 1, in relation to co-operative banks, which provides that no per- 
son, association or corporation except certain licensed ones "shall 
transact the business of accumulating the savings of its members and 
loaning to them such accumulations in the manner of a co-operative 
bank, unless incorporated in this Commonwealth for such purpose." 
This is a penal statute which makes an offender punishable by a fine of 
not more than $1,000. As a penal statute it must be construed strictly, 
and we are of opinion that the defendants are not within it. The pur- 
chasers of these contracts are not members of the association, and their 
savings are not savings of members, but of holders of individual con- 
tracts from the association. They have no voice in the management of 
the affairs of the association. No mone}^ of members of the association 
is lent to any of its members; the savings of these contractors are not 
accumulated and lent to them in the manner of a co-operative bank^ 
but the course of dealing is very different from that of any bank. It 
may well be said that all the reasons for the enactment of this statute 
applj^ with great force to an association transacting a business like that 
of these defendants. But the defendants are not within the terms of the 
statute, and they cannot be punished nor enjoined under it. 



50 ATTORNEY-GENERAL'S REPORT. [Jan. 

See also III Op. x\tty.-Gen. 372. 

In the same decision a majority of the court announced their 
opinion that the business conducted was in violation of R. L., 
c. 73, §§ 7 and 8, now G. L., c. 107, §§ 7 and 8, forbidding 
the sale of obligations to be redeemed in numerical order or in 
any arbitrary order of precedence. In that case the court held 
that the Attorney-General could not maintain a suit in equity 
to enjoin them from violating the statute, and intimated that 
the only remedies were those provided by the statute. 

I am of opinion that the decision in Attorney-General v. 
Pitcher, sujpa, is a direct authority against the legality of 
the method of issuing contracts by The Co-operative League 
of America, and that the persons who are carrying on that 
business in this Commonwealth are liable to the penalties 
provided in section 8. See also Attorney -Qeiier at v. Preferred 
Mercantile Co., 187 Mass. 516. 

I therefore advise you that the issuing of the contracts 
appears to be in violation of G. L., c. 107, §§ 7 and 8, and that 
under section 8 persons who are conducting the business in 
Springfield are liable to fine or imprisonment, and, upon the 
application of the Commissioner of Corporations and Taxa- 
tion, the organization may be enjoined from further continu- 
ing its business in the Commonwealth. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Laic — Bridge over Highnmy — Payment of 
Damages by Private Person or Municipality. 

In authorizing the construction of a bridge over a highway in order to 
connect lands on opposite sides of it, the legislature has no power to 
provide that the damages thereby caused shall be paid by a private 
person, since this does not adequately secure the payment of compen- 
sation to those who may be entitled thereto under the Constitution. 

A city cannot be required to pay compensation for the erection of a bridge 
over a highway for the benefit of private persons, since this involves 
expenditure of pubh'c money for a private purpose. 

Feb. 16, 1921. 
His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You have orally requested my opinion as to whether 
House Bill No. 554, entitled **An Act authorizing George L. 
Brownell to maintain a bridge over Market Street in the city 
of Worcester," would be constitutional if enacted. 



1922.] PUBLIC DOCUMENT — Xo. 12. 51 

Section 3 of said bill provides: — 

Any person whose property is damaged by reason of the construction 
or maintenance of the bridge as aforesaid may have his damages de- 
termined by a jury, upon petition filed in the superior court within one 
year after the approval of the permit by the mayor as above provided, 
and the damages when so determined shall be paid by the said George 
L. Brownell. 



.1. In my opinion, the provision that "the damages when 
so determined shall be paid by the said George L. Browmell" 
renders the bill unconstitutional as to persons whose property 
may be damaged, since it does not adequatel}^ secure to them 
the compensation required by the Constitution. The precise 
point is covered in Opinion of the Justices, 208 Mass. 625, 
630: — 

It is elementarj^ doctrine that such an amendment as is proposed, 
pro\ading that the damages to persons injured in their property shall be 
paid by the grantees of the permit, who are private parties, would not 
secure compensation to such persons in the manner required by the 
Constitution and as to them, in reference to damages to which they 
might be entitled under the Constitution, would render the statute 
invalid. 

2. The city of Worcester could not constitutionally incur 
liability for damages in connection with this bridge if the 
bridge is erected for a private rather than a public purpose. 
Opinion of the Justices, 208 Mass. 603, 606; Lowell v. Boston, 
111 Mass. 454. The bill, on its face, discloses no public pur- 
pose to be subserved thereby. On the contrary, the descrip- 
tion of the premises to be connected and the provision that the 
petitioner shall pay the damages indicate that the purpose is 
private. But as this involves a question of fact, I leave the 
point open. 

3. It appears from the petition accompanying said bill that 
the land opposite to the Brownell premises, upon the other 
side of Market Street, is "owned and occupied by Worcester 
Tire Fabric Co." It may be inferred, though it now^here 
affirmatively appears, that said tire company assents to the 
erection of said bridge. This is an important question of fact 
which bears upon the propriety of the bill. See Opinion of 
the Justices, 208 Mass. 603; ibid. 625. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



52 ATTORXEY-GEXERAL'S REPORT. [Jan. 



Constitutional Law — Police Power — Delegation of Legislative 
Power — Smoke and Cinders. 

An act authorizing a city to make ordinances for the control or prevention 
of harmful smoke and cinders is not unconstitutional either as a for- 
bidden delegation of legislative power or as beyond the limits of the 

P°"''^P°"'^''- ■ Feb. 18, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You have orally requested my opinion as to the 
constitutionality of House Bill Xo. 290, entitled " An Act 
authorizing the city of Worcester to make ordinances provid- 
ing for the control or prevention of smoke and cinders." The 
bill is in two sections. Section 1 provides: — 

Section one of chapter one hundred and twenty-three of the acts of 
nineteen hundred and fourteen is hereby amended b}' inserting after 
the word "smoke", in the third and fifth lines, the words: — or cinders, 
— so as to read as follows : — Section 1 . The city of Worcester, by 
vote of its city council, vaay make ordinances for the control or preven- 
tion of the emission of smoke or cinders of such character as shall be 
adjudged harmful, and for the control or prevention of agencies causing 
such smoke or cinders, and for the enforcement thereof may appoint 
officers or agents and appropriate money for salaries and for expenses : 
provided, that no such ordinance shall apply to railroads or railroad 
operations or emploj^ees. 

Section 2 provides that the act shall take effect upon its 
passage. 

The present bill amends an act which has been in force for 
over six years, so as to include cinders within the terms 
thereof. Cinders are frequently, though perhaps not invari- 
ably, an accompaniment of smoke. It may be that they are 
so closely connected wdth it that an authority to control or pre- 
vent the emission of smoke would, without more, include the 
power to control or prevent the emission of cinders along 
with it. But even assuming that this amendment extends the 
act to any sensible extent, I find no constitutional objection 
to it. The authority to delegate such power to a municipal- 
ity seems to be amply established. Opinion of the Justices, 
234 Mass. 597. The constitutionality of reasonable smoke 
legislation was upheld in Northivestern Laundry v. Des 
Moines, 239 U. S. 486. In my opinion, the present bill is 
within the power of the Legislature. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 53 



State Departments — Execution of Leases — Governor and 

Council. 

A State department has no power to execute a lease unless authorized so 
to do by the Legislature. 

An appropriation of money to cover the expense of a lease does not ordi- 
narily confer incidental authority to execute it upon the department 
which is to occupy the leased premises. 

Where money has been appropriated to meet the cost of leasing premises 
for a department, such lease has, by custom, been executed by the 
Governor and Council on behalf of such department. 

Feb. 24, 1921. 

EuGEXE R. Kelley, M.D., Commissioner of Public Health. 

Dear Sir: — You have requested my opinion as to whether 
or not, in order that the Department of Public Health may 
execute a lease of property for laboratory purposes, it will 
be necessary for the Legislature not only to make an appro- 
priation of money for the purpose of leasing such property, 
but also to pass legislation expressly authorizing the depart- 
ment to execute such a lease. 

In reply I would- state that a State department cannot 
itself execute a lease unless the Legislature has expressly au- 
thorized it to do so. This authority is necessary in addition 
to the appropriation of money to cover the cost of such a 
lease. 

It has been the custom, however, where money has been 
appropriated for such a purpose, to have a lease executed by 
the Governor and Council. In this connection I w^ould call 
your attention to a recommendation in my annual report for 
the year 1920, as follows: — 

There is no general statutory authority conferred upon any official 
to execute leases in behalf of the Commonwealth. Departments, com- 
missions and boards are frequently required to occupy quarters out- 
side the State House, and in some instances in cities and towns in differ- 
ent parts of the State. The question how leases in such cases should be 
executed cannot be answered authoritatively. I recommend the pas- 
sage of an act authorizing the execution of such leases by heads of de- 
partments, with the approval of the Governor and Council. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



54 ATTORNEY-GENERAL'S REPORT. [Jan. 



Public Schools — Election of Superintendent of Schools — City 
Charter of Peabody. 

The provision of the city charter of Peabody requiring that the school 
committee shall annually elect a superintendent of schools has been 
modified by G. L., c. 43, § 32. Accordingly, since in Peabody the 
superintendent has already served for three consecutive j^ears, the 
school committee may not now elect a superintendent annually. 

Feb. 25, 1921. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You ask for an opinion as to whether the city 
charter of Peabody, which provides that the school committee 
shall annually elect a superintendent of schools, has been 
modified by the provisions of G. L., c. 43, § 32. Said section 
is, in part, as follows : — 

The school committee shall elect a superintendent of schools annu- 
ally, except as provided in section forty-one of chapter seventy-one, . . . 

G. L., c. 71, § 41, is, in part, as follows: — 

Every school committee, except in Boston, in electing a teacher or 
superintendent, who has served in its public schools for the three pre- 
vious consecutive school years, other than a union or district super- 
intendent, shall employ him to serve at its discretion; . . . 

Section 32, above cited, is, but for the words ''except as 
provided in section forty-one of chapter seventy-one," almost 
identical with Gen. St. 1915, c. 267, § 32. This act was to 
simplify the revision of city charters, and permitted such mu- 
nicipalities to accept without further legislative enactment one 
of four plans therein mentioned. 

Section 41, above cited, is in substance St. 1914, c. 714, § 1. 
It was under the provisions of the 1914 statute that Peabody 
was operating before the acceptance of the city charter in 1916. 

In 1918 the General Court enacted chapter 257, making cer- 
tain substantive corrections in existing laws, and in section 157 
of said chapter amended Gen. St. 1915, c. 267, § 32. This 
was re-enacted as G. L., c. 43, § 32. But the 1918 statute 
did not become operative, by reason of certain legislative acts, 
until it appeared in the General Laws. 

Inasmuch as the city charter provision of Peabody was at 
the time of its enactment in entire harmony with the Gen- 



1922.] PUBLIC DOCUMENT — Xo. 12. 55 

eral Acts of 1915 relative to city charters, there is a strong 
legislative intent manifested to have all cities conform to the 
same regulation relative to the election of superintendents, 
and inasmuch as by subsequent legislation it became the gen- 
eral policy throughout the State to employ superintendents 
to serve at their discretion after three years of consecutive 
service, it is my opinion that such general legislation affects 
the provisions in city charters which require superintendents 
to be elected annually. Hence, if in Peabody the superintend- 
ent has already served for three consecutive years, the school 
committee may not now elect a superintendent annually, as 
required by the city charter. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Transient Vendors — Conduct of Business in Tivo or More 
Cities at the Same Time. 

An attempt by a transient vendor licensed under G. L., c. 101, to conduct 
business in two or more cities of the Commonwealth at the same time 
constitutes a violation of said statute. 

Feb. 28, 1921. 

Mr. Francis Meredith, Director of Standards, Department of Labor and 

Industries. 

Dear Sir: — You ask if a transient vendor licensed under 
G. L., c. 101, may lawfully conduct a transient business in two 
or more cities of the Commonwealth at the same time. 

Section 3 of said chapter provides: — 

It [the license] shall not authorize more than one person to sell goods, 
wares or merchandise as a transient vendor either by agent or clerk or 
in any other way than in his own proper person, but a licensee may 
have the assistance of one or more persons in conducting his business 
who may aid him but not act for or without him. 

Since no person can act for the licensee "without him," and 
as the licensee cannot be in but one place at one time, it is my 
opinion that if an attempt is made to conduct a business in 
tw^o or more places at the same time it constitutes a clear 
violation of the statute. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



56 ATTORNEY-GENERAL'S REPORT. [Jan. 



Constitutional Laiv — Federal Constitution — Contract Clause — 
Repeal of Charter of a Religious Corporatiori graiited ivith- 
out Reservation of the Right to Appeal. 

A charter granted to a religious corporation is a contract, within the 
meaning of U. S. Const., art. I, § 10, which cannot be repealed by the 
Legislature without the consent of the corporation, where no power 
so to do was reserved. 

Where a corporate charter was granted to a religious corporation without 
any reservation of power to alter, amend or repeal it, acceptance by 
the corporation of an amendment to said charter, which amendment 
was made after the Legislature has reserved power to alter, amend or 
repeal corporate charters, does not subject the original charter to 
such reserved power where the amendment was not granted upon 
that condition. 

Feb. 28, 1921. 

Hon. Davis B. Keniston, House Chairman, Committee on Mercantile 

Affairs. 

Dear Sir: — You have transmitted to me a copy of Senate 
Bill No. 190, entitled "An Act to repeal the charter and all 
corporate powders granted to the Second Society of Universalists 
in the Tow^n of Boston." This act is in three sections, which 
provide as follows : — 

Section 1 . The charter and all corporate powers heretofore granted 
to the Second Society of Universalists in the To^\^l of Boston are hereby 
repealed. 

Section 2. The governor of the commonwealth is hereby author- 
ized by and with the consent of the council, to appoint a receiver to 
take charge of all the property and assets of the corporation, and to 
administer the same. 

Section 3. This act shall take effect upon its passage. 

You state that the petition for this act is brought at the 
request of the General Universalist Convention of the United 
States and by the Massachusetts State Convention, which is 
the General L niversalist Society in charge of churches through- 
out Massachusetts. The proponents ask that this bill be 
passed upon the ground that the society is not using its prop- 
erty substantially for the purposes for which it was acquired, 
and that the society has practically ceased to function. In 
this connection you state that the church of the society, 
situated at the corner of Columbus Avenue and Clarendon 
Street, Boston, w^here worship was conducted from 1872 until 
1914, was destroyed by fire in the latter year; that, owing to 



1922.] PUBLIC DOCUMENT — Xo. 12. 57 

litigation, the insurance thereon was not received until 1918; 
that since the destruction of the church, services have been 
held in the Fenway Theatre on Sunday mornings throughout 
most of the year, but there is a dispute as to whether there 
have been further church activities. The net value of the 
church property is from $600,000 to $700,000, and the income 
is from $10,000 to $15,000 a year. The act is opposed by the 
entire membership of the society, who allege that they are 
endeavoring to carry on their church duties to the best of 
their ability under the circumstances, and who urge that the 
act would be unconstitutional. 

In connection with this bill you ask the following ques- 
tions: — 

First. — Whether the Legislature can constitutionally pass this act 
and revoke the charter of the society. 

Seco7id. — Whether it is in the province of the Legislature to pass an 
act authorizing the Governor and Council to appoint a receiver to take 
charge of the property and assets of the corporation or whether this is 
a judicial function. 

Third. — Whether, if this act were passed, the property could be 
administered for general Universalist Church purposes or would revert 
to the members of the corporation. 

Fourth. — Whether the Attorney-General would have authority in 
this case to intervene if satisfied that the society was misusing its funds. 

The society was incorporated by St. 1816, c. 96, which was 
approved by the Governor on Dec. 13, 1816. This charter 
constituted a contract between the State and the incorpora- 
tors, which is within U. S. Const., art. I, § 10, and which 
cannot be altered, amended or repealed by the Commonwealth 
unless a power so to do was reserved at the time it was 
granted. Derbij v. Blake, (1799) 226 Mass. 618; King v. 
Dedham Bank, 15 Mass. 447; Boston, etc., R.R. Corp. v. 
Salem, etc., R.R. Corp., 2 Gray, 1; Dartmouth College v. 
Woodward, 4 Wheat. 518. I find no such reservation of power 
in connection with this charter. The charter itself contains 
none. The first statute which reserved such a power gen- 
erally in respect to corporate charters w^as St. 1830, c. 81, 
which was approved March 11, 1831, and which expressly 
applied only to acts of incorporation "which shall be passed 
after the passage of this act." This limitation has been pre- 
served in subsequent codifications. R. S., c. 44, § 23; G. S., 
c. 68, § 41; P. S., c. 105, §§ 2, 3; R. L., c. 109, § 3; St. 1903, 



58 ATTORXEY-GEXERAL'S REPORT. [Jan. 

c. 437, § 2; G. L., c. 155, § 3. Although Mass. Const. 
Amend. LIX, which was ratified X'^ov. 5, 1918, does not con- 
tain this express limitation as to time, it cannot be construed 
to confer any power to alter, amend or repeal an existing cor- 
porate charter which was not already subject to such power. 
It follows that since the charter of this society contained no 
express reservation of any power to alter, amend or repeal it, 
and w^as granted prior to any general reservation of such power 
by the Legislature, section 1 of the present bill is unconstitu- 
tional unless the power to repeal has since attached. 

It is suggested that the charter of the society is now sub- 
ject to repeal because it has been amended since St. 1830, 
c. 81, went into effect. St. 1896, c. 99, provided, in substance, 
that the title to the land conveyed to the society by a certain 
deed should not be invalid by reason of anything contained 
in the second section of the charter. This act simply waived, 
in respect to particular land already conveyed, the limita- 
tion upon the amount of property w^hich the society w^as au- 
thorized to hold. Hubbard v. Worcester Art Museum, 194 
Mass. 280, 289. It may be doubted w^hether it rises to the 
dignity of a charter amendment. Spec. St. 1918, c. 168, 
authorized the society to receive and hold property to an 
amount not exceeding $1,500,000, exclusive of any meeting 
house and the lands connected therewith. As this authority 
is general and prospective, and not merely a waiver in re- 
spect to a past conveyance, this act may fairly be considered 
an amendment to the charter of the society. At the time 
when this amendment w^as accepted by the society, the 
statute which reserved power to alter, amend and repeal cor- 
porate charters (St. 1903, c. 437, § 2) provided as follows: — 

Corporations organized under general laws shall be subject to the 
provisions of all laws hereafter enacted which may affect or alter their 
corporate rights or duties or which may dissolve them; but they shall, 
not'v^ithstanding their dissolution, be subject to the provisions of sec- 
tions fifty-two and fifty-three. Such amendment, alteration or dissolu- 
tion shall not take away or impair mvy remedj^ which may exist by 
law, consistently with said sections, against such corporations, their 
stockholders or officers for a liability pre\dously incurred. The charters 
of all corporations which are subject to the provisions of this act and 
which have been incorporated by special law since the eleventh day 
of March in the year eighteen hundred and thirty-one and of all such 
corporations as may be hereafter incorporated by special law shall be 
subject to amendment, alteration or repeal by the general court. Cor- 



1922.] PUBLIC DOCUMENT — No. 12. 59 

porations of the kind which are subject to the provisions of this act, 
and which were incorporated bj^ special law before such date, may, by 
amendment to their certificate of organization, adopted as provided in 
section fortj^, and filed as provided in section forty-one, reorganize 
under this act, and thereupon and thereafter, they shall be governed 
in all respects b}^ its provisions. 

I assume, without deciding, that the provisions of this sec- 
tion would govern the amendment made by Spec. St. 1918, 
c. 168, even though not expressly incorporated therein. Com- 
missioners on Inland Fisheries v. Holyoke Water Poiver Co., 
104 Mass. 446, 451; affirmed Holyoke Water Poiver Co. v. 
Lyman, 15 Wall. 500, 522; Greenwood v. Union Freight Ry. 
Co., 105 U. S. 13. But this provision is silent as to the effect 
of an amendment, accepted after power to repeal was reserved, 
upon a charter previously irrepealable. It nowhere provides 
that acceptance of the amendment shall subject the entire 
charter to the reserved power of the Legislature. No such 
intention can fairly be implied in view of the express provi- 
sion for a voluntary reorganization which shall subject cor- 
porations organized prior to March 11, 1831, to the provisions 
of St. 1903, c. 437. No express decision in this State that such 
is the effect of accepting a charter amendment has been cited 
to me or has been found by me. I do not find that any such 
rule is established in other States. I am therefore of opinion 
that the irrepealable character of this charter has not been 
lost, and that therefore section 1 of Senate Bill No. 190 
would, if enacted, be unconstitutional and void. 

In view of this conclusion it becomes unnecessary to answer 
your other inquiries. 

Yours very truly, 

J. Weston Allen, Attorney-General . 



Civil Service — Conviction for Violation of Automobile Laws. 

Conviction for violation of the automobile laws, as affecting appointment, 
employment or retention in the service of the Commonwealth, is 
within the meaning of the words "conviction of crime against the laws 
of the Commonwealth," as used in G. L., c. 31, § 17. 

March 1, 1921. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You have inquired w^hether "a conviction for 
such violation of the automobile laws as overspeeding, having 



60 ATTORXEY-GEXERAL'S REPORT. [Jan. 

no mirror on car, tail light being out, etc.," is within G. L., 
c. 31, § 17, which provides: — 

No person habitually using intoxicating liquors to excess shall be 
appointed, employed or retained in any position to which this chapter 
applies, nor shall any person be appointed or employed in any such 
position within one year after his conviction of any crime against the 
laws of the commonwealth. 

The laws relative to the operation of motor vehicles are 
now codified as chapter 90 of the General Laws, and specif- 
ically cover the offences as to which you inquire. 

I wish to be understood as answering your inquiry only as 
to the offences specified, namel}', overspeeding, having no 
mirror on car, and tail light being out, as I do not know what 
3'ou intended to cover by the word "etc." 

I see no escape from the conclusion that a conviction for 
any one of these offences is within the meaning of the words 
"conviction of any crime against the laws of the Common- 
wealth," as used in said section 17. If this results in hard- 
ship, the remedy lies with the Legislature, which, by G. L., 
c. 31, § 51, has provided a penalty for violation of the civil 

service law. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Fuel Administrator — Power to require Information from Coal 

Dealers. 
The Fuel Administrator, by virtue of his appointment under Gen. St. 1917, 
c. 342, and St. 1920, c. 610, has the power to summon witnesses and 
compel testimony for the purpose of ascertaining facts in regard to 
necessaries of life, including coal. 

March 1, 1921. 
Mr, Eugene C. Hultman, Fuel Administrator. 

Dear Sir: — You were appointed Fuel Administrator by 
the Governor and Council under the provisions of Gen. St. 
1917, c. 342, and St. 1920, c. 610. You ask me to advise you 
whether, under said two acts, you have the power to require 
coal dealers to give you such information as you may need, or 
whether you must depend entirely upon their voluntary co- 
operation. 

Gen. St. 1917, c. 342, known as the " Commonwealth 
Defence Act of 1917," contains two sections material to your 
inquiry. They are as follows: — 



1922.] PUBLIC DOCUMENT — No. 12. 61 

Section 12. Whenever the governor shall determine that circum- 
stances warrant the exercise by him of all or any of the powers conferred 
on him by this act, he may, with the approval of the council, by writings 
signed by him, confer upon such officials of the commonwealth or any 
political division thereof, or such officer of the military or naval forces 
of the commonwealth, or such other person or persons as he may select, 
full power and authority to do in his name whatever may be necessary 
to carry the said powers into effect. He may revoke such written au- 
thority at any time. 

Section 23. Wlienever the governor, w^th the advice and consent 
of the council, shall determine that an emergency has arisen in regard 
to the cost, supply, production, or distribution of food or other neces- 
saries of life in this commonwealth, he may ascertain the amount of 
food, or other necessaries of life within the commonwealth ; the amount 
of land and labor available for the production of food; the means of 
producing within or of obtaining without the commonwealth food or 
other necessaries of life as the situation demands ; and the facilities for 
the distribution of the same, and may publish any data obtained re- 
lating to the cost or supply of such food or other necessaries, and the 
means of producing or of obtaining or distributing the same. In making 
the said investigation he may compel the attendance of witnesses and 
the production of documents, and may examine the books and papers 
of individuals, firms, associations and corporations producing or dealing 
in food or other necessaries of life, and he may compel the co-operation 
of all officers, boards, commissions and departments of the common- 
wealth having information that may assist him in making the said 
investigation. 

St. 1920, c. 610, purports to continue for a definite period 
those provisions of the Commonwealth Defence Act of 1917 
*' relating to the appointment, duties, authority and powers of 
a fuel administrator." It provides as follows: — 

Whereas, In order to secure an adequate supply of fuel for the citizens 
of Massachusetts, the services of a fuel administrator are indispensable 
and wdll continue to be indispensable for an indefinite period; and 
whereas, the provisions of the Commonwealth Defence Act of nine- 
teen hundred and seventeen relative to the appointment of such a fuel 
administrator may become inoperative at any time by federal action, 
therefore this act is hereby declared to be an emergency law, necessary 
for the immediate preservation of the public health and convenience. 

Be it enacted, etc., as follows: 

The provisions of the Commonwealth Defence Act of nineteen 
hundred and seventeen, being chapter three hundred and forty-two of 
the General Acts of nineteen hundred and seventeen, relating to the 



62 ATTORXEY-GEXERAL'S REPORT. [Jan. 

appointment, duties, authority and powers of a fuel administrator, are 
hereby made operative until January first, nineteen hundred and 
twenty-two. 

There is no direct reference in the act of 1917 to any official 
known as a "fuel administrator." There are, however, pro- 
visions (contained in section 6 and in the two sections quoted 
above) which authorize the Governor to take possession of 
certain property, including fuel, to use, sell or distribute the 
same, and to fix minimum and maximum prices therefor; to 
ascertain certain facts in regard to the necessaries of life (of 
which coal is one), and to publish any data obtained relating 
thereto; and, with the approval of the Council, by written 
commission to confer upon any person whom he may select 
authority to exercise the powders conferred on him by the act. 
The exercise of these powers is conditional upon the deter- 
mination by the Governor, w^ith the advice and consent of the 
Council, that the circumstances warrant such exercise. 

For a complete understanding of the meaning of the later act 
it is important to know what w^as done under the earlier one. 

After the passage of the act of 1917, Mr. James J. Storrow 
was appointed ''fuel director," under a commission signed 
by the Governor, purporting to act "under the power vested 
in the executive by chapter three hundred and forty-two of the 
General Acts of the year nineteen hundred and seventeen, to 
have supervision over the cost, supply and distribution of coal 
within the commonwealth, and to perform such other duties 
relating thereto as are set forth in the act above cited." 
From the fact of the creation of the office of fuel director and 
the appointment of Mr. Storrow to that office, it must be in- 
ferred that the Governor and Council had previously deter- 
mined that the circumstances required the exercise of the 
powers incident to the office. Cj. National Prohibition Cases, 
253 U. S. 350, 386. Mr. Storrow continued to hold that 
office until after the passage of the act of 1920. Subsequently 
he resigned and you were appointed Fuel Administrator by a 
commission signed by the Governor, purporting to be "under 
the provisions of chapter three hundred and forty-two of the 
General Acts of the year nineteen hundred and seventeen and 
chapter six hundred and ten of the Acts of the year nineteen 
hundred and tw^enty." 

Section 23 of the act of 1917 authorizes the Governor to 
compel the attendance of witnesses and the production of 
documents, and provides the he may examine the books and 



1922.] PUBLIC DOCUMENT — No. 12. 63 

papers of individuals, firms, associations and corporations 
producing or dealing in the necessaries of life (including coal), 
and this power, by section 12, is conferred upon the person 
appointed by him to the position of fuel director or adminis- 
trator, with the powers incident to that position. 

I am therefore of the opinion that by virtue of your appoint- 
ment as Fuel Administrator under said acts, you have such 
powers with respect to summoning witnesses and compelling 
testimony as are conferred by said section 23, subject to 
the qualification that the act cannot compel any person to 
accuse or furnish evidence against himself contrary to article 
XII of the Declaration of Rights. Witnesses should be in- 
structed as to this constitutional safeguard so that they may 
invoke it, if they desire, in a proper case. 
Very truly yours, 

J. Weston Allex, Attorney-General. 



Constitutional Laiv — Federal Constitution — Contract Clause — 
Public Charity — Legislative Relief — Cy Pres. 

A corporate charter is a contract within the meaning of U. S, Const., art. 
I, § 10, and cannot be altered, amended or repealed by the Legislature 
without the consent of the corporation unless power so to do was 
either reserved by the Legislature or has since been acquired. 

Corporate charters granted prior to March 11, 1831, cannot be altered 
by the Legislature without the consent of the corporation unless power 
so to do was reserved in such charter. 

A power to alter, amend or repeal corporate charters does not authorize 
the Legislature to impair contracts lawfully made by such corporation 
with third parties. 

When the donee of property given for a public charitable purpose accepts 
the gift, he contracts to use such property for the designated purpose 
in the manner prescribed by the donor, and this contract is within the 
protection of U. S. Const., art. I, § 10. 

The Legislature has no power to authorize the execution of a public charity 
cy pres. 

Where a corporate charter granted to a church in 1825, without reservation 
of any power to alter, amend or repeal such charter, vests the control 
of the corporation in the pewholders of said church, the Legislature 
has no power to modify the electorate of said church by including non- 
pewholders therein. 

March 4, 1921. 

Committee on Mercantile Affairs. 

Gentlemen: — You ask my opinion as to the constitu- 
tionality of three bills now before your committee, namely, 
Senate Bill No. 285, entitled " An Act to authorize the union 



64 ATTORXEY-GEXERAL'S REPORT. [Jan. 

of the South End Reading Room Association with the Peoples 
Methodist Episcopal Church in Xewburyport," House Bill 
Xo. 1139, entitled ''An Act to authorize the Massachusetts 
Universalist Convention to hold the Jonathan Stetson Fund 
free and clear of certain trusts," and House Bill Xo. 1152, 
entitled ''An Act to authorize the All Souls Unitarian Church 
in Roxbury to convey its property to the First Church in 
Roxbur}^" The titles of these bills indicate their purpose. I 
assume that the corporations or associations which are seeking 
legislative relief are of charitable character and hold property 
upon charitable trusts, the nature of which does not appear. 
The apparent purpose of the bills is to rearrange to a greater 
or less extent the administration, and, in one case at least, 
the application of the property so held. In other words, these 
corporations are apparently seeking from the Legislature not 
only authority to alter their corporate powers, but also, with 
respect to the property involved, relief more or less similar 
to that which a court of equity might be asked to afford upon 
a bill to authorize the administration of these charitable trusts 
cy pres. 

1. A corporate charter constitutes a contract between the 
State and the incorporators, which is within the protection of 
U. S. Const., art. I, § 10, and cannot be altered without the 
consent of the corporation unless power so to do was reserved 
at the time the charter was granted or has since been acquired. 
Dartmouth College v. Woodward, 4 Wheat. 518. By St. 1830, 
c. 81, which was approved on March 11, 1831, the Legislature 
reserved a general power to alter, amend or repeal all acts of 
incorporation thereafter granted, which power has been de- 
clared anew in codifications of that act and is now embodied 
in a constitutional amendment. R. S., c. 44, § 23; G. S., 
c. 68, § 41; P. S. c. 105, §§ 2, 3; R. L., c. 109, § 3; St. 1903, 
c. 437, § 2; G. L., c. 155, § 3; Mass. Const., Amend. LIX. 
An express authority to revoke the powers granted to religious 
corporations was reserved b}^ St. 1834, c. 183, § 7, approved 
April 1, 1834, which power has been declared anew by subse- 
quent codifications. R. S., c. 20; G. S., c. 30, §§ 4, 27, 43; 
P. S., c. 38, § 51; R. L., c. 36, § bo. Charters granted sub- 
sequent to these reservations of power may be altered, 
amended or repealed by the Legislature even against the will 
of the corporation. Holyoke Water Power Co. v. Lyman, 15 
Wall. 500; Greenwood v. Union Freight Ry. Co., 105 U. S. 13. 



1922.] PUBLIC DOCUMENT — No. 12. 65 

With the consent of the corporations affected, the Legislature 
may amend charters granted prior to these reservations of 
power, and may authorize two corporations, no matter where 
organized, to consoHdate. 

In this connection I note that section 6 of House Bill No. 
1152 authorizes "any adult member" of the First Church in 
Roxbury to vote upon the acceptance or rejection of the act. 
This church was incorporated under St. 1825, c. 133, which 
was approved on Feb. 26, 1825, prior to the aforesaid reserva- 
tion of power to alter, amend and repeal corporate charters, 
and contains no reservation of such power. That act of in- 
corporation vests in the pewholders of the church, as a body 
politic, the power to control its affairs. Since section 6 of the 
proposed bill undertakes to modify the electorate prescribed 
by the charter, by including therein all adult members, 
whether pewholders or not, that section appears to be open to 
constitutional objection unless, in some manner not disclosed, 
the Legislature has acquired power to amend that charter. 
Dartmouth College v. Woodward, 4 Wheat. 518; see also 
Opinion of the Justices, 226 Mass. 607. 

2. Broad as the power to alter, amend or repeal corporate 
charters may be, it does not authorize the Legislature to annul 
existing contracts lawfully made by the corporation with third 
parties. Vicksburg v. Vickshurg Water Works Co., 202 U. S. 453; 
Boston d' Lowell R.R. Corp. v. Salem & Lowell R.R. Co., 2 
Gray, 1; see also Thornton v. Marginal Freight Ry., 123 Mass. 
32, 34. When property is conveyed for a public charitable 
purpose, the acceptance of the gift by the donee constitutes a 
contract with the donor to administer the gift in the manner 
and for the purpose prescribed. Cary Library v. Bliss, 151 
Mass. 364. Any conditions consistent with law may be 
annexed to the gift. The donor may prescribe that the trust 
shall be managed by a board of trustees constituted in a 
particular way, or otherwise provide a particular scheme of 
management. Cary Library v. Bliss, 151 Mass. 364; Boston 
V. Doyle, 184 Mass. 373. He may select a particular corpora- 
tion as trustee, and make it a term of his gift that that cor- 
poration shall continue to manage it. Harvard College v. 
Society for Promoting Theological Education, 3 Gray, 280; 
Winthrop v. Attorney-General, 128 Mass. 258. In so far as the 
donor prescribes such conditions, either expressly or by fair 
implication, they become a part of the contract between him- 



66 ATTORNEY-GENERAL'S REPORT. [Jan. 

self and the donee, which is within the protection of section 10 
of article I of the Federal Constitution, and cannot be im- 
paired by the Legislature. Cary Library v. Bliss, 151 Mass. 
364; Cratvford v. Nies, 220 Mass. 61, 65; see also Knapi^ v. 
Railroad Co., 20 Wall. 117, 122, 123. Such a contract is 
beyond the scope of the reserved power to amend, alter or 
repeal corporate charters. 

The bills before me do not disclose upon what terms these 
charities hold their property. It is impossible for me to deter- 
mine whether House Bill No. 1152 and Senate Bill No. 285 
impair the obligation of an undisclosed contract with the 
donors. That can be ascertained only by an investigation of 
each gift. House Bill No. 1139 apparently presents a some- 
what clearer case. That bill expressly discharges the trustee 
of a charitable fund from the obligation to use the property 
for the purposes apparently prescribed by the donor, and 
prescribes that it shall be used for other purposes. It seems 
probable that this violates the contract with the donor of 
the fund, but this cannot be ascertained with certainty while 
the precise terms of that contract remain undisclosed. Craiv- 
jord V. Nies, 220 Mass. 61, 65; s. c. 224 Mass. 474, 488. 

3. Another constitutional question as to the present bills, 
the answer to which the authorities in this Commonwealth 
leave uncertain, is whether they invade the judicial power, 
contrary to article XXX of the Bill of Rights, which pro- 
vides: — 

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. 

A court possessing full equity jurisdiction has power in 
a proper case to authorize the administration of a public 
charity as nearly as possible in the manner prescribed by the 
donor, in case literal compliance with his directions has become 
impracticable. There are, however, definite restrictions upon 
the exercise of this power. It cannot be exercised unless the 
court finds that the donor intended that the property should 
be used for charity, even though the precise method of appli- 
cation prescribed should be or become impracticable. Boivden 



1922.] PUBLIC DOCUMENT — No. 12. 67 

V. Brown, 200 Mass. 269; Gill v. Aitorney-General, 197 Mass. 
232, 237. If there be no such dominant charitable purpose, 
and the precise scheme of appHcation is not practicable, the 
property reverts to the donor, or to his heirs or next of kin, 
as the case may be. Teele v. Bishop of Derry, 168 Mass. 341. 
Even if such dominant charitable purpose exists, the court 
will not, and, indeed, cannot, alter the scheme of the donor 
"either as to the objects of the charity or the agents by whom 
it is to be administered, unless it appears to he impossible to 
carry out the scheme according to its terms. '* Winthrop v. At- 
torney -General, 128 Mass. 258, 261; Gary Library v. Bliss, 
151 Mass. 364, 375; Harvard College v. Society for Promoting 
Theological Education, 3 Gray, 280; Fellows v. Miner, 119 
Mass. 541. When a charitable gift can be administered ac- 
cording to the directions of the donors, the court is not at 
liberty to modify it upon considerations of policy or con- 
venience. Eliot V. Trinity Church, 232 Mass. 517, 522. It is 
evident, therefore, that the power of a court of equity to au- 
thorize the administration of a public charitable trust as 
nearly as may be according to the directions given by the 
donor, if literal execution is impracticable, is not a power to 
vary the contract between the donor and the trustee as the 
court from time to time may deem wise. On the contrary, it 
is a power to construe that contract, to ascertain the dominant 
purpose of the donor and to carry that dominant purpose into 
effect, even at a sacrifice of some subsidiary purpose, to the 
end that the dominant purpose shall not be defeated by the 
expression of a subsidiary desire. 

The exercise by a court of equity of the power to execute 
charitable trusts cy pres, that is, as nearly according to the in- 
tent of the donors as circumstances will permit, is clearly an 
exertion of the judicial power. In the last analysis it involves 
a construction and enforcement of the donor's contract. It 
would seem that if the Legislature should attempt to substitute 
itself for a court of equity and to discharge this judicial 
function, it would exercise judicial power contrary to the 
express mandate of the Bill of Rights. There is an intimation 
to this effect in Ware v. Fitchburg, 200 Mass. 61, 72. It may 
be that Senate Bill No. 285 is open to special objection upon 
this ground, since section 3 provides that, until the Supreme 
Judicial Court shall otherwise order, the property transferred 
from the South End Reading Room Association to the Peoples 



68 ATTORNEY-GENERAL'S REPORT. [Jan. 

Methodist Episcopal Church shall be administered by said 
church "in accordance with the terms of the original trusts, 
or as nearly in accordance therewith as is possible." 

It may be suggested, however, that the power of the king 
over charitable trusts, as parens patricp, is vested in the Legis- 
lature, and that this prerogative power may be exerted with- 
out invading the judicial function. There is no doubt that in 
England the king, acting under the sign manual and through 
the chancellor, had power to designate the application of 
property given for charity, especially if the particular applica- 
tion prescribed by the donor was illegal or against public 
policy, or if the gift was to charity generally, without any 
provision as to the mode of application. 11 C.J. § 75. This 
power does not pertain to courts of equity in this State. 
American Academy v. Harvard College, 12 Gray, 582, 596; 
Jackson v. Phillips, 14 Allen, 539, 574, 575; Minot v. Baker, 
147 Mass. 348, 351. But if it pertains to the people it is by 
no means clear how far it has been delegated to the Legisla- 
ture. It seems to be settled that the Legislature may au- 
thorize trustees who hold land upon a charitable trust to sell 
such land and convert it into personal property to be held 
upon like trusts. Sohier v. Trinity Church, 109 Mass. 1, 17; 
Old South Society v. Crocker, 119 Mass. 1, 26; Stanley v. Colt, 
5 Wall. 119, 169. Perhaps this power may be founded upon 
public policy; that a gift of land to charit}^ should not render 
such land forever inalienable because the donor omitted to 
confer an express authority to sell upon the trustees. Be that 
as it may, such decisions as there are leave much doubt as to 
whether this power marks the extreme limit of legislative 
authority, or whether it is a manifestation of a power which 
may have wider application. It would seem, however, that the 
twilight zone, which lies between the express limitation im- 
posed by the contract clause of the Federal Constitution and 
the cy pres power possessed by courts of equity, is not of great 
extent, though difficult to define. 

For the sake of clearness, I may suggest the following tenta- 
tive conclusions. The Legislature, even without the consent 
of the corporation, has power to alter, amend or repeal cor- 
porate charters conferred since March 11, 1831, but this re- 
served power does not authorize the Legislature either to 
annul contracts lawfully made by the corporation or to strip 
the corporation of its property. I cannot advise you whether 



1922.] PUBLIC DOCUMENT — No. 12. 69 

the present bills impair the obligation of contracts which are 
not before me. Whether the present bills are improper, upon 
the ground that the Legislature is in effect attempting to ex- 
ercise the power of a court of equity to execute a charitable 
trust cy pres in a proper case, is open to serious question. The 
matter is so important, both in its application to the scope of 
legislative power and to the due management of public chari- 
ties, that it ought not, in my opinion, to be determined by the 
Attorney-General. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Use of Armory for Public Ball. 

Under G. L., c. 33, § 52, use of an armory for a public ball, the proceeds of 
which are to be devoted to a public hospital, is authorized if the ball 
is incidental to the charity; but if the charity is incidental to the ball, 
such use is not authorized. 

March 10, 1921. 

Brig. -Gen. Jesse F. Stevens, Adjutant-General. 

Dear Sir: — Adams Council, Knights of Columbus, have 
requested permission to use the armory at Adams for the 
purpose of holding a public ball. Proceeds of the ball, over 
and above expenses, will be given to Plunkett Memorial 
Hospital, which is non-sectarian and is maintained by chari- 
table gifts and by the town of Adams. You have requested my 
opinion upon the question whether the proposed use of the 
armory is for "public purposes," within the meaning of G. L., 
c. 33, § 52. 

Said section provides, in part: — 

(a) Armories provided for the mihtia shall be used only by the 
volunteer militia for the military purposes or purposes incidental 
thereto designated by the commander-in-chief; provided, that the 
commander-in-chief, upon terms and conditions prescribed by him and 
upon an application approved by the military custodian of an armory, 
may allow the temporary use of such armory for public purposes at 
such times and in such manner as not to interfere with the military 
use thereof. . . . 

As used in this section the words ''public purposes" shall include: 

A public meeting or hearing held by a state department or commis- 
sion. 

An examination conducted by the division of civil service. 

A meeting of an organization composed of veterans of the civil, 



70 ATTORNEY-GENERAL'S REPORT. [Jan. 

Spanish or world war, a board of trade, a chamber of commerce or an 
occupational organization, or a meeting to raise funds for any non- 
sectarian charitable or non-sectarian educational purpose. 

A meeting to raise funds for a benefit association of policemen or 
firemen. 

Elections, primaries or caucuses, and town meetings. 

Meetings of such military organizations of scholars in the public 
schools of a town as may be approved by the school committee thereof. 

The act provides that the phrase "public purposes" shall 
include "a meeting to raise funds for any non-sectarian 
charitable or non-sectarian educational purpose." The word 
"meeting," as used in the statute, connotes a gathering or 
assembly of persons to deliberate and sometimes to vote upon 
propositions before them, and also a gathering or assembly of 
persons to listen to addresses by others. It is not in all cases 
synonymous with the word "entertainment," nor, as used in 
the statute, does it include public balls and dances. I am of 
opinion, therefore, that the proposed use of the armory is not 
expressly authorized by the last-quoted portion of the statute. 

In providing, however, that certain uses shall be included 
in the phrase "for public purposes," the Legislature has not 
provided that other public uses shall not be so included. Any 
temporary use for public purposes is authorized, provided that 
it is allowed by the commander-in-chief, approved by the 
military custodian, and in accordance with terms and con- 
ditions prescribed by the commander-in-chief. The statute 
does not authorize armories to be used for any private purpose 
whatever. If, therefore, a proposed use is not one of those 
which the statute expressly includes in the phrase "for public 
purposes," the question remains whether, apart from the 
statutory enumeration of particular uses that shall be deemed 
to be for public purposes, the proposed use is nevertheless for 
a public rather than a private purpose. 

Generally speaking, a use of an armory for a ball would 
not be a use for a public purpose, because the principal object 
of such a social occasion would be the personal enjoyment of 
the individuals present. If the net proceeds should be paid to 
a private charity, the use would still be for a private pur- 
pose. In the case presented, however, the net proceeds are to 
be paid to a public charity, that is, to a hospital managed and 
in part maintained by the town of Adams. That fact renders 
the present case somewhat exceptional. 

As a rule, armories are to be used for military purposes 



1922.] PUBLIC DOCUMENT — No. 12. 71 

only. Other proposed uses should be closely scrutinized to 
determine whether they are public, and if the principal pur- 
pose of them is private, an incidental benefit to the public will 
not alter the fact that they are for private rather than for 
public purposes, and therefore are not authorized by the 
statute. That is the proposition of law with reference to which 
particular cases must be decided. Application of the law to 
the facts of particular cases is for the commander-in-chief and 
his military subordinates. 

In the present case, therefore, the commander-in-chief 
should determine, upon all available facts, whether the prin- 
cipal purpose of the ball is a pleasant social occasion for the 
guests, or whether the principal purpose is the raising of 
money for the hospital. Is the ball incidental to the charity, 
or is the charity incidental to the ball? If the ball is in- 
cidental to the charity, then the proposed use is authorized; 
if the charity is incidental to the ball, then the proposed use is 
not authorized. In determining the question of fact, the 
commander-in-chief may properly consider former balls held 
under similar circumstances and for similar purposes by the 
same applicant. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Equitable Lien — Claim for Materials furnished Subcontractor for 
Construction of Building at Boston State Hospital — • Money 
retained under Terms of Statute and Contract — Trust. 

A claim filed by a concei*n that furnished materials to a subcontractor of 
a principal contractor who built a building at the Boston State 
Hospital for the Department of Mental Diseases, is within the terms 
of G. L., c. 30, § 39, provided the claim was seasonably filed. 

Under the case of Nash v. Commonwealth, 174 Mass. 335, it must be taken 
that the Commonwealth had money in its hands which the statute 
cited intended should be security for the payment of the said bill, 
and that the money came to the Commonwealth for that purpose 
and was held by it as trustee for the concern. 

March 10, 1921. 

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

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

In connection with the construction of the dining room, 
east group, Boston State Hospital, a materialman has filed a 



72 ATTORNEY-GENERAL'S REPORT. [Jan. 

claim for material furnished and used in the construction of 
the building. The general contractor had a contract with a 
subcontractor for the furnishing of light iron. The contractor 
has paid to the subcontractor an amount on account of this 
contract. The materialman furnished the light iron to the 
subcontractor, and there is due to it from the subcontractor 
$688, for which sum the materialman has filed a claim. 

You ask whether the claim of the materialman is within the 
provisions of G. L., c. 30, § 39, which are as follows: — 

Officers or agents contracting in behalf of the Commonwealth for 
the construction or repair of public buildings or other public works 
shall obtain sufficient security, by bond or otherwise, for payment 
by the contractor and sub-contractors for labor performed or furnished 
and for materials used in such construction or repair; but in order to 
obtain the benefit of such security, the claimant shall ffie with such 
officers or agents a sworn statement of his claim, within sixty days 
after the completion of the work. 

The point raised by you was decided in the case of Nash 
V. Commonwealth, 174 Mass. 335. Nash filed a bill in equity 
against the Commonwealth, one Casparis, general contractor, 
and Smith & Burden, subcontractors, to enforce payment of 
a claim for materials furnished by Nash to Smith & Burden, 
contractors under Casparis, the general contractor, who had 
a contract with the Metropolitan Water Board for the con- 
struction of an aqueduct as a part of the metropolitan water 
system. The general contractor argued in substance that 
Nash could not avail himself of the money retained by the 
Commonwealth because of the want of privity of contract, 
but our Supreme Judicial Court held that the case rested not 
alone upon the provisions in the contract, but upon that pro- 
vision taken in connection with the statute. Under the pro- 
visions of law made for the petitioner's benefit, the Common- 
wealth was held to have money which it held as security for 
the payment of his claim. It held the money as trustee for 
the petitioner, not simply by virtue of the article in the 
contract. The purpose of the statute was to secure the 
petitioner's claim, and the Commonwealth, having retained a 
fund for the materialmen in compliance with the statute, is 
under an implied obligation to hold it for that purpose. 

That such a suit may be maintained if the petitioners have 
a claim that might be the subject of a mechanic's lien is set 



1922.] PUBLIC DOCUMENT — No. 12. 73 

forth again in the case of Kennedy v. Commonwealth, 182 Mass. 
480, and the rule was again supported as recently as March 
17, 1920, in the case of Bay State Dredging & Contracting Co. 
V. W. H. Ellis & Son Co., 235 Mass. 263, 268, where the court 
used this language: — 

The right to have the benefit of that security enured to any laborer 
and materialman who should furnish labor or material which was 
used or employed in the construction or repair of the pubhc work if 
he should file a sworn statement of his claim \\dthin sixty daj^s after 
the completion of the work contemplated by the original contract. 

Accordingly, it is my opinion that the claim of the material- 
man is within G. L., c. 30, § 39, provided the said company 
filed a sworn statement of its claim within sixty days after the 
completion of the work contemplated by the original contract. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Second-hand Automobile — Sale by Sheriff under Executiori — 
Notice to Registrar of Motor Vehicles and Chief of Police. 

A sheriff, who by force of an execution is obliged to sell a second-hand 
automobile, is not required to give notice to the registrar of motor 
vehicles and the chief of police of the city or town where the sale is to 
be made, under G. L., c. 140, § 65. 

March 11, 1921. 

Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion as to whether 
or not a sheriff to whom has been issued an execution, and 
who by force of such execution is obliged to sell a second-hand 
automobile, comes within the provisions of G. L., c. 140, § 65, 
so that he is obliged to give the required notice set forth in 
that section. 

G. L., c. 140, § 65, reads as follows: — 

Any person not licensed under section fifty-nine, selhng or offering 
to sell any motor vehicle, except to a licensee under class one of section 
fifty-eight or a person exempted by section fifty-seven, shall, at least 
four days before such sale, notify in writing the registrar and the 
chief of pohce or selectmen in the city or town where the sale is to be 
made, or, if in Boston, the pohce commissioner, unless he has secured 
a release as provided in the preceding section. Such notice shall 



74 ATTORXEY-GEXERAL'S REPORT. [Jan. 

contain all the information required by law to be set forth in an ap- 
plication for the registration of motor vehicles in the commonwealth, 
with the names and addresses of the vendor and vendee. 

Sections 57 to 69, inclusive, of said chapter 140 relate to 
the sale of second-hand motor vehicles, and the obvious 
purpose of the statutory provisions contained in those sections 
is to serve as a check upon sales of stolen automobiles. 

G. L., c. 37, § 11, requires sheriffs and deputies to serve 
and execute within their counties all precepts lawfully issued 
to them, and all other process required by law to be executed 
by an officer. G. L., c. 235, §§ 36 to 45, prescribe the manner 
in which personal property shall be seized and sold upon 
execution. Such sale must be at public auction, and there 
are complete provisions for notice of sale, return of execution, 
disposition of proceeds of sale, etc. The precise question is 
whether G. L., c. 140, § 65, is intended to superadd further 
requirements in case the property sold on execution is an 
automobile. 

I am of opinion that G. L., c. 140, § 65, does not apply 
to a sale of an automobile by a sheriff or his deputy, under 
G. L., c. 235, §§ 36 to 45. That sale must be at auction. It 
is impossible to give, four days in advance of the sale, the 
name and address of the auction purchaser. It may be 
doubted whether the sheriff is the vendor, since he acts 
merely as auctioneer in executing a power to sell conferred by 
law. The execution debtor is certainly not the vendor, since 
the sale is involuntary as to him. Under these circumstances, 
there seems to be great difficulty in giving the name and 
address of the vendor. The alternative, namely, procuring 
from the officials described in G. L., c. 140, § 64, the license 
to sell required by that section, would make a sale upon 
execution by order of the court depend upon the permission 
of those officials. Even if the Legislature had power to sub- 
ject execution sales to such a condition, I cannot believe 
that it was the intention to do so, especially since a sale on 
execution is not less notorious than a sale made in compliance 
with said section 65. 

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

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 75 



Credit Unions — Right to purchase and oivn Real Estate — 
Office Accommodations. 

Though the poM^er to transact business carries the power to provide a 

suitable place for the transaction of business, investment of their 

capital by credit unions in real estate would materially interfere with 

their primary functions. They may, however, lease real estate for 

'office purposes. 

March 12, 1921. 
Mr. Joseph C. Allen, Commissioner of Banl:s. 

Dear Sir: — You request my opinion upon the question 
whether a credit union may, with your approval, purchase 
and own real estate to be used, either in whole or in part, as a 
convenient place for the transaction of its business. 

A credit union is a corporation, and, like other corporations, 
possesses powers specifically granted to it, and other powers 
incidental to those specifically granted and necessary to their 
exercise. The power to transact business at all carries with it 
power to provide a suitable place for the transaction of busi- 
ness. 

It does not follow, however, that the power to provide a 
suitable place for the transaction of business is unlimited. It 
is necessarily circumscribed and conditioned by the purposes 
for which a credit union is organized, and by the nature of the 
activities in which it is authorized to engage. To illustrate by 
an extreme case: if the entire resources of a credit union con- 
sisted of S25,000, it would not be authorized to purchase an 
office building for that sum, since to do so would not facilitate 
the purposes of the organization, but would, in fact, defeat 
them. 

Since the power to provide office accommodations is not 
unlimited, the question arises. Where is the line of limitation? 
I believe it must be drawn at the point where operating ex- 
penses cease and capital investment begins. The principal 
purposes of credit unions are two: first, to encourage and 
develop thrift among the people; second, to provide for 
persons of limited means a place where they may secure loans 
for certain necessary and useful purposes. If any considerable 
portion of available capital is invested in the ownership of real 
estate, it is plain that less money will be available for loans to 
members. That is to say, investment of capital to provide 
office accommodations would in a measure defeat one of the 
principal purposes of the credit union. I am of opinion, 



76 ATTORNEY-GENERAL'S REPORT. [Jan. 

therefore, that a credit union is authorized to lease real estate 
for office purposes, but not to purchase it. This power is 
sufficient to effectuate the purposes of organization, and not 
sufficient to interfere with them. 

Up to this point I have discussed the question from the 
standpoint whether an express powder to do business carries 
with it an implied power to expend capital to provide an office 
for the transaction of business. The investment of funds is 
the principal activity of credit unions, and I shall now con- 
sider the question presented to me from the standpoint 
whether a credit union may, as a part of its business of invest- 
ing funds, invest in real estate to be used by itself for office 
purposes. 

Investment of the funds of credit unions is provided for by 
G. L., c. 171, §§ 5 and 17, which read as follows: — 

Section 5. A credit union may receive the savings of its members 
in payraent for shares or on deposit; msiy lend to its members at rea- 
sonable rates, or invest, as hereinafter provided, the funds so accumu- 
lated; and may undertake such other activities relating to the purpose 
of the association as its by-laws may authorize. Section forty-eight of 
chapter one hundred and seventy shall not apply to credit unions. 

Section 17. The capital, deposits and surplus funds of a credit 
union shall be invested in loans to members, with the approval of the 
credit committee as provided in the following section; and any capital, 
deposits or surplus funds in excess of the amount for which loans shall 
be approved by the credit committee may be deposited in sa\dngs 
banks or trust companies incorporated under the laws of the com- 
monwealth, or in national banks located therein, or may be invested 
in the bonds of any other credit union, or in any securities which are 
at the time of their purchase legal investments for savings banks in 
the commonwealth, or, with the approval of the commissioner, may be 
deposited in other credit unions or may be invested in the shares of 
other credit unions or co-operative banks incorporated in the com- 
monwealth; provided, that the total amount invested in the shares of 
other credit unions or co-operative banks shall not exceed thirty per 
cent of the capital and surplus, and that not more than twenty per 
cent shall be invested in the shares of other credit unions, nor more 
than twenty per cent in co-operative bank shares. 

These sections provide, in effect, that funds may be invested 
as follows: in loans to members; in deposits in savings banks 
and trust companies organized under the law^s of Massachu- 
setts, and in national banks situated in Massachusetts: in the 



1922.] PUBLIC DOCUMENT — No. 12. 77 

bonds of other credit unions; in securities that are legal in- 
vestments for Massachusetts savings banks; and, under cer- 
tain conditions, in deposits in other credit unions, and in the 
shares of other credit unions and of co-operative banks incor- 
porated in Massachusetts. A reading of section 19 of the 
same chapter indicates that loans may be made to members 
upon security of real estate, but no provision is made for the 
use of funds in the purchase of real estate for any purpose 
whatever. This omission is significant in view of the fact that 
an express though qualified power to hold real estate for the 
transaction of its business was first conferred upon savings 
banks by St. 1870, c. 226, now G. L., c. 168, § 54, cl. 11 (see 
Suffolk Savi?igs Bank, Petitioner, 149 Mass. 1; I Op. Atty.- 
Gen. 420); and upon trust companies by St. 1888, c. 413, § 18, 
now G. L., c. 172, § 41 (see II Op. Atty.-Gen. 317). 

I am therefore of opinion that a credit union is not au- 
thorized, either with or without your approval, to purchase 
and hold real estate to be used as a convenient place for the 
transaction of its business. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Private Bankers — Surrender of License — Bond. 

Where an association licensed to do business under G. L., c. 169, § 3, vol- 
untarily surrenders its license, the Treasurer and Receiver-General 
may, in his discretion, return the bond and the money and securities 
filed and deposited with him under G. L., c. 169, §§2 and 3, before 
the expiration of the period of one year referred to in said section 3. 

March 14, 1921. 
Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — You state that the New Bedford Polish Asso- 
ciation, Inc., of New Bedford, Mass., filed with the treasury 
department on Feb. 3, 1920, under the provisions of St. 1907, 
c. 377, and acts in addition thereto and amendment thereof, a 
bond for $15,000, together with a certificate of deposit of the 
Hanover Trust Company of Boston for $15,000; that you are 
now advised by the Commissioner of Banks that the license 
issued under said bond to the New Bedford Polish Associa- 
tion, Inc., expired on Feb. 3, 1921, and that the said associa- 



78 ATTORNEY-GENERAL'S REPORT. [Jan. 

tion never did any business under the license. You ask 
whether, if the license is surrendered, you can legally return 
the security deposited in lieu of surety on the bond, and the 
bond itself. 

The question is governed by G. L., c. 169, § 3. Said section 
states the requirements of bonds and the terms of licenses to 
be issued, and provides as follows : — 

The license shall be revocable at all times by the commissioner for 
cause shown, and in the event of such revocation or of a surrender of 
the license, no refund shall be made in respect of any license fee paid. 
Every license shall be surrendered to the commissioner within twenty- 
four hours after written notice to the holder that the license has been 
revoked. In case of the revocation of the license, the money and se- 
curities and the bond, if there be one, shall continue to be held by the 
state treasurer for a period of one year from the date of the revocation 
of the license unless otherwise directed by the order or judgment of a 
court of competent jurisdiction. 

The statute requires that, in case of revocation of the 
license, the money and securities deposited and the bond shall 
continue to be held by the Treasurer and Receiver-General for 
a period of one year, unless otherwise directed by the court. 
The precise question is whether this requirement includes the 
case of a voluntary surrender of the license by the licensee. 

The word "revocation" means the act of recalling, and 
signifies an act on the part of a person by w^hom a right is 
granted revoking that right. The word "surrender," on the 
other hand, means a voluntary giving up or giving back of 
something, and signifies an act on the part of the person hav- 
ing the thing surrendered by which that thing is relinquished. 
A license is revoked by the licensor and surrendered by the 
licensee. 

The statute quoted refers expressly to the two possible 
events of "revocation'^ and "surrender" of a license. 

I am of opinion that the word "revocation," in the last 
sentence of the section under consideration, does not include 
the case of a surrender, and that the requirement that the 
Treasurer shall continue to hold the security and the bond for 
a period thereafter does not apply to the case of a surrender. 
It may well be that the General Court was of the opinion that 
in certain cases where a license is voluntarily surrendered the 
security deposited in lieu of a surety on the bond might be 
returned; and in a case where an association never did any 



1922.] PUBLIC DOCUMENT — No. 12. 79 

business under the license, the occasion for retaining the secu- 
rity for the protection of depositors does not seem to be present, 
as in the ordinary case. I am of opinion that, if you are satis- 
fied that there is no need of holding the bond and security in 
the present instance, it is within your discretion to return 
them. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Co-operative BanJcs — Classes of Shares — Loans on Shares. 

Co-operative banks, with respect to loans made by them, are restricted 

to loans specifically authorized bj^ statute. 
Authority to make loans upon any other security than that specifically 
authorized cannot be implied. 

March 15, 1921. 
Hon. Frank G. Allen, President of the Senate. 

Deak Sir: — I have the honor to acknowledge a copy of 
an order passed by the Honorable Senate, which is as fol- 
lows: — 

Ordered, That the Senate request the opinion of the Attorney-General 
as to the necessity of enacting House Bill No. 695, being "An Act au- 
thorizing loans upon paid-up shares issued by co-operative banks," in 
order to accomplish the purpose desired. 

House Bill No. 695, referred to in the order, as passed to be 
engrossed by the House, reads as follows : — 

Section twenty-seven of chapter one hundred and seventy of the 
General Laws is hereby amended by inserting after the word "ma- 
tured," in the fifth line, the words: — or paid-up, — so as to read as 
follows: — Section 27. Loans may be made upon unpledged shares 
to an amount not exceeding ninety per cent of their \^dthdrawal value 
at the time of the loan, and for every such loan a note shall be given, 
accompanied by a transfer and pledge of the shares borrowed upon. 
Loans may be made upon matured or paid-up shares to an amount not 
exceeding ninety per cent of their face value, as represented by the 
certificate. For every such loan a note shall be given accompanied by 
a transfer of the certificate as collateral for the loan. 

The first statute authorizing the establishment of co-opera- 
tive banks was enacted in 1877 (St. 1877, c. 224). 

Until the year 1914 the statute provided for only one class 
of shares, namely, shares which had not become matured. 



80 ATTORNEY-GENERAL'S REPORT. [Jan. 

In that year the statute was amended so as to give a share- 
holder a right, under certain conditions, to hold ten matured 
shares. See also St. 1914, c. 643, § 6. No change was made 
in the provisions of law relative to loans on shares. 

In 1915 the Bank Commissioner requested the opinion of the 
x\ttorney-General as to whether a co-operative bank was au- 
thorized to execute loans on matured shares belonging to a 
shareholder. The Attorney-General, in stating as his opinion 
that such loans could not be made, said (IV. Op. Atty.-Gen. 
389), in part: — 

Co-operative banks are not ordinary institutions for savings, and are 
not intended to be banks where money may remain on deposit in- 
definitely, although, under certain conditions, ten shares are permitted 
to be continued in the corporation as matured shares. 

The purpose of co-operative banks may be said to be to effect the 
saving of money by a compulsory method as distinguished from the 
permissive policy maintained by other banks. The only departure 
from this purpose is the provision in the statute giving the right to hold 
ten matured shares as above stated. 

The statute does not specifically pro\dde for loans on these matured 
shares, and in my opinion does not authorize such loans by implication. 

In 1918 the statute was further amended so as to authorize 
loans upon matured shares to an amount not exceeding 90 
per cent of their face value as represented by the certificate. 
See St. 1918, c. 101. This amendment appears in the General 
Laws as section 27 of chapter 170. 

St. 1920, c. 429, for the first time authorized the issue of 
paid-up shares. This amendment appears in the General 
Laws as section 12 of chapter 170. No change was made in 
the provisions of law relative to loans upon shares. 

The history of legislation relative to co-operative banks 
shows that the original purpose was to compel holders of shares 
to save money under penalty of certain fines and compulsory 
withdrawal from the bank, and to permit them to borrow 
money to anticipate the ultimate value of their shares. Mem- 
bers of such corporations could hold only shares which had 
not matured'. Later they were permitted, under certain con- 
ditions, to hold ten matured shares, and finally they were also 
authorized to hold, under certain conditions, ten paid-up 
shares. Loans were first authorized only upon notes secured 
by real estate mortgages. Subsequently loans were authorized, 



1922.] PUBLIC DOCUMENT — No. 12. 81 

under certain conditions, upon shares which had not matured 
to an amount not exceeding the withdrawal value, and this 
amount was reduced by later statutes to 95 per cent and then 
to 90 per cent of the withdrawal value. Finally loans w^ere 
also authorized upon matured shares to an amount not ex- 
ceeding 90 per cent of their face value. 

It therefore clearly appears that the intent of the Legisla- 
ture with respect to loans made by co-operative banks has 
always been to restrict such banks to loans specifically au- 
thorized by statute. Authority to make loans upon any other 
security than that specifically authorized cannot be implied. 
I am therefore of the opinion that if the Legislature desires to 
authorize co-operative banks to make loans on paid-up shares, 
it is necessary to enact House Bill No. 695. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Province Lands — To2V7i of Promncetown — Local Taxation — 
Structures on Flats by Licensee of the Commonwealth. 

The town of Provincetown cannot assess taxes on structures erected by 
licensees under G. L., c. 91, § 14, upon the flats of the Commonwealth 
at the said town. 

March 15, 1921. 

Hon. John Halliwell, Senate Chairman, Committee on Harbors and 

Waterways. 

Dear Sir: — On behalf of the committee on harbors and 
waterways, which is considering House Bill No. 571, relative 
to the title to certain province lands owned by the Com- 
monwealth in the town of Provincetown, you have asked my 
opinion as to whether or not the board of assessors of Province- 
town can legally assess and collect taxes on property which is 
on the land controlled by the Commonwealth in the town of 
Provincetown. While your inquiry is perhaps collateral to 
the subject-matter presented by the bill, I am pleased to sub- 
mit the following for your consideration. 

House Bill No. 571 provides as follows: — 

Ownership and occupancy, actual or constructive, during any period 
between June tenth, eighteen hundred and ninety-three, and December 
first, nineteen hundred and one, by any person owning adjoinmg land on 



82 ATTORXEY-GEXERAL'S REPORT. [Jan. 

property bang east and south of lines fixed bj^ section twenty-five of 
chapter ninety-one of the General Laws is hereby declared to have ab- 
solutely divested the commonwealth as of January first, nineteen 
hundred and two, of any property, rights, title, or interest in any part 
of said pro\dnce lands, not over one hundred rods below high-water 
mark. 

I am informed that this bill is introduced as the result of a 
decision handed down by our Supreme Judicial Court on May 
22, 1920, in the case of Sklaroff v. Commonwealth, 236 Mass. 87. 
In that case the facts were that the petitioners had filed in 
the Land Court a petition to register the title to a parcel of 
land situated in Provincetown, and the question raised, in 
brief, was as to w^hether or not the petitioners' title went to 
low-water mark, since the Commonwealth claimed that the 
title to all the land and flats below high-w^ater mark was in 
the Commonwealth. I understand that your committee has 
before it the decision, in which the reasons for the court's 
determination are pointed out, that determination being, in 
brief, that the Commonwealth had not been deprived of its 
title to the lands below high-water mark by any acts of the 
petitioners. 

Taking the facts of the Sklaroff situation as a specific case 
upon which to answer your inquiry, I find that SklarofT & 
Sons w^ere given licenses under the provisions of R. L., c. 96 
(said licenses being dated Jan. 2 and June 26, 1918), to con- 
struct certain structures on the flats below high-water mark at 
Provincetown. The court having held that the title to the 
flats is in the Commonwealth, the question arises as to the 
right of the town of Provincetown to levy taxes upon the 
structures placed upon the land of the Commonwealth by 
permission of said licenses. 

An early case, Boston & Maine Railroad v. City of Cam- 
bridge, 8 Cush. 237, w^ould seem, at first sight, to indicate 
that the structures might be taxable. In that case the Legis- 
lature had given the Boston & Maine Railroad, by a specific 
act, authority to fill certain flats between the channels of the 
Charles and Miller rivers, outside of the location of the railroad, 
for the location of engine houses and wood houses, and for 
other purposes for the use of the railroad, and the court indicated 
that the structures and lands filled were not exempt from tax- 
ation. This decision, however, is not satisfactory for our 
purposes, as it is not indicated whether the court considered 



1922.] PUBLIC DOCUMENT — No. 12. 83 

that the title to the land filled was in the Commonwealth or 
whether the title was in the railroad company, and, being 
outside of the location, was taxable for that reason. 

As to the Provincetown situation, the first question that 
arises is whether or not the structures standing by permis- 
sion upon the Commonwealth's land are to be considered, for 
the purpose of taxation, as real estate or as personalty. 

Real estate for the purpose of taxation is defined by G. L., 
c. 59, § 3, as follows: — 

Real estate for the purpose of taxation shall include all land within 
the commonwealth and all buildings and other things erected thereon or 
affixed thereto. 

In the case of Flanders v. Cross, 10 Cush. 514, the facts were 
as follows: A, residing in another State, owned a building in 
Laurence in this State, standing, by consent, on the ground of 
another person. In arriving at its conclusion the court said: — • 

Was the property here to be considered as real estate for the purpose 
of taxation, or as personal? The language of the statute would seem 
to make it the former. "Real estate," it says, "shall, for the purposes 
of taxation, be construed to include all lands within the State, and all 
buildings and other things erected on or affixed to the same." Rev. 
Sts., c. 7, § 2. 

The court also said: — 

There is no power in the collector to divide the property, to levy on 
the building severed from the land, as divisible parts of the same piece 
of real estate. 

In the case of MiUigan v. Drury, 130 Mass. 428, it was held 
that a building resting on sills upon the ground is taxable as 
real estate, although, by agreement between a lessor and 
lessee of the land, the latter had the right to remove the build- 
ing at the expiration of the lease. In this case the court again 
quoted the definition of real estate for the purpose of tax- 
ation, and stated that — 

The assessors were not obliged to inquire into the private contracts 
between the parties, but had the right to do as they did, and assess 
together as real estate the land and the buildings affixed thereto. 

Therefore, in my judgment, the structures now standing on 
the flats of the Commonwealth by license would, for the pur- 
pose of taxation, be considered real estate. 



84 ATTORNEY-GENERAL'S REPORT. [Jan. 

The next step is a consideration of the second clause of 
G. L., c. 59, § 5, which reads as follows: — 

The following property . . . shall be exempt from taxation: 

Second, Property of the commonwealth, except real estate of which 
the commonwealth is in possession under a mortgage for condition 
broken, lands in Boston known as the commonwealth flats, if leased for 
business purposes, buildings erected by lessees under section twenty-six 
of chapter seventy-five [this section authorizes the trustees of the Massa- 
chusetts Agricultural College to lease to any professor, etc., land in 
Amherst or Hadley owned by the Commonwealth], and property tax- 
able under chapter five hundred and seventy-five of the acts of nineteen 
hundred and twenty [this chapter relates to real estate owned by the 
Commonwealth and held b}' the Metropolitan District Commission in 
the town of Hull, and which is leased or occupied for business purposes]. 

To summarize the above exemption, all property of the 
Commonwealth is exempted from taxation except where it 
falls within the four exceptions enumerated above. 

The first case in point is Corcoran v. Boston, 185 Mass. 325, 
which involved land on the so-called Commonwealth Flats, for 
which the Commonwealth had given a bond for a deed, and 
the land was in possession of Corcoran, who would become 
entitled to a deed upon payment of the purchase money, and 
who had erected buildings on the land and was carrying on 
business there. In deciding the case the court pointed out 
that the statute then provided that the property of the Com- 
monwealth, except real estate of which the Commonwealth is 
in possession under a mortgage of condition broken, should be 
exempt from taxation. Continuing, the court said: — 

The language could not be plainer. The words "the property of the 
Commonwealth" mean the same as ''all the property of the Com- 
monwealth." And the fact that only one exception is made shows that 
no other exception could have been intended, and that a construction 
such as contended for by the respondent, namely, that the exemption 
extends only to property held by the Commonwealth for governmental 
purposes, would be unwarranted. The property that was taxed is the 
property of the Commonwealth, notwithstanding the Commonwealth 
has contracted to sell it to the petitioner, and the petitioner is in pos- 
session, and the exemption attaches to it so long as it continues to be 
the property of the Commonwealth. 

The Corcoran case came up again (193 Mass. 586) after the 
Legislature had enacted St. 1904, c. 385, providing that the 



1922.] PUBLIC DOCUMENT — No. 12. 85 

lands of the Commonwealth known as the Commonwealth 
Flats "shall, if leased for business purposes, be taxed by the 
city of Boston to the lessees thereof." The court held that 
the statute did not apply to land occupied under a bond for a 
deed from the Commonwealth by one who carries on business 
there, and that the land was exempt from taxation. In this 
case the petitioner had erected a manufacturing establishment 
and was carrying on business there as a manufacturer. 

In a later case, Boston Fish Market Corp. v. Boston, 224 
Mass. 31, the petitioners, b}" indenture entered into w^th the 
Commonwealth, had become the lessees of certain parts of 
the Commonwealth Flats, and the court held that the general 
exemption from taxation of the property of the Commonwealth 
did not apply to those portions of the Commonwealth Flats 
that were leased for business purposes, as they were expressly 
subjected to taxation. The court in its decision pointed out 
that the plaintiff was not a mere licensee under R. L., c. 96, 
§ 17. This section is the one authorizing the licensing and 
erection of structures in tide w^aters. 

This observation by our Supreme Judicial Court strongly 
indicates that the court would find, if the question were pre- 
sented to them, that structures erected by a mere licensee 
upon property of the Commonwealth under R. L., c. 96, § 17 
(now G. L., c. 91, § 14), would not be subject to taxation. 
Accordingly, it is my opinion that the town of Provincetown 
cannot assess taxes on the structures now standing upon the 
flats of the Commonwealth at Provincetown by license of the 
Commonwealth. 

While you have not raised the question, and I do not pass 
upon it, there w^ould appear to be some question as to the 
constitutionality of House Bill No. 571 in its present form, 
since it operates to vest in private parties, for private pur- 
poses, and without consideration, lands belonging to the 
Commonwealth. 

A further consideration to be borne in mind is the ad- 
visability of expressly reserving in land between high-water 
mark and low-water mark the public easement for the pur- 
poses of navigation and free fishing and fowling, and of pass- 
ing freely over and through the water without any use of the 
land underneath, wherever the tide ebbs and flows. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



86 ATTORNEY-GENERAL'S REPORT. [Jan. 



Charitable Trust — Religious Society — Power of Legislature to 
terminate Trust. 

The Legislature has no power to terminate a charitable trust under which 
the legal title to certain land and a meeting house was vested in 
trustees for the concurrent use and benefit of a church and a religious 
society. 

Certain property having been left to trustees for public charitable purposes, 
and the particular mode of administration having been prescribed by 
the donor, the donee, by accepting the property, bound itself to ad- 
minister the trust in the manner prescribed. The Legislature cannot 
interfere to control or change the method. 

March 18, 1921. 

Hon. Silas D. Reed, Chairman, Joint Committee on Legal Affairs. 

Dear Sir: — You have asked my opinion as to the legal 
validity of the provisions contained in House Bill No. 602 in 
case of its passage. 

The bill in question is to authorize George W. Noyes and 
other trustees to terminate a certain trust and to convey cer- 
tain property to the Center Congregational Society of Haver- 
hill, and reads as follows: — 

George W. Noyes, Charles E. Dole and George 0. Hoyt appointed 
trustees by the probate court for the county of Essex under certain 
deeds or instruments of trust from David Marsh, Jr., and John Marsh 
to John Marsh and others, dated December seventeen, eighteen hun- 
dred and thirty-four, and an indenture made by John Marsh and others 
and Eliphalet Kimball and others are hereby authorized to convej'' the 
property described in said instruments together with the buildings 
thereon in fee simple to the Center Congregational Society of Haverhill 
for the use of said society and upon said conveyance said trust shall 
terminate and said trustees shall be discharged of their trust under said 
instruments. 

The first trust instrument in this case is that of David 
Marsh, Jr., and John Marsh, executed Dec. 17, 1834, by which 
they conveyed to John Marsh and others, a building com- 
mittee, a certain parcel of land in Haverhill, with the meeting 
house standing thereon. The property was conveyed in trust, 
one of the conditions being that the building committee should 
convey the land and meeting house to one Kimball and others, 
who should hold the property in trust for the concurrent use 
and benefit of the Center Congregational Church and the 
Center Congregational Society. On the same day John Marsh 



1922,] PUBLIC DOCUMENT — Xo. 12. 87 

and others, the said building committee, conveyed to Kimball 
and others, trustees, the aforesaid parcel of land and meeting 
house, and the conditions of this second trust deed conformed 
to a trust deed of a meeting house in the West Parish of 
Haverhill, as had been directed in the original trust deed of 
David Marsh, Jr., and John Marsh. In the indenture from 
the building committee to the original trustees this language is 
found: — 

And it is hereby fully declared and expressly understood that this 
sale and conveyance is made upon the trusts and for the purposes here- 
inafter expressed, and to and for no other ase, intent or purpose what- 
ever; that is to say, upon this special trust and confidence that the 
said parties of the second part, the survivors of them and their assigns, 
and the survivor of them, his heirs and assigns, shall keep, suffer and 
permit the said meeting house and land at all times hereafter to be 
used, occupied and enjoyed as and for a meeting house. 

An examination of the instrument will disclose express condi- 
tions as to the administration of the trust. The trustees 
agreed that — 

They will hold said house and land in joint tenantry, and that they 
or either will never sue out any writ at common law nor present any 
petition under the statute for the partition of the said premises, nor 
attempt the partition thereof in any way whatsoever, or suffer or permit 
the same to be made, and if any attempt should be made to obtain 
partition of the premises that this covenant may be pleaded in law^ 
thereto by any of the present parties hereto or any other person who 
may be in any way interested therein, so that this covenant shall for- 
ever be an effectual bar to an 3^ partition of the said premises. 

It appears that as the old trustees died no steps were taken 
to fill the vacancies, with the result that in 1898 there were 
no trustees to administer the trust, and the matter was taken 
up in the Probate Court of Essex County, and the court ap- 
pointed George W. Noyes and four others to act as trustees. 
Two of said trustees have since died, and George W. Noyes, 
Charles E. Dole and George O. Hoyt are the present trustees. 

By the deeds of David Marsh, Jr., and John Marsh to the 
building committee, and that of the building committee to 
Kimball and others, trustees, a valid charitable trust was 
created, under w^hich the legal title to the land and meeting 
house vested in the trustees for the concurrent use and benefit 



88 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the Center Congregational Church and the Center Congre- 
gational Society. Austin v. Shaw, 10 Allen, 552; Chase v. 
Dickey, 212 Mass. 555; Ripley v. Brown, 218 Mass. 33; 
Crawford v. Nies, 220 Mass. 61, 64. 

Where property is left to trustees for public charitable pur- 
poses, and the particular mode of administration is prescribed by 
the donor, the donee, by accepting the property, binds itself 
to administer the trust in the manner prescribed. The Leg- 
islature cannot interfere to control or change the method. 
The court will not, and, indeed, cannot, alter the scheme of 
the donor "either as to the objects of the charity or the agents 
by whom it is to be administered, unless it appears to be im- 
possible to carry out the scheme according to its terms." 
Winthrop v. Attorney-General, 128 Mass. 258, 261; Cary 
Library v. Bliss, 151 Mass. 364, 375; Harvard College v. 
Society for Promoting Theological Education, 3 Gray, 280; 
Fellows V. Miner, 119 Mass. 541. 

Whenever a charitable trust can be administered in ac- 
cordance with the directions of the donor or founder, our 
Supreme Judicial Court has said that '*it is not at liberty to 
modify it upon considerations of policy or convenience." 
Jackson v. Phillips, 14 Allen, 539, 591, 592. The conditions 
laid down in the trust instruments can be carried out by the 
present trustees. 

The language quoted above, that the conveyance was made 
upon the special trust and confidence that the trustees should 
permit the meeting house and land at all times hereafter to 
be used for public worship, in my opinion was a stipulation 
that the trust should last forever, and that being so, it is 
doubtful if the Legislature has power to terminate the trust, 
as is provided for in the House bill under consideration. 

In a recent case {Craivford v. Nies, 224 Mass. 474, decided 
in June, 1916) the Supreme Judicial Court held that the 
Legislature had no power to terminate a trust where by a deed 
certain land was conveyed to trustees for the use and benefit 
of members of a certain church. In view of the decision in 
that case, I am of opinion that the Legislature has no power 
to terminate the trust in question. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 89 



Taxation — Domestic Corporation — Liability of Corporation 
not engaged in Business. 

A domestic corporation which sold all its assets and ceased doing business 
prior to Jan. 1, 1920, is not subject to taxation under the provisions of 
Gen. St. 1919, c. 355, and St. 1920, c. 550, as amended, both of which 
became effective on or after that date. 

Under Gen. St. 1919, c. 355, a domestic business corporation is subject to 
tax with respect to the doing of business, and not with respect to the 
privilege of doing business, as under St. 1909, c. 490, pt. Ill, §§ 39-41. 

March 21, 1921. 

Hon. Henry F. Long, Cornmissioner of Corporations and Taxation. 

Dear Sir: — You state that a domestic corporation sold all 
its assets on the first day of December, 1919, and since that 
date has carried on no business whatever. You request my 
opinion whether said corporation is subject to taxation under 
the provisions of Gen. St. 1919, c. 355, and St. 1920, c. 550, as 
amended. 

Said chapter 550 re-enacted for one year sections 1 and 2 
and 4 to 9, inclusive, of chapter 255 of the General Acts of 
1918. The latter chapter imposed a tax upon corporations 
incorporated under the laws of this Commonwealth and doing 
business for profit. On May 27, 1920, the date when said 
chapter 550 was enacted, the corporation was not ** doing busi- 
ness for profit" and therefore was not comprehended by the 
terms of the act, and did not become taxable thereunder (see 
Attorney-General v. Boston d' Albany R.R. Co., 233 Mass. 
460). 

Gen. St. 1919, c. 355, became effective on Jan. 1, 1920 
(§ 33). On that date the corporation in question was in 
existence, but was not carrying on any business whatever. 
The question is squarely raised, therefore, whether a domestic 
corporation which has not been dissolved but which has "gone 
out of business" is subject to the excise tax provided for by 
chapter 355. 

In my communication of Feb. 3, 1921, addressed to Mr. 
Harold S. Lyon, Director, Division of Corporations, I ex- 
pressed the opinion that a corporation doing business at any 
time during the year 1920, even though it sold all its assets 
prior to April 1 of that year, was subject to taxation under 
chapter 355. The question now presented, however, arises in 
respect to a corporation that was carrying on no business 
whatever at the time said chapter became effective, and. 



90 ATTORNEY-GENERAL'S REPORT. [Jan. 

moreover, has not done business at any time during the period 
in which said chapter has been in effect. 
Section 2 provides, in part: — 

Except as is otherwise provided in this section, every domestic 
business corporation shall be subject to pay annually, with respect to 
the carrying on or doing of business by it, an excise tax equal to the 
sum of the following : — 

(1) An amount equal to five dollars per thousand upon the value of 
its corporate excess. 

(2) An amount equal to two and one half per cent of that part of its 
net income as hereinafter defined, which is derived from business 
carried on within this commonwealth. 

The tax thus provided for is computed in part upon cor- 
porate excess and in part upon income. So far as it is com- 
puted upon corporate excess, it was derived from the tax 
provided for by St. 1909, c. 490, pt. Ill, §§ 39-41, which was 
imposed upon ''every corporation organized under the general 
or special laws of the commonwealth for purposes of business 
or profit. ..." x\s provided for by chapter 490, it was a 
franchise tax, — a tax upon the privilege of doing business; if, 
after completing its organization, a corporation did not begin 
business, or if, having begun business, it later sold its assets 
and transacted no business whatever thereafter, nevertheless it 
was liable to taxation, for unless and until it was dissolved, it 
enjoyed the privilege of doing business as a corporation. Attor- 
fiey-General v. Massachusetts Pipe Line Gas Co., 179 Mass. 15. 

The tax provided for by chapter 355 contains a new element, 
in that it is measured in part by net income. It also differs 
from the former tax in the fact that by its terms it is im- 
posed "with respect to the carrying on or doing of business by 
it." The words quoted are not the equivalent of the words 
used in the former act, — "organized under the general or 
special laws of the commonwealth for purposes of business or 
profit." Under the former act, the corporation was taxed in 
respect to the privilege of doing business; under the present 
act, it is taxed in respect to the exercise of the privilege. 

In Attorney-General v. Boston d- Albany R.R. Co., 233 Mass. 
460, the question was whether a railroad corporation which 
had leased its lines to another corporation and confined its 
activities to the receiving of rent and the distribution of the 
same to its stockholders was "doing business for profit," 
within the meaning of Gen. St. 1918, c. 255, § 1. The court 



1922.] PUBLIC DOCUMENT — No. 12. 91 

held that it was not, and, therefore, was not taxable. A 
fortiori, if the corporation had been engaged in no activities 
whatever, the court would have held that it was not taxable. 
The words ** doing business for profit" have substantially the 
same meaning as "the carrying on or doing of business" when 
applied to a business corporation. 

The meaning of the words "engaged in business," as used 
in the corporation tax law of the United States (36 St. at 
Large, 112, 117), has frequently been construed by the Su- 
preme Court of the United States. In the following cases it 
was held that the corporation in question was not "engaged in 
business," and therefore was not subject to the corporation 
tax: Zonne v. Minneapolis Syndicate, 220 U. S. 187; McCoach 
V. Minehill & Schuylkill Haven R.R., 228 U. S. 295; United 
States V. Emery, Bird, Thayer Realty Co., 237 U. S. 28. In 
Flint V. Stone Tracy Co., 220 U. S. 107, 145, the court said: — 

It is therefore apparent, giving all the words of the statute effect, 
that the tax is imposed not upon the franchises of the corporation 
irrespective of their use in business, nor upon the property of the cor- 
poration, but upon the doing of corporate or insurance business and 
with respect to the carrying on thereof. 

The tax provided for by Gen. St. 1919, c. 355, is of the same 
nature. 

For the reasons stated, and in view of the authorities re- 
ferred to, I am of opinion that a corporation which has carried 
on no business whatever since Dec. 31, 1919, is not subject to 
taxation under the provisions of said chapter. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Trust Com/panies — Federal Reserve System — Power of Com- 
missioner to authorize a Boston Trust Company ivhich is a 
Member of the Federal Reserve System to act as a Reserve 
Agent for Other Trust Companies. 

Acting under the power conferred by G. L., c. 172, § 75, the Commissioner 
of Banks may authorize a Boston trust company which is a member 
of the Federal reserve sj'stem to act as reserve agent for other trust 
companies. 

Under G. L., c. 172, § 81, a trust company which becomes a member of the 
Federal reserve system is governed as to the management of its reserve 
by the Federal Reserve Act and not by G. L., c. 172, § 75. 



92 ATTORNEY-GENERAL'S REPORT. [Jan. 

March 21, 1921. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir : — You have requested my opinion on the fol- 
lowing case: — 

A certain trust company in Boston, which is a member of 
the Federal reserve system, has applied to the Commissioner of 
Banks for permission to act as reserve agent for other trust 
companies under G. L., c. 172, § 75. 

You ask whether or not you can authorize said trust com- 
pany to act as reserve agent. 

G. L., c. 172, § 75, provides: — 

The commissioner may authorize any trust company in Boston to 
act as reserve agent for trust companies doing business in the common- 
wealth; provided, that a trust company shall not keep any part of its 
reserve in a trust company so authorized to act as reserve agent with- 
out first obtaining the written consent of the commissioner. Not less 
than one half of the reserve of such trust companj^ acting as reserve 
agent shall consist of la^\'ful money of the United States, gold certifi- 
cates, silver certificates or notes and bills issued by any lawfully or- 
ganized national banking association, and the remainder of such reserve 
may consist of balances, payable on demand, due from any trust 
company in Boston authorized to act as reserve agent as herein pro- 
vided, or from any national banking association doing business either 
in this commonwealth or in the cities of New York, Philadelphia, 
Chicago or Albany. 

Section 81 provides: — 

A trust company which becomes a stockholder in a federal reserve 
bank within the federal reserve district where such trust company is 
situated, and while such trust companj^ continues as a member bank 
under the United States "Federal Reserve Act" approved December 
twentj^-third, nineteen hundred and thirteen, or any acts in amend- 
ment thereof, shall be subject to the provisions of said "Federal Reserve 
Act" and any amendments thereof relative to bank reserves, in sub- 
stitution for the requirements of sections seventy-three to seventy-five, 
inclusive. 

As the trust company under consideration has become a 
member of the Federal Reserve Bank in Boston, the extent of 
its reserve and the manner in which such reserve shall be held 
are governed by the Federal Reserve x\ct, 38 Stat., pp. 251, 
262, c. 6, and amendments thereof, and not by G. L., c. 172, 
§§ 73 to 75, inclusive. The requirements as to reserve of said 



1922.] PUBLIC DOCUMENT — No. 12. 93 

Federal Reserve Act, as amended to April 13, 1920, seem to be 
somewhat less stringent in certain respects than those of said 
sections 73 to 75, inclusive, of our State act. The precise 
question, therefore, is whether the Commissioner of Banks 
may, under the first sentence of said section 75, authorize a 
trust company in Boston to act as reserve agent for other 
trust companies, although such Boston trust company, if so 
designated, need not comply with the "requirements" of the 
second sentence of said section 75. 

In my opinion, such designation may be made. Section 81 
provides that any trust company which joins the Federal 
reserve system ''shall" be governed as to reserve by the pro- 
visions of the Federal Reserve Act, "in substitution for the 
requirements of" said sections 73 to 75, inclusive. That 
which is so substituted must be deemed to be the equivalent 
in that respect of said sections 73 to 75, irrespective of any 
apparent differences between the former and the latter. Such 
substitution of an equivalent for the "requirements" of said 
sections 73 to 75 as to reserve cannot be held to narrow the 
power of the Commissioner of Banks to appoint "any trust 
company in Boston" as a reserve agent for other trust com- 
panies. Said section 81 makes it clear that a trust company 
may join the Federal reserve system and still retain its State 
charter. A construction of the State act which would in effect 
require a Boston trust company to choose between member- 
ship in the Federal reserve system and being appointed a 
reserve agent for other trust companies would, to some extent 
at least, impose upon such a trust company the very election 
from which said section 81 was apparently intended to relieve 
it. I therefore advise you that you have power to make the 
designation in question. The expediency thereof is for you to 
determine in each case, in the exercise of a sound discretion. 
Yours very truly, 

J. Weston Allen, Attomey-GeneraL 



94 ATTORXEY-GEXERAL'S REPORT. [Jan. 



Constitutional Law — Federal Constitution — Contract Clause — 
Repeal of Corporate Charter for Misuser where no Power 
to amend or repeal ivas reserved. 

Where a corporate charter was granted without reserving any right to alter, 
amend or repeal the same, the Legislature cannot acquire power to 
repeal such charter by adding the words "for misuser" to the repealing 
clause. 

If a ground for forfeiting an irrepealable corporate charter exists, such 
forfeiture must be established by a competent court. 

March 24, 1921. 
Committee on Mercantile Affairs. 

Gentlemen: — You inquire whether Senate Bill X'^o. 190, 
entitled, " An Act to repeal the charter and all corporate 
powers granted to the Second Society of Universalists in the 
Town of Boston," would be constitutional if the section which 
purports to repeal the charter were amended by adding the 
words "for misuser" at the end thereof. 

On Feb. 28, 1921, I advised you that the Legislature did 
not reserve and does not possess power to alter, amend or 
repeal this charter without the consent of the corporation. 
The Legislature cannot acquire power to repeal this charter 
by declaring that the corporation has misused its powers. If 
a ground of forfeiture exists, it must be established in a suit 
brought by the Commonwealth before a competent tribunal. 
Folger v. Columbian Ins. Co., 99 Mass. 267, 274; Boston Glass 
Mfg. Co. v. La7igdo7i, 24 Pick. 49, 52; Heard v. Talbot, 7 Gray, 
113, 119. A different question would be presented if the Legis- 
lature had reserved a powder to repeal this charter for a default 
upon the part of the corporation, and so possessed the in- 
cidental power to determine w^hether the condition precedent 
to such repeal had occurred. Crease v. Babcock, 23 Pick. 334. 
I therefore answer your question in the negative. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 95 



Penal Institution — Inmate afflicted with Certain Diseases — 
Treatment and Discharge. 

The head of a penal institution is justified in holding an inmate whose 
sentence has expired, provided said inmate is afflicted with one or more 
of the diseases referred to in G. L., c. Ill, § 121. 

Such inmates may be isolated from the public, whose health might be en- 
dangered by contact with them, but not being bound by prison rules 
intended to govern the conduct of prisoners under sentence for crime, 
they may not be punished for violation of such rules. 

The provisions of G. L., c. 268, § 16, relating to escaped prisoners, refer 
solely to persons under sentence, and have no application to inmates 
held under G. L., c. Ill, § 121. 

March 24, 1921. 

Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You direct my attention to G. L., c. Ill, 
§ 121, which provides that an inmate of a penal institution 
who, at the expiration of his sentence, is afflicted with certain 
diseases, shall be retained in said institution until symptoms 
of disease shall have disappeared and his discharge w^ill not 
endanger the public health. 

In respect to this statute you request my opinion upon 
three questions: — 

1. Is the head of a penal institution justified in holding an inmate 
whose sentence has expired, provided said inmate is afflicted with one 
or more of the diseases referred to in the statute? 

2. If said inmate is so held, may he be punished by solitary con- 
finement or otherwise for infraction of the prison rules? 

3. If an inmate so held escapes from the institution, is he liable to 
prosecution under the '' escape law"? 

The section in question provides: — 

An inmate of a public charitable institution or a prisoner in a penal 
institution who is afflicted with syphilis, gonorrhoea or pulmonary 
tuberculosis shah be forthwith placed under medical treatment, and if, 
in the opinion of the attending physician, it is necessary, he shall be 
isolated until danger of contagion has passed or the physician deter- 
mines his isolation unnecessary. If at the expiration of his sentence he 
is afflicted with syphilis, gonorrhoea or pulmonary tuberculosis in its 
contagious or infectious symptoms, or if, in the opinion of the attend- 
ing physician of the institution or of such physician as the authorities 
thereof may consult, his discharge would be dangerous to public health, 
he shall be placed under medical treatment and cared for as above pro- 
vided in the institution where he has been confined until, in the opinion 



96 ATTORNEY-GENERAL'S REPORT. [Jan. 

of the attending physician, the said symptoms have disappeared and his 
discharge will not endanger the public health. The expense of his sup- 
port, not exceeding three dollars and fifty cents a week, shall be paid 
by the town where he has a settlement, after notice of the expiration 
of his sentence and of his condition to the overseers of the poor thereof, 
or, if he is a state pauper, to the department of public welfare. 

I proceed to discuss the three questions raised by your 
request in the order in which I have stated them. 

1. A citizen may not be committed to prison or held therein 
as a criminal unless he has been duly convicted of crime and 
has been sentenced to confinement by a court of competent 
jurisdiction. He may not be imprisoned by legislative or 
executive fiat, nor may his imprisonment be continued by 
legislative or executive fiat after the expiration of his sentence. 
These propositions I take to be axiomatic. 

But while the Legislature is under a duty not to interfere 
arbitrarily with the liberty of the individual, it is also under a 
duty to provide for safeguarding the public health. Personal 
liberty leaves off where public safety begins. In consequence, 
the State may compel vaccination (G. L., c. Ill, §§ 181-183), 
and may make quarantine regulations and provide for the 
compulsory isolation of persons afflicted with infectious dis- 
eases (G. L., c. Ill, §§ 176-180). See Commomvealth v. Pear, 
183 Mass. 242; Jdcobson v. Massachusetts, 197 U. S. 11. 

The statute above quoted is designed to protect the public 
by providing that certain persons whose liberty would be a 
menace to the public health shall not be permitted to mingle 
with, and possibly infect, healthy members of the community. 
It is a quarantine statute. It provides in effect that a person 
previously restrained of his liberty because guilty of crime 
shall, at the expiration of his sentence, continue to be re- 
strained and kept under treatment until the danger of infect- 
ing the public shall have disappeared. So construed, the act 
is constitutional and valid, 

I am of opinion that your first question should be answered 
affirmatively. 

2. Section 121 was not intended to provide punishment for 
persons afflicted with disease, nor was it intended to extend 
or prolong expired sentences. As already indicated, it is a 
quarantine statute. In consequence, while diseased persons 
may be isolated and restrained of their liberty pursuant to its 
provisions, after expiration of their sentences they are not to 
be dealt with as convicted criminals still under sentence. In 



1922.] PUBLIC DOCUMENT — Xo. 12. 97 

the eye of the law, they are invalids rather than criminals. 
They may be kept isolated from the public, whose health 
would be endangered by contact with them, but they are not 
bound by prison rules intended to govern the conduct of per- 
sons under sentence for crime. If, therefore, they violate such 
rules, they may not be punished for such violation either by 
solitary confinement or by other methods designed to effec- 
tuate the discipline and control of persons serving sentences far 
crime. (See G. L., c. 137, §§ 39-47.) The correctness of this 
conclusion appears from the section itself, which provides that 
a diseased person whose sentence has expired "shall be placed 
under medical treatment and cared for as above provided in 
the institution where he has been confined," and which pro- 
vides also for the support of such persons by the towns, 
wherein they have settlements. 

I answer your second question in the negative. 

3. By the term "escape law" I assume that you have refer- 
ence to G. L., c. 268, § 16, which provides: — 

A prisoner who escapes or attempts to escape from any penal in- 
stitution, or from land appurtenant thereto, or from the custody of 
any officer thereof or while being conveyed to or from an}^ such institu- 
tion, may be pursued and recaptured and shall be punished by im- 
prisonment in the institution to which he was originally sentenced for 
a term not exceeding five years. If the prisoner has escaped or at- 
tempted to escape from the prison camp and hospital, the expense of 
supporting him shall be paid bj^ the institution to which he is sentenced 
and the expense of committing him shall be paid by the prison camp 
and hospital. In imposing sentence under this section the court shall 
observe the provisions of law regarding sentences and commitments 
to the various penal institutions. 

This section, by its terms, has reference to "a prisoner," 
which term as used in the section is equivalent to the phrase 
"convict under sentence." It is intended to prevent escapes 
and attempts to escape by persons serving sentences for crime. 
It clearly has no application to persons restrained of their 
liberty by virtue of a quarantine regulation contained in a 
statute. The Legislature cannot be presumed to have intended 
to establish a sentence of five years' imprisonment as a pun- 
ishment for escape from quarantine. The section is penal, 
and is, therefore, to be construed strictly. So construed, it has 
application only to persons under sentence. 

I answer your third question in the negative. 



98 ATTORNEY-GENERAL'S REPORT. [Jan. 

4. A question may be raised whether, since the statute 
provides for the quarantine of ex-prisoners only and not of all 
persons in the Commonwealth afflicted with the diseases re- 
ferred to in the statute, the latter may not be invalid as an 
exercise of the police power, on the ground that it is unduly 
discriminatory. I have not been unmindful of this limitation 
in my answer to your first question. However, the question 
of what measures are best calculated to safeguard the public 
interest, and especially the public health, is, in the first in- 
stance, for the consideration of the Legislature, and every 
intendment is to be made in favor of the constitutionality of a 
statute enacted by the General Court after full consideration 
and discussion by them of the questions of law and public 
policy involved. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Poll Taxes — Exemption — Military or Naval Service. 

The exemption from the payment of poll taxes, provided by Gen. St. 1918, 
c. 49, § 1, as amended by Gen. St. 1919, c. 9, is still in effect, regardless 
of Public Resolution No. 64, 66th Congress, effective March 3, 1921, 
entitled "A Resolution declaring certain acts of Congress, joint resolu- 
tions and proclamations shall be construed as if the war had ended and 
the present or existing emergency expired.'' 

March 24, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — Gen. St. 1918, c. 49, § 1, as amended by Gen. 
St. 1919, c. 9, provides: — 

Inhabitants of this commonwealth who were engaged in the military 
or naval service of the United States in the present war before the 
passage of this act, and those who hereafter engage in said ser\'ice during 
said war, shall be assessed for, but shall be exempt from, the pajinent 
of all poll taxes assessed for the year nineteen hundred and seventeen 
and during the continuance of the war, and thereafter up to and in- 
cluding the year of their discharge. 

You direct my attention to Public Resolution No. 64, 66th 
Congress, effective March 3, 1921, entitled "A Resolution 
declaring certain acts of Congress, joint resolutions and 
proclamations shall be construed as if the war had ended and 



1922.] PUBLIC DOCUMENT — No. 12. 99 

the present or existing emergency expired," and you request 
my opinion whether the effect of said resolution is to terminate 
the exemption from payment of poll taxes provided for by 
Gen. St. 1918, c. 49, as amended. 

In an opinion rendered to the Commissioner of Corporations 
and Taxation, on July 8, 1920 (V Op. Atty.-Gen. 601), I said: — 

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 con- 
strued to mean continuance of hostilities. It must refer to the legal 
termination of the war. A state of war legally continues until termi- 
nated by a treaty of peace or by a proclamation of peace. Hamilton v. 
Kentucky Distilleries Co., 251 U. S. 146, 161; Hijo v. United States, 
194 U. S., 315, 323. Neither of these events has as yet occurred. 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 $5 poll tax imposed 
under Gen. St. 1919, c. 283, § 10. To avoid misconception, I may add 
that a discharge 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. 

Unless, therefore, said resolution of Congress terminated 
the war with the Central Powers, the poll tax exemption above 
referred to is still in effect. 

Whether a state of war may be terminated by congressional 
resolution is a question that I am not at present called upon 
to answer, for I am of opinion that the resolution above re- 
ferred to was not intended to have that effect; indeed, the 
expression " as if the war had ended," which is included in the 
title of the resolution, constitutes legislative recognition of the 
continued existence of a state of war. Certain resolutions and 
statutes of Congress, and also certain proclamations, were 
made necessary and were adopted to meet emergencies created 
by actual hostilities, and similarly there was need for emer- 
gency legislation and for proclamations by the Executive to 
meet the conditions which attended the demobilization of the 
agencies and instrumentalities incident to the active prosecu- 
tion of war. The emergency having been met, Congress 
has determined that certain legislative provisions incident to it 
are no longer necessary or desirable, and has therefore resolved 
that they shall be construed in the light of the changed con- 



100 ATTORNEY-GENERAL'S REPORT. [Jan. 

ditions. The resolution enacted was not by any means the 
equivalent of the so-called ''Knox Resolution," introduced in 
the United States Senate last year, and was not intended to 
operate as a termination of the war. 

I am of opinion that the exemption provided for by Gen. St. 
1918, c. 49, as amended by Gen. St. 1919, c. 9, is still in effect. 
Very truly yours, 

J. Weston Allen, AUorney-General. 



Salaries of Officers and Employees of the Commonwealth — 
' Employees of the Massachusetts Agricultural College paid 
wholly or in Part from Federal Funds — Supervisor of 
A dministration. 

Salaries of employees of the Massachusetts Agricultural College, paid 
from State appropriations, must be fixed by the trustees of the college, 
under G. L., c. 75, § 13, in accordance with the classification and 
specifications of the Supervisor of Administration, under G. L., c. 30, 
§ 46, and hence are subject to his supervision and approval. 

Employees who are paid wholly or in part from Federal funds, under the 
Smith-Lever act of May 8, 1914, chapter 79, are nevertheless State 
employees, and their salaries are subject to the supervision and ap- 
proval of the Supervisor, since the funds are paid to the State and the 
salaries are paid by the State. 

Employees who receive salaries from so-called ''States Relations Service" 
funds, coming directly from the Federal Department of Agriculture, 
are joint employees of the State and Federal governments, and their 
salaries, so far as they are received from the Federal government, are 
not subject to the supervision and approval of the Supervisor. 

March 25, 1921. 
Dr. Payson. Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion with reference to 
the right of the Supervisor of Administration to fix salaries of 
employees of the Massachusetts Agricultural College in cases 
where such employees are paid wholly or in part from Federal 
funds. Your question relates more specifically to salaries of 
employees in the Department of Extension Service, paid from 
funds paid by the Federal government, under the so-called 
Smith-Lever act, to the Treasurer and Receiver-General of the 
Commonwealth, and from so-called " States Relations Serv- 
ice" funds paid by the United States Department of Agri- 
culture directly to the employees of the Department of Ex- 
tension Service. 



1922.] PUBLIC DOCUMENT — No. 12. 101 

The Smith-Lever act of May 8, 1914, chapter 79, pro- 
vided for agricultural extension work to be carried on by 
agricultural colleges in co-operation with the United States 
Department of Agriculture. The colleges to be benefited were 
to be selected by agreement with the Secretary of Agriculture, 
and the act required that before funds should become available 
to any college, plans should be submitted by the proper 
officials of such college and approved by the Secretary of Agri- 
culture. It appropriated sums, increasing annually, to be 
paid to each State which should by its Legislature assent to 
the provisions of the act. It provided that the sums appro- 
priated for extension work should be paid to the State treas- 
urer or other officer authorized to receive the same. 

This act was accepted by the Commonwealth by St. 1914, 
c. 721, and the Treasurer and Receiver-General was desig- 
nated to receive the appropriations annually, to be applied by 
him under and for the purposes of the act, and the Massa- 
chusetts Agricultural College was authorized to receive said 
grants of money. 

It has been held, with respect to similar provisions in an 
earlier act making appropriations to agricultural colleges, that 
the grant so made was to the State and not to any institution 
established by the State, to be held for the purposes stated in 
the act. Wyomijig, ex rel. Wyoming Agricultural College v. 
Irvine, 206 U. S. 278; Massachusetts Agricultural College v. 
Marden, 156 Mass. 150, 156. 

Following the act of 1914 and the State acceptance thereof, 
a memorandum of understanding, so called, was executed 
between the Massachusetts Agricultural College and the 
United States Department of Agriculture regarding extension 
work in agriculture and home economics in the State of Mas- 
sachusetts. By this understanding the college agreed to 
organize and maintain a division for the conduct of extension 
work in agriculture and home economics, to administer 
through such extension division any and all funds received for 
such work, and to co-operate with the Department of Agri- 
culture in such extension work. The Department of Agri- 
culture agreed to organize a States Relations Service, and to 
conduct, in co-operation with the college, all forms of exten- 
sion work in agriculture and home economics which the 
department w^as authorized by Congress to conduct in the 
State of Massachusetts. It was mutually agreed that such 



102 ATTORNEY-GENERAL'S REPORT. [Jan. 

co-operative extension work, involving the use of direct 
congressional appropriations, should be planned under joint 
supervision; that all agents appointed for such co-operative 
extension work, involving the use of direct congressional 
appropriations, should be joint representatives of the college 
and the department unless otherwise provided in the project 
agreements; and that the plans for the use of the Smith- 
Lever funds, except so far as those funds should be employed 
in co-operative projects involving the use of department funds, 
should be made by the extension division of the college, but 
should be subject to the approval of the Secretary of Agri- 
culture, in accordance with the terms of the Smith-Lever act, 
and when so approved should be executed by the extension 
division of said college. 

Thereafter a States Relations Service was organized in the 
Department of Agriculture, by which appropriations received 
from Congress are transmitted directly to the employees of the 
extension division. Smith-Lever funds, on the other hand, are 
transmitted through the Treasurer and Receiver-General. 

The Massachusetts Agricultural College was incorporated 
by St. 1863, c. 220. By Gen. St. 1918, c. 262, this corporation 
was dissolved, and it was provided that thereafter the college 
should be maintained as a State institution under the same 
name. 

Section 5 of that act is as follows: — 

All employees of the institution shall be considered state employees, 
but shall not be subject to the civil service laws and regulations. 

G. L., c. 15, § 19, provides that the trustees of the Massa- 
chusetts Agricultural College shall serve in the Department of 
Education. 

G. L., c. 75, § 13, is, in part, as follows: — 

The trustees shall elect the president, necessary professors, tutors, 
instructors and other officers of the college and fix their salaries and 
define their duties and tenure of office. 

Similar provisions may be found in the General Laws au- 
thorizing the heads of the various departments and other in- 
stitutions to fix the salaries of employees under their direc- 
tion. 

G. L., c. 30, §§ 45 to 50, inclusive, provide for the classifica- 



1922.] PUBLIC DOCUMENT — No. 12. 103 

tion of "all appointive offices and positions in the government 
of the Commonwealth, except those in the judicial branch and 
those in the legislative branch other than the additional 
clerical and other assistants in the sergeant-at-arms' office." 
Section 46 is, in part, as follows : — 

The salaries of all officers and employees holding offices and positions 
required to be classified under said section, except those whose salaries 
are now or shall be otherwise regulated by law and those whose salaries 
are required by law to be fixed subject to the approval of the governor 
and council, shall be fixed in accordance with such classification and 
specifications. 

In an opinion rendered by this department to the Super- 
visor of Administration, under date of May 12, 1920 (V Op. 
Atty.-Gen. 552), I advised him that the phrase "salaries . . . 
regulated by statute," in Gen. St. 1919, c. 320, § 1, and now 
appearing in G. L., c. 30, § 46, as "salaries . . . regulated by 
law," meant "salaries fixed by law either in some definite sum 
or by a sliding scale which is automatically effective." 

I am of opinion that the salaries of employees of the Massa- 
chusetts Agricultural College paid in the ordinary way from 
State appropriations, while they must be fixed by the trustees, 
under G. L., c. 75, § 13, must also be fixed in accordance with 
the classification and specifications of the Supervisor of Ad- 
ministration, under G. L., c. 30, § 46, and hence are subject 
to his supervision and approval. 

It remains to consider whether the situation is altered in 
cases where salaries are paid wholly or in part from Smith- 
Lever funds or States Relations Service funds. 

Smith-Lever funds are paid to the State, to be applied for 
the purposes stated in the act, namely, for co-operative agri- 
cultural extension work between the agricultural colleges and 
the United States Department of Agriculture. The act pro- 
vides that the work shall be carried on in such manner as may 
be mutually agreed upon by the Secretary of Agriculture and 
the colleges receiving the benefits of the act, and requires that 
plans shall be submitted by the proper officials of each college 
and approved by the Secretary of Agriculture. According to 
the memorandum of understanding between the Massachusetts 
Agricultural College and the Secretary of Agriculture, plans 
for the use of the Smith-Lever funds shall be made by the 
extension division of the college, but shall be subject to the 



104 ATTORNEY-GENERAL'S REPORT. [Jan. 

approval of the Secretary of Agriculture, in accordance with 
the terms of the act, and when so approved shall be executed 
by the extension division of the college. 

There may be some ambiguity in the use of the word 
"plans," as used in the act and in the memorandum of under- 
standing, but the meaning of the word in its practical applica- 
tion is shown by the form of plan which has been annually 
submitted and approved. This form of plan for each fiscal 
year for " Co-operative Extension Work in Agriculture and 
Home Economics" is said to be submitted "in accordance with 
the act of Congress dated May 8, 1914," — the Smith-Lever 
act. It contains a list of projects, a budget statement show- 
ing assignment of funds to projects, and so-called personal 
statements showing the funds from which the salaries are paid 
of all employees in the extension service. In practice, there- 
fore, the payment of salaries from Smith-Lever funds has been 
submitted as a part of the annual plans for the approval of the 
Secretary of Agriculture. 

Employees of the extension division whose salaries are paid 
wholly or in part from Smith-Lever funds, while the payment 
of those salaries is thus subject to the approval of the Secre- 
tary of Agriculture, are, in my opinion. State employees, whose 
salaries are subject to the supervision and approval of the 
Supervisor of Administration. He will bear in mind, no 
doubt, that Smith-Lever funds are Federal funds, that they 
are paid to employees whose work is carried on by the college 
in co-operation with the Department of Agriculture, and that 
the Commonwealth has accepted the benefits of the act with 
that understanding. 

States Relations Service funds are paid by the Department of 
Agriculture directly, as salaries, to employees of the extension 
division. These payments also are shown in the annual plans 
above referred to. 

By the memorandum of understanding it was agreed that 
agents appointed for co-operative extension work involving the 
use of direct congressional appropriations to the Department 
of Agriculture should be joint representatives of the college 
and of the department unless otherwise expressly provided in 
the project agreements, and this agreement must be recog- 
nized as binding. Gen. St. 1918, c. 262, dissolving the Massa- 
chusetts Agricultural College, expressly provided that the 
Commonwealth should be subject to the legal obligations of 



1922.] PUBLIC DOCUMENT — No. 12. 105 

the college. There is no provision in the laws of the Com- 
monwealth requiring employees of State institutions to give 
their whole time to the service of the Commonwealth, or pro- 
hibiting them from receiving salaries from other sources. 
Cf. Const, pt. 2nd, c. VI, art. II; G. L., c. 30, §§ 21, 23. 
Employees of the extension division, receiving payments for 
salaries from States Relations Service funds, must therefore 
be regarded, unless other provision is made in some project 
agreement, as joint employees of the State and Federal gov- 
ernments. 

The word *' salaries" as used in G. L., c. 30, § 46, in my 
opinion, signifies salaries paid by the Commonwealth. There 
would be no object in providing that salaries of employees 
received from other sources should be under the supervision 
of the Supervisor of Administration. 

I am therefore of the opinion that the Supervisor has no 
right to disapprove the salaries of employees in the Depart- 
ment of Extension Service in so far as those salaries are paid 
by agreement between the college and the Department of 
Agriculture out of States Relations Service funds. He has 
authority to supervise salaries paid out of other funds to em- 
ployees who receive also States Relations Service funds. In 
so doing he should bear in mind that such employees are joint 
employees of the State and Federal governments, and that 
they are employed for work which the Commonwealth has 
agreed shall be carried on in co-operation with the Department 
of Agriculture. 

I am informed that the statements and estimates submitted 
by the trustees to the Supervisor of Administration, as re- 
quired by G. L., c. 39, § 3, do not show specifically what 
salaries or parts thereof are paid from States Relations Serv- 
ice funds. In that respect the practice should be changed so 
that the Supervisor may have detailed information as to all 
payments of salaries either from State funds or from Smith- 
Lever funds. 

Very truly yours, 

J. Weston Allex, Attorney-General. 



106 ATTORXEY-GEXERAL'S REPORT. [Jan. 



Licensed Boxing Matches — Surrender of License — Refund of 

License Fee. 
A license issued under the provisions of G. L., c. 147, §§ 32-51, does not 
give rise to a contract between the Commonwealth and the holder. 
If the licensee prefers not to exercise the privilege, he may forbear to 
do so, but there is no legislative authority to refund all or a part of the 
fee paid therefor. 

March 29, 1921. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You state that under the provisions of G. L., 
c. 147, §§ 32-51, a license was issued on Jan. 12, 1921, by the 
State Boxing Commission to the Fenway Athletic Association, 
Inc. Said license authorized the holder thereof to conduct 
boxing exhibitions in the city of Boston up to and including 
Dec. 31, 1921. Under the regulations of the Commission, the 
holder paid $800 for the license. One exhibition has been 
held under it, and the holder, or rather, one of the officials of 
said association who personally advanced said sum of $800, 
desires to surrender the license and have refunded to him all 
or a part of the license fee. You desire my opinion whether 
the commission may accede to this request. 

The pertinent statutory provisions are as follows: — 
In section 32 it is provided: — • 

Apphcations for the license shall be accompanied by such fee, not 
less than twenty-five nor more than eight hundred dollars, as the 
commission may establish. . . . 

Section 33 provides: — ' 

The commission may, subject to the provisions of sections thirty- 
two to forty-seven, inclusive, issue licenses to conduct boxing or spar- 
ring matches and exhibitions, which shall expire on December thirty- 
first of the yesiY of issue. 

Section 42 provides: — 

Any license may be revoked or suspended by the commission for a 
^dolation of any provision of sections thirty-two to forty-seven, in- 
clusive, or of any other law of the commonwealth or of any rule or 
regulation adopted by the commission or whenever the licensee has, 
in the judgment of the commission, been guilty of any act or offence 
detrimental to the public interest. 

It appears from the sections above quoted that the Legisla- 
ture has provided for the issue of licenses, for their expiration 
and for their revocation. But there is no provision whatever 



1922.] PUBLIC DOCUMENT — No. 12. 107 

for the voluntary surrender of a license and the return of all or 
part of the fee. If the Legislature had intended such refunds 
to be made, I am of opinion that it would have made suitable 
provision therefor. 

A license is the grant of a privilege. If a fee is exacted, the 
fee is in the nature of an excise. Boston v. Schaffer, 9 Pick. 
415. The license does not give rise to a contract between the 
Commonwealth and the holder. C alder v. Kurhy, 5 Gray, 597; 
Commontcealth v. Brennan, 103 Mass. 70. When the license is 
issued, the licensee has received the privilege in exchange for 
which an excise has been exacted. If he prefers not to exer- 
cise the privilege, he may forbear to do so, but the fact re- 
mains that he may, if he desires, exercise it at any time before 
the license expires. See Attorney-Geiieral v. Mass. Pipe Line 
Gas Co., 179 Mass. 15. 

I am of opinion that there is no legislative authority to 
refund all or a part of the fee paid for a license to conduct 
boxing exhibitions. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Constitutional Law — Taxation — Appropriations — Public 

Purpose. 

The Legislature has no power to authorize cities and towns to expend 
money to procure headquarters for a camp of the United Spanish War 
Veterans, since such expenditure is not for a public purpose. 

March 30, 1921. 
His Excellency Channing H. Cox, Governor of the Cormnonwealth. 

Sir: — You request my opinion upon the constitutionality 
of a bill (Senate No. 318) entitled, *' An Act authorizing cities 
and towns to provide quarters for camps of the United Spanish 
War Veterans," which provides: — 

Chapter forty of the General Laws is hereby amended by inserting 
after section nine the following new section: — Section 9 A. A city or 
town may, for the purpose of providing suitable headquarters for a 
camp for the United Spanish War Veterans, lease for a period not ex- 
ceeding five years a building or part of a building, which shall be under 
the direction and control of such camp subject to regulations made in 
cities by the mayor with the approval of the council and in towns by 
vote of the town, and for such purpose may annually appropriate a 
sum not exceeding in any one year, one fiftieth of one per cent of its 
valuation. 



108 ATTORXEY-GEXERAL'S REPORT. [Jan. 

I assume that because of the case of Kiiigman v. BrocJdon, 
153 Mass. 255, you doubt the constitutionality of the bill now 
before you. I am of opinion that this doubt is well founded, 
and that the present bill is governed by that decision. 

In Kingman v. Brockton, supra, ten taxpayers of Brockton 
brought a bill in equity to restrain the city from carrying out 
an order appropriating (pursuant to a statute) $40,000 for the 
purpose of erecting " a memorial hall and public library build- 
ing, ... a portion of said building to be for the use of Fletcher 
Webster Post G. A. R. Xo. 13, so long as it shall exist as an 
organization." The court enjoined the expenditure of public 
funds in order to provide quarters for the post, and, in holding 

that such expenditure was not for a public purpose, said: — 

• 

The general rule is well established, and is illustrated by a great 
variety of decided cases, that taxation must be limited to public pur- 
poses. It was accordingly held in the recent case of Mead v. Acton, 
139 Mass. 341, that a statute authorizing a town to pay bounties to 
soldiers who re-enlisted in 1864 and were credited to the town was un- 
constitutional, the purpose being to benefit individuals and not the 
pubKc. The Fletcher Webster Post G. A. R. No. 13 is not a public 
body, but it is an association of individuals. To support and main- 
tain such an association cannot be deemed to be a public purpose. If 
a city or town may be authorized to erect a building to be devoted in 
part to the use of such an association so long as it shall exist as an 
organization, it is not easy to see why it may not be authorized to 
erect one exclusively for that purpose, and to provide the necessary 
furniture, and, indeed, to bear all the expenses of maintaining the asso- 
ciation. If a city or town may be authorized to give such assistance 
to a body of persons who have been soldiers or sailors in the war, the 
same principle would seem to extend so far as to include those who have 
rendered other great and meritorious services, and thus are entitled to 
public gratitude, such, for example, as societies of disabled or past 
firemen or pohcemen. If once the principle is adopted that a city or 
town may be authorized to raise money by taxation for conferring 
benefits on individuals merely because in the past they have rendered 
important and valuable services for the benefit of the general public, 
occasions will not be wanting which will appeal strongly to the popular 
sense of gratitude, or to the popular emotion; and the interests and just 
rights of minorities will be in danger of being disregarded. If the body 
of persons to be benefited is numerous, the greater is the influence that 
may probably be brought to bear to secure such an appropriation of 
the public money. 

I am unable to distinguish between an expenditure to erect 
a building to be in part used by a G. A. R. post and expend- 



1922.] PUBLIC DOCUMENT — No. 12. 109 

ing public money to lease quarters for such a post. No sound 
distinction can be made between a G. A. R. post and a camp 
of Spanish War Veterans. I am not unmindful of the similar- 
ity between this act and certain provisions of G. L., c. 40, § 9, 
but I am unable to discover that those provisions of that 
statute have ever been passed upon by the Supreme Judicial 
Court or distinguished from Kingman v. Brockton, supra. I 
am therefore constrained to advise you that the proposed bill 
would, if enacted, be unconstitutional for the reasons set out 
in Kingman v. BrocJdon. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Prisoners — Paroles — Deductions for Good Behavior. 

The deduction provided for by G. L., c. 127, § 130, is not a deduction from 
sentence but a deduction from the period of confinement onlj^, and 
allowance of such deduction does not cause the sentence to "expire" 
previous to the date on which it would expire by its own terms. Ac- 
. cordingly, such deduction is not to be considered in determining 
whether a prisoner is eligible to release on parole under the provisions 
of G. L., c. 127, § 141. 

March 31, 1921. 

Hon. Thomas J. Hammond, District Attorney for the Northivestern District. 
Dear Sir: — G. L., c. 127, § 130, provides, in effect, that 
prisoners shall be entitled to deduction from the period of 
confinement to which they have been sentenced if their be- 
havior as prisoners has been good. Section 141 of the same 
chapter provides for the parole of prisoners sentenced to cer- 
tain institutions for not more than six months, "or upon a 
longer sentence of which not more than six months remain 
unexpired." You request my opinion upon the following ques- 
tion: — 

In determining whether '' not more than six months remain unex- 
pired," as provided in section 141, are deductions on account of good 
behavior, as provided by section 130, to be considered? 

The sections referred to provide: — 

Section 130. Everj^ officer in charge of a prison or other place of 
confinement, except the Massachusetts reformatory, the reformatory 
for women and the state farm, shall keep a record of the conduct of 
each prisoner in his custody whose term of imprisonment is four months 
or more. Every such prisoner, except a prisoner sentenced to the state 



no ATTORXEY-GEXERAL'S REPORT. [Jan. 

prison for a crime committed on or after January first, eighteen hun- 
dred and ninety-six, whose record of conduct shows that he has faith- 
fully observed all the rules and has not been subjected to punishment 
shall be entitled to a deduction from the term of his imprisonment, 
which shall be estimated as follows: upon a sentence of not less than 
four months and less than one year, one day for each month; upon a 
sentence of not less than one year and less than three years, three days 
for each month; upon a sentence of not less than three years and less 
than five years, four days for each month; upon a sentence of not 
less than five years and less than ten years, five days for each month; 
upon a sentence of ten years or more, six days for each month. If a 
prisoner has two or more sentences, the aggregate of his several sen- 
tences shall be the basis upon which the deduction shall be estimated. 
A prisoner who is entitled to such deduction from the term of his im- 
prisonment shall receive a written permit to be at liberty during the 
time so deducted, upon such terms as the board which grants the permit 
shall prescribe. If a prisoner violates any of the rules of his prison or 
other place of confinement, the board authorized to grant permits shall 
decide what portion of the time, which would otherwise be deducted from 
the term of his imprisonment, shall be forfeited by such violation. 

Section 141. A probation officer may, with the consent of the 
county commissioners, or, in Suffolk county, of the penal institutions 
commissioner of Boston, investigate the case of any person imprisoned 
n a jail or house of correction upon a sentence of not more than six 
months, or upon a longer sentence of which not more than six months 
remain unexpired, or for failure to pay a fine, for the purpose of ascer- 
taining the probability of his reformation if released from imprison- 
ment. If after such investigation he recommends the release of the 
prisoner, and the court which imposed the sentence, or, if the sentence 
was imposed by the superior court, the district attorney, certifies a 
concurrence in such recommendation, the county commissioners or the 
penal institutions commissioner may, if they consider it expedient, 
release him on parole, upon such terms and conditions as they may 
prescribe, and may require a bond for their fulfilment. The surety 
upon any such bond may at any time take and surrender his principal, 
and the county commissioners or the penal institutions commissioner 
may at any time order any prisoner released by them to return to the 
prison from which he was released. This section shall not apply to 
persons held upon sentences of the courts of the United States. 

The "deduction" provided for by section 130 is not a 
deduction from sentence, but a deduction from the period of 
confinement only. When a prisoner is released on the date 
when his deductions require him to be released, he is not to be 
discharged, but he "shall receive a written permit to be at 



1922.] PUBLIC DOCUMENT — Xo. 12. Ill 

liberty during the time so deducted, upon such terms as the 
board which grants the permit shall prescribe." Section 148 
provides that "the board or officer granting to a prisoner a 
permit to be at liberty may revoke it at any time previous to 
its expiration." It is clear, therefore, that during the period 
of time covered by his deduction a prisoner does not receive 
his liberty without qualification; he is released from confine- 
ment in prison, but it may be made a condition of his permit 
that he remain in Massachusetts, and that he report regularly 
to the proper official. If he violates a condition of his permit, 
the latter is "void" (§ 147) and may be revoked. It follows 
that allowance of the deduction does not cause the sentence 
to "expire" previous to the date on which it would expire by 
its own terms. 

Since the release on parole provided for by section 141 may 
be granted only to prisoners under sentence of not more than 
six months "or upon a longer sentence of which not more than 
six months remain miexpired,'' it follows that the deduction 
provided for by section 130 is not to be considered in deter- 
mining whether a prisoner is eligible to release on parole under 
the provisions of section 141. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Constitutional Law — '' A?iti-Aid" Amendment — Appropria- 
tions — Zoological Society under Private Control. 

A corporation chartered to hold and manage a public aquarium and 
zoological park is an educational and charitable undertaking, within 
the meaning of the Forty-sixth ("Anti-Aid") Amendment. 

Where the charter of a corporation organized to hold and manage a public 
aquarium and zoological park provides that five of the seven directors 
shall be selected by the members of the corporation, who are private 
citizens, the society is not "under the exclusive control, order and 
superintendence of public officers or public agents," within the mean- 
ing of the Forty-sixth ("Anti-Aid") Amendment, even though the 
other two directors are the mayor of Boston and chairman of the park 
department ex officio, and the corporation itself is described as a 
public agent or public trustee. 

Under the provisions of the Forty-sixth ("Anti-Aid") Amendment, the 
Legislature has no power to authorize the citj^ of Boston to convey a 
public aquarium and zoological park to a corporation so organized, 
and to provide further that such park may be maintained out of public 
funds, even though the bill describes the corporation as a trustee or 
agent for the city. 



112 ATTORNEY-GENERAL'S REPORT. [Jan. 

April 1, 1921. 

Committee on Bills in the Third Reading. 

Gentlemen: — You ask my opinion as to the constitu- 
tionality of the redrafted form of House Bill No. 1137, entitled 
''An Act to charter a zoological society in the city of Boston." 
The title does not fully describe the purposes of the bill. In 
brief, it incorporates certain persons under the name of the 
Boston Zoological Society-, and authorizes the city of Boston 
to assign or transfer to said society, "as trustees or agents for 
the city," the control, direction and administration of the 
Boston Aquarium and of that part of Franklin Park which 
may be defined by the mayor and council as a zoological 
park — 

for the purpose of maintaining by appropriations to be made therefor 
by said city, and to be expended for said purpose by said corporation, 
said aquarium and said portions of said Franklin Park, for free public 
exhibition, and for the recreation of the public and for opportunities 
for the free pubHc study of zoology. 

No question can be made that the Legislature has power 
to incorporate the society. The serious question is whether 
the so-called "anti-aid" amendment (Amend. XLVI) permits 
the management of the aquarium and the zoological park to 
be vested in this society, especially in view of the provision 
for supporting both by appropriations of public money. The 
second section of said amendment provides, in part: — 

. . . and no grant, appropriation or use of public money or property 
or loan of public credit shall be made or authorized by the common- 
wealth or any political division thereof for the purpose of founding, 
maintaining or aiding any school or institution of learning whether 
under pubHc control or otherwise, wherein any denominational doc- 
trine is inculcated, or any other school, or any college, infirmary, hos- 
pital, institution, or educational, charitable or religious undertaking 
which is not publicly owned and under the exclusive control, order 
and superintendence of public officers or public agents authorized by 
the commonwealth or federal authority or both. . . . 

The first question is whether said aquarium and zoological 
park are, respectively, an "educational, charitable or religious 
undertaking," within the meaning of the amendment. These 
are words of broad import. In Jackson v. Phillips, 14 Allen, 
539, 556, Gray, J., defined a charity as follows: — 



1922.] PUBLIC DOCUMENT — No. 12. 113 

A charity, in the legal sense, may be more fully defined as a gift, to 
be applied consistently with existing laws, for the benefit of an in- 
definite number of persons, either by bringing their minds or hearts 
under the influence of education or religion, by relie\ang their bodies 
from disease, suffering or constraint, by assisting them to establish 
themselves in life, or by erecting or maintaining public buildings or 
works or otherwise lessening the burdens of government. 

A gift of money to establish or maintain a public park is a 
public charity within the meaning of this definition. Bartlett, 
Petitioner, 163 Mass. 509, 514. So, also, is a gift of a house 
and grounds to be used, respectively, as a museum of antiques 
and for the study of botany. Richardson v. Essex Institute, 
208 Mass. 311. The aquarium and zoological park combine 
the recreational features of a park with the educational 
features of a museum. While no religious features enter into 
the management or maintenance of either, I am of opinion 
that both constitute an educational and charitable under- 
taking, within the meaning of the Forty-sixth Amendment. 

The next question is whether the management of this under- 
taking and the expenditure of appropriations for its main- 
tenance can constitutionally be vested in the zoological 
society in the manner provided in this bill. The bill provides 
that the property shall be transferred to the society "as 
trustees or agents for the city of Boston," under such agree- 
ment as shall be mutuall^^ satisfactory to the city and the 
society. But the bill further provides that five of the seven 
directors "shall be chosen by and from the members of the 
corporation." The members of the corporation are certain 
named private citizens, and such other citizens "as may 
under the provisions of its by-laws, become members of the 
corporation." Although the other two directors are to be the 
mayor and the chairman of the park department, it is evident 
that the control of the corporation is vested in five citizens 
chosen by and from such citizens as may become members of 
the corporation. A corporation so governed is not " under the 
exclusive control, order and superintendence of public officers 
or public agents," within the meaning of the Forty-sixth 
Amendment. V Op. Atty.-Gen. 315. 

The difficulty is not overcome by describing the corpora- 
tion itself as a "trustee or agent for the city of Boston." 
Public money is derived from taxes laid according to law upon 
the citizens. It can be expended only for a public purpose. 



114 ATTORNEY-GENERAL'S REPORT. [Jan. 

Lowell V. Boston, 111 Mass. 454; Kingman v. Brockton, 153 
Mass. 255. The plain intent of this amendment is to require 
that the expenditure of public money for any educational, 
charitable or religious undertaking which possesses the requisite 
public character shall be under exclusive public control. That 
requirement of the amendment cannot be met by giving to a 
corporation which is in fact under private control the name 
of "public agent." The constitutional mandate is not satisfied 
by a description which does not accord with the facts. 

I am not unmindful of Ware v. Fitchburg, 200 Mass. 61, 
but as that case was decided prior to the adoption of the 
Forty-sixth Amendment, it does not determine what measure 
of public control that amendment requires. 

I am therefore constrained to advise you that this bill would 
be unconstitutional in so far as it purports to authorize this 
corporation to manage the property in question or to receive 
and expend public money for that purpose. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Governor and Council — Power to require the Commissioner of 
Banks to furnish Information. 

Under Mass. Const., pt. 2d, c. II, § I, art. IV, and c. II, § III, art. I, the 
Governor and Council have incidental power to require the Commis- 
sioner of Banks to furnish such information as the Governor and 
Council, under the obHgation imposed by their several oaths of office, 
determine that they require to guide them in ordering the affairs of the 
Commonwealth agreeably to the Constitution and the laws of the 
land. 

G. L., c. 167, § 2, does not limit this power to require the Commissioner of 
Banks to furnish information for such purpose. 

April 2, 1921. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You inquire as to the duty imposed upon you 
by the following request of the Governor and Council: — 

Will you please furnish to the Governor and Council the names of 
any members of the General Court who borrowed money during the 
year 1918 from one or more of the trust companies which have been 
closed by you. 

In respect to each loan please state the date and amount of the note; 
whether or not any collateral was furnished; the nature of the security, 
if any; the names of any endorsers upon the note; and whether such 
notes are paid or unpaid at the present time. 



1922.] PUBLIC DOCUMENT — No. 12. 115 

Mass. Const., pt. 2d, c. II, § I, art. IV, provides: — 

The governor shall have authority, from time to time, at his discre- 
tion, to assemble and call together the councillors of this commonwealth 
for the time being; and the governor with the said councillors, or five 
of them at least, shall, and may, from time to time, hold and keep a 
council, for the ordering and directing the affairs of the commonwealth, 
agreeably to the constitution and the laws of the land. 

Pt. 2d, c. II, § III, art. I, also provides, in part: — 

The governor, with the said councillors, or five of them at least, 
shall and may, from time to time, hold and keep a council, for the 
ordering and directing the affairs of the commonwealth, according to 
the laws of the land. 

Amendment LXVI provides as follows: — 

On or before January first, nineteen hundred twenty-one, the execu- 
tive and administrative work of the commonwealth shall be organized 
in not more than twenty departments, in one of which every executive 
and administrative office, board and commission, except those officers 
serving directly under the governor or the council, shall be placed. 
Such departments shall be under such supervision and regulation as 
the general court may from time to time prescribe by law. 

Pursuant to this mandate of the Constitution the Legisla- 
ture, by St. 1919, c. 350 (now G. L., cc. 6-28), organized the 
executive and administrative work of the Commonwealth into 
twenty departments. In addition to the department of the 
Governor and Council, there are four other departments 
headed by officers created by the Constitution and elected by 
the people, namely, the Secretary, the Treasurer and Receiver- 
General, the Auditor and the Attorney-General, and fifteen 
departments under the direction of officers or commissions 
appointed by the Governor, by and with the consent of the 
Council, and who may be removed in like manner. Included 
in the said fifteen departments is the Department of Banking 
and Insurance, which is divided into three divisions, one of 
w^hich is the Division of Banks and Loan Agencies. The pre- 
cise question, therefore, is w^hether the Governor and Council 
may request from one of the said fifteen departments informa- 
tion which the Governor and Council may deem necessary 
for the proper and effective discharge of the executive duties 
which the Constitution imposes upon them. A different ques- 
tion might perhaps be presented by a similar request addressed 



116 ATTORNEY-GENERAL'S REPORT. [Jan. 

by the Governor and Council to one of the other four officers 
who, under the Constitution, are elected by the people, and 
are, under their oath of office, directly responsible to the 
people. 

The Governor and Council are authorized by the Constitu- 
tion from time to time to "hold and keep a council for the 
ordering and directing the affairs of the Commonwealth agree- 
ably to the Constitution and the laws of the land." They 
cannot effectively discharge this duty without information 
touching the "affairs of the Commonwealth." Subject to the 
solemn obligation imposed upon the Governor and the mem- 
bers of the Council by their several oaths of office, it is for the 
Governor and Council to determine what information they 
require to enable them to perform their constitutional duty. 
When they address a request for information to a department 
head, he is bound to presume that the Governor and Council 
have so determined that the information requested is required 
in order to guide them in ordering the affairs of the Common- 
wealth agreeably to the Constitution and the laws of the land, 
and that such information, if furnished, will be used only for 
constitutional and lawful ends. He is not vested with power 
nor charged with the duty to review their action in these 
respects. See Rice v. The Governor, 207 Mass. 577. No legal 
wrong could, in my opinion, be caused to individuals by a 
disclosure to the Governor and Council of information to guide 
them in the discharge of duties imposed upon them by law. 
In the inconceivable case of misuse of such information the 
responsibility would rest, not upon the official who furnished 
it, but upon the official who so misused it. In my opinion, 
the head of a department who is appointed, and may be 
removed, by the Governor and Council must furnish to the 
Governor and Council, upon proper request, such information 
as his department has lawfully acquired in the discharge of the 
duties laid upon it by law, provided that no law affirmatively 
forbids such disclosure. See III Op. Atty.-Gen. 226; ihid. 403. 

I find no limitation imposed by law upon the disclosure of 
the information requested in the instant case. In so far as 
the information requested has come to the knowledge of your 
department by reason of the periodic investigations required 
by G. L., c. 167, § 2, disclosure thereof to the Governor and 
Council seems to be expressly authorized by that portion of 
said section which provides: — 



1922.] PUBLIC DOCUMENT — No. 12. 117 

Such records, and information contained in reports of such banks, 
other than information required by law to be pubhshed or to be open 
to the inspection of the pubhc, shall be open only to the inspection of 
the commissioner, his deputy, examiners and assistants, and such other 
officers of the commonwealth as may have occasion and authority to 
inspect them in the performance of their official duties. 

The law authorizing the Commissioner of Banks to take 
possession of a bank or trust company contains no limitation 
upon the use of information thereby acquired. In the absence 
of such limitation, it is information lawfully in the possession 
of the department, and with respect to the question now before 
me is not to be distinguished from the information acquired 
in the course of the periodical examinations required by law. 

If some part of the information now requested of you has 
lawfully come to the knowledge of 3'our department in con- 
nection with the taking possession or liquidation of certain 
trust companies, pursuant to law, disclosure thereof is, in my 
opinion, justified and required by the general principles already 
considered. 

I therefore advise you that you should furnish, so far as 
you possess it, the information requested in the communica- 
tion of the Governor and Council. 

To avoid possible misconception, I may point out that 
this opinion is confined to the facts now before me. I note 
that you describe the communication addressed to you as 
a "communication of the council." Inspection of the records 
discloses that this communication was sent pursuant to a vote 
taken at a meeting of the Governor and Council, and that the 
information is to be furnished to the Governor and Council. A 
wholly different question would be presented if it appeared 
that the request was made by the Council alone and not by 
the Governor and Council. Upon this question I do not 
attempt to pass, as it is not now before me. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



118 ATTORNEY-GENERAL'S REPORT. [Jan. 



Weights and Measures — Filling Point of Glass Bottles or Jars 
used for the Distribution of Milk or Cream. 

Under G. L., c. 98, § 15, where milk or cream is sold in a bottle or jar not 
having a definite measuring point, and said container is not filled to the 
level of the bottom of the cap or stopple thereof, a person selling the 
same is guilty of giving a false or insufficient measure. 

April 7, 1921. 

Mr. Francis Meredith, Director of Standards, Department of Labor and 

Industries. 

Dear Sir: — I am in receipt of a communication from you 
relative to the construction of G. L., c. 98, § 15. You ask if 
this section should be construed as requiring that glass bottles 
or jars used in the distribution of milk or cream at retail must 
be filled to the level of the bottom of the cap or stopple, in the 
absence of any other definite filling point. You also ask if a 
person is liable to prosecution for giving false or insufficient 
measure if such bottles or jars are not filled to the level of the 
bottom of the cap or stopple. 

The statute referred to is as follows: — 

Glass bottles or jars used for the distribution of milk or cream to 
consumers, and holding, when filled to a level with the bottom of the 
cap or stopple or other definite filling point, not less than three ounces 
and seven drams and not over four ounces and two drams; not less 
than seven ounces and six drams and not over eight ounces and two 
drams; not less than fifteen ounces and five drams and not over sixteen 
ounces and four drams ; not less than thirty-one ounces and four drams 
and not over thirty-two ounces and four drams; not less than forty- 
seven ounces and three drams and not over forty-eight ounces and five 
drams; not less than sixty-three ounces and two drams and not over 
sixty-four ounces and six drams, shall be sealed as measures under sec- 
tion forty-one or by the manufacturer. Dealers in milk or cream using 
glass bottles or jars for the distribution of milk or cream to consumers, 
not sealed by the manufacturer, shall bring them into the office of the 
sealer in their town, to be sealed; but no fee shall be charged or re- 
ceived for seahng them. If a bottle or jar has once been sealed by a 
sealer or manufacturer, it need not be sealed again while used for the 
distribution of milk or cream to consumers. Glass bottles or jars 
sealed hereunder shaU be legal measures only for the distribution of 
milk or cream to consumers. Bottles or jars sealed by the manufacturer 
shall be marked mth his name, initials, or trade-mark, and by any 
other mark required by the director. The seahng of such bottles or 
jars by the manufacturer shall not affect any law relating to the giving 



1922.] PUBLIC DOCUMENT — No. 12. 119 

of false measure or the using, or having in possession, of false measures 
with intent to use the same. The director, on approval by the com- 
missioner of labor and industries may revoke the authoritj^ given by 
him to any manufacturer under this section, on proof that the au- 
thorized seal or designating mark has been affixed to any bottle or jar 
not conforming to the respective capacities provided for in this section. 

By St. 1900, c. 369, provision was made for the sealing of 
cans, bottles and other receptacles used for the distribution of 
milk or cream. 

There was a provision in P. S., c. 65, § 17, that the sealer 
"shall in no case seal or mark as correct any weights, measures 
or balances which do not conform to the standards," which, 
on account of the fact that glass bottles or jars are not always 
of uniform capacity, made it necessary for further legislative 
enactment on the subject. 

By St. 1901, c. 360, certain maximum and minimum capaci- 
ties for glass bottles or jars used in the distribution of milk or 
cream to consumers were established, and provision was made 
that sealers should seal such bottles or jars as measures for 
milk or cream only, provided that their capacities were within 
the established range when filled to the level of the bottom of 
the cap or stopple. This statute later appeared as R. L., e. 
62, § 43, which was amended by St. 1909, c. 531, so as to 
permit sealing by the manufacturer, with the further provision 
that "the sealing of such bottles or jars by the manufacturer 
shall not be held to affect the provisions of law relating to the 
giving of false measure, or the using of a false measure, or the 
having in possession of a false measure with intent to use." 

In 1920 this section was amended so as to permit a definite 
filling point other than the level of the bottom of the cap or 
stopple. This change was made, I am informed, because in 
the case of pasteurized milk, owing to the expansion and con- 
traction of the milk due to the heating and subsequent cooling, 
it w^as impossible to have the bottle or jar filled to the top. 

The history of this legislation leads to the conclusion that 
the Legislature intended to establish a legal measure for milk 
and cream other than the standard liquid measure, which 
might be used if desired, and that where milk or cream was to 
be sold by jar or bottle which had no definite filling point, the 
legal requirements were complied with by filling to the level 
of the bottom of the cap or stopple. In other words, a milk or 
cream bottle or jar may have a definite measuring point, sealed 



120 ATTORNEY-GENERAL'S REPORT. [Jan. 

in accordance with law. In the absence of sucK definite 
measuring point, if the bottle or jar complies with section 15, 
above quoted, then it must be filled to the bottom of the cap 
or stopple. Where milk or cream is sold in a bottle or jar not 
having a definite measuring point, and said container is not 
filled to the bottom of the cap or stopple, a person selling the 
same is guilty of giving a false or insufficient measure. Hence, 
both questions submitted by you must be answered in the 
affirmative. 

Very truly 3'ours, 

J. Weston Allen, Attorney -General. 



Settlement — Married Woman — Statutory Period of Absence — 

Minor Child. 

The settlement of a married woman is not dependent upon her physical 
presence in the town of her husband's settlement. The statutory 
period of absence necessary to defeat the settlement of a wife or a 
widow is to be reckoned from the date of the husband's divorce or 
death. 

Upon marriage, the wife acquires the settlement of her husband, and the 
death of the husband does not revive her ante-nuptial settlement, 

A married woman living apart from her husband for five years prior to his 
death does not lose her settlement upon his death; she is constructively 
present until the marriage is terminated, unless she acquires a separate 
domicil for purposes of divorce. 

G. L., c. 116, § 1, is not retrospective and does not apply to the case of a 
minor child whose father died prior to the enactment thereof (originally 
St. 1911, c. 669). 

Inabihty of a husband or father to maintain a wife or minor child committed 
to a State hospital or institution of charity prevents the acquisition by 
him of a settlement unless reimbursement of the cost of such main- 
tenance is made under G. L., c. 116, § 2. 

April 8, 1921. 

Mr. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You request my opinion upon several questions 
in respect to the settlement of paupers. 

The statutory provisions pertinent to your request are sec- 
tion 1 of chapter 116 of the General Laws down to and in- 
cluding the third clause of said section, and sections 2, 4 and 
5 of the same chapter. Said provisions are as follows: — 

Section 1. Legal settlements may be acquired in any town in the 
following manner and not otherwise : 

First, Except as provided in the follo\\ing clause, each person who, 
after reaching the age of twentj'-one has resided in any to\Mi within the 



1922.] PUBLIC DOCUMENT — No. 12. 121 

commonwealth for five consecutive years, shall thereby acquire a set- 
tlement in such town. 

Second, A married woman shall follow and have the settlement of 
her husband; but if he has no settlement within the commonwealth, 
she shall retain the settlement, if any, which she had at the time of her 
marriage and may acquire a settlement under the preceding clause. 

Third, Legitimate children shall follow and have the settlement of 
their father if he has one ^\■ithin the commonwealth, othermse they 
shall follow and have the settlement of their mother if she has one; if 
the father dies during the minority of his children they shall thereafter 
foUow and have the settlement of the m.other. Upon the divorce of 
the parents the minor children shall follow and have the settlement of 
the parent to whom the court awards their custody. 

Section 2. No person shall acquire a settlement, or be in process of 
acquiring a settlement, while receiving relief as a pauper, unless, within 
two years after receiving such relief, he tenders reimbursement of the 
cost thereof to the commonwealth or to the tovm furnishing it. 

Section 4. No person who actually supports himself and his family 
shall be deemed to be a pauper by reason of the commitment of his 
wife, child or other relative to a state hospital or institution of charity, 
reform or correction by order of a court or magistrate, and of his in- 
ability to maintain such person therein; or who, to the best of his 
ability, has attempted to provide for himself and his dependents and 
has not been a medicant, and who, through no crime or misdemeanor of 
his owTi, has come into grievous need and receives aid or assistance 
given temporarily, or partial support continuously, to him or his family : 
provided, that nothing herein shall be construed to affect, directly or 
indirectly, settlement, poor, or pauper laws, or laws under which any 
charity, aid or assistance is furnished by public authority. 

Section 5. Each settlement existing on August twelfth, nineteen 
hundred and eleven, shall continue in force until changed or defeated 
under this chapter, but from and after said date absence for five con- 
secutive years by a person from a town where he had a settlement shall 
defeat such settlement. The time during which a person shall be 
an inmate of any almshouse, jail, prison, or other public or state insti- 
tution, mthin the commonwealth, or in any manner under its care and 
direction or that of an officer thereof, or of a soldiers' or sailors' home 
whether wdthin or without the commonwealth, shall not be counted in 
computing the time either for acquiring or for losing a settlement, ex- 
cept as provided in section two. The settlement, existing on August 
twelfth, nineteen hundred and sixteen, of a soldier and his dependent 
eligible to receive military aid and soldiers' relief under existing laws 
shall be and continue in force while said soldier or dependent actually 
resides in the commonwealth and until a new settlement is gained in 
another town in the manner heretofore prescribed. 



122 ATTORNEY-GENERAL'S REPORT. [Jan. 

1. Your first question is as follows: If a married man, 
having a settlement within the Commonwealth, dies or is 
divorced, is the five years' absence necessary for his widow to 
lose her settlement to be reckoned from the death (or divorce), 
or, if the widow was absent from the town of her husband's 
settlement immediately prior to his death or his divorce from 
her, may said five years be reckoned from the beginning of 
said period of absence? 

Up to the time of the death or divorce, the wife's settlement 
was not dependent upon her physical presence in the town of 
her husband's settlement. If she had been absent therefrom 
for ten years prior to the death or divorce, she would never- 
theless have retained as her settlement the settlement of her 
husband, for, under the provisions of the second clause of 
section 1, a married woman has the settlement of her husband 
unless he has no settlement within the Commonwealth. 

A settlement is generally acquired by residence. The 
reason for the rule that a wife's settlement follows that of her 
husband is that she is presumed to reside with him. Subject 
to statutory qualifications, she is constructively present at the 
residence of her husband. I am therefore of opinion that the 
wife's absence from the town of her husband's settlement 
prior to his death or divorce is immaterial, and that the five 
years must be reckoned from the date of the death or divorce. 
Dalton V. Bernardstoti, 9 Mass. 201. 

2. Your second question is as follows: If a woman marries, 
subsequent to Aug. 12, 1911, a man having a settlement 
within the Commonwealth, and if the husband dies while re- 
siding elsewhere than in the town of his settlement but before 
completing an absence of five years from said town, should 
any part of the widow's absence from said town prior to her 
marriage be counted in computing the time for losing her 
settlement? 

Immediately upon her marriage the wife acquired the set- 
tlement of her husband, quite regardless of her previous 
residence elsewhere. Upon the death of the husband, the 
wife's ante-nuptial settlement would not revive, but she would 
retain the settlement of her husband until she lost it by five 
years' absence or until she should acquire a new settlement 
by remarriage. Absence from the town of settlement prior 
to the time when said settlement was acquired is not material, 
and I am of opinion that it may not be included in reckoning 
the five years' absence necessary for the loss of a settlement. 



1922.] PUBLIC DOCUMENT — No. 12. 123 

3. Your third question is as follows: If a married man re- 
sides in the town of his settlement until his death, and his 
wife has been living apart from him voluntarily for five years 
prior to his death, would she lose her settlement immediately 
upon the death of her husband? 

As stated above, in the absence of a provision of law to the 
contrary (as in clause second of section 1, where it is pro- 
vided that a married woman may retain or acquire a settle- 
ment if her husband has no settlement within the Common- 
wealth), a married woman is constructively present at her 
husband's residence. This constructive presence continues un- 
til the marriage is terminated unless the wife acquires a sep- 
arate domicil for purposes of a suit for divorce. It follows 
that your third question should be answered in the negative. 
Dalton v. Bernardston, supra. 

4. Your fourth question is as follows: Does the third clause 
of section 1 apply to a case where the father died prior to the 
enactment of St. 1911, c. 669, which is now codified as G. L., 
c. 116, § 1? 

Ordinarily statutes are construed as prospective in their 
operation. McNamara v. Boston & Maine Railroad, 216 
Mass. 506. I find nothing in the present statute which indi- 
cates that St. 1911, c. 669, was intended to operate retro- 
spectively upon the case of a minor child whose father died 
prior to the enactment thereof. Your fourth question is 
answered in the negative. 

5. Your fifth question is as follows: Does the inability of 
a husband or father to maintain a wife or minor child who has 
been committed to a State hospital or institution of charity 
prevent him from acquiring a legal settlement? 

G. L., c. 116, § 2, prevents a pauper from acquiring a set- 
tlement unless he makes the reimbursement therein provided. 
Aid furnished by public authority and according to law to the 
wife or minor child of a person, with his consent or knowledge, 
is equivalent to like aid furnished to the party himself, and 
prior to the enactment of St. 1913, c. 266, rendered him a 
pauper during the time such aid is furnished, and during a 
like period prevented him from acquiring a settlement. Charles- 
town V. Groveland, 15 Gray, 15; Woodward v. Worcester, 15 
Gray, 19n; Somerville v. Commonwealth, 225 Mass. 589, 592. 
Unless that statute (now G. L., c. 116, § 4) permits him to 
gain a settlement under such circumstances, he still cannot do 
so. But while G. L., c. 116, § 4, declares that a person shall 



124 ATTORNEY-GENERAL'S REPORT. [Jan. 

not be deemed a pauper by reason of his inability to support 
a wife, child or other relative in a State hospital or institution 
of charity, this is coupled with the express proviso that noth- 
ing in said section shall be construed to affect, "directly or 
indirectly, settlement, poor or pauper laws." The proviso, in 
my opinion, excepts settlement, poor and pauper laws from 
the operation of the section. Your fifth question must be 
answered in the affirmative. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Private Bankers — Surrender of License — Bond. 

Where a person licensed to do business under G. L., c. 169, § 3, proposes 
to surrender his license and to take out a new license, in the exercise 
of a proper discretion the old bond may be given up and a new bond 
in a reduced amount accepted, but the new bond should be conditioned 
to apply to business previously done as well as to business to be done. 

April 13, 1921. 
Mr. Joseph C. Allen, Com?nissioner of Banks. 

Dear Sir: — You ask whether a person having a license to 
receive deposits of money for safe keeping and transmission 
abroad, and having given the required bond, who proposes to 
give up his license and to take out a license for receiving 
deposits of money for transmission abroad only, may have his 
bond reduced to a smaller sum. 

G. L., c. 169, § 3, provides, in part, as follows: — 

In case of the revocation of the license, the money and securities 
and the bond, if there be one, shall continue to be held by the state 
treasurer for a period of one year from the date of the revocation of the 
license unless otherwise directed by the order or judgment of a court of 
competent jurisdiction. 

In an opinion to the Treasurer and Receiver-General under 
date of March 14, 1921, I stated my view to be that the word 
''revocation," in the sentence above quoted, does not include 
the case of a surrender, and that the requirement that the 
Treasurer shall continue to hold the security and the bond for 
a period thereafter does not apply to the case of a surrender. 
I advised the Treasurer that I believed that if he was satisfied 
that there was no need of holding the bond and security in the 
case in question, it was within his discretion to return them. 

In the case in which the Treasurer requested my opinion, 



1922.] PUBLIC DOCUMENT — No. 12. 125 

although a license had issued, the licensee at the time of the 
surrender had done no business under the license, so that there 
was little ground for the Treasurer, in the exercise of his dis- 
cretion, continuing to hold the bond and security. The present 
case presents a different situation, and calls for the exercise 
of a discretion in determining whether or not the bond and se- 
curity should be continued until a year after the licensee ceases 
to do a business of receiving deposits of mone}" for safe keeping 
as well as for transmission abroad, unless he receives an order 
or judgment of a court directing otherwise. In the event that 
a new bond of the reduced amount is accepted, the bond 
should be conditioned to apply to business done previous to 
the issuance of the new bond as well as business to be done in 
the future. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Governor and Council — Determination of a Salary — Whether 
by Concurrent Action or by Action as a Single Board. 

The Constitution recognizes two kinds of executive business which may 
come before the Council: one, that which is to be done by the Gov- 
ernor and Council acting together as a single executive board; and 
the other, that which is to be done by concurrent action of the Gover- 
nor, as executive magistrate, and of the Council. 

Ordinarily, if a statute provides that the act shall be done by the Governor, 
by and with the advice and consent of the Council, it requires con- 
current action by the Governor and by the Council. 

Ordinarily, if a statute provides that an act shall be done by the Governor 
and Council, it requires action by a single executive board composed 
of the Governor and Council, in which the Governor has one vote. 

Where a statute provides that a salary shall be fixed by the Governor and 
Council, the substance of the subject-matter is of greater significance 
than niceties of verbal construction, and the statute will ordinarily 
be construed to require concurrent action by both Governor and 
Council, since such action may impose a fixed charge upon the 
treasury. 

G. L., c. 14, § 2, requires that the salary in question be fixed by concur- 
rent action of the Governor and of the Council. 

April 14, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 
Sir: — G. L., c. 14, § 2, provides as follows: — 

Upon the expiration of the term of office of a commissioner, his suc- 
cessor shall be appointed for three years by the governor, with the 



126 ATTORNEY-GENERAL'S REPORT. [Jan. 

advice and consent of the council. The commissioner shall receive 
such salary, not exceeding seventy-five hundred dollars, as the governor 
and council determine. 

You orally inquire whether the salary in question is to be 
determined by the concurrent action of the Governor and of 
the Council acting separately, or by the Governor and Council 
acting as one body in which the Governor has one vote. 

In Opinion of the Justices, 190 Mass. 616, 618, the court 
said: — 

The Constitution recognizes two kinds of executive business which 
may come before the Council: one, that which is to be done by the 
Governor and Council acting together as an executive board, and the 
other, business to be done by the Governor, acting under the responsi- 
bility of his office as supreme executive magistrate, by and with the 
advice and consent of the Council. 

In Opinion of the Justices, 210 Mass. 609, 611, the court, 
in advising as to the nature of the pardoning power, which, 
under the Constitution, is to be exercised by the Governor " by 
and with the advice of council," said: — 

The granting of a full or a partial pardon is the result of concurrent 
action by both the Governor and the Council. Neither alone can take 
effective action. Both must agree before the Constitution is satisfied. 

In Opinion of the Justices, 211 Mass. 632, the question sub- 
mitted to the Supreme Judicial Court was whether St. 1909, 
c. 504, § 18, which authorized the trustees of a State hospital to 
fix the salary of the superintendent and other officers, "subject 
to the approval of the governor and council," required concur- 
rent approval by the Governor and by the Council acting 
separately, or by the Governor and Council sitting as one body 
in which the Governor had one vote. In advising upon this 
question the court said: — 

The substance of the subject-matter to be acted on is of greater 
significance than nicety of verbal construction in determining the in- 
tent of the Legislature. The power ultimately to fix the salaries of the 
officers and employees of the various public institutions is important in 
its bearing upon the finances of the Commonwealth. It affects or may 
affect the general State tax to an appreciable extent. The Constitution 
creates the Governor the "supreme executive magistrate," and by 
two separate articles clothes him with individual responsibility touch- 



1922.] PUBLIC DOCUMENT — No. 12. 127 

ing the finances. In c. 1, § 1, art. 4, it is provided that the receipts 
from taxes and excises shall be ''issued and disposed of by warrant, 
under the hand of the governor . . . with the ad\dce and consent of the 
council," while in c. 2, § 1, art. 11, is this language: "No moneys shall 
be issued out of the treasury of this Commonwealth . . . but by warrant 
under the hand of the Governor for the time being, with the advice 
and consent of the Council." As chief executive he is answerable in a 
general sense for the administration of government. These articles of 
the Constitution impose upon him a particular duty respecting the 
finances of the Commonwealth. Although under our Constitution he is 
only a part of the executive department, he is styled the "supreme 
executive magistrate." c. 2, § 1, art. 1. 

Under that portion of our Frame of Government which creates a 
chief executive, it is a fundamental conception that he may be held by 
the people to some degree of direct accountability for the disposition of 
the public revenue. All public funds come directly or indirectly from 
taxation. The expenditure of public money is of direct interest to all 
the people. Respecting all appropriations made by the legislative de- 
partment of government the Governor may be held answerable on 
account either of his approval or of his veto. 

Many statutes have been enacted which fix salaries of public officers 
or employees. The Governor for the time being may be held to a 
certain responsibility for these by reason of his duty of approval or 
disapproval. It would seem an incongruity to hold that the shifting of 
such responsibility from the Governor as an integral part of the Execu- 
tive Department to an executive board of which he is one with eight 
others, was wrought without plain language expressive of such intent. 

The words ''Governor and Council," when used respecting many 
matters, indicate the single executive board composed of the Governor 
and the councillors. Sparhawk v. Sparhawk, 116 Mass. 315, 317. But 
as employed in the statute now under consideration touching the crea- 
tion of that which may become in the nature of a fixed charge against 
the treasury of the Commonwealth, we incline to the view that they 
require separate approval by the Governor and also by the Council. 
Each must act independently of the other, and both must concur to 
effect the increase in salary. 

In the present statute (G. L., c. 14, § 2) the Legislature has 
used different words in respect to the appointment of the 
commissioner and in respect to the determination of his salary. 
He is to be appointed *' by the governor with the advice and 
consent of the council." This provision clearly requires that 
the Governor and the Council, acting separately, shall concur 
in the appointment. Opinion of the Justices, 190 Mass. 616; 
Ojnnion of the Justices, 210 Mass. 609. His salary is to be 



128 ATTORNEY-GENERAL'S REPORT. [Jan. 

determined by "the governor and council." This provision, 
when contrasted with the provision for appointment, is sus- 
ceptible of a construction which would require that the salary 
be fixed by the Governor and Council sitting as one body, in 
which the Governor would have one vote. But a statute 
which subjects the creation of what may be a fixed charge 
upon the treasury to "the approval of the governor and coun- 
cil" is susceptible of a construction which would require con- 
current approval of such charge by both the Governor and the 
Council acting separately. Opinion of the Justices, 211 Mass. 
632. Except for the difference in the form of the two pro- 
visions, there is nothing in the act which indicates that the 
Legislature intended that the appointment should be made in 
one manner and that the salary should be determined in an- 
other manner. The determination of a salary, which involves 
a charge upon the treasury, is a question upon which the 
ndependent judgment of both the Governor and the Council 
imay fittingly be exerted. The substance of the subject-matter 
is of greater significance than nicety of verbal construction in 
determining the intent of the Legislature. Opinion of the 
Justices, 211 Mass. 632, 634. Under these circumstances, I am 
of opinion that the salary is to be determined in the same 
manner that the appointment is made, namely, by the con- 
current action of the Governor and of the Council acting 
separately, and not by the Governor and Council sitting as 
one body in which the Governor has one vote. 

I am not unmindful that a different opinion upon a some- 
what similar statute was rendered to the executive secretary 
on July 21, 1911, by one of my predecessors, but as that 
opinion was apparently based upon the Opinion of the Justices 
in 190 Mass. 616, and makes no reference to the opinion in 
211 Mass. 632, which was handed down upon June 5, 1911, 
about six weeks previously, I am constrained not to follow it. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 129 



Constitutional Law — Attorneys at Law — Citizenship as Re- 
quirement for Admission to Bar. 

The Legislature may constitutionally require that applicants for admission 
as attorneys at law be citizens of the United States. 

A State may deny to non-citizens the privilege of being its officers or em- 
ployees. 

April 15, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You request me to consider Senate Bill No. 114^ 
entitled "An Act requiring that applicants for admission as 
attorneys at law be citizens of the United States." 

A statute requiring citizenship as a qualification for ad- 
mission as an attorney at law was first enacted in 1836. R. L., 
c. 88, § 19. This act remained unchanged until 1852, and its 
constitutionality was never questioned. In that year aliens 
who had made their primary declaration of intention to 
become citizens of the United States were permitted to take 
the examination for admission to the bar. St. 1852, c. 154. 
This statute has, in substance, remained in force to the present 
day. 

It is significant that the constitutionality of these require- 
ments has never been questioned. The court has referred to 
the requirement of citizenship as a qualification for admission 
to the bar, if not with approval, at least without disapproval. 
Robinson's Case, 131 Mass. 376, 382; Opinion of the Justices, 
136 Mass. 578, 582. The fact that a requirement of a decla- 
ration of intention to become a citizen of the United States as 
a qualification for admission as an attorney at law remained 
in force and unchallenged for almost seventy years is a strong 
indication of its constitutionality. The difference between 
such a requirement and the requirement of citizenship is one 
of degree, and it would seem that the difference in degree is 
not so great as to render a requirement of citizenship as a 
qualification for admission to the bar unconstitutional. 

An attorney at law is an officer of the court, exercising a 
privilege or franchise during good behavior. Matter of Sam- 
uel Carver, 224 Mass. 169, 172. He is in a sense an officer of 
the State. Bergeron, Petitioner, 220 Mass. 472, 476. He is 
required upon his admission to take and subscribe the oaths 
to support the Constitution of the United States and of the 
Commonwealth (G. L., c. 221, § 38), and this requirement is 



130 ATTORNEY-GENERAL'S REPORT. [Jan. 

recognized as constitutional by the court. Robinson's Case, 

131 Mass. 376, 379. Women were not entitled to be admitted 
tot the bar until 1882. Robinson's Case, supra; St. 1882, c. 
139. A State may undoubtedly deny to non-citizens the 
privilege of being its officers or employees. Heim v. McCall, 
239 U. S. 175. 

In my opinion, therefore, the proposed bill, if enacted, 
would be constitutional, and I observe no defect of form. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Taxation — Income Tax — Sale of Lease. 

The sum received from a sale of a leasel^old interest is taxable, under G. L., 
c. 62, § 5, cl. (c), as a gain from the sale of intangible personal prop- 
erty. 

April 18, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You state the following facts: A, having paid 
nothing for a lease of a business building except an annual 
rent, assigns said lease to B before it has expired, and in con- 
sideration of said assignment B pays to A the sum of $55,000. 
You request my opinion whether said sum is taxable as a gain 
from the sale of intangible personal property, under the pro- 
visions of G. L., c. 62, § 5, cl. (c). 

Said clause provides, in part: — 

The excess of the gains over the losses received by the taxpayer from 
purchases or sales of intangible personal property, whether or not said 
taxpayer is engaged in the business of dealing in such property, shall 
be taxed at the rate of three per cent per annum. 

Your inquiry raises two questions: First, is a leasehold in- 
terest real or personal property? Second, if it is personal 
property, is it tangible or intangible? 

In the early days of our law, leases were considered con- 
tracts and were so defined. 2 Blackstone 142; Bac. Abr. Tit. 
"Leases;" Thomas v. West Jersey R.R. Co., 101 U. S. 71. If 
so considered and defined to-day, they would be choses in ac- 
tion, and profits derived from the sale of them would, there- 
fore, be taxable under the section above quoted. But as the 



1922.] PUBLIC DOCUMENT — No. 12. 131 

law developed, leases came to be more than contracts, and 
were held to create an actual estate in the land demised. 
Leake's Property in Land, 2d ed. pp. 30, 31; Washburn's 
Real Property, §§ 604, 605; Sa7iders v. Partridge, 108 Mass. 
556, 558; G. L., c. 186, § 1; G. L., c. 235, § 46. 

At this point, consistency would seem to have required that 
leasehold interests, like freehold interests, should be deemed 
real property. But considerations of consistency did not pre- 
vail; leases came to be described as "chattels real," and were 
held to descend to the administrator as personal property 
rather than to the heir as realty. In re Gay, 5 Mass. 419. 
The law is unchanged in that respect to-day. Moreover, lease- 
hold interests are levied upon as personalty (G. L., c. 235, 
§ 46; Chapman v. Gray, 15 Mass. 439), and our statutes pro- 
viding for the recording of conveyances of real property do 
not apply to leases for a term of less than seven years (G. L., 
c. 183, § 4). 

From the standpoint of the limitation of estates, therefore, 
leasehold interests are considered realty, while for purposes of 
devolution and levy they are dealt with as personalty, and 
statutes providing for the recording of conveyances of land do 
not generally apply to them. Nor have they lost their 
original contractual aspect. 

Since terms for years have a double aspect, it is important 
to notice how they have been dealt with for purposes of 
taxation. In at least two States they have been classified as 
personalty in that respect. IVilgus v. Commonwealth, 9 Bush. 
(Ky.) 556; Harvey Coal & Coke Co. v. Dillon, 59 W. Va. 605. 
In Massachusetts and generally throughout the country it is 
customary to assess real estate to the owner of the freehold 
and not to the owner of a term for years. 

In Freedman v. Bloomberg, 225 Mass. 491, the question was 
whether a mortgage of a leasehold interest must be recorded 
in the city clerk's office under R. L., c. 198, § 1, now G. L., 
c. 255, § 1, which required mortgages of "personal property" 
to be so recorded. The court did not expressly determine 
whether the mortgage was of personalty or realty, but held 
that the statute in question applied, in the language of Shaw, 
C.J., in Marsh v. Woodbury, 1 Met. 436, "only to goods and 
chattels capable of delivery, and not to the defeasible or con- 
ditional assignment of a chose in action." While the court 
said that the term "personal property" was not "accurate" 



132 ATTORNEY-GENERAL'S REPORT. [Jan. 

as a description of a term for years, they did not by any 
means hold that such property was realty. 

In general, and particularly for purposes of taxation, lease- 
hold interests seem frequently to be treated as personalty. I 
cannot, therefore, advise you that they should be treated as 
realty in respect to the income tax law. 

I next consider the question whether, if a leasehold interest 
is personalty, it is tangible or intangible. Leases are fre- 
quently described as "chattels real," and the word "chattel" 
connotes a movable, a piece of property susceptible of manual 
delivery, and therefore tangible. But the case of Freedman 
V. Bloomberg, supra, seems to hold that a leasehold interest is 
not tangible personal property. If, therefore, it is personalty, 
it seems to be intangible. If there is anything whatever of a 
tangible nature in connection with a leasehold interest, it 
seems to be land and not personalty. 

Your question is novel. An answer either way is not free 
from doubt. I do not feel that I ought to resolve that doubt 
against the Commonwealth, which has no opportunity to ap- 
peal from my opinion. The Commonwealth and the citizen 
stand on equal terms in this respect if the tax be assessed and 
the citizen tests the validity thereof in open court. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Attorney -General — Travel outside Commonwealth — Expenses. 

St. 1920, c. 253, does not apply to the Attorney-General. 

In view of the duties imposed by law upon the Attorney-General, he is not 
required by St. 1920, c. 253, to obtain the authority of the Governor 
to travel at public expense upon public business outside the Common- 
wealth or to specify the places to be visited and the probable duration 
of his absence. 

April 20, 1921. 

His Excellency the Governor, and the Honorable Council. 

Gentlemen: — You have asked my opinion as to the ap- 
plication of St. 1920, c. 253, to the Attorney-General. That 
act provides: — 

Section eleven of chapter four of the Revised Laws is hereby amended 
by adding at the end thereof the following:- — No officer or employee 
of the commonwealth shall travel outside the commonwealth at public 
expense unless he has previously been authorized by the governor to 
leave the commonwealth, and in applying for such authorization the 



1922.] PUBLIC DOCUMENT — No. 12. 133 

officer or employee shall specify the places to be visited and the prob- 
able duration of his absence, ■ — so as to read as follows: — Section 11. 
The governor may appoint state officers as delegates to represent the 
commonwealth at such conventions as may be held in any part of the 
United States for the purpose of considering questions of charity, re- 
form, statistics, insurance and other matters affecting the welfare of 
the people. The necessarj^ expenses of such delegates may be paid 
from such appropriations as the general court shall make from year to 
year for the travelling and contingent expenses of such officers. No 
officer or employee of the commonwealth shall travel outside the com- 
monwealth at public expense unless he has previously been authorized 
by the governor to leave the commonwealth, and in applying for such 
authorization the officer or employee shall specify the places to be 
visited and the probable duration of his absence. 

In colonial times the Attorney-General was the chief law 
officer of the province. The powers and duties of the office 
were such as pertained to it at common law. It was con- 
tinued as a State office by article IX of section I of chapter 
II of part second of the Constitution adopted in 1780, and the 
powers and duties of the office were continued by Mass. 
Const., pt. 2d, c. VI, art. VI. Amendments XVII and LXIV 
now provide that he shall be elected by the people, and pre- 
scribe his term of office. While the powers and duties of 
the office have since been declared to some extent by statute 
(see G. L., c. 12, §§ 1-11), he still possesses additional com- 
mon-law powders. Parker v. May, 5 Cush. 336, 340; Mc- 
Questen v. Attorney-General, 187 Mass. 185. 

Putting aside the question whether and to what extent the 
Legislature could limit the power of a constitutional officer to 
perform his duties, it will be sufficient in this case to determine 
w^hether this act purports to do so. 

The Attorney-General, as the name of his office implies, is 
the chief law officer of the Commonwealth. Proper discharge 
of his duties may require him to travel beyond the borders of 
the Commonwealth — for example, to represent the Common- 
w^ealth before the Supreme Court of the United States. The 
occasion for his presence in Washington, or elsewhere, to rep- 
resent the Commonwealth may arise suddenly, under cir- 
cumstances w^hich would preclude him from applying to the 
Governor before he starts. If this statute should be held to 
apply to him he could not discharge his duty to the Common- 
wealth if the Governor could not be reached or should refuse 
his approval. The statute, in my opinion, was not intended 



134 ATTORNEY-GENERAL'S REPORT. [Jan. 

to apply to the Attorney-General, and does not apply to him 
under such or similar circumstances. It amends an act rela- 
tive to sending delegates to conventions outside the State. 
Such an act has no natural application to the Attorney- 
General when he is acting in the discharge of the duties of his 
office. This view is in entire accord with the requirement of 
the amendment that the officer or employee ''shall specify 
the places to be visited and the probable duration of his 
absence," — a requirement with which the Attorney-General 
might well find it impossible to comply, owing to the ex- 
igencies which might arise in the discharge of those duties. 

While the Auditor of the Commonwealth has raised the 
question upon expenses incurred by me or those acting by my 
direction in the discharge of their official business, the ques- 
tion presented is the broad question of the authority vesting 
in the office, and its decision is equally applicable to those who 
shall hold the office of Attorney-General in the future. Be- 
cause, however, for the moment it involves a decision as to 
my own powers, I submitted the question in writing to three 
former Attorneys-General, and they have severally advised me 
that in their opinion the act does not apply and was not in- 
tended to apply to the Attorney-General when he is acting 
in the discharge of the duties of his office. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Physicians and Dentists — Citizenship as 
Requirement for Registration — Reasonable Regulations for 
Public Health. 

Reasonable regulations and rational means designed to protect the public 
health are constitutional. 

The power to make regulations cannot be used arbitrarily or unreasonably. 

The purpose of a statute must be found in its natural operation and effect. 

An act requiring that applicants for registration as physicians or dentists 
be citizens of the United States or aliens who have made the primary 
declaration of intention to become citizens, and that the registration of 
aliens be canceled unless they become citizens within seven years from 
the date of their registration, is so arbitrary and unreasonable as to be 
unconstitutional. 

April 20, 1921. 

Committee on Bills in the Third Reading, House of Representatives. 

Dear Sir: — You request my opinion as to the constitu- 
tionality of House Bill No. 1464, entitled "An Act providing 



1922.] PUBLIC DOCUMENT — No. 12. 135 

that registered physicians and dentists practising in this 
Commonwealth shall be citizens of the United States." 

Section 1 of the proposed bill requires that applicants for 
registration as qualified physicians be citizens of the United 
States or aliens who have made the primary declaration of 
intention to become citizens; that the Board of Registration 
in Medicine shall revoke any certificate of registration here- 
after issued by it to an alien, and cancel his registration unless 
he becomes a citizen of the United States within seven years 
from the date of said certificate; and that the Board shall 
not reissue any certificate formerly issued by it or issue a new 
certificate and register anew any physician whose certificate 
was revoked and whose registration was canceled when the 
cause of revocation or cancellation was non-citizenship. Sec- 
tion 2 makes similar requirements and provisos with respect 
to applicants for registration in dentistry. Section 3 provides 
that every alien registered in this Commonwealth as a phy- 
sician or a dentist, at the time the act takes effect, shall within 
seven years thereafter become a citizen of the United States; 
otherwise his certificate of registration shall be revoked and 
his registration canceled by the board which registered him. 

The State may make such regulations as it deems proper to 
protect the public health without contravening the provisions 
or spirit of the State or Federal constitutions. Collins v. 
Texas, 223 U. S. 288, 296; Reetz v. Michigan, 188 U. S. 505, 
506; Commonwealth v. Por7i, 196 Mass. 326, 329; Common- 
wealth V. Zimmerman, 221 Mass. 184, 189. 

The power to make such regulations cannot, however, be 
used arbitrarily or unreasonably. A State may classify with 
reference to the evil to be prevented, and if the class dis- 
criminated against is, or reasonably might be, considered to 
define those from whom the evil is mainly to be feared, it 
properly may be picked out. Patsone v. Pennsylvania, 232 
U. S. 138, 144. But such classification must have some rea- 
sonable basis upon which to stand. It must always rest upon 
some difference which bears a reasonable and just relation to 
the act in respect to which the classification is proposed, and 
can never be made arbitrarily and without any such basis. 
Truax v. Raich, 239 U. S. 33; Gulf, Colorado & Santa Fe Ry. 
V. Ellis, 165 U. S. 150, 155. If the regulations bear no rela- 
tion to the calling or profession, they are unconstitutional. 
In Truax v. Raich, supra, the Supreme Court of the United 
States said, at page 41 : — 



136 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is sought to justify this act as an exercise of the power of the State 
to make reasonable classifications in legislating to promote the health, 
safety, morals and welfare of those within its jurisdiction. But this 
admitted authority, with the broad range of legislative discretion that 
it implies, does not go so far as to make it possible for the State to deny 
to lawful inhabitants, because of their race or nationality, the ordinary 
means of earning a livelihood. It requires no argument to show that 
the right to work for a living in the common occupations of the com- 
munity is of the very essence of the personal freedom and opportunity 
that it was the purpose of the amendment to secure. Butchers' Union 
Co. V. Crescent City Co., Ill U. S. 746, 762; Barbier v. Connolly, 113 
U. S. 27, 31; Yick Wo v. Hopkins, supra (118 U. S. 356, 369); All- 
geyer v. Louisiana, 165 U. S. 578, 589, 590; Coppage v. Kansas, 236 
U. S. 1, 14. If this could be refused solely upon the ground of race or 
nationality, the prohibition of the denial to any person of the equal 
protection of the laws would be a barren form of words. 

See also Dent v. West Virginia, 129 U. S. 114, 122; Hawker 
V. New York, 170 U. S. 189, 195. 

Our own courts have held that reasonable regulations do not 
impair the provisions of the State and Federal constitutions, 
and that any rational means designed to protect the public 
health must be upheld. Commomvealth v. Zimmerman, 221 
Mass. 184, 189; Commonwealth v. Porn, 196 Mass. 326, 329. 

Does the proposed bill bear so little relation to the pro- 
tection of public health that it can be said to be arbitrary 
and unreasonable? The purpose of the act must be found in 
its natural operation and effect. Truax v. Raich, 239 U. S. 
33, 40. The act itself is entitled "An Act providing that 
registered physicians and dentists practising in this Com- 
monwealth shall be citizens of the United States." This would 
seem to indicate that the primary purpose of the proposed 
bill was not to legislate relative to the qualifications of phy- 
sicians and dentists. Under the proposed bill aliens who are 
now practising medicine or dentistry, and aliens who have 
made their primary declaration of intention to become citizens 
and are registered in medicine or dentistry, may carry on their 
respective professions for a period of seven years without 
becoming citizens of the United States. This would seem to 
indicate that in the opinion of the Legislature the requirement 
of citizenship bears no relation to the fitness of an individual 
as a physician or dentist, since otherwise the Legislature would 
not permit the public health to be endangered for a period of 
seven years. 



1922.] PUBLIC DOCUMENT — No. 12. 137 

I cannot see any reasonable or rational relation between 
citizenship and fitness as a physician or dentist. I cannot see 
how citizenship can have any real bearing upon an applicant's 
knowledge, education or character, which are the prime tests 
of his qualifications. In my opinion, therefore, the proposed 
bill is so arbitrary as to render it unconstitutional. 

Section 3 applies to aliens registered as physicians and den- 
tists at the time of the passage of the act. If the require- 
ment of citizenship were constitutional, this section would not 
be unconstitutional merely by reason of its effect upon persons 
who had, previous to the passage of the act, been registered 
as qualified physicians or dentists. Collins v. Texas, 223 U. S. 
288, 297; Reetz v. Michigan, 188 U. S. 505, 510; Hawker v. 
Neiv York, 170 U. S. 189, 200; Dent v. West Virginia, 129 
U. S. 114, 123. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Insurance — Foreign Mutual Fire Insurance Company — Ad- 
mission — Guaranty Capital — Net Cash Assets — Lia- 
bilities. 

A foreign mutual fire insurance company having a paid-up guaranty capital 
of $100,000, liabilities of $58,240.01, a surplus over liabilities (exclud- 
ing guaranty capital) of $27,518, and contingent assets of $136,385.14, 
is qualified for admission to do business in the Commonwealth, under 
G. L., c. 175, § 151, cl. 2d (3), since the company has net cash assets 
equal to its total liabilities, and contingent assets of not less than 
$100,000. 

The guaranty capital of the company, in the interpretation of this par- 
ticular section, is not to be construed as a liability. 

April 20, 1921. 
Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — You request my opinion on a question of law 
raised by the following set of facts: — 

A foreign mutual fire insurance company has applied for 
admission to do business in this Commonwealth. Its financial 
statement shows that it has a paid-up guaranty capital of 
$100,000, liabilities of $58,240.01, a surplus over HabiHties 
(excluding guaranty capital) of $27,518, its contingent assets 
amounting to $136,385.14. You ask the following questions:' — 

1. Whether or not the company can qualify under any of the options 
set forth in G. L., c. 175, § 151, cl. 2 (3). 



138 ATTORNEY-GENERAL'S REPORT. [Jan. 

2. Whether or not the term ''net cash assets," as used in the second 
clause of said section 151, includes guaranty capital. 

3. Whether or not the said term ''net cash assets'* means surplus 
over all habilities, including in liabihties guaranty capital. 

4. Whether or not guaranty capital is a Habihty, within the meaning 
of clause 2 (3) (d) of said section 151. 

Section 151, so far as it is pertinent to the questions raised 
by you, reads as follows : — 

No foreign company shall be admitted and authorized to do business 
until — 

Second, It has satisfied the commissioner that ... (3) it has, if a 
mutual company, other than life, (a) net cash assets equal to the capital 
required of like companies on the stock plan; or (b) net cash assets of 
not less than fifty thousand dollars and contingent assets of not less 
than three hundred thousand dollars, or (c) net cash assets of not less 
than seventy-five thousand dollars, with contingent assets of not less 
than one hundred and fifty thousand dollars, or (d) net cash assets 
equal to its total habilities and contingent assets of not less than one 
hundred thousand dollars; . . . 

If the said foreign mutual fire insurance company qualifies 
under any of these provisions, it is under subdivision (d), as 
having net cash assets equal to its total liabilities and con- 
tingent assets of not less than $100,000 and the specific ques- 
tion to be determined is as to whether or not the guaranty 
capital of the company, amounting to $100,000, is to be in- 
cluded in the term "net cash assets." 

Section 79 of said chapter 175 provides that "a mutual fire 
company may be formed with, or an existing mutual fire com- 
pany may establish, a guaranty capital of not less than twenty- 
five thousand nor more than two hundred thousand dollars," 
and its guaranty capital shall be applied to the payment of 
losses only when the company has exhausted its assets ex- 
clusive of uncollected premiums. 

As was said in Commonwealth v. Berkshire Life Ins. Co., 
98 Mass. 25, 29, guaranty capital "is a capital furnished by 
way of guarantee against losses in excess of premiums." 

The tenth paragraph of section 1 of said chapter 175 de- 
fines "net assets" as "the funds of a company available for 
the payment of its obligations in the commonwealth, including, 
in the case of a mutual fire company, its deposit notes or other 
contingent funds, . . . and also including uncollected and de- 



1922.] PUBLIC DOCUMENT — No. 12. 139 

ferred premiums not more than three months due on policies 
actually in force, after deducting from such funds all unpaid 
losses and claims, and claims for losses, and all other debts 
and liabilities inclusive of net value of policies and exclusive 
of capital." In other words, capital is to be excluded as a 
liability item when computing the net assets of a company 
which are available for the payment of its obligations in the 
Commonwealth. 

While it is true that guaranty capital is in no proper sense 
the capital of the company, and the shares do not, as in stock 
corporations, represent aliquot fractional interests in the 
property and franchise, and is a liability rather than a part 
of the assets of the corporation, and should be so included in 
every statement of its pecuniary condition (Commomvealth v. 
Berkshire Life his. Co., 98 Mass. 25), nevertheless, guaranty 
capital, in my opinion, where the question is whether or not 
a foreign company has the proper assets to be admitted under 
one of the subdivisions enumerated in the second clause of 
section 151 set forth above, should not be included among 
the liabilities of the corporation. 

It will be noted that the requirements are practically di- 
vided into two divisions, that is, net cash assets and con- 
tingent assets, the former being the funds of the company 
available for the payment of its obligations in the Common- 
wealth, and the latter, the liability the policyholders are under 
to pay an assessment if a mutual fire company is not pos- 
sessed of assets above its unearned premiums sufficient for the 
payment of incurred losses and expenses, as provided for in 
section 83 of said chapter 175. 

Accordingly, I am of the opinion that the foreign mutual 
fire insurance company, on its financial statement set forth 
above, does qualify under G. L., c. 175, § 151, cl. 2, (3) (d), 
since the figures show that it has net cash assets equal to its 
total liabilities and contingent assets of not less than $100,000, 
it having net cash assets equal to its total liabilities, as the 
guaranty capital, in the interpretation of this particular sec- 
tion, is not to be construed as a liability. 

The above answers your questions 1, 2 and 4, and it fol- 
lows, of course, that the answer to your third question is in 
the negative. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



140 ATTORNEY-GENERAL'S REPORT. [Jan. 



Constitutional Law — Impairment of Contract — Eastern Massa- 
chusetts Street Railway Company. 

Spec. St. 1918, c. 188, constitutes a contract between the Commonwealth 
and the Eastern Massachusetts Street Railway Company, giving to 
the trustees appointed thereunder the right to regulate and fix fares 
and to determine the character and extent of the service and facilities 
to be furnished, and giving to the directors the right to pass upon con- 
tracts for the construction and operation of additional lines. 

St. 1920, c. 613, as amended by St. 1920, c. 637, which contains provisions 
directing the trustees to construct additional lines and regulating rates 
of fare, is an impairment of the contract contained in Spec. St. 1918, 
c. 188, and is therefore unconstitutional. 

Consequently, a bill to provide further for the carrying into effect of said 
1920, c. 613, as amended, if enacted, would also be unconstitutional. 

April 22, 1921. 
Committee on Street Railways, House of Representatives. 

Dear Sir: — I have the honor to acknowledge the receipt 
of the following communication : — 

The committee on street railways desires your opinion on the con- 
stitutionality of House Bill, No. 779, relative to the public operation of 
street railway lines in the Hyde Park district of the city of Boston; also 
your opinion on the constitutionaUty of a bill permitting the city of 
Boston to take by eminent domain the street railway lines of the 
Eastern Massachusetts Street Railway Company, located in the Hyde 
Park district of the city of Boston, as designated in chapter six hundred 
and thirteen of the acts of nineteen hundred and twenty. 

House Bill No. 779, now pending before your committee, 
provides as follows: — 

The city of Boston is hereby directed to pay such sums as are specified 
in chapter six hundred and thirteen, as amended by chapter six hundred 
and thirty-seven, of the acts of nineteen hundred and twenty in the 
manner and to the parties therein specified in order to carry out the 
pro\asions of said acts. Upon such pajmient to the Hyde Park Trans- 
portation District said corporation is directed to commence operating 
said lines forthwith. 

St. 1920, c. 613, is entitled "An Act to provide for the 
public operation of street railway lines in the Hyde Park dis- 
trict of the city of Boston." Before stating its provisions it 
will be convenient to refer to Spec. St. 1918, c. 188, under 
which the Eastern Massachusetts Street Railway Company 
was organized and has been operated by trustees. 



1922.] PUBLIC DOCUMENT — No. 12. 141 

Spec. St. 1918, c. 188, provides in section 1 for the organ- 
ization of a new company to acquire the railways, property 
and franchises of the Bay State Street Railway Company, 
and to hold and possess the same under St. 1906, c. 163, 
pt. Ill, §§ 144 and 145. Section 2 provides for the ap- 
pointment of trustees by the Governor, with the advice and 
consent of the Council, to manage and control the new com- 
pany for a period of ten years. Section 11 provides that the 
trustees shall manage and operate the new company for the 
period specified in section 2, and shall have, and may exercise, 
all the rights and powers of the new company. Said section 
contains this provision : — 

They shall have the right to regulate and fix rates and fares, in- 
cluding the issue, granting and withdrawal of transfers, and the imposi- 
tion of charges therefor, and shall determine the character and extent 
of the service and the facilities to be furnished, and in these respects 
their authority shall be exclusive, and shall not be subject to the ap- 
proval, control or discretion of any other state board or commission 
except as provided in this act, and except as to joint rates and fares or 
service with connecting companies other than the Boston Elevated 
Railway Company. 

Section 12 is as follows: — 

No contracts for the construction, acquisition, rental or operation of 
any additional lines or for the extension, sale or lease of existing fines 
or any portion thereof shall be entered into without the consent of the 
directors of the new company, unless, after such consent has been re- 
fused, the public service commission shall determine after a public 
hearing that public necessity and convenience require such construc- 
tion, acquisition or extension, sale or lease, and that the same will not 
impair the return on outstanding stock, bonds and other evidences of 
indebtedness contemplated by the provisions of this act; and in case 
of such determination the directors shall have a right of appeal to the 
supreme judicial court, and if the court shall decide that the said 
return would so be impaired, the contemplated action shall not be 
taken. 

Section 23 provides that the act shall take effect upon its 
passage as to sections 1, 2 and 3, and as to the remaining 
sections upon its acceptance by the company, given by a vote 
of the holders of two-thirds of each class of stock at a meeting 
held for the purpose. 

The above provisions in section 11 in regard to the right of 
the trustees to regulate and fix fares and to determine the 



142 ATTORNEY-GENERAL'S REPORT. [Jan. 

character and extent of the service and the facilities to be 
furnished, and in section 12 in regard to the right of the 
directors to pass upon contracts for the construction or oper- 
ation of additional lines, in my judgment, constitute a con- 
tract between the Commonwealth and the Eastern Massa- 
chusetts Street Railway Company which cannot be impaired 
without violating section 10 of article I of the United States 
Constitution. II Op. Atty.-Gen. 261, 426; III Op. Atty.- 
Gen. 396, 400. 

St. 1920, c. 613, as amended by St. 1920, c. 637, for the 
purposes of the act, constitutes the trustees appointed under 
Spec. St. 1918, c. 159, a corporation. It directs the trustees 
of the Eastern Massachusetts Street Railway Company to 
construct a double track line on Hyde Park Avenue, and au- 
thorizes the city of Boston to pay to the corporation $30,000 
for repairs and reconstruction of tracks, etc., within the dis- 
trict. It provides that thereupon said company shall cease 
to operate the street railway lines within the Hyde Park dis- 
trict, and shall permit the corporation to take over and oper- 
ate the same at a specified annual rental. It provides that 
said street railway lines shall be managed and operated by the 
corporation in behalf of the city of Boston, and that the rate 
of fare within the Hyde Park district shall not exceed the unit 
rate of fare which the Boston Elevated Railway Company 
now charges or may hereafter charge on its system. In my 
opinion, this act is an impairment of the contract contained in 
Spec. St. 1918, c. 188, and is therefore unconstitutional. 

I do not need to consider, therefore, the question whether 
the statute is also unconstitutional in its directions with 
respect to the construction and operation of street railway 
lines. Mayor, etc., of Worcester v. Norwich & Worcester R.R. 
Co., 109 Mass. 103; Brownell v. Old Colony R.R., 164 Mass. 
29; Atlantic Coast Line v. N. Car. Corp. Com'n, 206 U. S. 1; 
Wilson V. New, 243 U. S. 332, 384. 

Since St. 1920, c. 613, as amended, is unconstitutional, I 
have to advise you that the proposed legislation appearing in 
House Bill No. 779, purporting to direct the city of Boston to 
pay certain sums as therein specified, in order to carry out the 
provision of that act, and to direct the Hyde Park Trans- 
portation District to commence operating said lines, is also 
unconstitutional. 

As to your second question, relative to the constitutionality 



1922.] PUBLIC DOCUMENT — No. 12. 143 

of a bill permitting the city of Boston to take by eminent 
domain the street railway lines of the Eastern Massachusetts 
Street Railway Company located in the Hyde Park district, 
I am unable to comply with your request, as there is no pend- 
ing bill before me for consideration. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Insurance — Services furnished by an Automobile Service Com- 
pany — Contract of Insurance. 

An agreement by an automobile service company to furnish towing, re- 
pairs and automobile goods incidental to the operation of a car through 
the period of a year, for a fixed sum, is not a contract of insurance. 

April 22, 1921. 

Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — You have requested my opinion as to whether 
any features contained in a contract of the Emergency Auto 
Service Company involve insurance. 

Under the contract submitted to me the Emergency Auto 
Service Company, upon the receipt of a fixed sum from an 
automobile owner, agrees to furnish service for one year in 
connection with the owner's automobile on any passable road 
in the New England States where the automobile may have 
become disabled while in actual use so that it cannot be 
operated. The service to be furnished includes: — 

1. The towing of the automobile to the nearest station of 
the company, when the cause of its failure to operate is a 
break or defect in its mechanism. The company will tow 
the automobile to a further point, but in such case the owner 
is to pay for mileage in excess of mileage to the nearest sta- 
tion of the company. 

2. Furnishing a mechanic to make repairs; but the owner 
is to pay market prices for labor performed and all materials 
and supplies used, but no charge is to be made for the time 
of the mechanic to and from the job, nor for transportation. 

3. Furnishing gasolene, tires, tubes, oil, batteries and other 
general equipment; the owner to pay for all goods so supplied 
at the market prices prevailing at the time and place of delivery, 
but the company is to make no charge for the delivery. 



144 ATTORNEY-GENERAL'S REPORT. [Jan. 

4. Furnishing special parts or special equipment for the auto- 
mobile; the owner to pay for goods so supplied at market prices 
prevailing at the time and place of shipment, together with 
freight and express charges to the nearest station of the com- 
pany, but the company is to make no charge for transportation 
of such goods between said station and place of delivery. 

These are the pertinent features of the agreement, so far as 
the question asked is concerned. 

The nature of an insurance contract, both at common law 
and under the statutes of this Commonwealth, has been dis- 
cussed in various opinions of the Attorney-General. I Op. 
Atty.-Gen. 33, 37, 153, 164, 345 and 544; II Op. Atty.- 
Gen. 123, 226, 251 and 419; III Op. Atty.-Gen. 222; V 
Op. Atty.-Gen. 206. 

By G. L., c. 175, § 2, a contract of insurance is defined to be 
" an agreement by which one party for a consideration promises 
to pay money or its equivalent, or to do an act valuable to 
the insured, upon the destruction, loss or injury of something 
in which the other party has an interest." 

The essential element of insurance is that the insured re- 
ceives indemnity from loss by reason of the happening of 
events without his control or the control of the insurer. I 
Op. Atty.-Gen. 544. 

In my opinion, the contract of the Emergency Auto 
Service Company is not one of insurance. The element of 
hazard is wanting. It is an agreement to furnish towing, if 
necessary, to furnish repairs and to furnish automobile goods 
such as may be expected to be incidental to the operation of 
an automobile, through a period of one year. It is obvious 
that an automobile owner will require the services enumerated 
from time to time during such a period. The contract is an 
agreement to furnish such services for a fixed sum. The 
language used by a former Attorney-General is in point in the 
present case. Construing a contract by which a company, in 
consideration of a fixed sum, agreed to inspect, repair and 
maintain electrical machinery, this language was used (I Op. 
Atty.-Gen. 544, 547): — 

The only element of chance involved is the extent of the repairs which 
may be required. But in this, as in other matters, it is neither haz- 
ardous nor unusual to undertake continuing work, although somewhat 
indefinite in its amount, for a fixed sum. It does not differ from the 
ordinary contracts b}^ which an attorney is annually retained by his 
client. 



1922.] PUBLIC DOCUMENT — No. 12. 145 

This line of reasoning has subsequently been followed in II 
Op. Atty.-Gen. 226, and V Op. Atty.-Gen. 206. 

In accordance with the opinions rendered to your depart- 
ment by former Attorneys-General, I am of the opinion that 
the agreement now under consideration, providing for the 
services enumerated above, is a contract of service rather than 
of insurance. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Civil Service — Chief Matron and Assistant Chief Matron — 
House of Detention in Boston. 

Appointments to the positions of chief matron and assistant chief matron 
at the house of detention in the city of Boston, created by St. 1887, 
c. 234, § 3, are not subject to civil service rules and regulations. 

April 28, 1921. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You have requested my opinion as to whether 
or not the positions of chief matron and assistant chief matron 
at the house of detention in the city of Boston, created by 
St. 1887, c. 234, § 3, are classified under the Civil Service 
Law and Rules. 

The provisions as to the appointment of the chief matron 
and assistant chief matron at the house of detention in the 
city of Boston are found in section 3 of said chapter 234. 
This was an act providing for the appointment of police 
matrons in cities, and for the establishment of a house of de- 
tention for women in the city of Boston. The act consisted 
of six sections, and, with the exception of section 3, applied 
generally to police matrons at police stations. The provisions 
as to police matrons were carried into the Revised Laws, and 
were found in chapter 108, sections 32 to 35, inclusive. They 
are now found in G. L., c. 147, §§ 18-21, inclusive. 

When the provisions were carried into the Revised Laws, 
said chapter 234, with the exception of section 3, was repealed 
by R. L., c. 227. This section related to the establishment of 
a house of detention in the city of Boston, and contained the 
provisions as to the chief matron and assistant chief matron, 
etc. The pertinent provisions read as follows: — 



146 ATTORNEY-GENERAL'S REPORT. [Jan. 

The officers of such house of detention shall consist of a chief matron, 
an assistant chief matron, and as many assistant matrons and other 
male and female assistants as said board of police may deem necessary 
for the proper management of the same. The chief matron and assist- 
ant chief matron shall be appointed b}^ the board of police, but no 
woman shall be so appointed unless suitable for the position and recom- 
mended therefor in writing by at least twenty-five women of good 
standing, residents of the city of Boston; they shall be appointed to 
hold office until removal, and they may be removed at any time by said 
board by written order stating the cause of removal. 

At the time of the passage of said section 3 the Civil Serv- 
ice Commissioners, under the provisions of St. 1884, c. 320, 
were authorized to prepare rules not inconsistent with existing 
laws or with the provisions of this act (chapter 320), and 
adapted to carry out the purposes thereof, for the selection of 
persons to fill offices in the government of the Commonwealth 
and of the several cities thereof, which are required to be 
filled by appointment, and for the selection of persons to be 
employed as laborers or otherwise in the service of the Com- 
monwealth and of the several cities thereof. 

Ordinarily, the passage of an act creating appointive po- 
sitions in the government of the Commonwealth, or of the 
several cities thereof, would be subject to the provisions of 
St. 1884, c. 320 (R. L., c. 19; G. L., c. 31), for the reason 
that it is not to be presumed that the Legislature intends to 
repeal or affect general laws passed by its predecessors unless 
there is something in the subsequent act which indicates an 
intention that the provisions of the general law are not ap- 
plicable. IV Op. Atty.-Gen. 619. 

It necessarily follows that if nothing was said relating to 
the civil service in St. 1887, c. 234, § 3, the positions created 
by the act would be subject to the provisions of the general 
law relating to the civil service, unless there was inconsistency 
in their application or some other distinction which indicated 
an intention that the provisions of the general law should not 
be applicable. 

A former Attorney-General made this statement in an opinion 
(I Op. Atty.-Gen. 71): — 

Without undertaking to laj^ do\\Ti any rule of construction applicable 
to all cases, ... it appears to me that the civil service act (St. 1884, 
c. 320) and the rules should, in general be so construed as to distinguish 
between positions of routine, so to speak, which ordinarily do not involve 



1922.] PUBLIC DOCLmiENT — No. 12. 147 

administrative or discretionary powers, on the one hand; and, on the 
other, positions which involve the exercise of judgment, discretion, 
authority, and responsibihty; and that the general scheme is to in- 
clude the former and not to include the latter class within the system. 

The offices and positions to be filled under civil service 
rules are classified in two divisions, the first to be known as 
the Official Service of the Commonwealth and the several 
cities thereof, the second as the Labor Service. I do not 
find that the chief matron and the assistant chief matron 
at the house of detention in the city of Boston have been set 
forth as one of the classes in the first division — the Official 
Service. 

If the chief matron and assistant chief matron are included 
in the civil service, the question w^ould then arise whether 
they should be included in the Official Service. The Police 
Commissioner, in his letter to you of Jan. 14, 1921, takes the 
position that neither the chief matron nor the assistant chief 
matron can properly be classified under the Labor Service, 
as they are not charged w^ith the duties of matrons in other 
departments, and are not called upon to do manual work. 

In the view that I take of the case, however, it is not neces- 
sary to consider what would be the proper classification for 
these matrons under the Civil Service Law and Rules. St. 
1887, c. 234, § 3, w^as passed three years subsequent to the 
civil service law, and so far as the positions of chief matron 
and assistant chief matron are concerned, the requisite classi- 
fications appear to have been established without any apparent 
purpose to include them within the provisions of the civil 
service law. The appointment to these offices is made by the 
board of police, and the appointee must be "suitable for the 
position." The natural inference would be that it was in- 
tended that the board having the powder of appointment 
would determine whether the appointee was suitable, because, 
if the selection was to be made under the civil service, the ex- 
press provision that the woman must be suitable for the 
position would be unnecessary. 

It is more significant, however, that the appointee must be 
"recommended therefor in waiting by at least twenty-five 
w^omen of good standing, residents of the city of Boston." 
Under the Civil Service Law and Rules an applicant for a place 
in the civil service must present recommendations from three 
persons before examination. I am unable to learn of any in- 



148 ATTORNEY-GENERAL'S REPORT. [Jan. 

stance in which, under the civil service, the recommendation 
of twenty-five persons is required. If these offices are held 
to be within the classified service, the question might fairly 
arise whether the recommendation of twenty-five persons is 
required before examination, and, if only three recommenda- 
tions are required before examination, whether twenty-five 
or only twenty-two additional recommendations are required 
after examination. 

The strongest indication, however, that it was not intended 
that these positions should be within the classified service is 
contained in the provision that the appointees ** shall be ap- 
pointed to hold office until removal, and they may be re- 
moved at any time by said board by written order stating 
the cause of removal." If they were appointed under civil 
service they could not be removed at any time by the ap- 
pointing board merely upon a written order stating the cause 
of removal. 

For the foregoing reasons I am of the opinion that the act of 
1887, so far as it relates to the chief matron and assistant chief 
matron, falls within the exceptions to the general rule, which 
requires that a special act shall be held to be subject to the 
provisions of a general law previously enacted, and that these 
two positions are therefore not within the classified service. 
Very truly yours, 

J. Weston Allen, Attomey-GeneraL 



State Highway — Aricieyit Culverts — Artificial Stream — Ease- 
vient by Prescription. 

In 1894 the Commonwealth, in laying out and constructing a State highway 
in the town of Holden, rebuilt certain ancient culverts in their same 
locations, and have maintained them during the intervening twenty- 
seven years. 

If water has been collected into an artificial stream or channel and been 
cast upon an abutter's property during this long period, the Com- 
monwealth has acquired, by prescription, an easement to cast water 
on the land in question. 

May 3, 1921. 

Hon, John N. Cole, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion on the following 
set of facts: — 

A resident of the town of Holden has complained to your 
department that State highway employees have been open- 



1922.] PUBLIC DOCUMENT — No. 12. 149 

ing up culverts and turning a flow of water onto his prop- 
erty. You state that the highway wherein the culverts are 
located was made a State highway in 1894, at which time, in 
the process of the construction of a road, the old culverts 
which then existed were rebuilt in the same locations and 
have been maintained by the Commonwealth since that time. 
This maintenance has consisted of keeping the culverts and 
the outlets clear, so that the water would run through and 
away from the culverts. This clearing permitted and caused 
water from the culverts to flow onto the adjoining land. 
You ask as to the legal right of the Commonwealth to main- 
tain these culverts. 

The rights of public authorities with respect to the handling 
of water in connection with highways are covered with 
thoroughness in a memorandum written for the Massachu- 
setts Highway Commission in 1915 by Edwin H. Abbot, Jr., 
Esq., said memorandum being entitled " Ways and Waters 
in Massachusetts," and reprinted in the "Harvard Law Re- 
view," vol. 28, p. 478. 

Summarizing the law as stated in that memorandum, in so 
far as it is pertinent to the question raised by the complaint 
aforesaid, I would point out that the question must be con- 
sidered from two points of view, to wit: (1) the rule of law 
that applies if the flow of water upon adjoining property is 
that of surface water; and (2) the rule of law where public 
authorities have gathered surface water on the highway into 
a channel by means of a culvert, and turned the channel upon 
abutting land. 

If the fact is that surface water is being turned upon the 
premises of the abutter, there is no liability in tort upon the 
Commonwealth, and no action lies for the damage thereby occa- 
sioned. Turner v. Dartmouth, 13 Allen, 291; Flagg v. Worces- 
ter, 13 Gray, 601; McMahon v. Holyoke, 226 Mass. 450. 

The Commonwealth is within its right in collecting the sur- 
face water which gathers within the highway and in dis- 
charging it upon the plaintiff's land. Kennison v. Beverly, 
146 Mass. 467; Collins v. Waltham, 151 Mass. 196; Beds v. 
BrooJdine, 174 Mass. 1, 20; Hewett v. Canton, 182 Mass. 220. 
The plaintiff's remedy in such a case is to erect a barrier on 
his own land which would throw this surface water back upon 
the highway. Franklin v. Fish, 13 Allen, 211. 

On the other hand, the authorities of the Commonwealth 
may not gather surface water on a highway into a channel and 



150 ATTORNEY-GENERAL'S REPORT. [Jan. 

turn the channel upon abutting land. Frankli?! v. Fisk, 13 
Allen, 211; Daley v. Watertown, 192 Mass. 116. 

However, in connection with the facts in the case at hand 
it is to be noted that the decisions in this Commonwealth 
hold that an easement to cast water by an artificial stream or 
channel upon adjoining property may be acquired by pre- 
scription. White V. Chapin, 12 Allen, 516; Rathke v. Gard- 
ner, 134 Mass. 14; see also Stimsoii v. Brookline, 197 Mass. 
568; Dickinson v. Worcester, 7 Allen, 19, 22. 

On the facts stated, the culverts in question were rebuilt 
by the Commonwealth and have been maintained in the same 
location since 1894, a period of twenty-seven years. If the 
situation is that the water has been collected into an artificial 
stream or channel and cast upon the property in question 
during this long period, the Commonwealth has acquired, by 
prescription, an easement to cast water in that manner. 

Finally, it is to be remembered that the highway statutes 
make provision for those injured by public work in respect of 
highways, and that injury due to surface water has been held 
a proper element of such damage. So far as the present case 
is concerned, it is only necessary to state that the statutory 
period within which a person, who sustained damage in this 
respect, might have brought a petition for assessment of 
damages has long since expired. 

Yours very truly, 

J. Weston x\llen. Attorney -General. 



Trust Companies — Issue of Stock — Payment in Cash or by 
Note — Enforcemeiit of Note — Status of Subscriber — 
Scope of Advisory Power of Attorney -General, 

The statutes which govern the issue of stock require that such stock shall 
be paid for in cash. 

If stock of a trust company be issued in exchange for a note, the illegality 
of such action is not a defence to enforcement of the note. 

If stock of a trust company be illegally issued for notes, and the company 
confers upon the debtor, and the debtor accepts, the status of stock- 
holder, such stockholder may, in a proper case, be assessed as such in 
addition to the liability to pay such notes. 

May 3, 1921. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — I have considered the facts set forth in your 
recent letter. It is not the function of the Attorney-General 



1922.] PUBLIC DOCUMENT — No. 12. 151 

to decide cases where the rights of third parties are or may 
be involved. Cases are best determined by actual litigation. 
See Opinion of the Justices, 122 Mass. 600; Opinion of the 
Justices, 237 Mass. 613. Setting aside the facts recited by 
you, I advise you as to certain rules of law which may prove 
applicable, in order that you may determine what course you 
should pursue. 

In my opinion, the statutes require that stock in trust 
companies be paid for in cash. R. L., c. 116, § 5, as amended 
by Gen. St. 1916, c. 37; G. L., c. 172, § 18. See also R. L., 
c. 116, § 33; G. L., c. 172, § 39. 

In my opinion, if stock of a trust company be issued in 
exchange for a note, the transaction, though illegal in certain 
respects, is not a nullit}-, and the trust company, or a re- 
ceiver thereof, or the Commissioner of Banks, who is in ef- 
fect a statutory receiver, may enforce the note. The debtor 
cannot defend against the note given instead of cash, upon 
the ground that he ought to have paid cash at the time the 
stock was issued. 

If the trust company confers upon such debtor, and the 
debtor accepts, the status of stockholder, he thereby becomes, 
in my opinion, subject to the liabilities of a stockholder. The 
liability of a stockholder to assessment if the assets of the 
trust company are insufficient to pay its debts is not in nature 
different from the obligation to pay for the stock. One who 
has assumed the liabilities of a stockholder cannot, in my 
opinion, defend a suit to enforce an assessment upon the 
stock upon the ground that he illegally failed to pay for the 
stock in cash, as required by law. It is unnecessary to de- 
termine at the present time what action a solvent trust 
company might take to terminate the right of the stockholder 
to the stock in case he failed to meet his obligation to pay for 
it. 

If the court should find that the purported cancellation 
of notes and stock was a fraud upon creditors and other stock- 
holders, such cancellation would defeat neither an action to 
enforce the notes given for the stock nor an assessment upon 
such stock. In my opinion, such a finding might be made 
upon the facts stated in your letter. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



152 ATTORNEY-GENERAL'S REPORT. [Jan. 



Taxation — Legacy and Succession Tax — Gift to Wife of 
Promissory Note. 

Prior to the enactment of St. 1920, c. 478, a gift by a husband to his wife 
of a promissory note took effect on his death, and the property was 
subject to a legacy and succession tax. 

May 5, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — A decedent, resident of Massachusetts, being 
the payee of a promissory note, in a conversation with his 
wife some time before his death stated that he gave the note 
to her and she replied that she was willing. He retained the 
note in his possession, and it was found among his effects 
after his death, at which time it was long overdue. You ask 
my opinion whether said note is subject to a legacy and suc- 
cession tax. 

I assume that a valid gift may be made inter vivos of a 
promissory note payable to the order of the donor without 
formal endorsement or assignment, where the instrument itself 
is delivered. Grover v. Grover, 24 Pick. 261; Herbert v. 
Simson, 220 Mass. 480. 

But in the present case the attempted gift was from a hus- 
band to his wife. The common-law rule in Massachusetts has 
always been that personal property given by a husband to 
his wife remains the property of the husband during his life- 
time; but that on his death, if the gift has not previously been 
revoked, the title passes to the widow as against his executor, 
if rights of creditors are not impaired. Thomson v. 0' Sullivan, 
6 Allen, 303; Marshall v. Jaquith, 134 Mass. 138; Brown v. 
Brown, 174 Mass. 197; Ginn v. Almy, 212 Mass. 486, 497. 
As is said in Marshall v. Jaquith, supra, p. 140, "between hus- 
band and wife the requisites and effects of gifts inter vivos 
and causa mortis are nearly identical." 

Recently, by statute, this rule has been changed. St. 1920, 
c. 478, approved May 19, 1920 (G. L. c. 209, § 3), amends 
R. L., c. 153, § 3, by substituting the following: — 

Gifts of personal property between husband and wife shall be valid 
to the same extent as if they were sole. 

As the decedent died prior to the date of the enactment of 
that statute, obviously it is not applicable. 

The question whether the note referred to is subject to a 



1922.] PUBLIC DOCUMENT — No. 12. 153 

legacy and succession tax depends upon the provisions of Gen. 
St. 1916, c. 268, which were in force at the time of the death 
of the decedent. Section 1 of said act provides, in part: — 

All property within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein, belonging to inhabitants of the 
commonwealth, . . . which shall pass by will, or by the laws regulating 
intestate succession, or by deed, grant or gift, except in cases of a bona 
fide purchase for full consideration in monej^ or money's worth, made 
or intended to take effect in possession or enjoyment after the death of 
the grantor or donor, ... to any person, absolutely or in trust, . . . 
shall be subject to a tax as follows: — ... 

It is my opinion that the note in question, the title to which 
passed by gift at the moment of the death of the donor, prior 
to the enactment of St. 1920, c. 478, is property subject to 
the tax provided for by Gen. St. 1916, c. 268, § 1. See New 
England Trust Co. v. Ahhott, 205 Mass. 279, 282; State Street 
Trust Co. V. Treasurer and Receiver-General, 209 Mass. 373, 
378. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Juvenile Offenders — Custody — Term of Detention — Parole. 

A boy transferred from the Massachusetts Reformatory to the Industrial 
School for Boys, or a girl transferred from the Reformatory for Women 
to the Industrial School for Girls, under G. L., c. 120, is in the cus- 
tody of the institution to which he or she is transferred. 

Such transfer does not operate to extend the term for which the boy or girl 
was originally committed ; when the term expires the inmate should be 
discharged, but if the term extends beyond the minority of the child, 
the child should be returned to the reformatory. 

Boys and girls so transferred may be paroled only in accordance with G. L., 
c. 120, § 21. 

May 6, 1921. 

Mr. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You ask my opinion regarding the status of 
a boy who is transferred by the Commissioner of Correction 
from the Massachusetts Reformatory to the Industrial School 
for Boys, or of a girl who is transferred from the Reformatory 
for Women to the Industrial School for Girls, (1) with respect 
to the legal custody of such child, (2) with respect to the term 
of detention, and (3) with respect to the custody if paroled. 



154 ATTORNEY-GENERAL'S REPORT. [Jan. 

{!) Legal Custody. 
G. L., c. 120, § 15, provides as follows: — 

With the consent of the trustees the commissioner of correction may 
transfer to the industrial school for boys any boy under seventeen sen- 
tenced to the Massachusetts reformatory^ or to the industrial school for 
girls any girl under seventeen sentenced to the reformatory for women. 

There is no express provision in respect to the custody of a 
child so transferred. 

It is, however, plainly to be inferred from the provisions of 
said chapter 120 that all such children are in the custody of 
the institution to which they are transferred. Section 4 re- 
quires the trustees to establish rules, regulations and by-laws 
for the instruction and discipline of the inmates of each in- 
stitution, to provide employment, education and training for 
them, to parole, discharge or remand them as provided in said 
chapter, and to exercise a vigilant supervision over them. 
Section 5 requires the trustees to provide for the instruction 
of boys and girls in such institutions. Section 7 provides 
that "the superintendent of each school with the subordinate 
officers shall have general charge and custody of the irimates 
thereof," and requires him, under the direction of the trustees, 
to *' discipline, govern, instruct and employ and use his best 
endeavors to reform the inmates." Section 16 provides, in 
part, as follows: — 

The trustees may transfer any person committed or transferred to 
the industrial school for boys or to the Lyman school for boys, still in 
the custody of said trustees, who has proved unmanageable or an improper 
person to remain in either of the said institutions, to the Massachusetts 
reformatory; and in the same way may transfer any person conunitted 
or transferred to the industrial school for girls, still in the custody of the 
trustees, to the reformatory for women. . . . 

Section 17 provides as follows: — 

The legal custody for the remainder of his or her minority of any 
boy or girl transferred to the Massachusetts reformatorj^ or to the re- 
formatory for women by the trustees is thereby surrendered by them, 
and shall thereafter be in the institution to which the transfer has been 
made. 



1922.] PUBLIC DOCUMENT — No. 12. 155 

G. L., cc. 124-127, inclusive, relating to prisons, imprison- 
ment, paroles and pardons, contain no provisions with respect 
to transfers from said reformatories to said industrial schools. 
See especially chapter 127, sections 97-115, inclusive. 

(2) Term of Detention. 
G. L., c. 120, § 15, is derived from St. 1908, c. 639, § 4, 
and from Gen. St. 1918, c. 100. St. 1908, c. 639, is entitled 
"An Act to provide for the establishment of the Industrial 
School for Boys." Section 4 contained the following pro- 
vision : — 

With the consent of the trustees, the prison commissioners may re- 
move to said industrial school any boy under the age of seventeen years 
who is sentenced to the Massachusetts reformatory. When a boy is 
removed or returned under this act, all mittimuses, processes and other 
official papers, or copies thereof, by which he is held, shall be removed or 
returned with him; and he may be held in the institution to which he is 
removed or returned until the expiration of the term for which he was 
originally committed. 

The clause in italics does not appear in the General Laws. 

Gen. St. 1918, c. 100, is entitled "An Act providing for the 
transfer of certain inmates from the Reformatory for Women 
to the Industrial School for Girls," and provides as follows: — 

With the consent of the trustees of the Massachusetts training schools, 
the director of prisons may remove to the industrial school for girls any 
girl under the age of seventeen years who has been sentenced to the 
reformatory for women. Any person so transferred shall be accom- 
panied by all mittimuses and processes in the case, bj'' a copy of the 
medical report and by the facts covering the history and conduct of the 
person and the home circumstances of such person, so far as they can 
be ascertained. 

G. L., c. 120, § 13, provides, in part: — 

All boys and girls committed to the Ljanan school, the industrial 
school for boys or the industrial school for girls shall be there kept, 
disciplined, instructed, employed and governed, under the direction 
of the trustees, until thej^ become twenty-one or are paroled, legally 
transferred or discharged. 

There is no statutory provision of which I am aware which 
extends the term of detention of a boy or girl transferred 



156 ATTORNEY-GENERAL'S REPORT. [Jan. 

from such reformatory to such industrial school. It is my 
opinion that such transfer does not operate to extend the 
term for which the boy or girl was originally committed, and 
that when the term expires the inmate should be discharged. 
But if the term of detention in any case extends beyond the 
minority of such child, the child should be returned to the 
reformatory to which he or she was originally committed. 

(3) Custody if Paroled. 
Since boys and girls transferred from the reformatories to 
the industrial schools under the provisions above referred to 
are, as I have advised you, in the custody of the particular 
institution to which they are transferred, it follows clearly 
that they may be paroled only in accordance with the pro- 
visions of chapter 120, section 21, which provide for the re- 
lease on parole of children in such custody, and for the re- 
sumption by the trustees of the care and custody of children 
released on parole. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Accounts of Institutions — Approval by Trustees or Commis- 
sioner of Department — Auditor. 

Accounts of sales of property by an officer of a State institution may be ap- 
proved by the head of the department having supervision and control 
of the institution, or by the trustees or other supervising board or 
officer. 

Requirements for approval of bills for articles furnished and expenses in- 
curred in such institutions depend on particular statutory provisions 
relating to each institution, which are quoted or referred to and con- 
sidered. 

By G. L.. c. 11, § 7, the Auditor is authorized to require affidavits with re- 
spect to such expenditures, to be made by the disbursing officers of the 
various institutions. 

May 9, 1921. 

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

Dear Sir: — You ask my opinion whether it is necessary 
for the trustees of the various institutions of the Common- 
wealth to approve bills for expenditures and returns of sales, 
or whether you would be justified in accepting the approval 
of the commissioner of the department in which such institu- 
tions are placed. 



1922.] PUBLIC DOCUMExNT — No. 12. 157 

G. L., c. 11, § 7, defining the duties of the Auditor, is, in 
part, as follows: — 

He shall examine all accounts and demands against the Common- 
wealth, excepting those for the salaries of the governor and of the 
justices of the supreme judicial court, for the pay rolls of the executive 
council and members of the general court, and those due on account 
of the principal or interest of a public debt. He may require affidavits 
that articles have been furnished, services rendered and expenses in- 
curred, as claimed. Such affidavit for any institution shall be made 
by the disbursing officer thereof. ... If the general court, by express 
statute, authorizes a department or public officer to approve accounts or 
demands against the commonwealth, and an appropriation therefor has 
been made, the auditor shall, when such accounts or demands have been 
properly approved, promptly audit and certify such an amount, not ex- 
ceeding the appropriation therefor, as he may deem correct ; . . . 

G. L., c. 30, § 41, provides as follows: — 

If sales of property of the commonwealth are made by any officer 
of a state institution, the superintendent thereof shall submit to the 
trustees or other supervising board or officer an itemized account, on 
oath, of such sales, for their approval in the same manner as accounts 
for materials and supphes for such institutions are approved, and such 
account shall be filed with the state treasurer when the proceeds are 
paid over to him. 

So far as concerns accounts of sales of property, it is my 
opinion that such accounts may be approved by the head of 
the department having supervision and control of a State 
institution, or by the trustees or other supervising board or 
officer, and that you may accept accounts so approved. 

I find no provision which in general terms expressly re- 
quires the approval by any supervising board or officer of 
bills for articles furnished and expenses incurred, although by 
G. L., c. 11, § 7, the Auditor is authorized to require an af- 
fidavit with respect to such expenditures, which, in the case 
of any institution, must be made by the disbursing officer 
thereof. I am of opinion, therefore, that the particular 
statutory provisions relating to each institution must be ex- 
amined, and that the answer in each case will depend upon 
the nature of those provisions. In that connection the pro- 
vision, above quoted, in G. L., c. 11, § 7, requiring the Audi- 
tor, where ''the general court, by express statute, authorizes 
a department or public officer to approve accounts or de- 
mands against the commonwealth, and an appropriation there- 



158 ATTORNEY-GENERAL'S REPORT. [Jan. 

for has been made," to audit and certify such accounts or 
demands when properly approved, should be noticed. 

The various State institutions to which reference should be 
made are under the supervision and control of the Department 
of Education, the Department of Public Health, the Depart- 
ment of Public Welfare, or the Department of Mental Dis- 
eases. 

Institutions in the Department of Education. 

G. L., c. 15, contains provisions relative to the Department 
of Education. Section 1 provides that the department shall 
be under the supervision and control of a commissioner of 
education and an advisory board, and section 4 provides that 
the commissioner shall be the executive and administrative 
head of the department. Section 19 provides as follows: — 

The trustees of the Massachusetts Agricultural College, the board 
of commissioners of the Massachusetts Nautical School, the trustees 
of the Bradford Durfee Textile School of Fall River, the trustees of 
the Lowell Textile School and the trustees of the New Bedford Textile 
School shall serve in the department. 

Sections 20 to 23 contain provisions with respect to the mem- 
bership of the boards of trustees of said Massachusetts Ag- 
ricultural College and said textile schools and of the board of 
commissioners of the Massachusetts Nautical School. 

G. L., c. 74, § 42, provides that the New Bedford Textile 
School, the Bradford Durfee Textile School of Fall River and 
the Lowell Textile School shall be State institutions, and the 
following sections contain references to the board of trustees 
of each of said schools. There is no provision relating to the 
approval of accounts for expenditures. 

G. L., c. 74, §§ 49-51, provide for the maintenance of the 
Massachusetts Nautical School by a board of commissioners. 
Said sections contain no provisions with reference to the ap- 
proval of accounts. 

G. L., c. 75, § 1, provides as follows: — 

The Massachusetts Agricultural College shall continue to be a 
state institution. 

Section 5 provides as follows : — 

Expenditures for maintenance shall be authorized by the trustees 
or by their duly appointed committee. The expenditure of special 
appropriations shall be directed by such trustees, and shall be au- 
thorized and accounted for as are appropriations for maintenance. 



1922.] PUBLIC DOCUMENT — No. 12. 159 

There is no provision which requires the approval of ac- 
counts by the trustees. 

I am of opinion that accounts of institutions under this 
heading, approved by the Commissioner of Education as 
supervising officer, may be accepted by you, although you 
may require affidavits as provided in G. L., c. 11, § 7. 

Institutions in the Department of Public Health. 

G. L., c. 17, relates to the Department of Public Health. 
Section 2 provides that the commissioner shall be the execu- 
tive and administrative head of the department. Section 8 
provides as follows: — 

The division of sanatoria shall include the state sanatoria at Rut- 
land, North Reading, Lakeville and Westfield. The commissioner 
may also place the Penikese hospital in said division. 

G. L., c. Ill, §§ 63-69, relate to the State sanatoria and 
the Penikese Hospital. They provide that the commissioner 
shall have general supervision and control of those institutions. 
They contain no provisions relating to the approval of ac- 
counts. 

It is my opinion that you may accept the accounts of such 
institutions when approved by the Commissioner of Public 
Health. 

Institutions in the Department of Public Welfare. 

G. L., c. 18, relates to the Department of Public Welfare. 
Section 2 provides that the department shall be under the 
supervision and control of a commissioner of public welfare 
and an advisory board. Sections 8, 10, 11, 12 and 13 con- 
tain provisions with reference to the membership of boards of 
trustees of the State Infirmary', the Massachusetts Hospital 
School and the Massachusetts Training Schools. 

G. L., c. 120, relates to the Massachusetts Training Schools. 
Sections 1 to 6, inclusive, state the powers and duties of the 
trustees. I find no section requiring the accounts of those 
institutions to be approved by the trustees. 

G. L., c. 121, §§ 28-37, relate to the Massachusetts Hos- 
pital School, and contain provisions defining the powers and 
duties of the trustees. 



160 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 28 provides, in part, as follows: — 

. . . The board of trustees of said school shall have the same 
powers and shall be required to perform the same duties in the man- 
agement and control of the school as are vested in and required of the 
trustees of the various state hospitals under chapter one hundred and 
twenty-three, so far as applicable. 

G. L., c. 123, § 32, provides that — 

All accounts for the maintenance of each of the state hospitals 
shall be approved bj^ the trustees thereof and filed with the state 
auditor, . . . 

G. L., c. 122, contains provisions relating to the State In- 
firmary and the powers and duties of the trustees. Section 1 
contains the following provision: — 

. . . The trustees shall audit and approve the accounts and bills 
of the superintendent before payment. . . . 

Section 6 contains the following provision: — 

All accounts for the maintenance of the state infirmary and the 
support of the inmates shall be approved by the trustees and filed 
with the state auditor at the end of each month. 

I am of opinion that by virtue of the provisions above 
quoted the accounts and bills for the maintenance of the 
Massachusetts Hospital School and of the State Infirmary 
should be approved by the trustees of those institutions before 
they are approved by you, but that with respect to the other 
institutions such approval of the trustees is not necessary. 



Institutions in the Department of Mental Diseases. 
G. L., c. 19, relates to the Department of Mental Diseases. 
Section 4 provides that the commissioner shall be the execu- 
tive and administrative head of the department. Section 5 
is as follows: — 

The boards of trustees of the following public institutions shall 
serve in the department: Boston Psj^chopathic Hospital, Boston 
State Hospital, Danvers State Hospital, Foxborough State Hospital, 
Gardner State Colony, Grafton State Hospital, Massachusetts School 
for the Feeble-minded, Medfield State Hospital, Monson State Hospi- 



1922.] PUBLIC DOCUMENT — No. 12. 161 

tal, Norfolk State Hospital, Northampton State Hospital, Taunton 
State Hospital, Westborough State Hospital, Worcester State Hospital 
and Wrentham State School. 

Section 6 provides for the membership of the boards of trustees 
of each of said institutions. 

G. L., c. 123, by section 25, provides that the State insti- 
tutions under the control of the department shall be those in- 
stitutions stated in G. L., c. 19, § 5. Sections 26-32, inclu- 
sive, contain provisions defining the powers and duties of the 
trustees of said State institutions. Section 32 provides as 
follows: — 

All accounts for the maintenance of each of the state hospitals shall 
be approved by the trustees thereof and filed with the state auditor, 
and shall be paid by the commonwealth. Full copies of the pay rolls 
and bills shall be kept at each hospital. 

I am of opinion that by virtue of said provision the ac- 
counts of all said State hospitals must be approved by the 
trustees thereof before they are approved by you. 

The foregoing examination of the laws relating to the vari- 
ous departmental institutions discloses no established policy 
with respect to the requirements for approval of accounts for 
expenditures, and no reason is apparent why in some in- 
stances approval by the trustees of expenditures is required 
and in other cases payment of expenditures is not made sub- 
ject to their approval. 

Under the authority vested in you by G. L., c. 11, § 7, you 
would be justified, in lieu of approval by the trustees, in re- 
quiring the affidavit of the disbursing officer for expenditures 
in those institutions where approval by the trustees is not 
made a prerequisite of payment. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



162 ATTORNEY-GENERAL'S REPORT. [Jan. 



Power to compromise a Claim due to the Commonwealth — 
Treasurer and Receiver-General — Power of Attorney-Gen- 
eral to compromise a Pending Case. 

Authority to compromise a claim due to the Commonwealth is not or- 
dinarily incident to the power of an executive officer. 

The Treasurer and Receiver-General has no power to compromise claims 
due to the Commonwealth. 

Under G. L., c. 12, § 3, the Attorney-General has incidental power, in the 
exercise of a sound discretion, to compromise a civil proceeding in 
which the Commonwealth is a party or is interested. 

May 13, 1921. 
Hon. James Jackson, Treasurer and Receiver-General. 

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

1. Whether the Treasurer and Receiver-General has power to com- 
promise a claim due to the Commonwealth, if in the exercise of a 
sound discretion he determines that such compromise is financially 
more beneficial to the Commonwealth than to prosecute the claim. 

2. WTiether the Attorney-General, after the commencement of 
proceedings, may compromise an action brought upon behalf of the 
Commonwealth to enforce a claim due to it. < 

1. Authority to compromise a claim due to the Common- 
wealth is not ordinarily incident to the power of an executive 
officer. Wm. Cramp & Sons, etc., Co. v. United States, 216 
U. S. 494; District of Columbia v. Bailey, 171 U. S. 161, 176. 
It is significant that where the Legislature has intended 
to confer this power it has done so by express enactment. 
G. L., c. 58, § 27; c. 59, §§ 58, 71 and 72; c. 63, § 71; c. 65, 
§ 14. Examination has not disclosed any statute which con- 
fers authority upon the Treasurer and Receiver-General to 
compromise claims due to the Commonwealth. In my opinion, 
he does not possess this power. 

2. By G. L., c. 12, § 3, the Attorney-General represents the 
Commonwealth in all suits and other civil proceedings in 
which the Commonwealth is a party or is interested. This 
necessarily confers authority to conduct such suits and pro- 
ceedings in such manner as he, in the exercise of a sound dis- 
cretion, shall deem to be for the best interests of the Com- 
monwealth. He possesses, further, not only those powers 
which have been declared and defined by statute, but also 
those powers which are incident to the office at common law. 



1922.] PUBLIC DOCUMENT — No. 12. 163 

Parker v. Mmj, 5 Gush. 336, 338-340; Attorney -General v. 
Parker, 126 Mass. 217, 219; McQuesten v. Attorney-General, 
187 Mass. 185. Although the Attorney-General of the United 
States draws his powers wholly from statute, his statutory 
authority to control suits in which the United States is a party 
or is interested carries incidental power to compromise such 
litigation. Confiscation Cases, 7 Wall. 454, 458; 2 Op. A. G. 
(U. S.) 482, 486; 22 Op. A. G. (U. S.) 491, 494. A United 
States district attorney does not possess this power except 
under special circumstances. United States v. Beehe, 180 
U. S. 343. I am unable to believe that the authority of the 
Attorney-General of the Commonwealth is more restricted in 
this particular than that of the Attorney-General of the 
United States. In my opinion, the Attorney-General of the 
Commonwealth may, in the exercise of a sound discretion, 
compromise a civil suit or proceeding in which the Common- 
wealth is a party or is interested. If this were not so, the 
Commonwealth would be at a disadvantage as compared with 
other litigants in any case where a compromise beneficial to 
the Commonwealth could be effected. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Commonwealth — Payment by Check — Mailing — Duplicate 

Check. 

The mailing of a letter containing a check to the person entitled to re- 
ceive it does not constitute payment, unless by the payee's express 
direction or assent, the usual course of dealing between the parties, 
or through facts from which such direction or assent may be inferred, 
the payee has authorized the money to be thus delivered to him. 

Where the Treasurer and Receiver-General mailed a check to the payee 
without express or inferred authority, and the payee, whose endorse- 
ment was forged, was not negligent in giving notice of the forgery, or, 
if negligent, the Commonwealth was not injured by such negligence, a 
duplicate check should be issued. 

Such checks can be issued only on warrant in the usual manner. 

May 13, 1921. 
Hon. James Jackson. Treasurer and Receiver-General. 

Dear Sir: — You request my opinion relative to your au- 
thority to issue a duplicate check, payable under the pro- 
visions of Gen. St. 1919, c. 283, in cases where the original 
check was never received by the payee, and was unlawfully 



164 ATTORNEY-GENERAL'S REPORT. [Jan. 

obtained by some person who forged the payee's endorsement 
and cashed the check. 

The facts, as stated in your letter, are that upon appHcation 
a check for $100 was issued to a person entitled to receive it, 
under the provisions of the foregoing statute, drawn on the 
National Shawmut Bank and sent to the payee on Oct. 23, 
1919. The check was returned to you as paid by the National 
Shawmut Bank on Oct. 29, 1919. On April 21, 1921, the 
payee inquired about his check and informed you that the 
endorsement on the paid check was a forgery. This you 
accept as a fact. You orally informed me that neither this 
payee nor the other persons entitled to the payment of $100 
under the provisions of the act authorized you expressly or 
impliedly to mail the checks to them', but you established a 
regulation, in the interest of safety with respect to identity, 
that the checks be sent to them by mail. 

Gen. St. 1919, c. 283, as amended by St. 1920, c. 250, and 
by St. 1921, cc. 326 and 354, provides that the sum of $100 
" shall be allowed and paid out of the treasury of the Common- 
wealth" to certain classes of individuals. This is mandatory. 

Depositing in the post office a letter containing a check and 
addressed to the person entitled to receive it does not consti- 
tute payinent, unless by the payee's express direction or as- 
sent, the usual course of dealing between the parties, or other 
facts from which such direction or assent may be inferred, 
the payee has authorized the money to be thus delivered to 
him. Buell v. Chapin, 99 Mass. 594; Campbell v. Knights of 
Pythias, 168 Mass. 397, 400; Shea v. Mass. Benefit Assn., 160 
Mass. 289, 295; Morgan v. Richardson, 13 Allen, 410; Gurney 
V. Howe, 9 Gray, 404. 

Mr. Allen did not notify you of the forgery until eighteen 
months after the check was cashed. Unless there was neg- 
ligence in failing to discover the forgery or in failing to 
notify you immediately after the discovery, a7id the Com- 
monwealth can show that it was injured by reason of such 
negligence, the delay is of no consequence and cannot pre- 
vent recovery. Murphy v. Metropolitan Natl. Bank, 191 
Mass. 159, 165; A. Blum Jr.'s Sons v. Whipple, 194 Mass. 
253, 258; Jordan Marsh Co. v. National Shawmut Bank, 201 
Mass. 397, 411. 

I am therefore of the opinion that the Treasurer and Re- 
ceiver-General should issue a duphcate check payable under 



1922.] PUBLIC DOCUMENT — No. 12. 165 

Gen. St. 1919, c. 283, in cases where he is satisfied that there 
was no express or inferred authority to mail the check, and 
where he is of the opinion that the payee was not negligent 
in failing to give earlier notice to the Treasurer and Receiver- 
General of the forgery, or, if negligent, that the Commonwealth 
was not injured by such negligence. Such checks can be is- 
sued only on warrant in the usual manner. Mass. Const., 
pt. 2d, c. II, § 1, art. XI; Opinion of the Justices, 13 Allen, 

593. ,. ^ , 

1 ours very truly, 

J. Weston Allen, Attorney-General. 



Savings Banks — Authorized Investments — Commissioner of 

Banks. 
It is the duty of savings banks subject to G. L., c. 168,, to determine the 
legality of proposed investments in bonds of gas, electric or water 
companies, under G. L., c. 168, § 54, cl. 6, and of the Commissioner 
of Banks, under G. L., c. 167, §§2 and 5, to determine whether the 
statutory provisions have been comph"ed with. 
There is no provision giving to the Department of Public Utilities authority 
to decide whether bonds of such companies which have been issued may 
or may not be purchased by savings banks. 

May 16, 1921. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You ask me to advise you whether the De- 
partment of Public Utilities, Commissioner of Banks or the 
savings banks should decide the legality of bonds of gas, elec- 
tric or water companies as an investment for savings banks 
under the provisions of G. L., c. 168, § 54, cl. 6. 
Said section and clause provide as follows: — 

Section 54. Deposits and the income derived therefrom shall be 
invested only as follows: 

Sixth. In the bonds of a gas, electric or water company secured by 
a first mortgage of the franchise and property of the company: pro- 
vided, that the net earnings of the company, after payment of all oper- 
ating expenses, taxes and interest, as reported to, and according to the 
requirements of, the proper authorities of the commonwealth, have been 
in each of the three fiscal years preceding the making or renewing of 
such loan equal to not less than four per cent on all its capital stock 
outstanding in each of said years; and, provided, that the gross earnings 
of the company in the fiscal year preceding the making or renewing of 
the loan have been not less than one hundred thousand dollars. 



166 ATTORNEY-GENERAL'S REPORT. [Jan. 

By section 2 of said chapter it is provided, in part, that — 

Savings banks incorporated or doing business in the commonwealth 
shall be subject to this chapter so far as is consistent with the pro- 
visions of their respective charters; . . . 

There can be no doubt but that it is the duty of savings 
banks subject to chapter 168 to determine the legality of any 
proposed investment in the bonds of a gas, electric or water 
company under the provisions of said clause sixth. 

G. L., c. 167, § 2, provides, in part, that — 

The commissioner, either personallj^ or by his deputy or examiners, 
or such others of his assistants as he may designate, shall, . . . visit 
each bank, . . . and ascertain whether it has comphed with the law. 

Section 5 of said chapter provides, in part, that — 

If, in the opinion of the commissioner, a bank or its officers or trustees 
have violated any law relative thereto, he may forthwith report such 
violation to the attorney general, who shall forthwith, in behalf of the 
commonwealth, institute a prosecution therefor. . . . 

Clearly, it is the duty of the Commissioner to determine 
whether, with respect to investments in the bonds of gas, elec- 
tric or water companies by savings banks, they have complied 
with the provisions of G. L., c. 168, § 54, cl. 6. 

G. L., c. 164, §§ 14 and 15, regulate the issue of stock and 
bonds by gas and electric companies, and make them subject 
to the supervision and approval of the Department of Public 
Utilities. There is, however, no provision in the statutes 
giving to that department any authority to decide whether or 
not bonds of such companies which have been issued may or 
may not be purchased by savings banks. 
Yours very truly, 

J. Weston Allen, Attorjiey-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 167 



Constitutional Law — Power of Legislature to ratify Acts of 
City Officials done under an Unconstitutional Charter — 
Whe7i a Local Act may he limited to take Effect under the 
Forty-eighth A mendment 

The Legislature may properly repeal a city charter which is void because 
of failure to comply with the Second Amendment. 

An act which purports to ratify acts done by city officials under a void city 
charter should expressly limit such ratification to matters within the 
constitutional power of the Legislature. 

A bill whose operation is restricted to a particular town, city or other po- 
litical subdivision may be made to take effect upon its passage, since 
it is not subject to a referendum under Amend. XLVIII, The Refer- 
endum, pt. Ill, § 2. 

May 18, 1921. 

His Excellency Channing H. Cox, Governor of ike Commonwealth. 

Sir: — You have inquired whether House Bill No. 1535, 
entitled '*An Act ratifying and validating certain acts of the 
town of Methuen," would be constitutional if enacted into law. 

Section 1 of the proposed bill repeals Spec. St. 1916, c. 116, 
which provided for precinct voting, limited town meetings, 
town meeting members, and divers other matters in the town 
of Methuen, and also repeals Spec. St. 1917, c. 289, which 
purported to erect the town of Methuen into a city. Both 
said special acts have been held to be unconstitutional and 
void for failure to comply with jurisdictional requirements 
imposed by Mass. Const. Amend. II. Attorney-General v. 
Methuen, 236 Mass. 564; see also Opinion of the Justices, 229 
Mass. 601. No question can be made that the Legislature 
may properly remove these tW'O void enactments from the 
statute books. 

Sections 2 and 3 of the proposed bill provide, in substance, 
that **all acts done, elections held and votes passed" under 
the provisions and within the scope of general law or of said 
special statutes, with certain exceptions not here material, 
**are hereby ratified, confirmed and made valid." Section 4 
ratifies all acts of certain selectmen of Methuen in incurring 
indebtedness and making payments on behalf of the town be- 
tween certain dates. Section 5 confirms a certain election. 
Section 6 provides that the act shall take effect on its passage. 

As the bill defines by general description the acts, elections 
and votes to be ratified and confirmed, it is impossible for 
me, in the absence of the facts, to advise Your Excellency as 



168 ATTORNEY-GENERAL'S REPORT. [Jan. 

to whether the bill or some provision thereof extends to and 
includes some matter, thing or transaction which the Legis- 
lature may not have constitutional power to make valid. If 
such be the fact (which 1 do not intimate), a question would 
arise whether the whole bill would be unconstitutional, or 
whether the unconstitutional provision (if such there be) is 
severable. To guard against this possibility, I suggest that 
it w^ould be expedient to insert a new section to the following 
effect: — 

This act shall apply only in so far as the general court has constitu- 
tional power in the premises. 

If such a provision be inserted, it would, in my opinion, 
enable the Legislature to exert its broad power to validate the 
acts of municipalities, in so far as it is not restrained by con- 
stitutional limitations. 

As the bill is one whose operation *'is restricted to a par- 
ticular town, city or other political division," within the 
meaning of Mass. Const. Amend. XLVIII, The Referendum, 
pt. Ill, § 2, it is not subject to a referendum petition, and 
may properly be made to take effect upon its passage without 
inserting an emergency preamble. Section 6 of the present 
bill may, therefore, be retained as section 7 if the suggested 
provision be inserted as section 6. 
Yours very truly, 

J. Weston Allen, AUorney-Gcneral. 



Fisheries and Game — Right of Property — Extensio7i of 
Privilege to use Fisheries. 

The State exercises not only the right of sovereignty, but also the right of 

property, as to its fisheries and game. 
A State may prohibit the citizens of another State from using its fisheries. 
An act extending the privilege of using fisheries to aliens who meet certain 

requirements is constitutional. 

May 18, 1921. 
Committee on Rules, House of Representatives. 

Gentlemen: — You request my opinion as to the constitu- 
tionality of a proposed act entitled "An Act relative to the 
granting of licenses for the catching of lobsters." 

The bill, if enacted, will amend the present statute by 
enabling "individuals w^ho are aliens and who have resided 



1922.] PUBLIC DOCUMENT — No. 12. 169 

in the Commonwealth and have been actually engaged in 
lobster fishing therein for five years next preceding the date 
of the license" to obtain licenses to catch or take lobsters 
from the waters of the Commonwealth within three miles of 
the shore. The bill would enlarge the class of persons to 
whom such licenses may now be granted. 

The State exercises not only the right of sovereignty, but 
also the right of property, as to its fisheries and game. Legis- 
lation regulating and controlling the fisheries is, in effect, 
nothing more than a regulation of the use by the citizens of 
their common property, and is constitutional. Patsone v. 
Pennsijlimnia, 232 U. S. 138; Geer v. Coniiedicut, 161 U. S. 
519; McC ready v. Virginia, 94 V. S. 391; Commonwealth v. 
Hilton, 174 Mass. 29; Commonwealth v. Vincent, 108 Mass. 
441. A State may prohibit citizens of another State from 
using its fisheries. McCready v. Virginia, 94 L^. S. 391. It 
follows that a State may constitutionally extend the privilege 
of using its fisheries to aliens who meet certain requirements. 

In my opinion, therefore, this bill, if enacted, would be 
constitutional. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Automohiles — Operation — Lights. 

An automobile parked on a highway, with no one in charge, is being "op- 
erated," within the purview of G. L., c. 90, § 7. 

The display by such automobile of a single white light during the period 
from one-half an hour after sunset to one-half an hour before sunrise 
does not comply with the statute. 

May 20, 1921. 

Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You request my opinion as to whether the 
display by an automobile of a single park light, showing one 
red light to the rear and one white light to the front, complies 
with the requirements of the law relative to display of lights, 
if the car is parked on the highway with no one in charge. 

G. L., c. 90, § 7, provides, in part: — 

Every automobile operated during the period from one half an hour 
after sunset to one half an hour before sunrise shall display at least two 
white lights, or lights of yellow or amber tint, . . . which shall be 



170 ATTORNEY-GENERAL'S REPORT. [Jan. 

visible not less than two hundred feet in the direction toward which 
the vehicle is proceeding; and every such motor vehicle shall display 
at least one red Hght in the reverse direction. 

In the case of Cojnmomccalth v. Henry, 229 Mass. 19, the 
court, in considering practically the same provision of law, 
said, at pages 21 and 22: — 

The statute under which the complaint is drawn was enacted largely 
for the protection of travellers upon highways, bj^ guarding against 
collisions with automobiles after dark when it would be difficult or 
impossible to know of their presence. The question is, whether a motor 
car which is left standing upon a highway after dark without lights and 
with the engine at rest can be found to be "operated" within the mean- 
ing and intent of the statute. 

It is obvious that a motor car standing upon a highway under such 
conditions may be fully as great a menace to the safety of travellers as 
if running upon the way \\dthout lights, and that the danger of serious 
injury to travellers by coming in contact with such a car would be very 
great. . . . 

The statute must be read with reference to its manifest intent and 
spirit and cannot be limited to the literal meaning of a single word. It 
must be construed as a whole and interpreted according to the sense in 
which the words are employed, regard being had to the plain intention 
of the Legislature. So considered, we cannot doubt that the statute is 
broad enough to include automobiles at rest, as well as in motion, upon 
the highways. 

In construing a similar statute the Supreme Court of the 
State of Washington said, in Jaquith v. Worden, 73 Wash. 
349, 360: — 

An automobile does not cease to be ''driven" when stopped or left 
standing on a public highwaj^ during the hours of darkness. It cannot 
be said that the driver of such a machine must carrj^ lights while it is 
moving, but that he may stop it during the hours of darkness in the 
roadway, turn off the lights, and leave it standing, without violating the 
law. The statute must be read wdth reference to its plain spirit and 
intent. Its spirit may not be destroyed by narrowing it to the literal 
meaning of a single word. 

To the same effect is the case of Stroud v. Water Commis- 
sioners, 90 Conn. 412. 

The case of Harlan v. Kraschel, 164 Iowa, 667, which ap- 
pears to be contra to this view, is not followed by our court. 
See Commonwealth v. Henry, 229 Mass. 19, 23. 



1922.] PUBLIC DOCUMENT — No. 12. 171 

I am therefore of the opinion that an automobile parked 
on the highway, with no one in charge, is being " operated," 
within the purview of the statute, and that the display by an 
automobile of a single white light during the period from one- 
half an hour after sunset to one-half an hour before sunrise 
does not comply with the statute. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Delegation of Legislative Power — Act 
]hich automatically changes to conform to Subsequent Fed- 
eral Legislation — Eighteenth Amendment. 

Power to enact laws cannot be delegated by the Legislature. 

The Legislature may confer upon municipal corporations power to enact 
local ordinances or by-laws. 

The Legislature may confer upon the Executive power to make adminis- 
trative regulations in execution of a general law. 

Within limits the Legislature may enact contingent legislation. 

The "concurrent power" conferred upon or reserved to the States by the 
Eighteenth Amendment to the Federal Constitution does not authorize 
the Legislature to delegate to Congress any of the legislative power so 
conferred or reserved. 

The Legislature has no power to provide that an act passed to execute the 
Eighteenth Amendment to the Federal Constitution shall automatically 
change so as to conform to legislation which may hereafter be passed 
by Congress in order to execute said amendment. 

The Legislature has no power to provide that liquor for non-beverage pur- 
poses may be manufactured, purchased, delivered or possessed, "but 
only as provided by the laws of the United States and the regulations 
made thereunder," since, under such a provision, the law of this Com- 
monwealth would automatically change to conform to such Federal 
laws and regulations. 

The Legislature may provide that a carrier shall not deliver liquor except 
to persons who present a verified copy of a permit required by the laws 
of the United States, since this imposes a condition precedent to such 
delivery which involves no delegation of legislative power to Congress. 

May 23, 1921. 
Hon. Frank G. Allen, President of the Senate. 

Dear Sir: — You have submitted for my consideration 
House Bill No. 1612, entitled "An Act to carry into effect, so 
far as the Commonwealth of Massachusetts is concerned, the 
Eighteenth Amendment to the Constitution of the United 
States." You direct my attention to fifteen provisions of the 



172 ATTORNEY-GENERAL'S REPORT. [Jan. 

bill which make the operation of the proposed law depend 
upon the laws of the United States and the regulations made 
thereunder. These provisions are, broadly speaking, of two 
kinds: first, those which in effect incorporate into the present 
bill "the laws of the United States and the regulations made 
thereunder"; and second, those which require the possession of 
the permit required by those laws and regulations as a condi- 
tion precedent to some act otherwise prohibited. You inquire, 
in each instance, whether the provision in question is "an un- 
constitutional delegation by the General Court to the Congress 
of the United States of the power of the General Court to 
make laws for this Commonwealth." In view of the impor- 
tance and delicacy of the subject and the number and scope 
of your inquiries, I shall consider, first, what constitutl^ an 
unconstitutional delegation of the power to enact laws; and 
second, the effect of the provisions of the proposed bill to 
which you call my attention. 

1. The power to enact laws is a prerogative of sovereignty. 
It is vested in the people of Massachusetts except in so far 
as it has been surrendered or limited by the Constitution of 
the United States. By the Constitution of Massachusetts the 
people have delegated a portion of this power to the General 
Court. They have prescribed therein the manner in which 
the authority so delegated may be exerted. No bill can be- 
come a law unless it has been duly enacted by both branches 
of the Legislature and been either approved by the Governor 
or passed over his veto. There is no substitute for this pro- 
cedure except enactment under the initiative provisions of the 
Forty-eighth Amendment. Thus the power of the General 
Court to make laws differs fundamentally from that possessed 
by the people. The power of the people is inherent in them 
and may be delegated by them upon such terms as they may 
from time to time see fit to fix; the powers of the General 
Court are derived from the people, have been limited by the 
people and can be exerted only in the manner prescribed by 
the people. 

The General Court cannot delegate its power to make laws. 
No other body can exercise the power in the manner pre- 
scribed by the Constitution. This of itself is sufficient to 
preclude delegation. Yet the people have added to this in- 
herent limitation upon the power the express prohibition con- 
tained in article XXX of the Bill of Rights. In Boston v. 



1922.] PUBLIC DOCUMENT — No. 12. 173 

Chelsea, 212 Mass. 127, the court, in holding that the legis- 
lature could not delegate to a commission appointed by the 
court power to ascertain and prescribe to what extent (if any) 
the expense of the county of Suffolk should be borne by Chel- 
sea and Winthrop, said: — 

Article 30 of the Declaration of Rights of our Constitution provides 
that "In the government of this Commonwealth, the legislative depart- 
ment 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 gov- 
ernment of laws and not of men." It has been decided many times 
that the Legislature cannot delegate the power to make laws conferred 
upon it by a constitution sharply separating the three departments of 
government. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 481 ; 
Commonwealth v. Maletsky, 203 Mass. 241, 247; Brodbine v. Revere, 182 
Mass. 598, 600; Opinion of the Justices, 160 Mass. 586; Stone v. Charles- 
toicn, 114 Mass. 214, 220. When the attempt is to confer the power to 
make laws upon one of the other two departments of government, there 
is encountered the double prohibition of the Constitution against delega- 
tion of the law-making powers by the legislative, and against the exer- 
cise of that power by the co-ordinate department. It applies as 
strongly to the one as to the other. It is operative in equal degree 
upon the judicial and upon the other two departments of government. 
Case of Supervisors of Election, 114 Mass. 247. The question is whether 
Resolves of 1910, c. 109, as amended by c. 482 of the Acts of 1911, 
violates this article of the Constitution by imposing a law-making 
power upon the judicial department. 

So, also, the Legislature, unless authorized b}^ a constitutional 
provision for a referendum, cannot draft a general law and 
leave the enactment of it to the people at the polls. Opinion 
of the Justices, 160 Mass. 586; Barto v. Himrod, 8 N. Y. 483. 
Other instances might be given, but these suffice. The man- 
ner in which the Legislature must exert its delegated power 
to make laws, the express prohibition of article XXX of the 
Bill of Rights, and settled authority, all forbid the Legislature 
to delegate its authority to enact laws. Attor7iey -General v. 
Old Colony R.R., 160 Mass. 62, 92; Brodbine v. Revere, 182 
Mass. 598, 600; Graham, v. Roberts, 200 Mass. 152, 158; 
Wyeth V. Cambridge Board of Health, 200 Mass. 474, 481. See 
also Dinan v. Swig, 223 Mass. 516. 

There are seeming exceptions to the general rule that the 
Legislature cannot delegate legislative power, which, upon ex- 



174 ATTORNEY-GENERAL'S REPORT. [Jan. 

amination, prove not to be exceptions at all. The first of 
these seeming exceptions relates to the powers of local self- 
government which may be possessed by or conferred upon 
counties, cities, towns and other municipal corporations. The 
colonists brought with them from England the conception of 
local self-government. The settlement and organization of 
towns preceded any general colonial government. Many 
towns (now cities) are far older than the Constitution. Legis- 
lation in towns, by by-laws, has been a part of the law of 
Massachusetts from the earliest times. Graham v. Roberts, 
200 Mass. 152, 158; Deiccy v. Richardson, 206 Mass. 430, 433. 
Stouienburgh v. Hennick, 129 U. S. 141, 147. The continued 
existence of counties and towns was expressly recognized by 
the Constitution at the time of its adoption, and has con- 
tinued ever since. Mass. Const, pt. 2d, c. I, arts. I and II; 
Amend. 11. 

The authority of towns and other municipal corporations to 
regulate local matters by local ordinances or by-laws was not 
destroyed by the adoption of the Constitution, but became 
subject to the legislative power conferred upon the General 
Court. The Legislature may, subject to constitutional limita- 
tions, enlarge or diminish the authority of any city or town to 
regulate matters of local concern by reasonable ordinances, 
regulations or by-laws applicable only within its corporate 
limits. Opinion of the Justices, 234 Mass. 597, 603; Common- 
wealth V. Theberge, 231 Mass. 386, 389; Commonwealth v. 
Slocum, 230 Mass. 180, 190; Commonwealth v. Fox, 218 
Mass. 498; Opinion of the Justices, 208 Mass. 625, 629; Com- 
monwealth V. Kingsbury, 199 Mass. 542, 546; Brodbine v. 
Revere, 182 Mass. 598, 600; Commonwealth v. Plaisted, 148 
Mass. 375, 382; Bradley v. Richmond, 227 U. S. 477. So, 
also, the Legislature may prescribe some administrative pur- 
pose and direct the municipality to put that purpose into 
local effect, such as, for example, the division of the city into 
wards {Fitzgerald v. Boston, 220 Mass. 503); or the ascertain- 
ment of the districts to which certain limitations upon the 
height of buildings shall apply {Welch v. Swasey, 193 Mass. 
364, 375; 214 U. S. 91). But all these instances are matters 
of local administration which differ widely in degree, and per- 
haps in kind, from any delegation of power to enact general 
laws applicable throughout the Commonwealth. 

The second seeming exception relates to the extent of ad- 
ministrative power which may be conferred upon the Ex- 



1922.] PUBLIC DOCUMENT — No. 12. 175 

ecutive or some administrative official, board or commission 
in order to execute a given law. Laws do not execute them- 
selves. They require human action to put them into effect. 
The effective administration of laws may, and often does, re- 
quire a considerable measure of administrative or executive 
discretion in order to fit the law to varying states of fact which 
cannot be foreseen and prescribed for specifically in advance. 
The executive is one of the three co-ordinate departments of 
the government. The prohibition upon delegating power to 
make laws does not prevent or prohibit a grant of adminis- 
trative discretion appropriate to the execution of an otherwise 
valid law. Such a grant of administrative discretion may 
include authority to prescribe administrative regulations which 
are subordinate to and in execution of the law itself and are 
appropriate to carry it into effect. Such grants of adminis- 
trative discretion to make appropriate executive regulations 
have frequently been made and upheld upon the ground that 
they do not confer legislative power. Brown v. Boston 6c 
Maine R.R., 233 Mass. 502, 510 (Pubhc Service Commission); 
Holcombe v. Creamer, 231 Mass. 99, 111 (Minimum Wage 
Commission); Commonwealth v. Hyde, 230 Mass. 6 (State 
Board of Health); Codman v. Crocker, 203 Mass. 146, 154 
(Boston Transit Commission); Opinion of the Justices, 138 
Mass. 601, 603 (Civil Service Commission); Martin v. Wither- 
spoon, 135 Mass. 175, 178 (Governor and Council); Mutual 
Film Corp. v. Industrial Commission, 236 U. S. 230 (moving 
picture censorship); Red "C" Oil Mfg. Co. v. North Carolina 
Board of Agriculture, 222 U. S. 380 (tests for illuminating oil). 
But it is equally well settled that such administrative rulings 
or regulations cannot alter or add to or detract from the law 
itself. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 
481; Commonwealth v. Maletsky, 203 Mass. 241, 246; Gold- 
stein V. Conner, 212 Mass. 57, 59; United States v. Standard 
Brewery, Inc., 251 U. S. 210, 220; Waite v. Macy, 246 U. S. 
606; United States v. George, 228 U. S. 14, 20; United States 
V. United Verde Copper Co., 196 U. S. 207, 215. In Field v. 
Clark, 143 U. S. 649, 692, 693, the distinction between execu- 
tive discretion and legislative power is clearly defined, as 
follows: — 

''The true distinction," as Judge Ranney, speaking for the Supreme 
Court of Ohio, has well said, "is between the delegation of power to 
make the law, which necessarily involves a discretion as to what it shall 



176 ATTORNEY-GENERAL'S REPORT. [Jan. 

be, and conferring authority or discretion as to its execution, to be 
exercised under and in pursuance of the law. The first cannot be done; 
to the latter no valid objection can be made." Cincinnati, Wilminglon, 
&c., Railroad v. Commissioners, 1 Ohio St. 88. 

A third seeming exception relates to contingent legislation. 
The General Court may enact a law to take effect upon the 
happening of a subsequent event. Opinion of the Justices, 
160 Mass. 586, 591. A typical example is a general law 
which shall apply to those cities or towns which accept its 
provisions. Wales v. Belcher, 3 Pick. 508; Stone v. Charles- 
town, 114 Mass. 214; Lyrin v. County Commissioners, 148 
Mass. 148, 151; Graham v. Roberts, 200 Mass. 152, 156. 
In this class, also, fall statutes authorizing each locality to 
determine whether it w^ll permit the sale of intoxicating 
liquor within its limits. Commonwealth v. Bennett, 108 Mass. 
27, 29; Commonwealth v. Blackington, 24 Pick. 352; 7 Dane 
Abr. 43, 48. Another example is reciprocal legislation, which 
makes the terms upon which a privilege or exemption is 
granted to the corporations or inhabitants of another State 
depend upon the terms exacted by that State for the grant of 
a similar exemption to our ow^n corporations or citizens. 
Bliss V. Bliss, 221 Mass. 201, 211; People v. Fire Association, 
92 N. Y. 311. In such a case the effect accorded to the pro- 
visions of the foreign law is not in principle dissimilar from 
the effect accorded to executive regulations, made by some 
administrative body under a domestic law, which ascertain 
and make certain some contingency upon w^hich the execution 
of the law^ depends. On the other hand, the principle that 
contingent legislation is permissible cannot be pressed too far. 
The Legislature, unless authorized by the Constitution, cannot 
make the enactment of a general law, drafted by it, depend 
upon the result of a State-wide referendum. Opinion of the 
Justices, 160 Mass. 586; Barto v. Himrod, 8 N. Y. 483. 
Again, the distinction seems to lie between that which in 
effect enacts a law and that which pertains to the execution 
of a law already enacted. 

Even though the Constitution of the United States contains 
no provision similar to article XXX of the Bill of Rights, 
similar principles apply. It is equally well settled that Con- 
gress cannot delegate its power to enact general laws for the 
United States. Knickerbocker Ice Co. v. Stewart, 253 U. S. 
149, 164; Interstate Commerce Commission v. Goodrich Transit 



1922.] PUBLIC DOCUMENT — No. 12. 177 

Co., 224 U. S. 194, 214; Field v. Clark, 143 U. S. 649, 692, 
693; In re Rahrer, 140 U. S. 545, 560; Waijman v. Southard, 
10 Wheat. 1, 42. But Congress may confer upon the terri- 
tories, upon the District of Columbia, and upon the local 
government of the Philippines, power to enact local laws and 
regulations applicable within their respective territorial 
boundaries. Maynard v. Hill, 125 U. S. 190; Stoutenhurgh v. 
Hennich, 129 U. S. 141; Dorr v. United States, 195 U. S. 138. 
Upon the same principle Congress, where uniform applica- 
tion of a general laic is not required, may make the local ap- 
plication of the Federal law depend upon the law of the State 
in question. Thus Congress may provide that the rules of 
practice in the several Federal courts shall conform as nearly 
as may be to the practice of the State in which the court 
sits {Way man v. Southard, 10 Wheat. 1; U tilted States v. Jones, 
109 U. S. 513); that interstate shipments of liquor shall be- 
come subject to the police power of the receiving State to the 
same extent as if produced there {1-71 re Rahrer, 140 U. S. 
545); that liquor shall not be shipped into a State which 
prohibits its use and sale {Clark Distilling Co. v. Western 
Maryland Ry. Co., 242 U. S. 311); that mining claims may 
be located upon the public lands within a State in the manner 
prescribed by local law {Butte City Water Co. v. Baker, 196 
U. S. 119; Jackson v. Rohy, 109 U. S. 440, 441); that the 
provisions of local law as to exemptions, dower and priority 
of payment shall apply in bankruptcy proceedings {Hanover 
National Bank v. Moyses, 186 U. S. 181); that offences com- 
mitted in dockyards and other places ceded to the United 
States, and not otherwise punishable by any law of the United 
States, shall be punished according to the law in force, at 
the time the Federal act was passed, in the State where such 
place is situated {Franklin v. United States, 216 U. S. 559, 
568; United States v. Paul, 6 Pet. 141); that offences against 
the local election law, committed at a Federal election within 
the State, shall be punished in the manner prescribed by the 
Federal act {Ex parte Siehold, 100 U. S. 371, 388); that local 
pilots shall be governed by the local law {Cooley v. Board of 
Wardens, 12 How. 299); and that national banks may be 
authorized to act as executor or trustee if local banks may be 
similarly authorized by local law {First National Bank v. 
Felloivs, 244 U. S. 416, 428). But all these cases appear to 
rest upon the principle that while the power of Congress is 
paramount and may be so exerted as to supersede State law, 



178 ATTORNEY-GENERAL'S REPORT. [Jan. 

Congress is not required so to exert it where a uniformity of 
application of the law is not required, but may, instead, give 
to the local law a local application not unlike the rules and 
regulations which a municipality may be authorized to make 
for the government of matters of local concern. On the other 
hand, if the subject be a matter which requires general and 
uniform regulation, it is beyond the power of Congress to 
give to the laws of the several States the effect of municipal 
ordinances applicable within their respective boundaries. 
Knickerbocker Ice Co. v. Stewart, 253 U. S. 149. 

It is equally clearly settled that while Congress cannot 
delegate to the Executive any power to enact laws, it may con- 
fer a broad executive discretion as to the manner in which a 
law enacted by Congress shall be carried into effect, which 
executive discretion may include incidental power to make 
subsidiary regulations. Buttfield v. Stranahan, 192 U. S. 
470; Interstate Comvierce Commission v. Goodrich Transit Co., 
224 U. S. 194; Houston, cic, Ry. Co. v. United States, 234 
U. S. 342; First National Bank v. Fellows, 244 U. S. 416; 
United States v. Grimaud, 220 U. S. 506; Mojiongahela Bridge 
Co. v. United States, 216 U. S. 177; Re Kollock, 1Q5 U. S. 526; 
Field v. Clark, 143 U. S. 649. The distinction between a 
grant of incidental executive power to make regulations for 
the enforcement of an existing law and a delegation of power 
to make the law itself has been stated in the previous quota- 
tion from Field v. Clark, supra; see also Buttfield v. Stran- 
ahan, 192 U. S. 470, 496. It follows that whether the power 
to enact House Bill No. 1612 be rested upon the police power 
of the State, or upon the "concurrent power" conferred by 
the Eighteenth Amendment, or upon both together, the 
question as to what constitutes an unconstitutional delegation 
of the power to enact laws is tested by similar principles. 

2. Section 1 of the proposed law in substance defines "in- 
toxicating liquor" so as to include any liquids or compounds 
"containing one half of one per centum or more of alcohol 
by volume which are fit for use for beverage purposes"; ex- 
cludes from that definition certain liquids which contain less 
than that percentage of alcohol if they "are made as pre- 
scribed by the laws of the United States and the regulations 
made thereunder"; and further provides by section 1 (6): — 

(b) Notwithstanding the provisions of this section the word "liquor" 
or the phrase "intoxicating Uquor," for the purpose of this chapter shall 



1922.] PUBLIC DOCUMENT — No. 12. 179 

have the meaning defined from time to time by the congress of the 
United States for the purpose of enforcing the provisions of the eight- 
eenth amendment to the constitution of the United States. 

In my opinion, this makes the definition of intoxicating liquor 
which Congress may from time to time adopt paramount to 
the definition contained in the bill. If this be so, this section 
is in effect made subject to alteration, amendment or repeal 
by Congress at pleasure. Such a grant of power to Congress 
seems necessarily to include a grant of discretion to Congress 
to determine what the law of Massachusetts shall be. In my 
opinion, it cannot be brought within the seeming exception to 
the general rule which permits the Legislature to delegate to 
cities and towns power to make local rules or ordinances 
subject to the laiv which confers the jjower. Congress is not a 
municipal corporation; this law is of state-wide application, 
and Congress is invested with power to change the law which 
confers the power. In my opinion, it is not within the seem- 
ing exception which authorizes a grant to an executive or ad- 
ministrative body of incidental discretion to make regulations 
for the execution of the law which confers the power. The 
Congress of the United States is not an administrative body 
of this Commonwealth, and, if it were, it could not be invested 
with power to alter, amend or repeal the law which confers an 
incidental power to make regulations for its own execution. 
Wyeth V. Cambridge Board of Health, 200 Mass. 474, 481; 
Waite V. Macy, 246 U. S. 606. I cannot escape the belief 
that the Supreme Judicial Court would probably hold that 
such a provision is an unconstitutional delegation of the 
power of the General Court to enact laws. Boston v. Chelsea, 
212 Mass. 127; Opinion of the Justices, 160 Mass. 586. 

Section 3 permits liquor for non-beverage purposes and wine 
for sacramental purposes to be manufactured, purchased, de- 
livered, possessed, etc., "but only as provided by the laws of 
the United States and the regulations made thereunder." 
This provision seems to be equally open to the objections al- 
ready noted in respect to delegating legislative power to Con- 
gress, and to the further objection that in this case the dele- 
gation includes the Federal officials authorized by Congress to 
make regulations for the execution of the Federal laws upon 
this subject. If a delegation of legislative power to Congress 
cannot probably be supported, it seems even more difficult to 
support a similar grant to subordinate executive officials of 



180 ATTORNEY-GENERAL'S REPORT. [Jan. 

another sovereignty^ A change made by Congress has at least 
the sanction of legislative action, though probably not the 
sanction which our Constitution requires in order to make or 
alter our laws. But a regulation adopted by Federal execu- 
tive officials has nothing of that character. It is not duly 
adopted by each house of our Legislature or subject to ap- 
proval or disapproval by the Governor. It has no power to 
alter the law of the United States under which it is made. 
Waite V. Macij, 246 U. S. 606; U^iited States v. George, 228 
U. S. 14, 20; U7iited States v. United Verde Copper Co., 196 
U. S. 207, 215. I am constrained to believe that the Supreme 
Judicial Court would hold that the General Court cannot 
authorize Federal officials to alter our laws by regulations 
which cannot have that effect upon the Federal laws. 

Section 19 provides, in substance, that a carrier shall not 
deliver liquor except to persons *'who present a verified copy 
of a permit to purchase in the form required by the laws of 
the United States and the regulations made thereunder. ..." 
In my opinion, this imposes a condition upon such delivery, 
namely, the presentation of the required permit. Doubtless 
the condition cannot be satisfied except by one who has pre- 
viously complied wuth the Federal law in this respect. But 
even though the Federal law^ may alter from time to time, 
compliance therewith by the consignee involves no change in 
the provisions of the law of Massachusetts. In my opinion, 
this provision is not open to objection upon the ground that 
it involves an unconstitutional delegation of legislative power. 

Applying these principles to your questions specifically, my 
answer must necessarily be "yes" to questions 1, 2, 4, 6, 7, 9, 
13 and 15, upon the ground that the provisions of the pro- 
posed law to which those questions refer change automatically 
to coincide with the future laws enacted from time to time 
by Congress, or with such laws and the regulations made 
thereunder. On the other hand, my answer is *'no" to ques- 
tions 5, 10, 11, 12 and 14, upon the ground that the provisions 
to which those questions refer simply impose a condition 
precedent to some act authorized by the proposed law, and 
are not provisions of law subject to change by the laws of 
the United States and the regulations made thereunder. The 
answer to questions 3 and 8 will, in my opinion, depend upon 
whether the court should construe the provisions in question 
as conditions precedent or as provisions of law subject to 



1922.] PUBLIC DOCUMENT — No. 12. 181 

change b\' the laws of the United States and the regulations 
adopted thereunder. 

The primary- purpose of the present bill is to enforce the 
Eighteenth Amendment. That purpose could not, in my 
opinion, be attained by a law which automatically amends 
itself to conform to future Federal legislation, even if such a 
law were constitutional. Both the State and the Federal Con- 
stitution prohibit the enactment of ex post facto laws; that is, 
laws which punish an act done before the law takes effect or 
which increase the punishment prescribed for a crime already 
committed. Bill of Rights, art. XXIV; U. S. Const., art. I, 
§ 9. When a law is amended the amendment replaces the 
prior enactment, which ceases to operate unless expressly 
continued in force with respect to acts done while it was in 
effect. If the proposed bill were constitutional, it might well 
be that before the criminal act could be punished the law 
would have automatically amended itself, thus destroying the 
law under which that act could be punished, and replacing it 
with a law under which no punishment could be inflicted. 
Such a statute is, in my opinion, ill adapted to enforce the 
Eighteenth Amendment. 

Thus far I have confined myself strictly to the questions 
propounded, namely, whether the bill in its present form would 
be unconstitutional on the ground that it improperly delegates 
the power of the General Court to enact laws for this Common- 
ivealth. In my opinion, the objections to the present bill 
may readily be removed by amendment. There can be no 
doubt that the Legislature has power to enact appropriate 
legislation to enforce the Eighteenth iVmendment. Com- 
monwealth v. Nickerson, 236 Mass. 281. It may, if it sees 
fit, enact a law substantially similar to the Volstead Act. 41 
Stat. 305. It might, if it sees fit, borrow the language of any 
regulations adopted thereunder, assuming of course that no 
provision of the State or the Federal Constitution is thereby 
violated. It may from time to time adopt such amendments 
of the Volstead Act as may hereafter be made by Congress, pro- 
vided those amendments are themselves constitutional. What 
it cannot do, in my opinion, is to enact a law which, without 
further action by the Legislature, will automatically amend itself 
so as to conform to subsequent legislation of the United States. 
Such a law not only substitutes the discretion of Congress and 
of the President for the discretion of the Legislature and of 



182 ATTORNEY-GENERAL'S REPORT. [Jan. 

the Governor, which the State Constitution requires, but also 
may well prove ineffective as ex post facto legislation. Both 
objections, in my opinion, would cease to apply if the pro- 
visions for automatic amendment be eliminated from the 
present bill. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



Aircraft — Establishment of Landing Places — Great Ponds. 

The provisions of G. L., c. 90, § 40, relative to the establishment of landing 
places for aircraft, do not apply to the great ponds of the Common- 
wealth. 

The provisions of the statute are limited to the landing of aircraft on the 
land and ground of the Commonwealth. 

May 23, 1921. 

Hon. John N. Cole, Cofnmissioner of Public Works. 

Dear Sir: — You have requested my opinion on the fol- 
lowing set of facts : — 

A request has been made to the Department of Public 
Works to approve the use of Pontoosuc Lake, a great pond 
situated in Pittsfield, as a landing place for a hydroplane. 
You inquire as to whether or not the Department of Public 
Works has authority under the statutes to pass upon this 
request, and if there is such authority, whether or not a 
public hearing should be given before the matter is decided. 

The statutory provisions relative to aircraft are found in 
G. L., c. 90. Section 39 reads as follows: — 

Except in a case of emergencj^ no person shall land aircraft in public 
ways or public parks or other public grounds without permission from 
the authorities in charge thereof. 

Section 40 reads as follows: — 

Landing places for aircraft may, from time to time, be designated, 
set apart and marked by the division of highwaj-s, or other pubhc of- 
ficials who are in charge of any land owTied or controlled by the com- 
monwealth, or by any tow^i, or by the metropolitan park commission, 
and said officials may make reasonable rules and regulations governing 
the use of such landing places by a\dators and other persons, and may 
change the same from time to time. All aviators and other persons 
using such landing places shall at all times comply with the rules and 
regulations made as aforesaid. 



1922.] PUBLIC DOCUMENT — No. 12. 183 

It is my opinion that the language used in these two sec- 
tions, namely, in section 39, that '*no person shall land air- 
craft, except in case of emergency, in public ways or public 
parks or other public grounds without permission from the 
authorities in charge thereof," and in section 40, that ** land- 
ing places for aircraft may, from time to time, be designated 
. . . by the division of highways, or other public officials who 
are in charge of any land owned or controlled by the com- 
monwealth," indicates that the Legislature did not intend the 
provisions of the sections to apply to great ponds. 

The jurisdiction of great ponds is vested in different of- 
ficials of the Commonwealth, depending in each case upon the 
matter that is the subject of regulation. For example, it is 
well known that the great ponds of the Commonwealth belong 
to the public, and that the rights of fishing, boating, bathing 
and other like rights which pertain to the public therein are 
regarded as valuable rights, entitled to the protection of the 
government. If any one is found to be doing acts without 
right, the necessary effect of which is to destroy or impair 
these public rights and privileges, it furnishes a proper case 
for an information by the Attorney-General to restrain and 
prevent the mischief. Attorney-General v. Jamaica Pond 
Aqueduct Corp., 133 Mass. 361, 364. Then, again, the De- 
partment of Public Health has the general oversight and care 
of all inland w^aters, including great ponds, whether as sources 
of ice or water supply, and has supervision of the same relative 
to any possible pollution thereof. G. L., c. Ill, § 159. And 
in the case of your own department, the Division of Water- 
ways and Public Lands has jurisdiction so far as the erection 
of structures in the waters of any of the great ponds is involved. 
G. L., c. 91, § 13. 

The language used in the statutory provisions quoted above 
is express and specific, and it must be presumed that the 
Legislature, in enacting the same, intended to limit the pro- 
visions to the landing of aircraft on the land and ground of 
the Commonwealth, and not to make provision as to the 
landing of hydroplanes in this Commonwealth. Accordingly, 
I am of the opinion that your department is without au- 
thority to pass upon the request made to you to approve the 
use of Pontoosuc Lake, in Pittsfield, as a landing place for 

hydroplanes. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



184 ATTORNEY-GENERAL'S REPORT. [Jan. 



Fishway — Red Brook, Warchnm — Passageway for Alewives — 
Regulation of Obstructions. 

The Commissioner of Conservation, by G. L., c. 130, § 17, has authority to 
prescribe by written order that a suitable and sufficient passageway 
for alewives be maintained in Red Brook, so called, in the town of 
Wareham. 

May 24, 1921. 

William C. Adams, Esq., Director, Division of Fisheries and Game, Depart- 
me?it of Conservation. 

Dear Sir: — You have requested my opinion on the fol- 
lowing set of facts: — 

Red Brook, so called, located in the town of \Yareham, has 
its headwaters in White Island Pond, a great pond, and flows 
in a southerly direction into the head of Buttermilk Bay. 
Its entire length is approximately 4J to 5 miles. Its greatest 
breadth is about 20 feet. The first half mile from Buttermilk 
Bay north is affected by the rise and fall of the tide to an 
extent of a maximum of 3 feet. The alewives have run in this 
stream over a long period of years. 

You inquire as to whether or not said Red Brook, so called, 
comes within the definition of G. L., c. 130, § 17, as being 
such a river as would give your department the right to 
regulate obstructions on said river with respect to the passage 
of migratory fish. 

G. L., c. 130, § 17, reads as follows: — 

The commissioner of conservation may examine all dams upon rivers 
where the law requires fish ways to be maintained, or where in his judg- 
ment fishways are needed, and he shall determine whether the fishways, 
if any, are suitable and sufficient for the passage of the fish in such riA^ers, 
or whether a fishway is needed for the passage of fish over any dam; 
and shall prescribe by written order what changes or repairs, if any, 
shall be made therein, and where, how and when a new fishway must 
be built, and at what times the same shall be kept open, and shall serve 
a copy of such order upon the o\Mners of the dams. A certificate of the 
commissioner that service has been so made shall be sufficient proof 
thereof. The supreme judicial or superior court shall, on petition of 
the director, have jurisdiction in equitj^ or other^vise to enforce any 
such order and to restrain any violation thereof. 

It is my opinion that the provisions of said section 17 are 
not restricted in their application to the navigable rivers of 
the Commonwealth. It has long since been the established 
aw of this Commonwealth that every owner of a dam across 



1922.] PUBLIC DOCUMENT — No. 12. 185 

a stream where migratory fish are accustomed to pass is 
obliged to provide a sufficient and reasonable way for the 
fish, unless he is exempt by express provision or obvious im- 
plication in his grant. The law is well stated by Mr. Justice 
Gray in the case of Commissioners on Inland Fisheries v. 
Hohjoke Water Power Co., 104 Mass. 446, 450, as follows: — 

The right to have migratory fish pass, in their accustomed course, 
up and down rivers and streams, though not technically navigable, is 
also a public right, and may be regulated and protected by the Legis- 
lature in such a manner, through such commissioners or other officers, 
and by m.eans of such forms of judicial process, as it may deem ap- 
propriate; and every grant of a right to maintain a milldam across a 
stream where such fish are accustomed to pass is subject to the condi- 
tion or limitation that a sufficient and reasonable way shall be allowed 
for the fish, unless cut ofi" by express provision or obvious implication 
in the grant. 

The court then cites the cases of Sionghton v. Baker, 4 Mass. 
522; Commonieealth v. Chapin, 5 Pick. 199; Vinton v. Welsh, 
9 Pick. 87; Commonivealth v. Alger, 7 Gush. 53, and Co7n- 
monwealth v. Essex Co., 13 Gray, 239. 

Under the facts it appears that Red Brook is a stream in 
which alewives, in their accustomed course, have for a long 
period of time ascended the stream to spawn, and therefore 
the Commissioner of Conservation is authorized to prescribe 
by written order that a suitable and sufficient passageway 
for alewives be maintained in said stream. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Acts making Unenforceable Provisions in 

Leases. 

The provisions of St. 1920, c. 578, making unenforceable increases of rent 
so great as to be unjust, unreasonable and oppressive, and of a bill to 
amend said act by providing that stipulations or conditions which 
operate to raise the rents of lessees in case of the birth or adoption of 
children shall be deemed unreasonable and oppressive, are not uncon- 
stitutional, either because they impair the obligation of contracts or 
because they are not due process of law. 

May 26, 1921. 

His Excellency the Governor, and the Honorable Council. 

Gentlemen : — You have asked my opinion as to the con- 
stitutionalitv of Senate Bill No. 412, entitled "An Act to ren- 



186 ATTORNEY-GENERAL'S REPORT. [Jan. 

der unenforceable stipulations in leases providing for a raise 
in rent because of an increase in the tenant's family." 

The bill amends St. 1920, c. 578, by inserting after section 
1 the following new section: — 

Section lA. A stipulation or condition in a lease or contract of hiring 
of premises to which section one apphes whereby the rent shall or may 
be raised because of an increase in the number of the lessee's family 
shall, in case such raise in rent is due to the birth or adoption of a child 
or children, be deemed unjust, unreasonable and oppressive within the 
meaning of said section. 

St. 1920, c. 578, is entitled "An Act to provide that unjust, 
unreasonable and oppressive agreements shall be a defence in 
actions for rent," and provides as follows: — 

Whereas, The deferred operation of this act would defeat its purpose 
to provide immediate relief from hardship incident to the present 
scarcity of houses and buildings available for habitation, therefore it 
is hereby declared to be an emergency law, necessary for the immediate 
preservation of the public health and convenience. 

Section 1. Unjust, unreasonable and oppressive agreements for 
the payment of rent or for the use and occupation of premises occupied 
for dwelling purposes, other than a room or rooms in a hotel, lodging 
house or rooming house, shall be unenforceable by action. Where it 
appears that the rent has been increased more than twenty-five per cent 
over the rent as it existed one year prior to the time of the agreement 
under which rent is sought to be recovered, except in cases where un- 
usual repairs and alterations have been made, the agreement shall be 
presumptively unjust, unreasonable and oppressive ; but nothing herein 
contained shall prevent either party from pleading and proving in an 
action that a greater increase was a fair and reasonable rent or that a 
lesser increase was an unjust, unreasonable and oppressive rent for the 
premises in such action, or from instituting a separate action for the 
recovery thereof. In any action on such an agreement or in a separate 
action the landlord may recover the fair rental of his premises. 

Section 2. The provisions of this act shall not apply to pending 
causes of action. 

Section 3. The act shall become null and void on the first day of 
February in the year nineteen hundred and twentj^-two. 

Both the act and the amendment, it is clear, apply to and 
affect existing leases. St. 1920, c. 578, makes unenforceable 
increases of rent so great as to be unjust, unreasonable and 
oppressive. The amendment provides that stipulations or con- 



1922.] PUBLIC DOCUMENT — No. 12. 187 

ditions which operate to raise the rents of lessees in case of the 
birth or adoption of children shall be deemed unreasonable and 
oppressive. 

If the act is unconstitutional the amendment cannot be sus- 
tained. It is therefore necessary to consider whether either 
fails to comply with constitutional requirements. 

There are two possible objections to this legislation on the 
ground of unconstitutionality: first, that it is not due process 
of law, and second, that it impairs the obligation of contracts. 

U. S. Const., art. I, § 10, provides, in part, as follows: — 

No state shall . . . pass any . . . law impairing the obligation of 
contracts. . . . 

The Fourteenth Amendment thereto provides, in part, as 
follows: — 

. . . nor shall smy state deprive any person of life, liberty or prop- 
erty, without due process of law. . . . 

The Constitution of this Commonwealth contains no express 
provision which prohibits a law impairing the obligation of 
contracts. Cf. Cary Library v. Bliss, 151 Mass. 364, 380. 
It does contain provisions which secure to the people, in sub- 
stance, the right not to be deprived of life, liberty or property 
without due process of law\ For example, article XII of the 
Declaration of Rights contains the provision that "no subject 
shall be . . . deprived of his life, liberty, or estate, but by . . . 
the law of the land." See Jones v. Robbins, 8 Gray, 329; 
Forster v. Forster, 129 Mass. 559; Wyeth v. Cambridge Board 
of Health, 200 Mass. 474, 478. As contracts are property, 
this provision accords to contracts the same measure of pro- 
tection accorded to other forms of property. See Bogni v. 
Perotti, 224 Mass. 152. 

In interpreting the Constitution of the United States the 
decisions of the Supreme Court of the United States have a 
controlling authority. There are two recent decisions of the 
Supreme Court on questions so analogous to the question you 
have asked that they must be regarded as decisive. The cases 
are Block v. Hirsh, 256 U. S. 135, and Marcus Brown Holding 
Co. Inc. V. Feldman, 256 U. S. 170. 

The former of the two cases involved the constitutionality 
of an act of Congress, applicable to the District of Columbia, 
giving to tenants of rented property the right to occupy such 



188 ATTORNEY-GENERAL'S REPORT. [Jan. 

property at their option after the expiration of the term, so 
long as they continued to pay rent and perform the conditions 
of their leases, and subject to regulation by a commission cre- 
ated by the act. This act was declared to be emergency legis- 
lation, the need for which was due to conditions arising from 
the war, and was to end in two years unless sooner repealed. 

In the latter case an act passed by the State of New York, 
similarly permitting tenants of rented property to hold over 
after the expiration of their leases, was under consideration. 
In that case it appeared that the parties had made a new 
lease for the payment of an increased rent at the end of the 
term in question. 

A bare majority of the court held with respect to the 
former act that it was a proper exercise of the police power, 
and that it did not violate the ''due process" clause of the 
Constitution; that "a public exigency will justify the Legisla- 
ture in restricting property rights in land to a certain extent 
without compensation"; and that the act did not go beyond 
the limit of proper legislation. With respect to the latter act, 
they held also that it was not unconstitutional as impairing 
the obligation of contracts; that contracts are made subject to 
this exercise of the power of the State when otherwise justi- 
fied. In each case there was a vigorous dissenting opinion by 
four of the justices. 

The provisions of St. 1920, c. 578, and of the act which is 
before you seem to me to be less open to objection on the 
ground of unconstitutionality than the provisions of the acts 
considered in the opinions of the Supreme Court. It is true 
that they interfere directly with the express obligations of 
existing contracts, but the interference is certainly no greater 
and the justification is somewhat clearer than in the cases 
recently decided by the Supreme Court of the United States. 
In my opinion, these cases are decisive so far as the Federal 
Constitution is concerned. 

The State court has frequently defended the rights of 
citizens against legislative encroachments which have seemed 
to it to be inconsistent with due process of law or *'the law of 
the land." Commonivealth v. Alger, 7 Cush. 53; Sawyer v. 
Davis, 136 Mass. 239; Wyeth v. Cambridge Board of Health, 
200 Mass. 474; Durgin v. Minot, 203 Mass. 26; Opinion of 
the Justices, 207 Mass. 601. 

But the phrase ''law of the land" in the State Constitution 



1922.] PUBLIC DOCUMENT — Xo. 12. 189 

is substantially equivalent to the phrase ''due process of law" 
as used in the Fifth and Fourteenth Amendments to the 
Federal Constitution. On this aspect of the case the two de- 
cisions of the Supreme Court of the United States are per- 
suasive, if not decisive. 

Very truly yours, 

J. Weston Al^len, Attorney-General. 



Statute — Time of taking Effect. 

St. 1921, c. 430, changing the names of the various "police" courts to 
"district" courts, under Mass. Const. Amend. XLVIII, The Refer- 
endum, pts. I and III, may not take effect earlier than ninety days 
after it became a law. 

May 27, 1921. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You ask my advice whether St. 1921, c. 430, 
takes effect in ninety days or at once. 

Said statute is entitled "An Act changing the names of the 
various 'police' courts to 'district' courts," and contains 
provisions to carry that object into eifect. Section 4 of said 
act provides as follows: — 

The change of name provided for in this act shall not affect the valid- 
ity of any proceedings commenced in any of said courts under the name 
of "police" court priox to the day this act takes effect. 

Mass. Const. Amend. XLVIII, The Referendum, pt. I, pro- 
vides as follows: — 

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. 

Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, 
§§1 and 2, provide as follows: — 

Section 1. A referendum petition may ask for a referendum to the 
people upon any law enacted hy the general court which is not herein 
expressly excluded. 

Section 2. No law that relates to religion, religious practices or 
religious institutions; or to the appointment, qualification, tenure, re- 



190 ATTORNEY-GENERAL'S REPORT. [Jan. 

moval or compensation of judges; or to the powers, creation or aboli- 
tion of courts; or the operation of which is restricted to a particular 
town, city or other political division or to particular districts or local- 
ities of the commonwealth ; or that appropriates money for the current 
or ordinary expenses of the commonwealth or for any of its depart- 
ments, boards, com.missions or institutions shall be the subject of a 
referendum petition. 

A statute which merely changes the name of an existing 
court does not abolish that court and create a new one unless 
the statute clearly indicates a purpose so to do. Worthington 
V. London Guarantee, etc., Co., 164 N. Y. 81; Peace v. Wilson, 
186 N. Y. 403; ^eojAe v. Aurora, 78 111. 218; Mahoning 
Valley R. Co. v. Santoro, 93 Ohio St. 53. 

St. 1921, c. 430, in my opinion, does not relate to the 
powers, creation or abolition of courts, or to any matter ex- 
pressly excluded by Mass. Const. Amend. XLVIII, The Ref- 
erendum, pt. Ill, § 2. It follows, by Mass. Const. Amend. 
XLVIII, The Referendum, pt. I, that the statute does not 
come within the exception, and may not take effect earlier 
than ninety days after it has become a law. 
Very truly yours, 

J. Weston Allen, Attorney-General . 



Tenure of Office — President of the Senate — Speaker of the 
House of Representatives — Biennial Elections. 

Under the present system of biennial elections, the presiding officers of the 
Senate and House of Representatives hold office for the two-year term 
for which the members of the Senate and House were elected and until 
the General Court, as organized, shall be dissolved "on the day next 
preceding the first Wednesday in Januarj^ in the third year following 
their election." 

May 27, 1921. 

Hon. Frank G. Allen, President of the Senate; Hon. Benjamin Loring 
Young, Speaker of the House of Representatives. 

Gentlemen: — You have requested my opinion as to 
whether or not, under the present system of biennial elections, 
the presiding officers of the Senate and House of Representa- 
tives elected January, 1921, hold office for one year or for 
the two-year term for which the members of the Senate and 
House were elected. 



1922.] PUBLIC DOCUMENT — No. 12. 191 

Mass. Const. Amend. LXIV, which was submitted to and 
ratified by the people on Nov. 5, 1918, provides, so far as is 
pertinent to your question, that senators and representatives 
shall be elected biennially, and that the terms of senators and 
representatives shall begin with the first Wednesday in Janu- 
ary succeeding their election, and shall extend to the first 
Wednesday in January in the third year following their elec- 
tion and until their successors are chosen and qualified. 

The Constitution of Massachusetts has the following pro- 
visions relative to the choice of the presiding officers of the 
two branches of the General Court: — 

Mass. Const., pt. 2d, c. I, § II, art. VII: — 

The senate shall choose its own president, appoint its own officers, 
and determine its own rules of proceedings. 

Mass. Const., pt. 2d, c. I, § III, art. X: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and qualifications of its own members, as pointed out in the con- 
stitution; shall choose their own. speaker; appoint their own officers, 
and settle the rules and orders of proceeding in their own house. 

The existence of the office of President of the Senate is 
recognized in the General Laws, but no special reference is 
made to the manner of his election, as is the case as to the 
election of the Speaker of the House of Representatives. 

Article 47 of the Constitution of Massachusetts, as rear- 
ranged, provides: — 

And that there may be a due convention of senators on the first 
Wednesday in January annually, the governor with five of the council, 
for the tim_e being, shall, as soon as may be after each biennial election, 
examine the returned copies of such records; and after each biennial 
election fourteen days before such Wednesday he shall issue his sum- 
mons to such persons as shall appear to be chosen by the highest num- 
ber of votes to attend on that day, and take their seats accordingly. 

See also Mass. Const., pt. 2d, c. I, § II, art. Ill, and amend- 
ments thereof. 

The provisions relative to the House of Representatives are 
found in G. L., c. 3, §§ 1-3, inclusive. 

Section 1 provides: — 

The state secretary shall receive and examine the certificates of the 
election of representatives to the general court returned into his office, 



192 ATTORXEY-GENERAL'S REPORT. [Jan. 

and make a list of the persons therein named. On the Tuesday next 
preceding the first Wednesday of January following a state election he 
shall deliver to the sergeant-at-arms a hst of the persons then returned, 
and upon receiving any further certificates before the house of repre- 
sentatives is called to order he shall immediately make and deliver to 
the sergeant-at-arms a list of the persons returned by such further cer- 
tificates. He shall also transmit the certificates, with a list of all per- 
sons returned, to the house of representatives as soon as the members 
are called to order. 

Section 3 provides: — 

On said first Wednesday of Januar}^ [that is, the first Wednesday of 
January following the State election] between the hours of ten in the 
forenoon and twelve at noon, the persons so returned and admitted as 
members into the representatives' chamber shall be called to order by 
the oldest senior member present, who shall be the presiding officer of 
the house until a speaker is chosen or the house otherwise detennines. 

Prior to the ratification of Mass. Const. Amend. LXIV, 
the provisions relative to the organization of the House of 
Representatives were found in R. L., c. 3, §§ 1-3, inclusive. 

Section 1, relative to the Secretary of the Commonw^ealth 
making and delivering lists of persons elected as representa- 
tives, provided, in part, that — 

On the Tuesda}^ next preceding the first Wednesday of January in 
each year he [the Secretary of the Commonwealth] shall deliver to the 
sergeant-at-arms a list of persons then returned. 

It is significant that the words ** following the state election" 
are not found in the Revised Laws, but the w^ords **in each 
year" were used, and that after the adoption of the amend- 
ment providing for biennial elections the words "in each 
year" w^ere striken out, and the words ** following the state 
election" were inserted. 

Construing the provisions of the Constitution and of the 
General Law^s set forth above, the law provides for the elec- 
tion of a Speaker upon the convening of the representatives 
elect on the first Wednesday of January following the State 
election. 

Article 41 of the Constitution of Massachusetts, as rear- 
ranged, provides, in part, that — 

The political j'ear shall begin on the first Wednesday in Januarj^, and 
the general court shall assemble ever^^ j-ear on the first W^ednesday in 



1922.] PUBLIC DOCUMENT — No. 12. 193 

January, and at such other times as they shall judge necessary, or 
when called together by the governor; and shall dissolve and be dis- 
solved on the day next preceding the first Wednesday in January in the 
third year following their election, without any proclamation or other 
act of the governor, and shall be stjded. The General Court of 
Massachusetts. 

It is my opinion that when the Senate and the House of 
Representatives, following a State election, meet on the first 
Wednesday of January and organize and choose their Presi- 
dent and Speaker, respectively, these presiding officers are 
elected to serve until the General Court w^hich chose them to 
preside over the Senate and House of Representatives is dis- 
solved, as provided for in the Constitution, to wit, on the 
day next preceding the first Wednesday in January in the 
third year following the State election at which the senators 
and representatives w^ere elected. It is to be observed that 
under this article of the Constitution the General Court is 
not dissolved until the day next preceding the first Wednesday 
in January in the third year following their election. There 
is, therefore, a clear distinction between persons elected under 
the Constitution as officers of the General Court and such 
committees as, by the rules of the Senate and House, it is 
provided ''shall be appointed at the beginning of the political 
year." 

Accordingly, in answer to your inquiry I would state that 
the presiding officers of the Senate and House of Representa- 
tives elected January, 1921, hold office for the two-year term 
for which the members of the Senate and House were elected, 
and until the General Court now organized shall be dissolved 
"on the day next preceding the first Wednesday in January 
in the third year following their election." 
Yours very truly, 

J. Weston Allen, Attorney-General. 



194 ATTORNEY-GENERAL'S REPORT. [Jan. 



Labor and Industries — Hours of Employment of Women and 
Children — Meaning of the Word " Week." 

In the absence of express statatory declaration, the word ^'week/' as used 
in G. L., c. 149, § 56, does not mean any consecutive seven days, but 
should be given its usual meaning, and be considered equivalent to the 
phrase "calendar week." 

June 2, 1921. 

E. Leroy Sweetser, Esq., Commissioner of Labor and Industries. 

Dear Sir: — You request an opinion as to the meaning of 
the word "week," as used in G. L., c. 149, § 56, relating to 
the hours of employment of women and children. 

As I understand it, the reason for your inquiry is because 
in a certain case under consideration a schedule of hours has 
been established which limits the employment of women in any 
calendar week to forty-eight hours, but does not limit the 
employment to forty-eight hours in certain seven-day periods. 
For example, beginning with a Sunday when a woman em- 
ployee does not work, she is employed during the remainder of 
the week for eight hours a day, or a total of forty-eight hours. 
Beginning with the next Sunday she is employed for seven and 
one-half hours on that day and for six hours on each of the 
following six days, or a total of forty-three and one-half hours, 
but if the computation begins on the first Monday for a period 
of seven days, the actual hours of employment are fifty-five 
and one-half. 

There appears to be no statutory definition of what con- 
stitutes a "week," although the word "month" means a 
calendar month, and the word "year" means a calendar year 
unless otherwise expressed. G. L., c. 8, § 5, par. (11). The 
case of Brewer v. City of Springfield, 97 Mass. 152, would seem 
to indicate that the term "week" refers to a calendar week. 
See also Dexter v. Shepard, 117 Mass. 480; Frothingham v. 
March, 1 Mass. 247. 

It is a general rule of law that all statutes in derogation of 
the common law are to be construed strictly, and that such 
statutes must not be deemed to extinguish or restrain private 
rights unless it appears by express words or plain implication 
that it was the intention of the Legislature so to do. 

The purpose of this statute is to prevent injury to health 
by prohibiting women engaged in certain occupations from 
working for unreasonable periods. The ground upon which 
the courts have sustained regulations limiting the hours of 



1922.] PUBLIC DOCUMENT — No. 12. 195 

labor of women and children is that continuous strain tends 
to lower the vitality of such persons, and to make them more 
liable to physical or mental breakdown. 

Under the schedule as outlined above, the hours of freedom 
from work would seem to prevent such evil effects, for during 
the period of two calendar weeks a woman thus employed 
works four and one-half hours less than the limitation imposed 
by statute. It is to be observed that in any event the hours 
of labor are limited to not more than nine hours in any 
one day, giving evidence of an intention on the part of the 
Legislature to permit some elasticity in the arrangement of 
schedules. 

In the absence, therefore, of an express declaration that the 
term "week" in the statute shall mean any consecutive 
seven days, it must be given its usual meaning and be con- 
sidered equivalent to the phrase "in any calendar week." 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Agricultural Societies — Fairs — Licenses. 

Under G. L., c. 140, §§ 181 and 182, an agricultural society, in order to hold 
a fair, must obtain a license from the mayor or selectmen. 

It is not necessary for the society, or one holding a concession, to obtain a 
common victualer's license, under G. L., c. 140, §§ 2-21, in order to 
furnish food to patrons of a fair, 

June 8, 1921. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You ask my opinion on the following ques- 
tions: — 

1. Is it necessary for an agricultural society or other organization 
conducting a fair to take out any license, State or municipal, as a pre- 
requisite to holding such fair? 

2. Is it necessary for such a society to take out a license to act as 
victualers when it provides food as part of its accommodation to 
patrons? 

3. Can the city or town in which a fair is held require any one holding 
a concession from a fair to take out a victualer's license before he can 
open a restaurant or sell food in connection with the fair? 

Agricultural societies may be organized under general law 
or by special statute. The act authorizing the organization 



196 ATTORNEY-GENERAL'S REPORT. [Jan. 

of such corporations first appears in St. 1853, c. 312. The sub- 
stance of the law has not been changed since that time. It 
now appears in G. L., c. 180, § 4, which is as follows: — 

Ten or more persons, in any county, city or to"svn may form a cor- 
poration under section three for the purpose of encouraging agriculture 
or horticulture, or for improving and ornamenting the streets and pub- 
lic squares of any city or town by planting and cultivating ornamental 
trees therein. 

The power to hold fairs, if not expressly granted to an agri- 
cultural society, is generally implied as incidental to its pur- 
poses. Dunn V. Agricnltural Society, 46 Ohio St. 93, 99, 
100; 2 C. J. 992. 

The statutes of this Commonwealth recognize the holding 
of fairs and exhibitions by agricultural societies as customary. 
G. L., c. 128, §§ 46-50. I am of opinion that agricultural 
societies organized either under general law or by a special 
statute have the power to hold fairs. 

If any license is required as a prerequisite to holding such 
a fair, it must be by the express provisions of some statute 
providing for the taking out of such license. The only 
statute which may be applicable appears in G. L., c. 140, 
§§ 181 and 182. Section 181 is, in part, as follows: — 

The mayor or selectmen may . . . grant, upon such terms and con- 
ditions as they deem reasonable, a license for theatrical exhibitions, 
public shows, public amusements and exhibitions of every description, 
to be held upon week days onl}^, to which admission is obtained upon 
payment of money. . . . 

Section 182 provides a penalty for maintaining any such 
exhibition, show or amusement without such license. It then 
continues as follows: — 

This and the preceding section shall not apply to public entertain- 
ments by religious societies in their usual places of worship for a religious 
or charitable purpose, . . . 

There are some cases which tend to indicate that activities 
which are instructive do not fall within the class of "public 
amusements." Commonwealth v. Gee, 6 Cush. 174; Com- 
momvealth v. Bote, 177 Mass. 347. 

But agricultural fairs, in my judgment, fall within the de- 



1922.] PUBLIC DOCUMENT — No. 12. 197 

scription both of "public shows" and "exhibitions of every 
description." On the other hand, although they are organ- 
ized for the purpose of encouraging agriculture, and thus have 
a recognized standing which vests them with a sort of public 
purpose, they are not public entertainments by religious so- 
cieties in their usual places of worship for a religious or chari- 
table purpose. It is my opinion, therefore, that they must be 
licensed by the mayor or selectmen, as required by G. L., 
c. 140, § 181. 

Innholders and common victualers are required to procure 
licenses from the licensing authorities, and are subject to a 
penalty for assuming to be such without being licensed. G. L., 
c. 140, §§ 2-21. I know of no other provision of law re- 
quiring the taking out of a license, either by a restaurant 
keeper or other vendor of food or by one holding a concession 
for the supplying of food. 

A common victualer is required at all times to be provided 
with "suitable food for strangers and travelers," and also to 
have "upon his premises the necessary implements and 
facilities for cooking, preparing and serving food for strangers 
and travelers." G. L., c. 140, §§5 and 6. A penalty is im- 
posed if he refuses, upon request, to supply food to a stranger 
or traveler on any day but Sunday. G. L., c. 140, § 8. 
His license runs to April 30 of each year, and must be revoked 
if he ceases to do business. G. L., c. 140, §§ 4 and 9. 

The words "common victualer," it is said, "in Massa- 
chusetts, by long usage, have come to mean the keeper of a 
restaurant or public eating house." Commonwealth v. Meckel, 
221 Mass. 70, 72; Friend v. Childs Dining Hall Co., 231 Mass. 
65, 72. 

It is my opinion that the holder of a concession who fur- 
nishes food for the accommodation of patrons of a fair, tem- 
porarily, during the days on which the fair is held, is not a 
common victualer, within the meaning of those words as or- 
dinarily used. His purpose is not, and he cannot be required, 
to furnish food to all strangers and travelers, but merely to 
those attending the fair upon payment of admission. His 
business is not permanent, but necessarily continues only 
while the fair is being held. 

If the society itself provides food for the accommodation of 
its patrons during the fair, it is not for that reason engaged in 
the business of supplying food to strangers and travelers, and 



198 ATTORNEY-GENERAL'S REPORT. [Jan. 

is not the keeper of a public eating house. Therefore, it is 
not a common victualer. 

I advise you, therefore, in answer to your second and third 
questions that it will not be necessary to obtain any common 
victualer's license. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Registration of Births — Illegitimate Children. 

Where a child is born in wedlock there is a presumption of legitimacy, 
which can be rebutted only by evidence showing beyond reasonable 
doubt that the husband was not the father; and the declarations of 
either parent are not competent to prove illegitimacy. 

Under G. L., c. 46, § 1, in recording births the term "illegitimate" should 
not be used unless the illegitimacy has been legally determined, or has 
been admitted by a sworn statement of both father and mother. 

A legitimate child bears the surname of the parents, and the name should 
be so recorded. 

Illegitimate children have no family names, and take the names which they 
have gained by reputation. 

Under G. L., c. 46, § 3, if a child is illegitimate the name of the father should 
not be recorded, except on the written request of both father and 
mother. 

June 10, 1921. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You ask me to pass upon "the following 
rulings relative to illegitimate children:" — 

1. Child born to unmarried woman takes maiden name of woman. 
No information to be given relative to father except on written request 
of both parents, when data is given regarding father, and child may 
take his name. (G. L., c. 46, §§ 1 and 3.) 

2. Child born to widow or divorcee same as No. 1, except child takes 
legal name of woman. 

3. Child born to married woman takes name of woman's husband, 
regardless of whether he is the supposed father or not, and complete 
data should be given regarding husband. 

Exceptions: Court decree that child is illegitimate. 

When child takes legal name of mother and no information is given 
regarding father. 

Signed statement of both the husband and the mother that the child 
is illegitimate, when no information is given relative to the husband, and 
child takes the legal name of mother. 



1922.] PUBLIC DOCUMENT — No. 12. 199 

I do not understand that there is any provision of statute 
authorizing the making of formal ruHngs in cases such as you 
refer to, but I am informed that the State registrar, in con- 
versation with one of my assistants, stated that cases of the 
kind mentioned have frequently arisen, where some inter- 
pretation of the law and the statutes has become necessary, 
and that you desire my advice as to the proper interpretation. 

A child born out of wedlock is, of course, illegitimate. 
Where a child is born in wedlock there is a presumption of 
legitimacy which can be rebutted only by evidence which 
proves beyond all reasonable doubt that the husband could 
not have been the father. Hemmenway v. Tow7ier, 1 Allen, 
209; Phillips v. Allen, 2 Allen, 453; Sullivan v. Kelly, 3 
Allen, 148. It has been held that the presumption cannot be 
rebutted by declarations of either parent that the child was 
illegitimate. Hemmenway v. Towner, supra; Ahington v. 
Duxbury, 105 Mass. 287; Koffman v. Koffman, 193 Mass. 593. 

The statute providing for registration of births provides 
that "the term 'illegitimate' shall not be used in the record 
of a birth unless the illegitimacy has been legally determined, 
or has been admitted by the sworn statement of both the 
father and mother." G. L., c. 46, § 1. In view of this 
statute, your department is bound to record a child born in 
wedlock as legitimate unless there is some court decision to 
the contrary, or unless the sworn statements referred to have 
been made. 

A legitimate child bears the surname of its parents, and the 
name should be so recorded. Snook's Petition, 2 Hilt. (N. Y.) 
566, 569; Laflin, etc., Co. v. Steytler, 146 Pa. St. 434. 

Illegitimate children have no family names, and take the 
names which they have gained by reputation. Siiook's 
Petitio7i, supra; Rex v. Smith, 6 C. & P. 151; Rex v. Clark, 
R. & R., C. C. 358. If a child goes by its mother's name it 
should be so recorded; otherwise not. 

The recording of information is governed entirely by 
statute. G. L., c. 46, §§ 1 and 3. These sections provide 
that certain information concerning the father of a child shall 
be recorded, which will apply to every case where a child is 
born in wedlock, w^ith the exceptions above stated. These 
sections also provide that in the case of an illegitimate child 
"the name of, and other facts relating to, the father shall not 
be recorded except on the written request of both father and 



200 ATTORXEY-GEXERAL'S REPORT. [Jan. 

mother," Upon such request, by the express terms of the 
statute the name and other facts relating to the father should 
be recorded. 

Any information voluntarily given out by your department 
should conform to the law as above stated. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Statute — Construction. 



St. 1921, c. 502, § 3, authorizing the State Treasurer to transfer a balance of 
$49,123.43 from one fund to another, where the actual balance is 
greater than the sum stated, should be construed to direct the transfer 
of the entire balance. 

June 14, 1921. 

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

Dear Sir: — St. 1921, c. 502, § 3, provides as follows: — 

The treasurer and receiver general is hereby authorized and directed 
to transfer the balance of forty-nine thousand one hundred twenty- 
three dollars and forty-three cents, remaining to the credit of a fund 
knowTi as the Compensation Fund for Boston Harbor, to the Port of 
Boston Fund estabhshed by chapter six hundred and sixty-three of the 
acts of nineteen hundred and twelve. 

You state that the balance on hand of the Compensation 
Fund for Boston Harbor is not $49,123.43, the figure named 
in the act, but is in fact $56,019.43. 

You ask me to advise you whether you would be justified 
in transferring the actual balance of $56,019.43 instead of 
$49,123.43, the amount specified in the act. 

It is the fundamental rule in statutory construction that 
the intention of the Legislature as shown by the language 
used, the object intended to be accomplished, and other cir- 
cumstances should be determined and carried into effect. 
"The manifest intention of the Legislature, as gathered from 
its language, considered in connection with the existing situ- 
ation and the object aimed at, is to be carried out." Moore 
V. Stoddard, 206 Mass. 395, 399. 

In the case which you state, the intention of the Legislature 
is clearly shown by the use of the word "balance." Its 
general intention is also shown by another statute to which 
you have called attention, namely, G. L., c. 91, § 6, by which 
the Port of Boston Fund was established. That sectiou, as 



1922.] PUBLIC DOCUMENT — Xo. 12. 201 

amended by the special session of the Legislature last De- 
cember, provides, with reference to the Port of Boston Fund, 
as follows: — 

. . . The income from all wharfage and storage rates, use of cranes, 
lighterage, dockage and other charges, and from the leases of lands, 
storage structures, wharves, piers, docks, sheds, warehouses and indus- 
trial sites, all moneys received bj^ the commonwealth under section 
twenty-one for tide water displacem.ents in Boston harbor, and all 
moneys hereafter received which on May twenty-eighth, nineteen hun- 
dred and twelve, were required to be paid into the Commonwealth's 
Flats Improvement Fund, shall be collected by the division and paid 
to the commonwealth, to the credit of the Port of Boston Fund. Said 
fund may be invested by the state treasurer at his discretion from time 
to time as pro\dded for the investment of the commonwealth's funds; 
and all income from such investments shall be added to the fund. The 
di\ision may expend the Port of Boston Fund to operate, maintain, re- 
pair and preserve the property in Boston harbor in the control of the 
division, and such sums as the legislature may appropriate annually for 
salaries, office expenses, and general engineering expenses in connection 
mth the work of the division in Boston harbor shall be paid so far as 
possible from said fund; any balance rem.aining from said fund after 
the aforementioned expenses have been paid shall be applied to the 
payment of interest and to the annual pajonents on account of principal 
of any securities which may have been or m.ay be issued to raise money 
to be expended by the division for the development of the port of 
Boston. 

The words "all moneys received by the commonwealth under 
section twenty-one for tide water displacements in Boston 
harbor" were inserted by the amendment. 

The case of Shrewsbury v. Boylston, 1 Pick. 105, is closely 
analogous to the case which you present. There a statute 
referred to a vote of a town relating to a particular subject in 
the following language: "according to the vote of the said 
town of Shrewsbury, passed the second day of January in the 
present year." No vote was passed on that date, but a vote 
on that subject was passed on another date. The court con- 
strued the statute to refer to the vote which was actually 
passed. They said: — 

The reference would have been good without mentioning any date, 
and the date of the second of January, 1786, may be rejected as sur- 
plusage. 

See also Moran v. Somes, 154 Mass. 200. 



202 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is my opinion, as I have previously said, that the inten- 
tion of the Legislature is clearly shown to have been to direct 
the transfer of the entire balance to the Port of Boston Fund; 
and that, paraphrasing the language used in Shrewsbury v. 
Boylston, supra, the reference to the balance would have been 
good without mentioning any sum, and the sum may be re- 
jected as surplusage. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Lien — Construction of State Highways — Shoeing of Horses — 
Sharpening Picks — Care of Tools — Labor performed or 
furnished. 

The shoeing of horses, the sharpening of picks and the taking care of other 
tools by a subcontractor in connection with the construction of a State 
highway is not labor performed or furnished/ 'used in the construction 
or repair of public buildings or other public works," within the intend- 
ment of G. I.., c. 30, § 39. 

June 14, 1921. 

Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion on a question 
of law on the following facts: — 

A subcontractor did certain work for a principal contractor 
who under contract constructed a State highway in the towns 
of Dalton and Windsor, the labor that said subcontractor 
performed being shoeing of horses, sharpening of picks and 
taking care of other tools used in the construction of the 
highway. Your inquiry is whether or not the subcontractor 
performed labor of such a character as to enable him to enforce 
a claim under G. L., c. 30, § 39. 

G. L., c. 30, § 39, reads as follows: — 

Officers or agents contracting in behalf of the commonwealth for the 
construction or repair of public buildings or other public works shall 
obtain sufficient security, by bond or otherwise, for pajonent by the 
contractor and sub-contractors for labor performed or furnished and for 
materials used in such construction or repair; but in order to obtain 
the benefit of such security, the claimant shall file mth such officers or 
agents a sworn statement of his claim, within sixty days after the com- 
pletion of the work. 

In the case of Kennedy v. Commonwealth, 182 Mass. 4S0, 
481, the court said: — 



1922.] PUBLIC DOCUMENT — No. 12. 203 

We are of opinion that this statute gives security for payment for 
labor performed or furnished and for materials only when they are 
used in construction or repair in a way that would create a debt which 
might be a subject for a lien, under proper proceedings, if the structure 
belonged to a private person. There is nothing to indicate that security 
was intended to be given for every kind of labor and all kinds of ma- 
terials that incidentally promote the construction of a building when 
they do not enter into the construction. Such an interpretation of the 
statute would give security to a dealer who had sold workmen tools 
which they used in working upon the building, or to a horse trader who 
sold the contractor horses which were used in drawing materials for the 
building, and it would give security upon the proceeds of every contract 
upon which the tools or horses were used, until they were paid for. In 
a sense the tools and the horses would be used in the construction of 
the building. 

In George H. Sampson Co. v. Commonwealth, 202 Mass. 326, 
334, the court, in citing the case of Schaghticoke Powder Co. 
V. Greemvich & Johnsonville R.R., 183 N. Y. 306, quoted as 
follows: — 

A steam shovel, an engine and boiler, picks, shovels, crowbars and 
the like, are tools and appliances which, while used in the doing of the 
work, survive its performance and remain the property of their o^\Tler. 

In the case of Thomas v. Commomcealth, 215 Mass. 369, the 
court held that claims for "boards used for concrete forms 
and for conduits, for netting, cotton line, rules, road scraper, 
buggies used in transporting the help, use of scales, etc.," 
were all properly disallowed upon the principle of Kennedy 
V. Commonwealth, supra. 

In Bay State Dredging Co. v. W. H. Ellis <& Son, 235 Mass. 
263, a claim for the use of staging and falls was disallowed, 
the court saying: — 

They were not incorporated in the building, and the mere use of an 
appliance, however necessary or useful it may be to the prosecution of 
a contract for "the construction or repair of public buildings or other 
pubHc works," is not labor performed or furnished or material used in 
such construction or repair wdthin the reasonable intendment of R. L., 
c. 6, § 77. The claim has no standing under R. L., c. 6, § 77. 

In the case of Schultz v. C. H. Quereau Co., 210 N. Y. 257, 
this language was used: — 

Thus it might be argued that upon the same principle coal that is 
used in portable engines, oil that is used in the lubrication of building 
machinery, and even food which is eaten by laborers, are all consumed 



204 ATTORNEY-GENERAL'S REPORT. [Jan. 

in the construction of the building, and hence Henable materials. But 
all these things seem quite plainly distinguishable. They are at least 
one step further removed from the actual work of construction. They 
have neither physical contact nor immediate connection with the struc- 
ture at any time. They are used only to facilitate and make possible 
the operation of tools, machinery, or men, which in their turn act upon 
the structure. The authorities are unanimous in holding that no lien 
accrues for such materials. 

Under the line of decisions quoted above, I am of the 
opinion that the labor under consideration does not come 
within the terms of the statute, that it was a step removed 
from the actual work of construction, and that it served only 
to facilitate and make possible the operation of tools and 
horses by workmen employed directly upon the public struc- 
ture. The labor, in my judgment, was of too remote a char- 
acter to enable the subcontractor to establish a lien therefor. 
Yours very truly, 

J. Weston Allen, AUorney-General. 



Elections — House of Representatives — Special Election — 
Order and Precept for Special Election — Decision of the 
House as to the Validity of an Election. 

Under G. L., c. 54, § 141, a special precept issued by the Speaker of the 
House of Representatives, pursuant to an order of said House fixing 
the time for a special election to fill a vacancy in said House, is essential 
to the validity of such special election. 

An order of the House of Representatives fixing the time for a special elec- 
tion to fill a vacancy in said House is a condition precedent to the issue 
of a precept for such election by the Speaker of the House. 

Although the decision of the House of Representatives as to the validity of 
an election to the House cannot be reviewed by any other tribunal, the 
House has been accustomed to follow the rules of law. 

June 15, 1921. 
Hon. B. LoRiNG Young, Speaker of the House of Representatives. 

Dear Sir: — You ask my opinion upon the following case. 
G. L., c. 54, § 141, provides, in part: — 

Upon a vacancy in the office of representative in the general court or 
upon failure to elect on the fourth Monday of November, the speaker 
of the house of representatives shall issue precepts to the aldermen of 
each city and the selectmen of each town comprising the district or any 



1922.] PUBLIC DOCUMENT — Xo. 12. 205 

part thereof, appointing such time as the house of representatives may 
order for an election to fill such vacancy. Upon receipt of such pre- 
cepts, the aldermen or the selectmen shall call an election, which shall 
be held in accordance with the precepts. 

A member of the House of Representatives will shortly file 
his resignation. As this resignation comes in while the House 
is not in session, it will be impossible for the House to pass 
any order fixing a date for a special election. In default of 
such action by the House, has the Speaker the legal right to 
call the special election? If the legal question is not raised 
by the cities and towns, could the House accept the newly 
elected member, thereby establishing the validity of his elec- 
tion? 

1. A precept is essential to the validity of a special election 
held to fill a vacancy in the House of Representatives. Case 
of Joseph Doivne, Jr., Mass. Election Cases, 1780-1852, 
p. 244. See also Attorney -General v. Campbell, 191 Mass. 
497, 501. Under this section an order of the House appoint- 
ing the time of the special election is a condition precedent 
to the issue of the precept which calls the election at that time. 
The Fifteenth Amendment manifestly does not apply to the 
special elections for which this section provides. If an order 
is not made by the House no special election can be held. 
See Mass. Election Cases, 1780-1852, Weston, pp. 67, 70; 
Milton, pp. 146, 150; Wilhraham, pp. 399, 401; Charlestown, 
pp. 518, 521. In the case of the Senate, an order of the Sen- 
ate for a special election to fill a vacancy is required by the 
Twenty-fourth Amendment. This constitutional requirement 
as to the Senate indicates that this statutory requirement as 
to the House is mandatory instead of directory. I find no 
statute which authorizes the Speaker of the House to act 
without the order in case the House is not in session. I am 
therefore constrained to advise you that in my opinion the 
Speaker cannot legally issue the precept for a special election 
until the House has appointed the time for the election, by an 
order duly adopted. 

2. Mass. Const., pt. 2d, c. I, § III, art. X, provides, in 
part: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and quahfications of its own members, as pointed out in the 
constitution. . . . 



206 ATTORNEY-GENERAL'S REPORT. [Jan. 

¥ The decision of the House as to the validity of an election 
to the House cannot be reviewed by any other tribunal. In- 
deed, the Legislature cannot constitutionally delegate to the 
judicial department power to hear and determine this ques- 
tion. Dinan v. Stvig, 223 Mass. 516. But while the power of 
the House over the subject is absolute, it may be proper to add 
that the House of Representatives has been accustomed in such 
cases to follow the rules of law. I Op. Atty.-Gen., 3, 8. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Distribution of Personal Property — Illegitimate Child. 

Under G. L., c. 190, §§5 and 6, where an illegitimate child dies intestate, 
leaving personal property, his illegitimate brothers and sisters cannot 
share in his estate, but only those can share who would be entitled by 
inheritance through his mother if he had been legitimate. 

June 21, 1921. 

General Counsel, Bureau of War Risk Insurance, Washington, D. C. 

Dear Sir: — I acknowledge receipt of a letter from your 
associate counsel with reference to war risk insurance of a 
soldier who was a resident of Massachusetts, which you say 
must be distributed as the personal property of the soldier 
under the laws of distribution of Massachusetts in case of 
intestacy. The facts which you state are that the soldier was 
an illegitimate child and was survived by an uncle, who was 
a legitimate brother of the soldier's mother, and by four 
brothers and two sisters, who were all illegitimate children of 
the soldier's mother. You ask my opinion as to what dis- 
tribution should be made of the insurance in this case. 

With certain exceptions not now material, the personal 
property of a deceased person, who dies intestate, by the law 
of this Commonwealth is to be distributed according to the 
law governing the descent of real property. G. L., c. 190, 
§ 2; Parkman v. McCarthy, 149 Mass. 502. 

The statutes with reference to the descent of property of 
illegitimate children in G. L., c. 190, are as follows: — 

Section 5. An illegitimate child shall be heir of his mother and of 
any maternal ancestor, and the lawful issue of an illegitimate person 
shall represent such person and take by descent any estate which such 
person would have taken if hving. 



1922.] PUBLIC DOCUMENT — No. 12. 207 

Section 6. If an illegitimate child dies intestate and without issue 
who may lawfully inherit his estate, such estate shall descend to his 
mother or, if she is not living, to the persons who would have been 
entitled thereto by inheritance through his mother if he had been a 
legitimate child. 

The soldier's brothers and sisters, who were illegitimate 
children of his mother, cannot claim through her any part of 
the soldier's estate, because by section 5 they can take only 
from their mother and her lineal ancestors. Haradcn v. 
Larrabee, 113 Mass. 430, 432. 

The soldier's uncle is a person who would have been en- 
titled to the soldier's estate by inheritance through his mother 
if he had been a legitimate child. The uncle, therefore, in- 
herits the soldier's property by virtue of section 6. Parkman 
v. McCarthy, supra. 

Since, as you state, the war risk insurance must be dis- 
tributed as personal property of the soldier under the laws of 
distribution of Massachusetts in case of intestacy, my opinion 
is that the insurance should be paid to the uncle. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Police Officer — Board of Health— Word ''Detail:' 

A police officer detailed to the board of health, under St. 1889, c. 450, § 7, 
as amended by St. 1911, c. 287, is subject to the rules and regulations 
of the police department. 

If a police officer so detailed is guilty of misconduct, he may be tried and 
punished by the police department, but not by the board of health. 

June 27, 1921. 

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

Dear Sir: — You ask my opinion whether police officers de- 
tailed to the board of health by virtue of St. 1889, c. 450, § 7, 
as amended by St. 1911, c. 287, are subject to the rules and 
regulations of the police department so far as their personal 
conduct is concerned, and whether the health commissioner 
may properly try and penalize police officers so detailed. 

Said section 7, as amended, is as follows: — 

The pohce commissioner for the city of Boston shall, upon requisition 
by the board of health of said city, detail to the exclusive service and 
direction of said board of health, for enforcing the laws and ordinances 



208 ATTORNEY-GENERAL'S REPORT. [Jan. 

relating to the presentation of health and to tenement and lodging 
houses, such number, not exceeding ten, of police officers satisfactory^ 
to the board of health as the board of health may desire, and the serv- 
ices of the police officers so detailed shall be paid for by said board of 
health, and said officers so detailed shall continue subject to the di- 
rection of said board of health until exchanged for others at the request 
of said last-named board. Said police commissioner is hereby author- 
ized and empowered to appoint patrolmen, in number not exceeding 
ten, to fill any vacancies in the police force in the city which may be 
caused by the detailing of officers as provided in this act. 

The word "detail," used as a transitive verb, means, 
specifically, "to set apart for a particular service." It is a 
word used chiefly in military law. Century Dictionary; 
Bouvier's Law Dictionary; Upshur v. Baltimore City, 94 
Md. 743, 749; 18 C. J. 977. It has not the same meaning 
as the verb "transfer," and does not intend any change or 
relinquishment of ultimate authority over the person detailed. 

The purpose of section 7 is to provide police officers to en- 
force the laws and ordinances described. If those detailed 
thereby lost their status as policemen they could not perform 
the duties which they are detailed to perform. They could 
not be "exchanged" as the act provides, since they could not 
be returned to the police force without a new examination 
and appointment under the civil service laws. To construe 
section 7 as providing for a transfer to a new and different 
service w^ould bring that section into conflict w^ith G. L., 
c. 31, §§ 43 and 44, which provide, in substance, that those in 
the classified civil service in general, and policemen in par- 
ticular, cannot be transferred to any other office or employ- 
ment without their consent, except for just cause specifically 
stated in waiting. I cannot place upon section 7 a construc- 
tion which not only defeats its purpose but also brings it into 
conflict with the civil service law^ In my opinion, the officers 
detailed do not thereby cease to be members of the police 
department. 

Although the officers detailed are for the time being in the 
exclusive service of the board of health, are paid by it, and 
are subject to its direction in respect to the duties to be per- 
formed, section 7 does not create a special police force of ten 
men appurtenant to the board of health. Such a construc- 
tion of section 7 might meet the objection that the officers 
detailed would otherwise cease to be policemen. It does not 



1922.] PUBLIC DOCUMENT — No. 12. 209 

meet the difficulty as to exchanges or reconcile section 7 
with the civil service law. But if the officers detailed remain 
members of the regular police department, they also remain 
subject to its rules and discipline. If any of them are guilty 
of misconduct, they may, upon proper complaint, be tried and 
punished under the regulations of the police department. If 
their service be unsatisfactory, the board of health, under 
section 7, may request an exchange. But the power to try 
and punish is vested in the police department of which they 
are permanent members, and not in the board of health which 
they temporarily serve. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Pilot — Appointment — QuaUfication — Residence in the Com- 
■ monwealth. 



Under G. L., c. 103, § 11, residence in this Commonwealth is not a necessary 
qualification for the office of pilot in the ports and places embraced by 
that section. 

June 29, 1921. 

His Excellency Channing H. Cox, Governor of the Commonivealth. 

Sir: — You have requested my opinion as to whether or 
not you can legally appoint a citizen of the United States and 
a resident of Newport, R. I., to the office of pilot of the port 
of Fall River, under the provisions of G. L., c. 103, § 11. 
The specific question raised by your inquiry is whether or 
not residence in this Commonwealth is a necessary qualifica- 
tion for the office of pilot. 

G. L., c. 103, § 11, reads as follows: — 

In all ports and places not mentioned in this chapter, for which pilots 
have been commissioned, the governor, with the advice and consent of 
the council, may appoint pilots, who shall hold their commissions during 
the pleasure of, and may at any time be suspended or removed by, the 
governor and council. 

I have examined the Constitution of this Commonwealth 
and the statutes, and it appears that there is no express pro- 
vision which makes residence within this Commonwealth a 
necessary qualification for the office of pilot, and, in the ab- 



210 ATTORNEY-GENERAL'S REPORT. [Jan. 

sence of such an express provision, there seems to be no reason 
for holding that residence within this Commonwealth is neces- 
sary to eligibihty to this office. Accordingly, I am of the 
opinion that you may, under the law, with the advice and 
consent of the Council, appoint a citizen of another State to 
the office of pilot for the port of Fall River. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Representative to the General Court — Appointment to Position 
in the State Service — Salary. 

An appointment of a representative to the General Court to a public office, 
where the appointment is made after the regular session of the General 
Court, is not in violation of G. L., c. 30, § 21, prohibiting the payment 
of two salaries to the same person. 

June 30, 1921. 

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

Dear Sir: — You ask if a representative to the General 
Court, who has been appointed, since the close of the annual 
session, registrar of vital statistics under G. L., c. 9, § 10, 
can properly draw the salary pertaining to that position. I 
assume that he has not resigned his office as representative. 

G. L., c. 30, § 21, provides: — 

A person shall not at the same time receive more than one salary 
from the treasury of the commonwealth. 

G. L., c. 3, § 9, is, in part, as follows: — 

Each member of the general court shall receive fifteen hundred 
dollars for each regular annual session of the term for which he is 
elected. ... 

The position to which this man has been appointed is not 
one which the Constitution of this Commonwealth prohibits 
him from holding while a member of the Legislature. The 
regular annual session of the General Court for 1921 has 
ended, and the compensation which he has received is for 
services already rendered. He would not receive more than 
one salary from the Commonwealth if he is paid the salary 
pertaining to his new position. It is my opinion, therefore, 
that he is entitled to draw that salary. 



1922.] PUBLIC DOCUMENT — No. 12. 211 

Should the General Court convene in special session during 
the year, or should he continue as representative in the 
regular session of 1922, he would not be entitled to compen- 
sation for the two offices. 

The question whether or not he would be entitled to sit in 
a special session during the current year, or in the regular ses- 
sion next year, is not before me, and I express no opinion 
upon it. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Trust Company in Possession of Commissioner of Banks — 
Right of Inspection of Books by Stockholders. 

Stockholders of a trust company in the possession of the Commissioner of 
Banks have no right, without an order of court, to inspect the com- 
pany's books. 

G. L., c. 172, § 19, is inapplicable where a trust company is in the possession 
of the Commissioner of Banks. 

July 13, 1921. 

Mr. Roy A. Hovey, Acting Commissioner of Banks. 

Dear Sir: — You have asked my opinion whether stock- 
holders in a trust company now in the possession of the 
Commissioner of Banks have a right to inspect the books of 
the company, under G. L., c. 172, § 19. 

Chapter 172 relates to trust companies. Section 19 is as 
follows : — 

The books of such corporation shall at all reasonable times be open 
for inspection to the stockholders and to beneficiaries under any trust 
held by such corporation. 

While the common-law right of a stockholder to inspect the 
books of a corporation is a qualified and not an absolute right, 
the right given by statute is absolute within the scope of the 
statute. Powelson v. Tennessee Eastern Electric Co., 220 
Mass. 380; Shea v. Parker, 234 Mass. 592. The inquiry, 
therefore, must be directed to the question whether the sec- 
tion quoted is applicable when the trust company is in the 
|)ossession of the Commissioner of Banks. 

The statute authorizing the Commissioner to take pos- 
session of a bank is a general statute applicable to all banks 
subject to the supervision of the Commissioner. The pro- 



212 ATTORNEY-GENERAL'S REPORT. [Jan. 

visions of this statute appear in G. L., c. 167, §§ 22-36, in- 
clusive. These sections prescribe in detail the powers and 
duties of the Commissioner, and give to the Supreme Judicial 
Court jurisdiction in equity to act upon all applications and 
in all proceedings thereunder. They contain no provision 
that the Commissioner shall submit the books of the cor- 
poration in his control to the inspection of stockholders. On 
the other hand, section 2, relating to the examination of banks 
by the Commissioner, contains the following provision: — 

Such records, and information contained in reports of such banks, 
other than information required by law to be published or to be open 
to the inspection of the public, shall be open only to the inspection of 
the commissioner, his deputy, examiners and assistants, and such other 
officers of the commonwealth as may have occasion and authority to 
inspect them in the performance of their official duties. . . . 

The reason for giving stockholders a right to inspect the 
books of a going trust company does not apply where the 
trust company is in the hands of the Commissioner for the 
purpose of liquidation. This distinction is well expressed by 
Judge Lacombe in Chable v. Nicaragua Canal Constr. Co., 
59 Fed. Rep. 846: — 

When a corporation has suffered financial shipwreck, and its prop- 
erty and assets, including its books, come into the possession of the 
court and the custody of the court's officer, the receiver, the question 
whether or not an inspection of those books shall be accorded to a 
stockholder in the shipwrecked concern is one resting in the discretion 
of the court, unhampered by any decisions touching such right of in- 
spection while the corporation was still a going concern in the hands 
of its officers and directors. 

It is my opinion that upon a sound construction of G. L., 
c. 172, § 19, in the light of G. L., c. 167, §§ 22-36, inclusive, 
the former statute must be held to be inapplicable to cases of 
trust companies in the possession of the Commissioner of 
Banks, and that the Commissioner is not authorized by the 
provisions of said sections 22-36, inclusive, to submit the 
books of a trust company in his possession to the inspection 
of stockholders without an order of court requiring him to 
do so. 

Very truly yours, 

J. Weston x\llen, Attorney -General. 



1922.1 PUBLIC DOCUMENT — No. 12. 213 



Taxation — Domestic Business Corporation — Return to Fed- 
eral Government — Application for Abatement. 

A domestic business corporation which began to do business on April 29, 
1919, and whose first Federal return was due May 15, 1920, is not re- 
quired, in its return made under Gen. St. 1919, c. 355, pt. I, § 4, as of 
April 1, 1920, to make any statement of net income, and is taxable on 
the value of its corporate excess alone. 

It cannot be said as a matter of law that application for abatement of a tax 
illegally exacted, under G. L., c. 58, § 27, made within six months after 
payment of the tax, may not be amended, while still undecided, after 
the six months have run. 

July 13, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You state that a Massachusetts business cor- 
poration was assessed in 1920 an excise tax amounting to 
$683.63, based upon income reported in its 1920 excise tax 
return; that the income reported was for the fiscal year end- 
ing Feb. 29, 1920; and that the corporation had never filed 
with the Federal government a return for a previous fiscal 
year. The return shows on its face that the income reported 
was for the fiscal year ending Feb. 29, 1920, that the cor- 
poration did not begin to do business until April 29, 1919, 
and that on the date of the return its Federal return had not 
been filed. 

The return and assessment were made under Gen. St. 1919, 
c. 355, pt. I. Section 2 of that act imposes an excise tax on 
domestic business corporations, based on a percentage of the 
value of its ''corporate excess" and a percentage of its "net 
income" derived from business carried on within the Com- 
monwealth. Section 3 provides that "the term 'net income' 
shall mean the net income for the taxable year as required to 
be reported by the corporation in its last prior return to the 
federal government as defined in the federal revenue act of 
nineteen hundred and eighteen," with certain deductions. 
The term "taxable year" is defined by section 1 to mean the 
fiscal year of the corporation. Section 4 requires a return to 
be filed as of April 1, "giving (a) a copy of such parts of its 
last federal return due prior thereto, as he [the Tax Commis- 
sioner] may designate." 

By the Federal Revenue Act of 1918 returns are required 
to be made on or before the fifteenth day of the third month 
following the close of the fiscal year [§ 227 (a)]. The fifteenth 



214 ATTORNEY-GENERAL'S REPORT. [Jan. 

day of the third month following February 29 is May 15, and 
the return made to the Commonwealth as of April 1, 1920, 
should not have been based on the Federal return for the 
fiscal year ending Feb. 29, 1920, due May 15, 1920, but on the 
Federal return, if any, due the previous year. But no Fed- 
eral return was due in 1919, since the corporation did not 
commence business, and had no net income, prior to April 29, 
1919. The tax, therefore, should have been assessed on the 
value of its corporate excess alone, and on that basis you say 
would have amounted to $154.50. 

You state that no application for abatement of the tax 
was made within thirty days of the date of notice of the as- 
sessment, but that within six months of the date of payment 
of the bill the corporation made application for a refund of a 
portion of the tax, under G. L., c. 58, § 27. That section 
provides as follows: — 

If it shall appear that a legacy and succession tax or a tax or excise 
upon a corporation, foreign or domestic, which has been paid to the 
commonwealth, was in whole or in part illegally exacted, the commis- 
sioner may, with the approval of the attorney-general, issue a certificate 
that the party aggrieved by such exaction is entitled to an abatement, 
stating the amount thereof. The treasurer shall pay the amount thus 
certified to have been illegally exacted, with interest, without any 
appropriation therefor by the general court. No certificate for the 
abatement of any tax shall be issued under this section unless applica- 
tion therefor is made to the commissioner within the time prescribed 
by law for beginning legal proceedings to obtain a repayment of the 
tax. This section shall be in addition to and not in modification of 
anj^ other remedies. 

You state that the ground of this application was that only 
one-third of the income should have been allocated to Massa- 
chusetts, but that now the corporation requests refund of the 
entire difference between the amount assessed and the amount 
of the aforesaid minimum tax. 

An inspection of the papers shows that within six months of 
payment of the tax, under date of March 19, 1921, the cor- 
poration made formal application for a refund of a portion of 
the tax so paid, under the provisions of G. L., c. 58, § 27, 
stating as grounds upon which the application was based a 
claim that the sole property of the corporation was real estate 
in Brooklyn, New York; that the corporation conducted no 
business except collecting rentals on said real estate; and 
that one-third of the net income should have been allocated to 



1922.] PUBLIC DOCUMENT — No. 12. 215 

Massachusetts and no more. By a subsequent letter, dated 
April 14, 1921, and also within the six months' period, counsel 
for the corporation stated their understanding that two ques- 
tions were involved: first, whether the corporation in fact 
was doing business outside of Massachusetts; and second, 
whether, if so, the tax collected in 1920 should be regarded 
as an "illegal exaction," within the meaning of G. L., c. 58, 
§ 27. It w^as suggested that the decision of the second ques- 
tion should be postponed until the first question should be 
settled in connection with the 1921 return. By a later letter, 
dated June 16, 1921, after the six months had run, attention 
was first called to the error in the return, apparent on its face, 
in that income was reported where none should have been 
returned, and the claim was made that for that reason the 
tax was illegally assessed. I am of opinion that the excise tax 
of $683.63 assessed to the corporation was, except as to 
$154.50, "illegally exacted," within the meaning of G. L., 
c. 58, § 27. 

There is, however, a further question whether the applica- 
tion for an abatement was made in time. Application for 
an abatement was made within six months after the pay- 
ment of the tax, but without clearly indicating the ground 
now urged. After the six months had run, but while the 
application still remained undecided, the ground now urged 
was expressly brought forward, apparently by w^ay of amend- 
ment. So long as a case remains undisposed of by final 
judgment, a court, in the exercise of a sound discretion, 
may allow any amendment which will enable the plaintiff to 
sustain the action for the cause for which it was intended to 
be brought. Strout v. United Shoe Machinery Co., 215 Mass. 
116, 119; Clark v. New England Tel & Tel Co., 229 Mass. 
1, 6. On the other hand, the court has no power to allow an 
amendment which, as matter of law, introduces a new cause 
of action. Knights v. Treasurer and Receiver General, 236 Mass. 
336, 341; Church v. Boylston & Woodbury Cafe Co., 218 
Mass. 231. I assume that within the six months' period a7iy 
amendment may be permitted, since a new application might 
still be made as of right. I cannot say, as matter of law, that 
the Commissioner has no discretion to permit an amendment 
after the six months' period has run, and I assume, without 
deciding, that this discretion is subject to the same limitations 
as the similar power of the court. 

Consideration of the present application does not enable me 



216 ATTORNEY-GENERAL'S REPORT. [Jan. 

to say that the ground of application now urged is, as matter 
of law, so foreign to the ground indicated within the six 
months' period by the applicant that the Commissioner could 
not entertain it while the original application was still open 
and pending, even though the six months' period had elapsed. 
A different question might well be presented if the application 
had finally been disposed of before the amendment was 
brought forward, or if the amendment were in effect a new 
and different application filed after the six months' period had 
run. 

I therefore approve of the issuing of a certificate showing 
that the corporation is entitled to an abatement of the differ- 
ence between the sum assessed and paid and $154.50. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Great Pond^ — Fishing — Public Rights — Authority of Select- 
men of Towns. 

There is no authority in the selectmen of towns, in the absence of specific 
statutory authority, to restrict the right of the public to fish in any 
great pond of the Commonwealth. 

July 19, 1921. 

Hon. W, A. L. Bazeley, Co7nmissioner of Conservation. 

Dear Sir: — You ask if the selectmen of a town have au- 
thority to close a great pond to fishing for any length of time. 

Since the Colony Ordinances of 1641-1647 great ponds have 
been dedicated to the public and have been subject to the 
public rights of fishing, fowling, boating, etc., except as other- 
wise directed by the General Court. The selectmen of a town 
have no authority over a great pond except as specifically 
authorized by statute, and as I find no such authority, it is 
my opinion that the selectmen of a town have no right to for- 
bid the taking of fish in any great pond of this Common- 
wealth. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 217 



Savings Bank — Trustee — Eligibility after Bankruptcy or Poor 
Debtor Proceedings. 

A trustee in a savings bank, discharged from office by reason of having taken 
the benefit of the bankruptcy or poor debtor laws, under G. L., c. 168, 
§ 23, is not barred from subsequent election. 

July 19, 1921. 

Mr. Roy A. Hovey, Acting Commissioner of Banks. 

Dear Sir: — You ask whether, under G. L., c. 168, § 23, a 
person who has once taken the benefit of any law of bank- 
ruptcy or insolvency, or of the oath for the relief of poor 
debtors, is forever ineligible for election to the office of a 
trustee in a savings bank or institution for savings; and if not, 
when is such a person again eligible after having been dis- 
qualified. That portion of section 23 to which you call at- 
tention, which first appears in St. 1908, c. 590, § 34, is as 
follows : — 

The office of any trustee who takes the benefit of any law of bank- 
ruptcy or insolvency, or of the oath for the reUef of poor debtors, shall 
thereby be vacated. 

In my opinion, the effect of this provision is merely to 
remove from office a trustee who takes the benefit of any law 
of bankruptcy or insolvency, or of the oath for the relief of 
poor debtors, and does not disqualify a person who has done 
so, whether or not he was a trustee at the time, from being 
afterwards elected a trustee of any savings bank or an insti- 
tution for savings. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Constitutional Law — House of Representatives — Eligibility of 

Women. 

At the time when the Constitution was adopted women were not eligible 
as representatives to the General Court. 

The Nineteenth Amendment to the Federal Constitution relates to the right 
to vote, and has not, expressly or by implication, affected the constitu- 
tional qualifications for office. 

St. 1921, c. 449, § 3, cannot and has not conferred upon women a right to 
be elected to the House of Representatives, from which office they are 
excluded by the Constitution. 



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

July 20, 1921. 
Hon. F. W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You inquire whether women are eligible to be 
elected as representatives to the General Court. 

The office of representative to the General Court is one es- 
tablished by the Constitution. It is plain that prior to the 
adoption of the Nineteenth Amendment to the Constitution 
of the United States women could not serve as representatives 
to the General Court, under our Constitution and laws. The 
law at the time of the adoption of the Constitution, the frame 
and purport of that instrument, and the universal under- 
standing and unbroken practical construction of its provisions 
from that time up to 1920 are inconsistent with any other 
view. Opinion of the Justices, 107 Mass. 604; Opinion of the 
Justices, 150 Mass. 586; Opinion of the Justices, 165 Mass. 
599; Opinion of the Justices, 237 Mass. 591; V Op. Atty.- 
Gen. 479. 

The Nineteenth Amendment to the Federal Constitution has 
not, in my opinion, enlarged the right of w^omen in this re- 
spect. That amendment is in these words: — 

The right of citizens of the United States to vote shall not be denied 
or abridged by the United States or by any State on account of sex. . . . 

It relates to the right to vote. It makes no provision in re- 
spect to holding office. The Supreme Judicial Court has al- 
ready advised that this amendment did not so operate as to 
make women liable to service as jurors under the Constitu- 
tion of this Commonwealth and the laws existing at the time 
of its adoption. Opinion of the Justices, 237 Mass. 591. 
St. 1921, c. 449, § 3, provides, in part: — 

Chapter thirty of the General Laws is hereby amended by inserting 
after section seven the following new section: — Section 7 A. Women 
shall be eligible to election or appointment to all state offices, positions, 
appointments and emplojanents, except those from which they may be 
excluded b}^ the constitution of the commonwealth. . . . 

In my opinion, this statute cannot be held to confer upon 
women the right to be elected as representatives to the Gen- 
eral Court. It expressly excepts from its operation those offices 
from which women are excluded by the Constitution of the 
Commonwealth. As already pointed out, women were not 
eligible to hold this office at the time when the Constitution 



1922.] PUBLIC DOCUMENT — Xo. 12. 219 

was adopted. This office is, therefore, among those from 
which they are excluded by the Constitution. It follows, 
that this office is one of those expressly excepted from the 
operation of St. 1921, c. 449, § 3, and even if it were not, that 
statute could not in any way modify the Constitution. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Pauper — Settlement — Married Woman. 

Under G. L., c. 116, §§ 1 and 5, a woman who marries acquires her hus- 
band's settlement although she is a minor, and does not lose the set- 
tlement so derived by reason of five 5^ears' absence, if during part of 
the time she was a minor. 

Aug. 2, 1921. 

Mr, Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You ask my opinion upon the following 
facts: A girl with a settlement in Pelham marries, when she 
is seventeen years old, a man with a settlement in Springfield. 
They moved to Northampton and are absent five years from 
Pelham and Springfield. When the woman is twenty-two 
years old the man dies. I understand that the man did not 
acquire a new settlement in Northampton or elsewhere. You 
ask whether the widow has a settlement, and if so, where. 

G. L., c. 116, relating to the settlement of paupers, contains 
the following provisions : — 

Section 1. Legal settlements may be acquired in any town in the 
following manner and not otherwise : 

First, Except as provided in the following clause, each person who, 
after reaching the age of twenty-one has resided in any town within 
the commonwealth for five consecutive years, shall thereby acquire a 
settlem_ent in such town. 

Second, A married woman shall follow and have the settlement of 
her husband; but if he has no settlement within the commonwealth, 
she shall retain the settlement, if any, which she had at the time of her 
marriage and may acquire a settlement under the preceding clause. 

Section 5. Each settlement existing on August twelfth, nineteen 
hundred and eleven, shall continue in force until changed or defeated 
under this chapter, but from and after said date absence for five con- 
secutive years by a person from a town where he had a settlement shall 
defeat such settlement. . . . 



220 ATTORNEY-GENERAL'S REPORT. [Jan. 

By virtue of G. L., c. 116, § 1, cl. 2, the woman you refer 
to acquired a settlement in Springfield upon her marriage, 
although at the time she was a minor. Dalton v. Bernardston, 
9 Mass. 201, 203. But although a woman upon marriage de- 
rives a settlement from her husband, she does not lose her 
settlement because he loses his by reason of absence. Treas- 
urer and Receiver-General v. Boston, 229 Mass. 83. It follows, 
necessarily, that she can lose her settlement only by reason of 
her own absence, under the provisions of G. L., c. 116, § 5. 

The woman in the case you state, as well as her husband, 
was absent from Springfield for five consecutive years after 
her marriage. During part of the time, however, she was a 
minor. 

In my opinion to the Commissioner of State Aid and Pen- 
sions, dated Feb. 4, 1920, to which you refer, I gave the ad- 
vice that a minor does not lose the local settlement which he 
had on his becoming of age, until five years thereafter. This 
opinion applies to the case under consideration. It follows 
that the widow has not lost the settlement derived from her 
husband, and that she now has a settlement in Springfield. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Fire Prevention — Rules and Regulations — Metropolitan 

District. 
Statement of successive steps necessary to be taken under G. L., c. 148, 
§§ 30, 39, 40 and 11, and c. 30, § 37, for the establishment of rules and 
regulations relating to fire prevention in the metropolitan district. 

Aug. 2, 1921. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You ask my opinion what are the successive 
steps necessar}^ to be taken for the establishment of rules and 
regulations relating to fire prevention in the metropolitan 
district. 

These steps or conditions are defined in the following pro- 
visions of the General Laws: — 

G. L., c. 148, § 30, gives to the State Fire Marshal power 
within the metropolitan district, among other things — 

... to inspect or regulate, the keeping, storage, use, manufacture, 
sale, handling, transportation or other disposition of gunpowder, dyna- 



1922.] PUBLIC DOCUMENT — No. 12. 221 

mite, nitroglycerine, camphine or any similar fluids or compounds, 
crude petroleum or any of its products, or any explosive or inflammable 
fluids or compounds, tablets, torpedoes, rockets, toy pistols, fireworks, 
firecrackers, or any other explosives, and the use of engines and furnaces 
as described in section one hundred and fifteen of chapter one hundred 
and forty; . . . 

G. L., c. 148, § 39, provides, in part, as follows: — 

In addition to the powers given by sections thirty to thirty-eight, 
inclusive, the marshal may make orders and rules relating to fires, fire 
protection and fire hazard binding throughout the metropolitan district, 
or part thereof, or binding upon Siny person or class of persons within 
said district, limited, however, to the following subjects: 



The subjects which follow are of particular application, and 
by no means cover the general subject of fires, fire protection 
and fire hazard or the subjects to which section 30 relates. 

G. L., c. 148, § 40, is as follows: — 

The marshal may provide that any rule shall apply generally through- 
out the metropolitan district or to any specified part thereof or to any 
class or description of premises. No such rules shall be established 
until after a public hearing, of which notice shall have been given by 
publication for at least two successive weeks in at least two daily news- 
papers pubhshed in Boston and in two newspapers pubhshed in the 
metropolitan district outside of Boston. 

G. L., c. 148, § 11, is as follows: — 

The marshal shall submit to the commissioner rules and regulations 
to carry out the provisions of sections ten and thirty-nine, which shall 
take effect subject to section thirty-seven of chapter thirty when ap- 
proved by the commissioner and by the governor and council, and on 
such dates as they may fix. 

Section 10, referred to in said section 11, does not apply to the 
metropolitan district. See G. L., c. 148, § 2. 
G. L., c. 30, § 37, is as follows: — 

Every department, commission, board or official vested by law with 
the power to make and issue rules or regulations general in scope, and 
to be observed or performed under penalty for the violation thereof, 
shall file attested copies thereof, together with a citation of the law by 
authority of which the same purport to have been issued, with the state 
secretary, and such rules or regulations, whether or not they require the 



222 ATTORNEY-GENERAL'S REPORT. [Jan. 

approval of the governor and council, or other authority, before taking 
effect, shall not take effect until so filed. The foregoing provision shall 
not apply to rules or regulations issued by commissions, boards or 
officials of towns, or to municipal ordinances or by-laws, or to rules or 
regulations affecting solely the internal management or discipline of a 
department, commission, board or office, nor to orders or decrees made 
in specific cases within the jurisdiction of a department, commission, 
board or official. The state secretary shall file and index all rules and 
regulations filed with him hereunder, noting and keeping available such 
references to preceding rules and regulations as may be necessary for 
certification purposes. 

G. L., c. 148, § 40, provides a requirement which, in my 
opinion, is applicable to all rules for the metropolitan district. 
It may be that section 11 is not applicable to rules prepared 
under section 30, but in view of G. L., c. 22, and G. L., c. 30, 
§ 5, as well as of the general language of G. L., c. 148, § 11, 
in my opinion, it will be better practice to carry out the same 
steps in all cases. The steps to be followed for the estab- 
lishment of rules and regulations governing the metropolitan 
district are, therefore, as follows : — 

1. There must be a public hearing and notice, as provided 
in G. L., c. 148, § 40. 

2. The rules and regulations must be submitted to the 
Commissioner of Public Safety and approved by him. 

3. They must be submitted to the Governor and Council 
and approved by them. 

4. Copies must be filed with the Secretary of the Common- 
wealth as required by G. L., c. 30, § 37. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Commomvealth — Liahility on Note — Statute of Limitations. 

The Commonwealth is not obligated to pay either principal or interest on 
a note issued under St. 1793, c. 29, subject to redemption by payment 
when provision should be made therefor, when provisions for part 
payments were made by successive acts until St. 1821, cc. 69 and 87, 
which provided for payment of the remainder before July 1, 1821, 
after which date interest was to cease. 

Under G. L., c. 258, § 5, the note, and interest thereon, was barred by the 
statute of limitations. 

The Treasurer and Receiver-General has no power to waive the bar of this 
statute. 



1922.] PUBLIC DOCUMENT — No. 12. 223 

Aug. 4, 1921. 
Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — A request has recently been presented to you 
for payment of a note of the Commonwealth of Massachusetts, 
a cop3' of which is as follows: — 

Commonwealth of Massachusetts. 

AT -lom "^UNE 10, 1794. 

No. 1251. 

Be it known that there is due from the Commonwealth of Massa- 
chusetts unto Mr. Samuel Mather or bearer the sum of sixty-three 
dollars & sixty-two cents bearing interest at five per centum per annum 
from the first day of July, seventeen hundred and ninety four, inclu- 
sively; payable half yearly, and subject to redemption by payment of 
said sum or any part thereof whenever provision shall be made there- 
for by law. 

Thomas Davis, 

Treasurer. 

You ask my opinion whether the Commonwealth is obli- 
gated to pay this note, with interest, and if so, the total 
amount involved in the payment, and also whether the bearer 
of the note is entitled to the proceeds. 

The note was issued under the provisions of St. 1793, 
c. 29, entitled "An Act to provide for the debt of this Com- 
monwealth," proposing a loan to the full amount of the debt, 
for which the subscribers were to receive certificates in the 
form above quoted. 

By St. 1802, c. 37, provision was made for paying off one- 
fifth of said debt and the issuing of new notes for the balance. 
From time to time thereafter other statutes were passed pro- 
viding for payment of further portions of the debt (St. 1803, 
c. 37; St. 1808, c. 132; St. 1810, c. 25; St. 1818, c. 41; St. 
1819, c. 43; St. 1821, c. 68), until by St. 1821, cc. 69 and 87, 
provision was made for payment of the remainder of the debt 
before July 1, 1821, after which date interest was to cease. 

The provision in the note, to the effect that it is "subject 
to redemption by payment of said sum or any part thereof 
whenever provision shall be made therefor by law," is to be 
interpreted as meaning that the note shall be payable when 
provision for payment is made by the Legislature. United 
States V. North Carolina, 136 U. S. 211, 220. Provision was 
made for payment of portions of the sum due from time to 
time prior to July 1, 1821, and for payment of the remainder 



224 ATTORNEY-GENERAL'S REPORT. [Jan. 

at that time. Any claim which Samuel Mather or the bearer 
had on the note had therefore accrued on July 1, 1821, more 
than one hundred years ago. 

G. L., c. 258, § 5, provides as follows: — 

Laws relative to the limitation of actions shall apply to claims against 
the Commonwealth and to the remedy herein provided. 

By virtue of this provision the claim against the Common- 
w^ealth on the note referred to is barred by the statute of 
limitations. Cf. McRae v. Auditor General, 146 Mich. 594; 
State v. Ralston, 182 Ind. 150. 

In my opinion, you have no power to waive the bar of the 
statute of limitations. That statute raises a presumption of 
payment. It is the duty of executive and administrative of- 
ficers of the Commonwealth to execute and administer the 
laws of the State as they are, and not in accordance with what 
may appear to the individual official to be just and fair. 
Trowbridge v. Schmidt, 82 Miss. 475. In line with this view 
is my opinion to you under date of May 13, 1921, that you 
have not power to compromise a claim due to the Common- 
wealth. If the presumption of payment should be rebutted 
in fact, the moral obligation to repay it is one to be fulfilled 
by the Legislature, which alone has the power to fulfill the 
moral obligations of the people. Cf. United States v. Realty 
Co., 163 U. S. 427, 439, et seq. 

St. 1821, c. 87, contains a provision that interest on said 
State debt should cease after July 1, 1821. In the absence 
of such a provision no interest on the note would be payable 
after the date on which it was redeemable. United States v. 
North Carolina, supra. The statute of limitations, therefore, 
applies equally to the claim of interest. 

In my opinion, you should refuse to pay both the principal 
and the interest upon this note. If the presumption of pay- 
ment arising from the long lapse of time should be rebutted in 
fact, the remedy is with the Legislature. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 225 



Tax Returns — Verification by Commissioner. 

The authority given to the Commissioner of Corporations and Taxation by 
G. L., c. 62, §§28 and 30, to verify returns and to require supplementary 
returns, is limited to cases where, for some particular reason, the Com- 
missioner believes the return filed to be fraudulent or incorrect. 

Aug. 12, 192L 
His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You have asked me to advise you concerning the 
powers of the Tax Commissioner in regard to the matter of 
verifying returns of taxable income, your request being ac- 
companied by a letter to you on that subject. 

Pertinent provisions of the statutes appearing in G. L., 
c. 62, §§28 and 30, are as follows: — 

Section 28. If the commissioner shall, from information derived 
from the return or otherwise, be of opinion that any person whose income 
is taxable under this chapter may have failed to file a return, or to in- 
clude in a return filed, either intentionally or through error, all the 
sources of his taxable income, he may require from such person a return 
or a supplementary return on oath, in such form in each individual in- 
stance as the commissioner prescribes, of all the sources from which the 
taxpayer received any income, whether or not taxable under this chap- 
ter in the year for which the return was made. . . . 

Section 30. In order to verify any return made pursuant to this 
chapter the commissioner may, within two years after September first 
of the year in which such return was due, if he has reason to believe 
the return to be fraudulent or incorrect, direct by special authorization 
a deputy or other agent to verify the return; . . . 

The letter states that recently the Income Tax Division has 
undertaken to verify all returns showing income above a cer- 
tain amount, without any pretense that the Commissioner has 
reason in each case to believe that the return was fraudulent 
or incorrect, and has sent peremptory notices to taxpayers who 
have filed returns in full compliance with the law, demanding 
that they submit minute details as to their income, so that 
their returns may be verified; that with this demand is sent 
a blank form of supplementary income tax return, known as 
Form 301, which form requires the taxpayer to whom it is 
sent, pursuant to section 28, to list all the sources from which 
he has received any income, whether or not taxable, the in- 
formation being required to be given in considerable detail. 



226 ATTORNEY-GENERAL'S REPORT. [Jan. 

The authority given the Commissioner by section 28 to re- 
quire supplementary returns is confined to instances where the 
Commissioner is of opinion that the taxpayer has failed to in- 
clude in his return, either intentionally or through error, all 
the sources of his taxable income. Similarly the authority 
given by section 30 to verify returns is confined to cases 
where the Commissioner has reason to believe the return filed 
to be fraudulent or incorrect. 

I am of opinion that the authority thus granted is not a 
general authority to act in all or in any general class of cases, 
but that it is limited to cases where for some particular reason 
the Commissioner believes the return filed to be fraudulent or 
incorrect, and that if the Commissioner, acting through the 
Director of the Income Tax Division, has undertaken to 
verify all returns showing income above a certain amount, 
and has sent demands, accompanied by supplementary income 
tax return blanks to be filled out, to all persons having income 
above that amount, he is acting in excess of his authority as 
to all cases not believed to be incorrect or fraudulent. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxation — Correction of Tax. 

The remedies given by statute for correction of a tax are exclusive. 

Where, after payment of a tax assessed to a corporation, no application for 
abatement is made or petition is filed in court within the time allowed 
by law, the taxpayer has no legal claim against the Commonwealth on 
account of error in the assessment. 

The Legislature is the keeper of the conscience of the Commonwealth. 

Aug. 16, 1921. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — I have your letter relative to the 1920 tax 
of the Boston & Maine Railroad, in which you state that by 
error in the office of the Commissioner of Corporations and 
Taxation the amount of the tax was greater by $15,303.17 
than it should have been. You say that it seems fair that 
this amount should be returned to the Boston & Maine Rail- 
road, and ask my permission to make payment accordingly. 

I infer from your letter that the tax in the sum assessed has 
been paid by the Boston & Maine Railroad, and that no 



1922.] PUBLIC DOCUMENT — No. 12. 227 

application for an abatement was made or petition filed in 
court within the time allowed by law. As the court has 
several times stated, the remedies given by statute are ex- 
clusive. The burden is put upon the taxpayer to discover 
errors which may be made in the computation and assessment 
of his tax, and to apply for a correction thereof within a 
certain time. If he fails to avail himself of the exclusive 
remedy provided by law he has no legal claim against the 
Commonwealth. 

If in a particular case it appears that if the remedy had 
been seasonably invoked the taxpayer would have been en- 
titled to an abatement, such claim, after the remedy is lost, 
rises no higher than a moral claim. It is manifestly impos- 
sible to entrust the conscience of the Commonwealth to a 
large number of executive or administrative officers. Differ- 
ences in point of view would in such a case result in a govern- 
ment of men, not a government of laws. The Legislature is 
the keeper of the conscience of the Commonwealth. See 
United States v. Realty Co., 163 U. S. 427. It has power to 
right an injustice, if, on due consideration, it finds that 
through accident or mistake a moral claim has arisen. If the 
legal claim has ceased to exist, the only remedy, in my opinion, 
is an application to the Legislature. See opinion to the 
Treasurer and Receiver-General under date of Aug. 4, 1921. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Minimum Wage Commission — Decree — Publication of Names 
of Employers. 

Under G. L., c. 151, §§ 4 and 11, the Minimum Wage Commission is re- 
quired to publish the names of employers who it has ascertained are 
not obeying its decrees. 

The members of the commission are not liable in an action for damages for 
publishing the names of such employers, if the publication is made in 
good faith. 

Aug. 16, 1921. 

Mr. Edward Fisher, Chairman, Minimum Wage Commission. 

Dear Sir: — You state that the Minimum Wage Commis- 
sion, in 1920, entered a decree for the paper box occupation 
establishing minimum rates, which became effective July 1, 



228 ATTORNEY-GENERAL'S REPORT. [Jan. 

1920; that several employers in the occupation have failed 
to comply with this decree, and have notified the commission 
in writing that they would not accept its recommendations; 
and that the commission has not as yet exercised the author- 
ity given in G. L., c. 151, § 4, to publish the names of em- 
ployers whom it finds to be following or refusing to follow 
such recommendations; nor has the commission yet complied 
with the provisions of section 11, which appear to require 
the commission to publish the names of employers found to 
be violating such decree. 

You ask my opinion on the following questions: — 

1. Under the provisions of section 11 of chapter 151 of the General 
Laws is it mandatory upon the commission, having ascertained that 
certain employers in this occupation are not obeying its decree, in- 
cluding employers who have refused to accept the same, to publish 
the names of all such employers in the manner therein provided; or is 
it optional with the commission whether or not such action shall be 
taken? 

2. Are members of the commission liable in any action for damages 
for publishing the names of such employers, provided the pubhcation 
is made in good faith in compliance with the provisions of said chapter 
151? 

G. L., c. 151, relates to the powers and duties of the 
Minimum Wage Commission. The commission was first es- 
tablished and its powers and duties provided in St. 1912, 
c. 706. 

Sections 1, 2 and 3 of said chapter 151 provide for the in- 
vestigation of wages paid to female employees in any par- 
ticular occupation called in question, the establishment of a 
wage board to determine suitable minimum wages for female 
employees, learners, apprentices and minors, and the report of 
such determination to the commission. Section 4 requires the 
commission to review the report of the wage board, and, if it 
approves any or all of its determinations, to give a public hear- 
ing to employers paying less than the minimum wage approved, 
and if after such public hearing it finally approves the de- 
termination, to enter a decree of its findings. 

I understand that the procedure which you have followed 
has been in compliance with these provisions, and that the 
minimum wages determined by the wage board and approved 
by the commission are minimum wages for female employees, 
beginners and minors, respectively. 



1922.] PUBLIC DOCUMENT — No. 12. 229 

Said section 4 continues as follows: — 

The commission shall thereafter pubUsh at such times and in such 
manner as it may deem advisable a summary of its findings and of its 
recommendations. It shall also at such times and in such manner as it 
shall deem advisable publish the facts, as it may find them to be, as to 
the acceptance of its recommendations by the employers engaged in 
the industry to which any of its recommendations relate, and may pub- 
lish the names of employers whom it finds to be following or refusing 
to follow such recommendations. 

In St. 1912, c. 706, § 6, the commission was required to 
publish the names of such employers. This provision was 
changed in the following year, by St. 1913, c. 673, § 2, making 
publication permissive. 

Section 11 of said chapter 151 provides as follows: — 

The commission shall from time to time determine whether em- 
ployers in each occupation investigated are obejdng its decrees, and 
shall publish in the manner provided in section four, the name of ony 
employer whom it finds to be violating any such decree. 

This section was originally enacted in St. 1912, c. 706, § 14, 
and has not been changed. 

Section 4 appears to relate more specifically to the findings 
of the commission embodied in the "decree" therein referred 
to; while section 11 relates to subsequent findings to be made 
by the commission from time to time. While section 4 is per- 
missive merely, section 11 is mandatory and requires the 
commission to publish the names of employers who are found 
not to be obeying its decrees. 

The provisions of this chapter have been held to be con- 
stitutional, since they contain no words of compulsion either 
upon employer or employee. Holcombe v. Creamer, 231 Mass. 
99. Section 11 (St. 1912, c. 706, § 14) is one of the sections 
specifically referred to in that case. It should be noted that 
in the decision it was pointed out that the word "decree," as 
used in the statute, is not used in its judicial sense but as 
meaning recommendation. 

I understand that you have determined since the entry of 
your decree that the employers to whom you refer have not 
been complying with your decree. I advise you, therefore, 
that under G. L., c. 151, § 11, it is mandatory upon the com- 



230 ATTORNEY-GENERAL'S REPORT. [Jan. 

mission to publish the names of all such employers, in the 
manner therein provided. 

My answer to your second question, as to whether the 
members of the commission are liable in any action for dam- 
ages for publishing the names of such employers, provided the 
publication is made in good faith, is that they are not liable. 

G. L., c. 151, § 13, provides as follows: — 

No member of the commission and no newspaper pubHsher, pro- 
prietor, editor or employee thereof, shall be liable to an action for dam- 
ages for publishing the name of any employer as provided for in this 
chapter, unless such pubHcation contains some wilful misrepresentation. 

This section appears in similar language in St. 1912, c. 706, 
§16. 

In Holeomhe v. Creamer, 231 Mass. 99, 111, the court says, 
with reference to said section 16, as follows: — 

It is not necessary to consider the scope and validity of § 15 of St. 
1912, c. 706, which purports to compel newspapers to pubHsh notices 
and findings of the commission at its regular rates for space, and of § 16, 
which purports to exonerate the commission and publishers and pro- 
prietors of newspapers from HabiUty for damages for such publication, 
except for wilful misrepresentation. Those sections are not involved 
on this record and are left entirely open for future consideration. Even 
if they should be found to transcend in any respect the power of the 
Legislature under the Constitution, they are quite separable from the 
rest of the act. It cannot be thought that the rest of the statute would 
not have been enacted without them, and therefore the constitutionality 
of the sections here assailed would not be affected. 

While the court has thus reserved the question of the con- 
stitutionality of that section for future consideration, I can 
find no constitutional right or privilege of an employer which 
is violated thereby. There is no interference with any of the 
natural and inalienable rights discussed in the opinion in 
Holeomhe v. Creamer, nor is there any interference with any 
vested right of such employer. Wilson v. Head, 184 Mass. 
515, 518. 

Even if G. L., c. 151, § 13, were unconstitutional for any 
reason, it would, nevertheless, be the duty of the commission, 
under section 11, which has received the sanction of the court 
in Holeomhe v. Creamer, to publish the names of employers 
found to be violating its decrees. Such publication in per- 



1922.] PUBLIC DOCUMENT — No. 12. 231 

formance of the duty imposed upon them is a privileged com- 
munication which, if made in good faith, without malice and 
with reasonable cause to believe the statements contained 
therein to be true, cannot be the basis of any liability for 
libel. Rowland v. Flood, 160 Mass. 509; Smith v. Higgins, 
16 Gray, 251. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Trust Company — Charter — Right of Purchaser after 
Liquidation. 

The charter of a corporation is the right given by general law or special 

statute to organize and conduct its business in accordance with its 

purposes and powers. 
Until a corporation is dissolved, even after it has ceased to do business, it 

continues to be organized, with by-laws, stockholders and officers. 
The charter or franchise of a corporation is not in its nature transferable. 
G. L., c. 172, § 44, and c. 156, § 42, do not authorize the sale of the charter 

of a trust company, but only of its transferable assets. 

Aug. 16, 1921. 
Mr. Roy A. Hovey, Acting Commissioner of Banks. 

Dear Sir: — You ask my opinion concerning the right of 
the purchasers of the charter of a trust company which has 
been liquidated and has ceased to do business, to organize 
and commence business as a trust company in any manner 
other than as provided in G. L., c. 172. 

The charter of any corporation is the right given by general 
law or special statute to organize and conduct its business in 
accordance with its purposes and powers. It is its right to 
exist as a corporation. Adams v. Yazoo & M. V. R. Co., 
77 Miss. 194, 253; Whittenton Mills v. Upto7i, 10 Gray, 582, 
585. So long as a corporation is not dissolved, it has that 
right except in so far as the enjoyment of the right may be 
restricted by law. A corporation may be dissolved either by 
legislative act or by judicial proceedings when authorized by 
statute, and in no other way. Farrar v. Pillsbury, 217 Mass. 
330, 335; Olds v. City Trust, etc., Co. of Philadelphia, 185 
Mass. 500, 505; Folger v. Columbian Ins. Co., 99 Mass. 267, 
276; Rice v. National Bank of the Commonwealth, 126 Mass. 
300, 304; Commonwealth v. Union Ins. Co., 5 Mass. 230, 232. 



232 ATTORNEY-GENERAL'S REPORT. [Jan. 

Cf. G. L., c. 155, § 50; c. 167, § 22. Ceasing to do business 
and liquidation of its affairs does not effect a dissolution. 
Russell V. M'Lellan, 14 Pick. 63; Revere v. Boston Copper 
Co., 15 Pick. 351; Boston Glass Manufactory v. Langdon, 24 
Pick. 49, 52-54; Heard v. Talbot, 7 Gray, 113; Packard v. 
Old Colony Railroad, 168 Mass. 92, 99. 

A corporation once organized continues to be organized 
until it is dissolved. Its members, the stockholders, change 
from time to time as shares of its stock are transferred. Its 
officers are elected by the stockholders or directors. Its by- 
laws and the statutes are the rules governing its conduct. 
Even after a corporation has ceased to do business, so long as 
it is not dissolved it continues to have stockholders, its by- 
laws continue in force, and its officers should continue to be 
elected conformably to law. 

G. L., c. 172, contains specific provisions governing the 
election of officers and directors, the adoption of by-laws, and 
the issuing of stock by trust companies. While other pro- 
visions may be inapplicable to a trust company which has 
ceased to do business, in my opinion these are not. 

The charter or franchise to be a corporation is not in its 
nature transferable. In many instances acts of the Legislature 
have purported to authorize such transfers. But the true 
nature of such transactions is a surrender of its charter by the 
transferring corporation, thus working a dissolution, and a 
grant de novo of a similar charter to the transferee. This may 
be done by authority of the Legislature, but not otherwise. 
Commonwealth v. Smith, 10 Allen, 448, 455, 456; Memphis, etc., 
R.R. Co. v. Railroad Commissio7iers, 112 U. S. 609, 619-623; 
State v. Sherman, 22 Ohio St. 411, 428; Morawetz on Cor- 
porations, §§ 924, 928. 

You ask specifically whether the owners of the charter of 
the Puritan Trust Company, which was purchased by the 
Tremont Trust Company and later sold, may now organize 
and commence business as a trust company without complying 
with G. L., c. 172, and especially sections 6, 7 and 8. My 
reply is that the trust company is already organized under 
an agreement of association now in existence; that it has a 
name and location; that it has stockholders, and should 
have officers; that any vacancies may be filled in the manner 
provided in the statute; and that it may at any time proceed 
to carry on the business of a trust company, subject, however. 



1922.] PUBLIC DOCUMENT — No. 12. 233 

to the requirements of the law as to sufficiency of assets, et 
cetera. In this connection I refer you to G. L., c. 167, §§ 22, 
23, and c. 172. 

You call my attention to an opinion of my predecessor to 
the Bank Commissioner under date of Dec. 9, 1919. That 
opinion was that the purchase of the franchise of the Puritan 
Trust Company by the Tremont Trust Company did not 
work a merger of the two franchises. I assume that the con- 
clusion is correct. But the opinion contains an assumption, 
apparently based upon the language of the inquiry, which in 
turn rested on the language of St. 1914, c. 504, § 2, and St. 
1903, c. 437, § 40, that the franchise, or charter, of the Pur- 
itan Trust Company was acquired by the Tremont Trust 
Company, with which I do not agree. 

St. 1914, c. 504, § 2, appears in G. L., c. 172, § 44, as 
follows: — 

No trust company shall be merged in or consolidated with another 
trust company except under the provisions of sections fortj^-two and 
forty-six of chapter one hundred and fifty-six, which are hereby made 
appHcable to the sale or exchange of all the property and assets, includ- 
ing the good will and corporate franchise, of a trust company. 

G. L., c. 156, § 46, merely provides remedies for minority 
stockholders. G. L., c. 156, § 42, contains a portion of St. 
1903, c. 437, § 40, in the following words: — 

Every corporation may, at a meeting duly called for the purpose, by 
vote of two thirds of each class of stock outstanding and entitled to vote, 
or by a larger vote if the agreement of association or act of incorporation 
so requires, change its corporate name, the nature of its business, the 
classes of its capital stock subsequently to be issued and their preferences 
and voting power, or make any other lawful amendment or alteration in 
its agreement of association or articles of organization, or in the cor- 
responding provisions of its act of incorporation, or authorize the sale, 
lease or exchange of all its property and assets, including its good will, 
upon such terms and conditions as it deems expedient. 

St. 1903, c. 437, § 40, contains the words "and its cor- 
porate franchise" after the words "good will." These words 
are omitted in the General Laws, with no explanation of the 
reason for such omission, although they still appear in G. L., 
c. 172, § 44. 

I am informed that these words were omitted in G. L., 
c. 156, § 42, because it was the view of the commissioners that 



234 ATTORNEY-GENERAL'S REPORT. [Jan. 

a corporate franchise is not a transferable asset. With that 
view I am in accord. I am of the opinion that the sections 
quoted do not authorize the sale of the charter of a trust 
company in such a way as to nullify or render inapplicable 
the statutes and principles which I have referred to and 
defined. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Elections — Expenditures by or on Behalf of Candidates for 

City Offices. 

Under G. L., c. 55, § 1, the amount which a candidate may spend for a 
city office is determined by the number of registered voters qualified 
to vote at the next preceding election, whether State or city. 

Aug. 16, 1921. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — G. L., c. 55, § 1, enumerates the sums which 
may be spent by or on behalf of candidates for certain offices, 
and further provides, in part: — 

A candidate for any other office may expend an amount not exceed- 
ing twenty dollars for each one thousand, or major portion thereof, of 
the registered voters qualified to vote for candidates for the office in 
question at the next preceding election; but no such candidate shall 
expend more than fifteen hundred dollars for the expenses of a primary, 
nor more than three thousand dollars for the expenses of an election. 
Any candidate may, however, expend a sum not exceeding two hundred 
dollars for primary or election expenses. Contributions by a candidate 
to political committees shall be included in the foregoing sums. 

You inquire whether the amount w^hich may be spent by a 
candidate for a city office is based upon the number of regis- 
tered voters at the next preceding city election or the next 
preceding election, whether State or city. 

For many years the practice has been to count the number 
of voters registered at the time of each election, whether 
State or city, even though some of such voters were qualified 
to vote for candidates for particular offices only, and even 
though such offices were not in issue at such election. Each 
election, therefore, furnishes a definite measure of the election 



1922.] PUBLIC DOCUMENT — No. 12. 235 

expenses permitted at the succeeding election. As all regis- 
tered voters are now qualified to vote for all offices by reason 
of the adoption of the Nineteenth Amendment to the Federal 
Constitution and the passage of enabling legislation in con- 
formity therewith, the provision that the voters to be counted 
must be qualified to vote for the office in question has ceased 
to have significance. I am therefore of opinion that the next 
preceding election, whether State or city, is the election 
designated by the act. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Houses of Correction — Transfer. 

The Commissioner of Correction, under G. L., c. 127, § 105, is authorized 
to transfer all the prisoners from one house of correction to another for 
any purpose within his discretion. 

Aug. 17, 1921. 

Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You ask me to advise you whether, under 
existing statutes, your department has the power to transfer 
all of the inmates from one or more of the houses of correc- 
tion, thereby leaving no prisoners therein, such action being 
taken against the objection of those charged with the main- 
tenance thereof. 

G. L., c. 127, § 105, is as follows: — 

He [the commissioner] may remove a prisoner from one house of 
correction to another in the same or another county. 

This statute, as originally enacted, St. 1870, c. 370, § 2, was 
as follows: — 

The commissioners of prisons shall, as far as practicable, classify all 
prisoners held under sentence in all the jails and houses of correction in 
the state, or that may be committed thereto at any time hereafter, 
having reference to sex, age, character, condition and offences, and in 
such a manner as to promote the reformation, safe custody, and economy 
of support of the prisoners, and the separation of male and female 
prisoners; and for this purpose may remove prisoners from one jail to 
another jail in the same or in any other county, and from one house 
of correction to another in the same or in any other county, and the said 
prisoners shall serve the remainder of their terms of sentence in the 
prisons to which they shall be so removed from time to time. 



236 ATTORNEY-GENERAL'S REPORT. [Jan. 

Said provision appears in the Public Statutes (P. S., c. 219, 
§ 4) in the following form: — 

They shall, as far as practicable, classify all prisoners that have 
been or may be sentenced and committed to the jails and houses of 
correction, having reference to sex, age, character, condition, and of- 
fences, and in such a manner as to promote the reformiation, safe cus- 
tody, and economy of support of the prisoners, and the separation of 
male and female prisoners; and for this purpose they may remove 
prisoners from one jail to another and from one house of correction to 
another in the same or in any other county; and such prisoners shall 
serve the remainder of their terms of sentence in the prisons to which 
they are so removed from time to time. 

No subsequent change was made until the Revised Laws 
were enacted, when the statute was changed to a form similar 
to that in which it now appears. 

R. L., c. 225, § 91, is as follows: — 

They may remove a prisoner from one house of correction to another 
in the same or another county. 

No explanation appears in the report of the commissioners 
of the reason for the omission of the statement of purposes for 
which prisoners may be removed. Certainly, the provision in 
the Revised Laws is not to be interpreted as having a nar- 
rower application than the provisions of the earlier statutes. 
Cf. Bent V. Hubbardston, 138 Mass. 99. 

The natural inference to be drawn from the omission would 
seem to be that the Commissioner is authorized to transfer 
prisoners from one house of correction to another, not only 
for the purpose of classification, but for any other purpose 
within his discretion. 

You refer also to other sections of said chapter 127 and to 
G. L., c. 126, § 8, requiring the county commissioner in each 
county, except Dukes County, to provide a house or houses 
of correction. I do not see that these provisions have any 
particular application. 

It is my opinion that the Commissioner has the power to 
remove all the prisoners from one or more houses of correction 
to others, in accordance with the provisions of G. L., c. 127, 
§ 105. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 237 



Sale of Securities — Registration. 

Where a partnership is registered as a broker, under St. 1921, c. 499, the 
partners may sell securities on behalf of the firm without being per- 
sonally registered as brokers or salesmen. 

Where a corporation is registered as a broker, under St. 1921, c. 499, as a 
general rule an officer who regularly engages in the business of selling 
or acquiring for sale securities on behalf of the corporation should be 
registered as a salesman, but an officer need not be registered in order 
to make an occasional purchase or sale. 

Aug. 17, 1921. 

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

Dear Sir: — The commission of which you are chairman 
has requested my opinion upon the following points in con- 
nection with the operation of St. 1921, c. 499. 

1. If a corporation registers as a broker under said act, does such 
registration include the officers of the corporation, or is it necessary 
that the officers of the corporation, if they desire to sell securities, take 
out registration as salesmen? 

2. If a partnership registers as a broker under said act, does such 
registration include the partners, or is it necessary for each partner to 
take out registration as a salesman? 

Said chapter 499 contains the following provisions: — 

Section 2. The following words and phrases, as used in this chap- 
ter, shall have the following meanings, unless the context otherwise 
requires: — 

(b) "Person" shall include a natural person, a corporation created 
under the laws of this commonwealth or of any other state, country or 
sovereignty, a partnership, an association, a joint stock company, a 
trust and a trustee or any beneficiary, agent or other person as herein 
defined acting under a trust, and any unincorporated organization. 

(e) ''Broker" shall include every person, other than a salesman, who 
in this commonwealth engages either for all or part of his time, di- 
rectly or through an agent, in the business of selling any security issued 
by himself or another person, or of purchasing or otherwise acquiring 
such securities for another with the purpose of reselling them, or of of- 
fering them for sale to the public, for a commission or at a profit. 

(/) ''Salesman" shall include every person employed or appointed 
or authorized by a broker to sell in any manner within this common- 
wealth. 



238 ATTORNEY-GENERAL'S REPORT. [Jan. 

Section 8. No person shall sell securities within this commonwealth 
as broker or salesman unless he has been registered by the commission. 
Any person may become registered upon complying with the provisions 
of this section. . . . 

I assume that by the questions propounded the commission 
means to inquire whether the officers of a corporation and the 
partners composing a partnership may act for the corporation 
and the partnership, respectively, in selling securities, without 
additional registration. Of course, neither officers nor part- 
ners may act as broker or salesman, on their own account, 
unless registered. 

A corporation can act only through its officers and agents, 
and is bound by their action within the apparent scope of 
their authority. Fay v. Noble, 12 Cush. 1, 18; Kennebec Co. 
V. Augusta Ins. etc., Co., 6 Gray, 204, 209; //i re Wm. S. 
Butler & Co. Inc., 207 Fed. Rep. 705, 713; American Soda 
Fountain Co. v. Stolzenbach, 75 N. J. L., 721, 726. 

Similarly, a partnership must act through, and is represented 
by, the partners. Kennebec Co. v. Augusta Ins. etc., Co., 6 
Gray, 204, 207; Craig v. Warner, 216 Mass. 386, 393. 

In my opinion, where a partnership is registered as a broker 
under the act, the partners may sell securities on behalf of the 
firm without being personally registered as brokers or sales- 
men. 

In the case of a corporation, the question depends upon the 
circumstances of each particular case. Without in any way 
attempting to forecast the decision in particular cases which 
have not as yet arisen in concrete form, I may suggest the 
general principle which is to be applied in determining the 
question of registration. An officer who regularly engages, 
either for the whole or part of his time, in the business of sell- 
ing or acquiring on behalf of the corporation securities for the 
purpose of selling or offering them for sale to the public for 
a commission or at a profit must, in my opinion, be registered 
as a salesman, no matter what his office may be. On the 
other hand, an officer who has authority to so acquire or sell, 
but who is regularly engaged in the duties appertaining to his 
office, which do not include the acquiring and selling of se- 
curities, need not register as a salesman in order to make an 
occasional purchase or sale. In the latter case the purchase or 
sale may well be deemed to be made by the corporation through 
the officer, rather than by a salesman acting on its behalf. 



1922.] PUBLIC DOCUMENT — No. 12. 239 

I may, however, point out that if the corporation takes the 
ground that the officer making the sale need not be registered 
because the corporation itself makes the sale, the corporation 
assumes the resulting responsibility, and may have its license 
as a broker revoked if the sale be fraudulent. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Constitutional Law — Justice of the Peace — Right of Women 
to Appointment. 

The office of justice of the peace, being a judicial office, is one from which 

women are excluded by the State Constitution. 
St. 1921, c. 449, § 3, does not purport to make women eligible to hold the 

office of justice of the peace. 

Aug. 18, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir : — You have asked me to advise you relative to the 
request of a town clerk, who is a woman, for appointment as 
a justice of the peace for the purpose of solemnizing marriages 
while holding the office of town clerk. 

The following statutes are material to the question which 
you ask. 

G. L., c. 207, § 38, is, in part, as follows: — 

A marriage may be solemnized in any place within the common- 
wealth . . . by a justice of the peace if he is also clerk or assistant clerk 
of a town ... in the town where he holds such office. . . . 

G. L., c. 222, § 1, is as follows: — 

Justices of the peace and notaries public shall be appointed, and 
their commissions shall be issued, for the commonwealth, and they 
shall have jurisdiction throughout the commonwealth except as pro- 
vided in section thirty-six of chapter two hundred and eighteen. Unless 
otherwise expressly provided they may administer oaths or affirmations 
in all cases in which an oath or affirmation is required, and take ac- 
knowledgments of deeds and other instruments. 

G. L., c. 222, § 2, is as follows: — 

The governor, with the advice and consent of the council, may ap- 
point as special commissioners for terms of seven years, women who are 



240 ATTORNEY-GENERAL'S REPORT. [Jan. 

more than twenty-one years of age. Special commissioners shall have 
like power as justices of the peace to administer oaths, to take deposi- 
tions, affidavits, acknowledgments of deeds and other instruments and 
to issue summonses for witnesses. They shall be entitled to like fees 
as justices of the peace for like services. A change in the name of a 
special commissioner shall terminate her commission, but she may be 
reappointed under her new name. 

The office of justice of the peace is a judicial office, and is 
recognized as such by the State Constitution. It is, accord- 
ingly, an office which under the Constitution a woman is not 
eligible to hold. Opinion of the Justices, 107 Mass. 604; 
Opinion of the Justices, 150 Mass. 586; Opiriion of the Jus- 
tices, 165 Mass. 599; Opinion of the Justices, 237 Mass. 591; 
V Op. Atty.-Gen. 479. 

In recognition of this principle, the Legislature has provided 
(G. L., c. 222, § 2, quoted above) for the appointment of 
women as special commissioners, with like power as justices of 
the peace in the respects enumerated in that section. The 
powders therein enumerated, how^ever, do not include the power 
to solemnize marriages. That power by G. L., c. 207, § 38, 
may be exercised by certain persons, including justices of the 
peace who are clerks or assistant clerks of towns, but not in- 
cluding special commissioners. 

The Nineteenth Amendment to the Federal Constitution 
has not enlarged the right of w^omen in respect to holding of- 
fice, and therefore does not confer upon the applicant the 
right to appointment to the office of justice of the peace. I 
have already stated my view on this point in an opinion to 
the Secretary of the Commonwealth on July 20, 1921. See 
Opinion of the Justices, 237 Mass. 591. 

St. 1921, c. 449, § 3, provides, in part: — 

Chapter thirty of the General Laws is hereby amended by inserting 
after section seven the following new section: — Section 7 A. Women 
shall be eligible to election or appointment to all state offices, positions, 
appointments and emplojTnents, except those from which they may be 
excluded by the constitution of the commonwealth. . . . 

The office of justice of the peace is one from which, as I 
have stated, women are excluded by the State Constitution. 
It follows that this statute does not make a w^oman eligible 
to appointment as a justice of the peace, and furthermore, 



1922.] PUBLIC DOCUMENT — No. 12. 241 

even if it purported to, it would not be effective to modify 
the law, which is derived from the Constitution itself. 

I must therefore advise you that the applicant, being a 
woman, is not eligible to appointment as a justice of the peace. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Trust Company — Investments — Limit of Liabilities of Any 

One Person. 

There is no limit to the amount to which a trust company may invest its 
funds in the stock of a single corporation. 

There is no limit to the amount of bonds of a corporation which may be 
held by a trust company, unless they are acquired as a part of a trans- 
action by which a loan is made contrary to G. L., c. 172, § 40. 

Aug. 23, 1921. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You ask my opinion whether investments of 
a trust company, having a capital stock of $200,000, in the 
stock of a corporation to the amount of over $200,000 and in 
the bonds of another corporation to the amount of over 
$80,000 are a violation of G. L., c. 172, § 40. 

Said section provides, in part, as follows: — 

The total liabilities of a person, other than cities or towns, including 
in the liabilities of a firm the liabilities of its several members, for money 
borrowed from and drafts drawn on am^ such corporation having a 
capital stock of five hundred thousand dollars or more shall at no time 
exceed one fifth part of the surplus account and of such amount of the 
capital stock of such corporation as is actually paid up. Such total 
liabilities to any such corporation having a capital stock of less than 
five hundred thousand dollars shall at no time exceed one fifth of such 
amount of the capital stock of the corporation as is actually paid 
up; . . . 

G. L., c. 172, § 33, is as follows: — 

Such corporation may, subject to the limitations of the following 
section, advance money or credits, whether capital or general deposits, 
on real estate situated in the commonwealth and on personal security, 
on terms to be agreed upon, and also invest its money or credits, whether 
capital or general deposits, in the stocks, bonds or other evidences of 
indebtedness of corporations or of governments, both foreign and 
domestic. 



242 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is clear that there is no limit to the amount to which 
a trust company may invest its funds in the stock of a single 
corporation. It remains to consider whether section 40 im- 
poses a limit to the amount of authorized investment in the 
bonds of a corporation. 

Section 40 limits the total liabilities to a trust company 
which a person may incur for money borrowed from and 
drafts drawn on such corporation. There is no limit to the 
amount of bonds of a corporation which may be held by a 
trust company if there is no violation of section 40, and there 
is no violation of that section unless there is a loan or accept- 
ance of draft by the trust company. 

A loan of money is the furnishing of money by one party 
to another on an agreement for repayment. Payne v. Gar- 
diner, 29 N. Y. 146, 167. The purchase of a bond from a 
third person is an entirely different transaction. No doubt, 
however, a loan may be made as a part of a transaction by 
which a bond is given. Legal Tender Case, 110 U. S. 421, 
444. The statutes themselves indicate a distinction made by 
the Legislature between loans and other investments. G. L., 
c. 168, § 54; c. 172, §§ 51, 61; c. 173, §§ 2, 4. 

My answer to your inquiry is that there has been no viola- 
tion of section 40 in the case you state unless there has been 
a loan of money, as defined above, by the trust company to 
the corporation in excess of the limit imposed. See V Op. 
Atty.-Gen. 219. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Special Cominission on Necessaries of Life — Authority to in- 
vestigate Prices of Laundry Work — Commodities — Neces- 
saries of Life. 

In St. 1921, c. 325, § 2, the word ''commodities" means articles of mer- 
chandise, such as fuel, and does not include labor or other service. 

Laundry work is not a necessary of life, within the meaning of St. 1921, 
c. 325, § 2. 

Laundry work does not relate to or affect the production, transportation or 
sale of commodities which are necessaries of life, within the meaning 
of St. 1921, c. 325, § 2. 

It follows that the commission is not authorized to investigate circumstances 
affecting the prices of laundry work. 



1922.] PUBLIC DOCUMENT — No. 12. 243 

Aug. 26, 1921. 

Mr. Eugene C. Hultman, Chairman^ Special Commission on the Necessaries 

of Life. 

Dear Sir: — You ask my opinion, in substance, whether 
the commission has authority, under St. 1921, c. 325, to in- 
vestigate prices of laundry work. 

The subject-matters to which the authority of the com- 
mission extends are defined by St. 1921, c. 325, § 2. Said 
section is as follows : — 

It shall be the duty of the commission to study and investigate the 
circumstances affecting the prices of fuel and other commodities which 
are necessaries of life. The commission may inquire into all matters 
relating to the production, transportation, distribution and sale of the 
said commodities, and into all facts and circumstances relating to the 
cost of production, wholesale and retail prices and the method pursued 
in the conduct of the business of any persons, firms, or corporations 
engaged in the production, transportation, or sale of the said com- 
modities, or of any business which relates to or affects the same. It 
shall also be the duty of the said commission to study and investigate 
the circumstances affecting the charges for rent of property used for 
living quarters, and in such investigation the commission may inquire 
into all matters relating to charges for rent. . . . 

The question on which you ask my opinion depends pri- 
marily for its answer on the proper construction of the words 
"fuel and other commodities w^hich are necessaries of life." 
If laundry work is a commodity which is a necessary of life, 
within the meaning of those words as used in said section, the 
commission is authorized to investigate the circumstances af- 
fecting the prices of laundry work, with all the powers granted 
by St. 1921, c. 325; otherwise not, unless authority is given 
by the inclusion of the clause "or of any business which re- 
lates to or affects the same." 

The words "necessaries of life" first made their appearance 
in our statutes, so far as I can ascertain, in St. 1898, c. 548, 
§ 1, popularly known as the "Dubuque law," providing 
equitable process after judgment in cases where the judgment 
is founded on a claim for necessaries of life. By St. 1901, 
c. 176, this statute was amended by including claims for work 
or labor performed by the creditor for the debtor. The words 
next occur in the "Commonwealth Defense Act of 1917," 
Gen. St. 1917, c. 342, after the United States had become en- 



244 ATTORNEY-GENERAL'S REPORT. [Jan. 

gaged in the World War. By section 23 of that act the 
Governor was authorized to investigate circumstances relating 
to "food or other necessaries of life." 

By Gen. St. 1919, c. 341, a Special Commission on the 
Necessaries of Life was established, the duties and powers of 
which were defined in section 1 substantially as in the first 
two sentences of St. 1921, c. 325, § 2. This act was amended 
by Gen. St. 1919, c. 365, by adding a clause substantially like 
the last sentence of said section 2. 

The term of service of the commission was extended and 
certain provisions of Gen. St. 1917, c. 342, were continued by 
St. 1920, c. 628. 

The words "necessaries of life" also appear in article XLVII 
of the amendments to the Constitution of Massachusetts, 
which is as follows: — 

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

In an act of Congress "to provide further for the national 
security and defense" (act, Aug. 10, 1917, c. 53, as amended 
by act, Oct. 22, 1919, c. 80) measures are provided for con- 
serving foods, feeds, wearing apparel, fuel, and articles required 
for the production thereof, which in the act are called "neces- 
saries." 

"Commodity" is a word of comprehensive signification. 
S. S. White Dental Mfg. Co. v. Commonwealth, 212 Mass. 35, 
38. It is a general term "which signifies convenience, privi- 
lege, profit, and gains, as well as goods and wares." Portland 
Bank v. Apthorp, 12 Mass. 252, 256. But the word has also 
commonly a more restricted meaning as signifying an article 
of merchandise. Century Dictionary. It is to be determined 
in the present instance whether the word is to be given its 
general or its more restricted meaning. 

In the statute under consideration the word "commodities" 
is used as applicable to things which are capable of "produc- 
tion, transportation, distribution and sale." It is used in 
conjunction with the word "fuel," and therefore, by the prin- 
ciple of ejusdem generis, its application should be confined to 



1922.] PUBLIC DOCUMENT — No. 12. 245 

things of similar import. Clark v. Gaskarth, 8 Taunt. 431; 
Renick v. Boyd, 99 Pa. St. 555; Matter of Hermance, 71 N. Y. 
481, 486, 487; People v. N. Y., etc., Rij. Co., 84 N. Y. 565, 
568, 569; The J. Dohertij, 207 Fed. Rep. 997, 999, 1000; 
Endlich, Interpretation of Statutes, §§ 405, 406; cf. Reed v. 
Tarbell, 4 Met. 93, 101. 

Laundry work is labor or service. Any materials used are 
incidental to the labor performed. It is not a subject of pro- 
duction or transportation, nor is it an article of merchandise. 
In my opinion, the Legislature, in using the word " commod- 
ities'' in this statute, did not mean to extend the authority of 
the commission beyond articles of merchandise, such as fuel, 
which are necessaries of life, or to include within its scope 
labor and other service, except in so far as they are included 
in the cost of the commodities. 

In this connection it should be stated that Gen. St. 1919, 
c. 365, amending Gen. St. 1919, c. 341, by extending the 
authority of the commission to investigate charges for rent, 
was passed after a decision by a single justice of the Supreme 
Judicial Court {Sherburne v. Sesen, Suffolk County, No. 16854, 
Law) that such authority was not given by Gen. St. 1919, 
c. 341, since rent is not a commodity which is the subject of 
"transportation, distribution and sale," within the meaning of 
the statute. 

The words "necessaries of life," taken literally, must mean 
things necessary to sustain life. The word "necessaries" alone 
may have that restricted meaning. International Text Book 
Co. V. Connelly, 206 N. Y. 188. It was used in that sense in 
the Federal statute. Cf. United States v. American Woolen 
Co., 265 Fed. Rep. 404; C. A. Weed & Co. v. Lockwood, 264 
Fed. Rep. 453. The words "necessaries of life" naturally 
connote articles of prime importance, such as food, fuel, 
housing and clothing. 

If laundry work is not a commodity it is needless to consider 
whether it is a necessary of life. It may be observed, how- 
ever, that no labor or service is included within the category 
of State and Federal laws above enumerated; that in the so- 
called "Dubuque law" the Legislature evidently was of opinion 
that work and labor were not necessaries of life; and that it 
was necessary to include the claim for work and labor by 
amendment. It cannot be said as matter of law that the work 
of public laundries might not be performed at home, or how 



246 ATTORNEY-GENERAL'S REPORT. [Jan. 

much, if not all, could be done at home. It is my opinion, 
therefore, that laundry work is not a necessary of life, within 
the meaning of those words as used by our Legislature. 

It remains to consider the effect of the words "or any busi- 
ness which relates to or affects the same." They form a part 
of a provision to the following effect: — 

The commission may inquire . . . into all facts and circumstances 
relating to the cost of production, wholesale and retail prices and the 
method pursued in the conduct ... of any business which relates to 
or affects the same [production, transportation, or sale of commodities 
which are necessaries of life]. 

In my opinion, laundry work does not relate to or affect 
the production, transportation or sale of such commodities, 
and therefore the commission derives no authority from this 
clause. 

I must therefore advise you that the commission is not 
authorized to investigate circumstances affecting the prices of 
laundry work. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Public Health — Manufacture and Sale of Mattresses , Pillows 
and Similar Articles having a Filliiig of Second-hand Ma- 
terial — Investigation by the Department of Public Health. 

The general purpose of G. L., c. 94, §§ 270-277, is to prohibit (1) the sale 
or use of second-hand filling for mattresses, pillows and similar articles 
without a tag showing that it is second-hand; and (2) the use in such 
articles of any material which has been used in a hospital or about the 
person of any one having an infectious or contagious disease. 

In case of violation of any provision of G. L., c. 94, §§ 270-277, it is the 
duty of the Department of Public Health to proceed by complaint to 
enforce the penalties provided. 

Aug. 26, 1921. 

Dr. Eugene R. Kelley, Commissioner of Public Health. 

Dear Sir: — You have asked my opinion with respect to 
the duties of your department in relation to the mattress in- 
dustry, whether those duties are limited to the provisions of 
G. L., c. 94, § 273, or whether they extend to the enforce- 
ment of all the provisions of G. L., c. 94, §§ 270-277, inclusive. 

G. L., c. 94, § 273, is as follows: — 



1922.] PUBLIC DOCUMENT — No. 12. 247 

The department of public health, whenever there is reason to believe 
that any provision of sections two hundred and seventy to two hundred 
and seventj^-seven, inclusive, is being \iolated in any factory, shop, 
warehouse, store or other place, shall cause an investigation to be made 
of any such place, and for this purpose any member or duly authorized 
emploj^ee of the said department may enter such building or other place 
at all reasonable times. If, upon investigation, mattresses, pillows, 
cushions, muff beds, quilts or similar articles, or materials for use in the 
manufacture of the same, shall there be found, which have been pre- 
\iously used in or about a hospital, or on or about the person of any 
one having an infectious or contagious disease, such materials or articles, 
whether manufactured or in process of manufacture, shall be marked 
by the said department with labels bearing the word ''unclean" in con- 
spicuous letters, and the said department, with or without notice to the 
owner or supposed owner, may order the removal and destruction of 
the said materials or articles or make such other order relating thereto 
as the circumstances of the case require. 

Section 270, in brief, prohibits the manufacture for purposes 
of sale, and the sale, of mattresses, pillows and similar articles 
w^ithout a tag stating the kind of material used for filling, and 
also, if the material has previously been used, the word 
"second-hand." 

Section 271 prohibits the use in such articles of material 
w^hich has previously been used in a hospital or about the 
person of any one having an infectious or contagious disease. 

Section 272 prohibits the sale of second-hand material 
commonly used for filling, w^ith the representation that it is 
new material; and requires such material, when shipped, to 
be tagged with a statement of the contents and the name of 
the vendor. Violation of this provision is made punishable 
by a fine or imprisonment. 

Section 274 authorizes the department to post on any 
building containing or having contained materials or articles 
mentioned in section 273 a notice w^arning of danger of con- 
tagion or infection. 

Section 275 requires any police officer, member of a local 
board of health or other town official, having reason to be- 
lieve that any provision of sections 270-277 has been or is 
being violated, to give notice thereof to the Department of 
Public Health. 

Section 277 provides for a penalty of fine or imprisonment 
for the manufacture for purposes of sale, or sale, of any 
mattress, pillow or similar article, which is not marked in 



248 ATTORNEY-GENERAL'S REPORT. [Jan. 

accordance with sections 270-277, and also for the use in the 
manufacture of such articles of materials previously used in 
a hospital or about the person of any one having an infectious 
or contagious disease. 

The general purpose of these sections is to prohibit two 
things: (1) the manufacture and sale of mattresses, pillows 
and similar articles having a filling of material which has been 
previously used, and the sale of second-hand material, with- 
out a tag showing that it is second-hand (§§ 270 and 272); 
and (2), more specifically, the use in such articles of any 
material which has been previously used in a hospital or about 
the person of any one having an infectious or contagious 
disease (§ 271). 

Section 273 makes it the duty of the department to make 
investigations in cases of violation of any provision of sections 
270-277, and, if it finds a violation of section 271, to take 
particular action by labeling the materials or articles in ques- 
tion, and in such cases it may proceed further in its discretion. 
By section 274 the department is authorized to post notices on 
buildings in which such materials or articles are or have been 
kept, and section 275 provides for notice to be given by police 
officers and other officials to the department of the violation 
of any provisions of sections 270-277. In a general way pro- 
vision is made for notice to and investigation by the depart- 
ment in cases of all violations, and for particular action by 
the department against the goods and buildings containing 
them in cases of violation of section 271. 

Ample provision is made for penalties for any violation of 
sections 270-277, but there is no express provision stating how 
they shall be enforced. An examination of G. L., c. 94, shows 
that with respect to some articles, as, for example, milk, 
butter, ice cream, apples, tainted meat, vinegar, adulterated 
food and drugs, narcotic drugs, feeding stuff, coal, fertilizers 
and turpentine, the statute expressly provides for enforcement 
of the law or making complaint for violation of it by the 
Department of Public Health or some board or officer. See 
§§ 30, 35, 60, 64, 111, 121, 122, 169, 189, 192, 217, 235, 248, 
260, 290, 293. In other cases, as with respect to bakeries, 
cold storage, fish, eggs, sausages, canned goods, ice, grain, 
mattresses and slot machines, there is no such provision. 

In all cases arising under G. L., c. 94, where there is no 
express provision governing the manner of enforcement, it 



1922.] PUBLIC DOCUMENT — No. 12. 249 

would seem to be proper that prosecution should be under- 
taken by the department, board or officer to whose super- 
vision the matter has been confided by the General Court. I 
find little authority on the point. In Commomocalth v. Alden, 
143 Mass. 113, the court held that a complaint for not abat- 
ing a nuisance after notice from a board of health might be 
made by an agent of the board, the statute expressly providing 
for the making of a complaint in that way. In Commissioner 
of Health v. Bunzel, 221 Mass. 31, an information was filed 
by the Attorney-General, at the relation of the Commissioner 
of Health, to enjoin the carrying on of a slaughtering business 
without a license, contrary to the provisions of R. L., c. 75, 
§ 100, as amended by St. 1911, c. 297, § 2 (now G. L., c. 94, 
§ 119). Subsequently the information was amended into a 
bill in equity brought by the Commissioner. There was a 
statutory provision for a penalty but none for its enforcement 
(R. L., c. 75, § 106, now G. L., c. 94, § 134). The court sus- 
tained the bill, without referring to any question whether the 
Commissioner was a proper party plaintiff. 

With respect to the subject of mattresses, there is the ad- 
ditional consideration that the General Court has imposed the 
duty on your department to investigate all violations of the 
law, and has provided that the department shall be notified 
by police and other officials of violations suspected by them. 
These general provisions would not be of much avail if the 
department were powerless afterwards to act, except in cases 
of violation of section 271. 

It is my opinion that your power is not so limited and that 
in cases of violation of any provision brought to your atten- 
tion you may, and it is your duty to, proceed by complaint 
to enforce the penalties provided. 
Very truly yours, 

J. Weston Allen, AUomey-General. 



250 ATTORNEY-GENERAL'S REPORT. [Jan. 



Taxation — Income Tax — Exemption — Charity — Gift to In- 
dividual in Trust for Charitable Purposes. 

G. L., c. 62, § 8, par. (e), exempts from taxation income of intangible per- 
sonal property if such property is owned by or held in trust within the 
Commonwealth for religious organizations, whether or not incorporated, 
if the principal or income is used or appropriated for religious, benevo- 
lent or charitable purposes, within the meaning of G. L., c. 59, § 5, 
cl. 10. 

The income of a bequest of intangible personal property to " His Eminence 
William O'Connell of Boston, Massachusetts, a Cardinal of the Holy 
Roman Catholic Church, . . . to be used by him ... for such char- 
itable purposes as he may deem best, in memory of my mother," is not 
exempt from taxation under G. L., c. 62, § 8, par. (e), since the bequest 
is to the Cardinal in his personal capacity and not to the Roman 
Catholic archbishop of Boston, who, by St. 1897, c. 506, § 1, is created 
a corporation sole, and the property is held in trust for a religious 
organization. 

Aug. 26, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You direct my attention to the eleventh para- 
graph of the will of A. Paul Keith, in which paragraph a gift 
is made to Cardinal William O'Connell, and you request my 
opinion whether the income from this gift is exempt from tax- 
ation under G. L., c. 59, § 5, cl. 10, and G. L., c. 62, § 8, 
par. {e), which provide, respectively: — 

G. L., c. 59, § 5, cl. 10: — 

The following property and polls shall be exempt from taxation: 

Tenth, Personal property owTied by or held in trust within the com- 
momvealth for religious organizations, whether or not incorporated, if 
the principal or income is used or appropriated for religious, benevolent 
or charitable purposes. 

G. L., c. 62, § 8, par. {e): — 

The following income shall be exempt from the taxes imposed by this 
chapter: 

(e) Income of intangible personal property exempt from taxation by 
section five of chapter fifty-nine, except under clauses seventeenth, 
eighteenth, twenty-second, twenty-third, tw^enty-seventh, twenty-ninth 
and thirty-third of said section. 



1922.] PUBLIC DOCUMENT — No. 12. 251 

The eleventh paragraph of the will provides: — 

Eleventh: All the rest, residue and remainder of my property and 
estate, real, personal and mixed, of every name, nature and description, 
and wheresoever situated, I give, devise and bequeath unto His Emi- 
nence William O'Connell of Boston, Massachusetts, a Cardinal of the 
Holy Roman Catholic Church, and to the President and Fellows of 
Harvard College, a Massachusetts corporation, to be divided between 
him and that corporation in equal shares, share and share alike, and I 
direct that what is received by him shall be used by him in his dis- 
cretion for such charitable purposes as he may deem best, in memory of 
my mother, Mary Catherine Keith, and that what is received by the 
President and Fellows of Harvard College shall be devoted by that 
corporation to the general purposes of Harvard University. 

St. 1897, c. 506, § 1, made the then Roman Catholic arch- 
bishop of Boston and his successors in office a corporation sole 
under that name. Section 5 of the same act provides: — 

All gifts, grants, deeds and conveyances, and also all devises and be- 
quests heretofore made, of property within this commonwealth, to every 
person who held the office of Roman Catholic bishop of Boston, in which 
the addition of bishop of Boston, or Catholic bishop of Boston, or 
Roman Catholic bishop of Boston, or archbishop of Boston, or Catholic 
archbishop of Boston, or Roman Catholic archbishop of Boston, may 
have been used and made in the instrument giving or disposing of 
property to the grantee, devisee or legatee, shall be construed, unless 
the contrary clearly appears on the instrument, when the terms of it 
and the limitations thereof shall prevail, as convejdng, giving, granting, 
devising or bequeathing the property in such instrument mentioned to 
such person as was Roman Catholic bishop of Boston, or Roman Cath- 
ohc archbishop of Boston, and that the titles passing respectively by 
such instruments and now held by the present Roman Catholic arch- 
bishop of Boston, shall be and the same are hereby vested in the cor- 
poration established by this act, subject to any trust expressed in any 
said instrument, and to any limitations governing said trust. 

I assume that the corporation sole created by St. 1897, 
c. 506, is a "religious organization," within the meaning of 
G. L., c. 59, § 5, cl. 10, and G. L., c. 62, § 8, par. (e). The 
first question, therefore, is whether this devise and bequest is to 
the corporation sole created by and described in said St. 1897, 
c. 506, or to Cardinal O'Connell in his personal capacity. The 
distinction is vital, not only with respect to taxation but also 
with respect to the administration of the trust. If the gift 
be to the Cardinal as an individual trustee, he would remain 



252 ATTORNEY-GENERAL'S REPORT. [Jan. 

trustee even though he might be transferred to another arch- 
bishopric. If the gift be to the corporation, the corporation 
remains the trustee no matter what person may from time to 
time hold the office of Catholic archbishop of Boston. 

In my opinion, the bequest in this instance is to the Car- 
dinal and not to the corporation. The language of the will, 
''His Eminence, William O' Council of Boston, Massachusetts, 
a Cardinal of the Holy Roman Catholic Church," is an apt 
description of the Cardinal in his personal capacity as a prince 
of the church. The words "a Cardinal of the Holy Roman 
Catholic Church" are unambiguous, and identify him in 
reference to an office which he personally holds, and which 
in no sense pertains as matter of law to the Catholic arch- 
bishopric of Boston. 

It does not appear that Mr. Keith knew that the corporation 
existed. If he did not, he could scarcely have intended to 
leave property to it. If he did know of it, he has chosen 
words which do not describe the corporation, and do describe 
the Cardinal. On either theory, the corporation cannot be 
substituted as legatee for the Cardinal in person because for 
the time being he happens to be the human embodiment of it. 

This view is confirmed by the declared purpose of the gift. 
The will provides that 'Svhat is received hy him shall be used 
hy him in his discretion for such charitable purposes as he 
may deem best, in memory of my mother." In my opinion, 
these words confer a discretion which in the first instance is 
personal to the Cardinal, rather than a discretion to be exer- 
cised by a corporation. The distinction is illustrated by the 
giftjto Harvard College, made in the same clause, where the 
discretion conferred is plainly corporate rather than personal. 

The next question is whether the Cardinal holds for the 
benefit of the said corporation or other religious organization. 
It seems plain that under the terms of the will he does not, 
whatever the intent may have been. He is to administer the 
gift for ''such charitable purposes as he may deem best," in 
memory of the testator's mother. A charitable purpose is not 
necessarily a religious purpose, although it embraces and in- 
cludes religious purposes. Jackson v. Phillips, 14 Allen, 539, 
556. Moreover, indefiniteness as to beneficiaries is the very 
essence of a charitable trust. Noble: Law of Charity Trusts, 
§§ 21-24. For both reasons the Cardinal does not, under the 
terms of the will, hold the property "for religious organi- 



1922.] PUBLIC DOCUMENT — No. 12. 253 

zations," within the meaning of the act. It is not material 
that in the exercise of the broad discretion conferred upon 
him he may elect to apply the property for the benefit of re- 
ligious organizations. He still holds the property under the 
terms of the will, which does not impose any such obligation 
upon him. 

In my opinion, the income of said trust is not exempt under 
the provisions of law to which you direct my attention. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Sale of Securities Act — Registration — Sale by Corporation of 
its Own Securities — Profit. 

St. 1921, c. 499, applies to the ordinary case of a corporation issuing and 
selling its own securities, unless they are in the classes exempted by 
the act, and the corporation should be registered as a broker, as re- 
quired by the act. 

Aug. 29, 1921. 

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

Dear Sir: — The commission of which you are chairman 
has requested my opinion upon the question whether a cor- 
poration engaged in business in Massachusetts, which sells its 
own securities to the public without commission or profit, 
should register as a broker, under the provisions of St. 1921, 
c. 499. Said statute, by section 2, clause (e), defines the 
word "broker" as follows: — 

''Broker" shall include every person, other than a salesman, who 
in this commonwealth engages either for all or part of his time, directly 
or through an agent, in the business of selling anj^ security issued by 
himself or another person, or of purchasing or otherwise acquiring such 
securities for another with the purpose of reselling them, or of offering 
them for sale to the public, for a commission or at a profit. 

Section 8 provides that ''no person shall sell securities 
within this commonwealth as broker or salesman unless he 
has been registered by the commission." 

I must assume that the clause "for a commission or at a 
profit," in section 2, clause (e), above quoted, qualifies the 
clause "in the business of selling any security issued by him- 
self or another person" as well as the two following clauses. 



254 ATTORNEY-GENERAL'S REPORT. [Jan. 

Unless, therefore, a corporation engaged in the business of sell- 
ing its own securities sells them '*at a profit," within the 
meaning of section 2, clause (e), it is not required to be 
registered. 

The word ''profit" commonly means gain or excess of re- 
ceipts over expenditures. Rubber Co. v. Goodyear, 9 Wall. 
788, 804; Fechteler v. Palm Bros. & Co., 133 Fed. Rep. 462, 
469; Quinn v. Hayden, 219 Mass. 343, 346. But it is also 
frequently used more broadly to denote any advantage or 
benefit acquired, and especially of a pecuniary sort. Sim- 
coke V. Sayre, 148 la. 132, 134; Coidombe v. Eastman, 76 
N. H. 248; c/. Attorney-General v. Boston & Albany R.R., 
233 Mass. 460, 464. 

The word "profit," as applied to the selling by a cor- 
poration of securities issued by itself, can hardly be inter- 
preted as meaning excess of selling price over cost, since the 
securities, in the ordinary case, have cost the corporation 
nothing beyond the expenses of promotion, and their value to 
the holders lies in the capital paid in as quid pro quo and the 
expected benefit from good management and other like fac- 
tors. As applied to such transactions "profit" would seem 
naturally to mean pecuniary advantage. Adopting this con- 
struction, a corporation engaged in the business of selling 
securities issued by it ordinarily sells them at a profit, and 
thus falls within section 2, clause {e). 

The purpose of the act as disclosed by its title and its pro- 
visions, in my opinion, strongly supports this construction. 
Any other would emasculate the act by excluding from its 
scope a large mass of transactions which it was evidently 
meant to cover. 

In Staniels v. Raymond, 4 Cush. 314, 316, the court said: — 

Statutes are to be construed according to the intention of the 
makers, if this can be ascertained with reasonable certainty, although 
such construction may seem contrary to the ordinary meaning of the 
letter of the statute. 

The act is entitled "x\n Act to control the sale of securities, 
to register persons selling the same, and to prevent the fraudu- 
lent promotion and sale of fraudulent securities." It provides 
for the insertion in the General Laws of a new chapter, llOA, 
entitled "Promotion and sale of securities." It contains pro- 
visions for the exemption from the operation of the act of 



1922.] PUBLIC DOCUMENT — No. 12. 255 

sales by corporations of stock for delinquent assessments 
[§ 3 (j)], and of distributions by corporations of capital stock, 
bonds or other securities to its stockholders or other security 
holders by way of stock dividends or other distributions out of 
surplus or increase in capital or corporate reorganization 
(§ 3 (h)]. It provides with reference to securities not exempted 
and not previously sold in this Commonwealth, which a cor- 
poration proposes to issue, that a notice of intention to offer 
such securities for sale must be filed with the commission 
(§ 5). Manifestly, the act was intended to apply to the or- 
dinary case of a corporation issuing and selling its stock, ex- 
cept in cases of sales of securities included in the exempted 
classes. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Corjjorations — Issue of Stock — Consideration. 

Under G. L., c. 156, §§15 and 16, capital stock of a domestic business cor- 
poration may not be issued for executory contracts to convey or sup- 
ply property or to render services to the corporation. 

Aug. 29, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You ask my opinion whether you should ap- 
prove an issue of capital stock in a domestic business cor- 
poration where the consideration for such issue is a contract 
to handle and sell articles manufactured by the corporation, 
and a contract to sell the stock of the corporation. 

G. L., c. 156, §§ 15 and 16, are, in part, as follows: — 

Section 15. Capital stock may be issued for cash, at not less than 
par, if the shares have par value, for property, tangible or intangible, 
or for services or expenses. . . . 

Section 16. . . . No stock shall be at any time issued unless the 
cash, so far as due, or the property, services or expenses for which it 
was authorized to be issued, has been actually received or incurred by, 
or conveyed or rendered to, the corporation, or is in its possession as 
surplus; . . . 

A mere executory contract is in a broad sense intangible 
property. But section 16, as above quoted, provides that 
stock shall not be issued "unless the cash, so far as due, or 



256 ATTORNEY-GENERAL'S REPORT. [Jan. 

the property, services or expenses for which it was authorized 
to be issued, has been actually received or incurred by, or con- 
veyed or rendered to, the corporation, or is in its possession 
as surplus." In my opinion, this provision was clearly in- 
tended to exclude from the operation of section 15 all execu- 
tory contracts to convey or suppl}^ property or to render 
services to a corporation, for nonperformance of which the 
corporation has merely an action for damages. The author- 
ities in cases where there are similar statutory provisions are 
almost unanimously to this effect. Stevens v. Episcopal Church 
History Co., 140 App. Div. [N. Y.] 570; Shaw v. Ansaldi Co., 
Inc., 178 App. [N. Y.] Div. 589; 14 C. J. 438; cf. Cooney Co. 
V. Arlington Hotel Co., 11 Del. Ch. 286, 306. 

It is unnecessary, therefore, to consider whether services in 
selling the stock of the corporation are a legal consideration 
for the issue of stock. 

Very truly yours, 

J. Weston Allen, Attorney -General. 



Betterments — Assessment — Collection — Salisbury Beach Road. 

Assessments made under St. 1914, c. 659, § 1, authorizing the Massachu- 
setts Highway Commission to lay out a highway and to assess a pro- 
portionate share of the cost upon the real estate especially benefited, 
are not collectable, since no method for collection is provided by 
statute. 

Sept. 2, 1921. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — You have recently called my attention to the 
matter of the collection of certain assessments against owners 
of property benefited by the construction of the Salisbury 
Beach Road, so called, in the town of Salisbury, under the 
provisions of St. 1914, c. 659, § 3. This matter was referred 
to this department by the Treasurer and Receiver-General 
on Aug. 14, 1917. Since that date a number of the assess- 
ments have been collected, but there are still outstanding 
unpaid assessments amounting to approximately $1,700. 

St. 1914, c. 659, by section 1, authorizes and directs the 
Massachusetts Highway Commission to lay out a highway 
between the marshes and the beach at Salisbury Beach. 

Section 2 requires the commission to estimate and deter- 
mine the damages to property. 



1922.] PUBLIC DOCUMENT — Xo. 12. 257 

Section 3 authorizes the commission to determine the 
assessable cost of the improvement, and to assess a propor- 
tionate share thereof upon the parcels of real estate deter- 
mined to be especially benefited. There is no further pro- 
vision for the assessment or collection of such betterments or 
the imposition of any lien upon the real estate benefited. 
The section is as follows: — 

The said commission is authorized to estimate and determine the 
value of the benefit or advantage to each parcel of real estate, whether 
situated on said highway or otherwise, and lying within one hundred 
feet thereof, from the whole or a part of the improvement by the laying 
out of said highway, and shall determine as the assessable cost of the 
improvement such part, not exceeding one half, as the commission shall 
deem just, of the expenses already incurred or hereafter to be incurred 
by the commonwealth for the whole or part of the improvement, in- 
cluding the expense of taking land and all other expenses in laying out 
and constructing said highway, and shall assess a proportionate share 
of said assessable cost upon the parcels of real estate determined to be 
especially benefited as aforesaid, but not exceeding the total amount of 
the benefit and advantage to every such parcel as estimated or deter- 
mined as aforesaid. The said highway when laid out and constructed 
shall be a public way in the town of Salisbury. 

Sections 4 and 5 provide for payment of the cost by the 
Commonwealth in the first instance, and an apportionment of 
the cost between the Commonwealth, the county of Essex and 
the town of Salisbury. 

At the time this act was passed certain provisions of the 
Revised Laws were in force, appearing in chapter 50, entitled 
"Of betterments and other assessments on account of the cost 
of public improvements." 

Section 1 of said chapter provides as follows: — 

In a town which accepts the provisions of this and the eight following 
sections or has accepted the corresponding provisions of earlier laws, 
or in any city, the hoard of citij or town officers which is authorized to lay 
out ways therein may, at any time within two years after the passage of 
an order laying out, relocating, altering, widening, grading or discon- 
tinuing a way and after the work has been completed or the way has: 
been discontinued, if such order declares that such action has been taken 
under the provisions of law authorizing the assessments of betterments, 
and if in its opinion any land receives a benefit or advantage there- 
from beyond the general advantage to all land in the city or town, de- 
termine the value of such benefit or advantage to such land and assess 



258 ATTORNEY-GENERAL'S REPORT. [Jan. 

upon the same a proportional share of the cost of such laying out, re- 
location, alteration, widening, grading or discontinuance; but no such 
assessment shall exceed one-half of the amount of such adjudged benefit 
or advantage. 

Section 10 of said chapter 50 is as follows: — 

Assessments for betterments and other public improvements shall 
constitute a lien upon the land assessed and shall be enforced in the 
manner provided for the collection of taxes. They shall bear interest 
from the thirtieth daj' after the assessment until paid. If the validity 
or amount of such assessment is drawn in question in an action or other 
proceeding the Hen shall continue for one year after final judgment and 
may be enforced in the same manner as the original assessment. 

Section 15 requires "such board," upon notice by the ow^ner 
of land upon which an assessment for betterments has been 
laid, to apportion the assessment into a number of equal parts, 
not exceeding ten, and to certify said apportionment to the 
assessors, who, in turn, are required to add one of such parts 
to the annual tax upon such land each year until the tax has 
been paid. 

Section 20 authorizes the county commissioners to proceed 
in certain cases under this chapter, and section 21 requires 
the board assessing the betterments in such cases to reim- 
burse the county a proportion of the betterments received. 

R. L., c. 13, § 35, provides, in part, as follows: — 

Taxes assessed upon land, . . . shall . . . be a lien thereon from the 
first daj^ of May in the year of assessment. Such lien shall terminate 
at the expiration of two years from the first day of October in said year, 
if the estate has in the meantime been alienated; otherwise it shall 
continue until an ahenation thereof. 

Said chapter 13 contains provisions for the collection of 
taxes by distress, imprisonment, suit, and sale or taking of 
land. By section 2 every collector of taxes is required to 
collect the taxes set forth in the tax list and warrant from the 
assessors, and to pay over the same to the city or town treas- 
urer according to the warrant. 

R. L., c. 50, § 10, first appeared in St. 1866, c. 174, § 6. 
The act was entitled "An Act concerning the laying out, 
altering, widening and improving the streets of Boston." Sec- 
tion 6 provided, in part: — 



1922.] PUBLIC DOCUMENT — Xo. 12. 259 

All assessments made under this act shall constitute a Hen upon the 
real estate so assessed, to be enforced in the same manner, with like 
charges for costs and interest, as is provided by law for the collection of 
taxes. 

The remainder of the section provided for an apportionment 
of the assessment at the request of the owner of any estate so 
assessed. 

By St. 1868, c. 75, the provisions of this act were extended 
and made applicable to any and all cities of the Common- 
wealth. 

St. 1871, c. 382, entitled "An Act in relation to betterments," 
provided by section 1 that the board of city or town officers 
authorized to lay out streets or ways, respectively, therein 
might determine the value of the benefit and advantage to 
real estate therefrom, and assess upon the same a propor- 
tional share of the expense. Section 6 of said act provided, 
in part: — 

All assessments made under this act shall constitute a lien upon the 
real estate so assessed, to be enforced in the same manner, with like 
charges for cost and interest, as pro\aded by law for the collection of 
taxes; . . . 

with a provision for apportionment of the assessment at the 
request of the owner of the estate. 

P. S., c. 51, entitled "Of betterments and other assess- 
ments on account of the cost of public improvements," con- 
tains what are substantially the provisions of St. 1871, c. 382. 
Section 6 of that act appears as section 5 in said chapter 51. 
It provides: — 

Every such assessment shall constitute a lien upon the real estate 
assessed, to be enforced, \vith like charges for cost and interest, in the 
manner provided by law for the collection of taxes; . . . 

No material change in this statute was made before the 
adoption of the Revised Laws, and no note appears in the 
report of the commissioners for consolidating the Public 
Statutes stating any reason for the change in phraseology by 
which the specific reference is omitted to such assessments only 
as are made under the chapter. 

Gen. St. 1915, c. 227, in section 1, contained restrictions on 
the attachment of "municipal liens" to real estate in con- 



260 ATTORNEY-GENERAL'S REPORT. [Jan. 

sequence of an order of a municipal board or other authority 
for the construction of a street, sewer or sidewalk. 
Sections 2 and 3 were as follows: — 

Section 2. All acts and parts of acts inconsistent here'vvith are 
hereby repealed. 

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

A former Attorney-General ruled, with reference to the 
effect of this act (IV Op. Atty.-Gen. 547, 549), that — 

The previous statutes in so far as they related to the creation of 
municipal liens for the construction of streets, sewers and sidewalks 
were repealed by the act of 1915, except as to the city of Boston. 

By Gen. St. 1917, c. 344, pt. Ill, the law with reference 
to betterments was rewritten. By Gen. St. 1918, c. 257, 
§ 219, the law was again rewritten by striking out part III 
and substituting a new part III. Section 4 of said new part 
III provides that "the board" shall, within a reasonable time 
after making the assessment, commit the list of assessments 
within each city or town, with their warrant, to the collector 
of taxes of the city or town in which the land assessed is 
situated, for collection. Section 11 provides that "assess- 
ments made under this part of this act shall constitute a lien 
upon the land assessed." These provisions are continued 
substantially in G. L., c. 80. 

It is a familiar principle of statutory construction that mere 
verbal changes in the revision of a statute do not alter its 
meaning, and are construed as a continuation of the previous 
law. Mai7i v. Comity of Plymouth, 223 Mass. 66, 69; Ollila 
V. Huikari, 237 Mass. 54. It is my opinion that by the 
adoption of the Revised Laws it was not intended to widen 
the scope of the previous law, by which the provisions with 
respect to the creation of liens and the collection of assess- 
ments were confined to assessments made under the act; that 
is, assessments made by boards of city or town officers. This 
view is confirmed by the course of subsequent legislation on 
the subject. 

Moreover, the method provided by section 10 for the col- 
lection of the assessments referred to in the section is not 
applicable to assessments made by State boards, the proceeds 
of which should go into the treasury of the Commonwealth. 



1922.] PUBLIC DOCUMENT — No. 12. 261 

The collector of taxes, to whom assessments are committed by 
section 10, is required by R. L., c. 13, § 2, to pay over his 
collections to the city or town treasurer, and there, so far as 
there is any statutory provision, the proceeding stops. 

There is no provision in St. 1914, c. 659, for the collection 
of assessments made by the Massachusetts Highway Com- 
mission nor for the imposition of any lien on the land deter- 
mined to have been benefited by the improvement. Nor is 
there any other provision of statute, of which I am aware, 
which would operate to create a lien on such land or give a 
right to collect the assessments. 

The right to levy and collect betterment assessments exists 
only by statute. Stone v. Street Commissioners, 192 Mass. 297. 
Since no method appears to be provided by statute for the 
collection of the assessments now remaining unpaid, I am 
constrained to hold that those assessments are not collectable. 
Very truly yours, 

J. Weston Allen, Attorney -General. 



Set-off — Debt due from Insolvent Trust Company against 
Stockholder's Liability — Stockholder's Liability against 
Debt due from Insolvent Trust Company. 

A stockholder cannot set off a debt due from the commercial department of 
an insolvent trust company against the statutory liability imposed 
upon him by R. L., c. 116, § 30, as amended by St. 1905, c. 228, since 
the debt is owed by the corporation, and such liability is enforced for 
the benefit of its creditors. 

A receiver of an insolvent bank, or the commissioner in possession thereof, 
may set off the statutory liability imposed upon a stockholder by 
R. L., c. 116, § 30, as amended by St. 1905, c. 228, when such liability 
is duly fixed, against a debt due from the commercial department to 
said stockholder, since such set-off does not prejudice either stock- 
holder or creditors. 

Sept. 2, 1921. 

Mr, Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You inquire whether an indebtedness owed by 
the commercial department of a trust company to a stock- 
holder therein may be set off by the stockholder against the 
liability imposed upon stockholders in trust companies by 
R. L., c. 116, § 30, as amended by St. 1905, c. 228 (now G. L., 
c. 172, § 24); and, conversely, whether this liability, if duly 
fixed, may be set off by the receiver or the Commissioner 



262 ATTORNEY-GENERAL'S REPORT. [Jan. 

of Banks against a suit by the stockholder to recover a debt 
from the corporation. You state that these questions arise 
in connection with an insolvent trust company, of which you 
have taken possession under St. 1910, c. 399 (now G. L., 
c. 167, §§ 22 to 36, inclusive), and which is now in process 
of liquidation by you. 

R. L., c. 116, § 30, as amended by St. 1905, c. 228, pro- 
vides as follows : — 

The stockholders of such corporation shall be personally liable, 
equall}^ and ratably and not one for another, for all contracts, debts 
and engagements of the corporation, to the amount of their stock 
therein at the par value thereof, in addition to the amount invested in 
such shares. The provisions of section sixty to sixty-eight, inclusive, 
of chapter one hundred and ten shall apply to and regulate the en- 
forcement of such liability, and receivers of insolvent trust companies 
may, with the approval of the supreme judicial court, enforce such 
liability. 

Authority to enforce this liability is expressly conferred 
upon the Commissioner of Banks in possession of an insolvent 
trust company by St. 1910, c. 399, § 4 (now G. L., c. 167, 
§ 24). Examination of the provisions for enforcing this lia- 
bility makes it plain that this liability is to be enforced by a 
receiver or by the Commissioner of Banks or by one creditor 
on behalf of himself and all other creditors, as the case may 
be, and not by the creditors individually. 

In Everett v. Foster, 223 Mass. 553, the Supreme Judicial 
Court, in deciding that a delinquent stockholder could not 
set off a debt due from an insolvent corporation against an 
unpaid subscription for stock which the assignee for the 
benefit of creditors was seeking to enforce against him, said, 
at page 555: — 

The rule established by the great weight of authorit}^ in many juris- 
dictions is that, in the absence of a statute to that effect, a creditor of 
an insolvent corporation cannot set off his debt in an action brought 
against him to recover for the benefit of all the creditors the amount due 
upon an unpaid subscription for stock. The creditor must pay for his 
shares in full, and is entitled only to a ratable distribution of all the 
company's assets and to receive a dividend upon his claim against the 
corporation in common with other creditors. Anglo-American Mort- 
gage & Agency Co. v. Dyer, 181 Mass. 593; Pettibone v. Toledo, Cin- 
cinnati & St. Louis Railroad, 148 Mass. 411; Sawyer v. Hoag, 17 Wall. 
610, 622; Upton v. Tribilcock, 91 U. S. 45; Sanger v. Upton, 91 U. S. 
56; Scammon v. Kimball, 92 U. S. 362; Scovill v. Thayer, 105 U. S. 143, 



1922.] PUBLIC DOCUMENT — No. 12. 263 

152; Handley v. Stutz, 139 U. S. 417, 427; See v. Heppenheimer, 3 
Rob. 36, 79; Holcombe v. Trenton White City Co., 10 Buch. 122; Ball 
Electric Light Co. v. Child, 68 Conn. 522; Appleton v. TurnhuU, 84 
Me. 72; Richardson v. Merritt, 74 Minn. 354; Utica Fire Alarm Tele- 
graph Co. V. Waggotier Watchman Clock Co., 166 Mich. 618, 621; Shickle 
V. Watts, 94 Mo. 410; Morawetz on Private Corp. § 861; Cook on 
Corp. (7th ed.) § 193; GrisseWs Case, L. R. 1, Ch. 528. The terms of 
the assignment by the debtor corporation to the plaintiff do not in- 
corporate the provisions of our insolvent law except as to the kind 
of debts due from the assignor which can share in the distribution. 
R. L., c. 163, § 34, has no bearing on the question at issue. 

This rule is in accord w^ith the great weight of authority. 14 
C. J. 1044, § 1628, note 17. 

On the other hand, the receiver of an insolvent corporation, 
when sued by the executor of a deceased stockholder to en- 
force a debt due to the decedent, may set off against the 
executor the amount due upon shares of stock held by the 
decedent, even though action is barred as against the executor 
by the special statute of limitations. Coyle v. Taunton Safe 
Deposit d' Trust Co., 216 Mass. 156, 158, 163. This case is 
the converse of Everett v. Foster, supra. The set-off by the 
receiver does not diminish the assets applicable to the pay- 
ment of creditors. On the contrary, it reduces the claims 
against the corporation without depleting the assets. 

If a debt due to an insolvent corporation cannot be set off 
by the stockholder in an action to enforce payment of an un- 
paid stock subscription on behalf of the corporation, it is very 
clear that such debt cannot be set off against the additional 
liability imposed by statute upon stockholders in banks. The 
additional statutory liability is not an asset of the corporation, 
as the stock subscription was. It is available only if the cor- 
poration is insolvent, and may be used only to pay corporate 
debts. See G. L., c. 158, §§ 46 to 54, inclusive. It is a trust 
fund for the benefit of creditors, which may be collected for 
their benefit either by a receiver or by the Commissioner of 
Banks or by one creditor on behalf of himself and all other 
creditors, but not by the corporation itself. By the great 
weight of authority a stockholder who is also a creditor of an 
insolvent corporation cannot set off a debt which the corpora- 
tion owes him against his statutory liability for the corporate 
debts. Wingate v. Orchard, 75 Fed. Rep. 241 (C. C. A.); 
Robinson v. Brown, 126 Fed. Rep. 429; Williams v. Rose, 218 
Fed. Rep. 898; 14 C. J. 1046, § 1629, note 28; 7 C. J. 517, 



264 ATTORNEY-GENERAL'S REPORT. [Jan. 

§ 108. See also Bachrach v. Allen, 239 Mass. 272. The 
cases of Broadway Natiojial Bank v. Baker, 176 Mass. 294, 
and Sargent v. Stetson, 181 Mass. 371, do not apply to the 
form of statutory liability created by our statute; they both 
related to statutory liability created by the law of Kansas, 
which permitted individual creditors to enforce such liability 
severally, and, in consequence, permitted a stockholder to set 
off against the claim of an individual creditor any debt due 
from the corporation which he had paid in good faith. I 
therefore advise you that the stockholder may not set off a 
debt due from the corporation against this statutory liability, 
but that such liability, if duly fixed, is available as a set-off 
to the receiver or the Commissioner of Banks in an action 
by the stockholder to recover a debt due from the corporation. 
I do not deem it expedient to answer certain other ques- 
tions touching controversies with a particular individual, as 
to which you impliedly but did not directly inquire. Some 
if not all of these questions are or may be the subject of 
litigation, and should not be prejudiced by an advisory opinion 
of the Attorney-General delivered in advance. See Opinion 
of the Justices, 237 Mass. 613; Opinion of the Justices, 122 
Mass. 600, 602. Therefore I do not decide, either expressly 
or by implication, whether a valid assessment could be made 
upon this individual as a stockholder. 
Yours very truly, 

J. Weston Allen, Attorney -GeiieraL 



State Finance — • Sinking Funds — Temporary Use of Other 
Fu7ids to buy Bonds for Sinking Funds. 

Since, under Mass. Const., pt. 2d, c. II, § I, art. XI, funds cannot be issued 
out of the treasury save by a proper warrant "agreeably to the acts 
and resolves of the general court," the Treasurer and Receiver-Gen- 
eral cannot, in the absence of statute, buy bonds for sinking funds 
with other moneys in the treasury, even though the temporary short- 
age in such other funds would probably be made good in the near 
future out of expected income. 

Sept. 10, 1921. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — You ask my opinion upon the following case: — 

A favorable opportunity to buy bonds for the sinking fund 

has presented itself, but the funds available to purchase bonds 

for the sinking fund have already been invested. There are, 

however, other funds which, if temporarily employed to buy 



1922.] PUBLIC DOCUMENT — No. 12. 265 

bonds for the sinking fund, would show a temporary short- 
age in cash and a corresponding surplus in bonds. You state 
that income would absorb this shortage in cash by the begin- 
ning of 1922. You inquire whether you may, with the ap- 
proval of the Governor and Council, make the purchase under 
these circumstances. 

Bonds cannot be purchased without issuing moneys out of 
the treasury and disposing of the same to pay therefor. 
Moneys cannot be issued out of the treasur}^ and disposed of 
save by warrant under the hand of the Governor, with the 
advice and consent of the Council, "agreeably to the acts and 
resolves of the general court." Mass. Const., pt. 2d, c. II, 
§ I, art. XI. Opinion of the Justices, 13 Allen, 593. I do 
not find any act or resolve of the General Court which au- 
thorizes the temporary employment of funds on hand in the 
treasury for a purpose different from that to which such 
funds are ultimately devoted by law, even though it is ex- 
pected that the shortage will be adjusted in the near future 
by receipt of income or otherwise. A laudable desire to pur- 
chase bonds for the Commonwealth at an attractive price 
cannot, in my opinion, justify a departure from the plain 
mandate of the Constitution. I am constrained to advise 
you that unless there is some act or resolve which authorizes 
the use of the funds in question to purchase bonds, they 
cannot be withdrawn from the treasury, either temporarily or 
permanently, for that purpose. 

Yours very trul}', 

J. Weston Allen, Attorney -General. 



Warehouseman — Surrender of License — Cancellation of Bond. 

The surrender of a license by a warehouseman to the Secretary of the Com- 
monwealth is not complete until after notice of discontinuance of such 
license by publication, in accordance with G. L., c. 105, § 6. 

Power to cancel the bond of a warehouseman upon surrender of license 

would seem to be incidental to the power to accept surrender of the 

license, when and if it is determined by the Governor, with the advice 

and consent of the Council, that there is no liability outstanding or 

enforceable thereunder, 

Sept. 19, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 

Dear Sir: — You ask my opinion upon the following case: — 
A warehouseman duly licensed under G. L., c. 105, § 1, de- 
sires to surrender his license, pursuant to G. L., c. 105, § 6. 



266 ATTORNEY-GENERAL'S REPORT. [Jan. 

You inquire, first, whether the surrender should be accepted 
unqualifiedly before notice has been published as required by 
said section 6; and second, when the bond required by section 
1 shall be deemed to have been terminated. 

G. L., c. 105, §§ 1, 3 and 6, provide as follows: — 

Section 1. The governor, with the advice and consent of the coun- 
cil, may license suitable persons, or corporations established under the 
laws of, and having their places of business within, the commonwealth, 
to be public warehousemen. Such warehousemen may keep and main- 
tain public warehouses for the storage of goods, wares and merchan- 
dise. They shall give bond to the state treasurer for the faithful per- 
formance of their duties in an amount and with sureties approved by 
the governor, and may appoint one or m.ore deputies, for whose acts 
they shall be responsible. A railroad corporation licensed as a public 
warehouseman shall not be required as such to receive any property 
except such as has been or is forthwith to be transported over its road 
or to give sureties on its bond. 

Section 3. Whoever is injured b}^ the failure of a licensed ware- 
houseman to perform his duty or by his violation of any provision of 
this chapter may bring an action for his own benefit, in the name of the 
commonwealth, on the bond of such warehouseman. The writ shall 
be endorsed by the person in whose behalf such action is brought, or 
by some other person satisfactory to the court; and the endorser shall 
be liable to the defendant for any costs which he may recover in such 
action, but the commonwealth shall not be hable for any costs. 

Section 6. The state secretary shall, at the expense of each ware- 
houseman, give notice of his license and qualification, of the amount of 
the bond given by him and also of the discontinuance of his license by 
publishing the same for not less than ten days in one or more news- 
papers, if any, pubhshed in the county or to-\vn where the warehouse is 
located; otherwise, in one or more newspapers pubhshed in Boston. 

These sections are re-enactments, without substantial 
change, of R. L., c. 69, §§ 1, 2 and 8, respectively. 

On June 11, 1906, the Attorney-General, in advising His 
Excellenc}^ the Governor as to the mode in which a w^are- 
houseman should surrender his license under the above sec- 
tioQs of the Revised Laws, said: — 

I think the proper thing is for the company to return its hcense to 
the Secretary of the Commonwealth; the Secretary should then advertise 
the discontinuance, as provided by section 8. When this has been done 
it seems to me the surrender of the appointment will be complete, for 
all practical purposes, at least. 



1922.] PUBLIC DOCUMENT — No. 12. 267 

While the language of the act might be so construed as to 
make the publication of the required notice a record of a 
discontinuance already made, I concur in the opinion above 
referred to, that such publication is an essential step in making 
such discontinuance. I therefore advise you that the sur- 
render should be deemed to be effective only upon completion 
of the required publication. 

The statute contains no express provision for cancellation 
of the bond upon discontinuance of the license. Although it 
is unlikely that any new liability will arise after the license 
has been discontinued, it does not follow that liability may 
not have accrued prior to discontinuance. The existence of 
such liability is not negatived, as matter of law, by failure to 
bring suit upon the bond before the surrender of the license 
becomes effective. To cancel the bond as soon as such sur- 
render is completed might deprive the public of a portion of 
the security which the bond was intended to furnish. On the 
other hand, the failure of the Legislature expressly to pre- 
scribe a time for cancellation does not, in my opinion, require, 
as matter of law, that the bond remain in force until action 
thereon is barred by the statute of limitations. Power to 
cancel the bond would seem to be incidental to the power to 
accept surrender of the license. A measure of discretion is 
thus vested in Your Excellency, acting with the advice and 
consent of the Council. In my opinion, the bond may prop- 
erly be cancelled when and if the Governor, with the advice 
and consent of the Council, shall determine that there is no 
liability outstanding and enforceable thereunder. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxation — Deposits in Savings Departments of Trust Com- 
panies — Returns — Inspection of Books. 

There is no provision in G. L., c. 63, for the assessment of an additional tax 
on deposits in savings banks and savings departments of trust com- 
panies upon discovery that the tax first assessed was incorrect. 

G. L., c. 63, § 69, does not authorize the Commissioner of Corporations and 
Taxation to inspect the books of a savings bank or trust company 
for the purpose of verifying returns on which taxes have been assessed 
and paid. 



268 ATTORNEY-GENERAL'S REPORT. [Jan. 

Sept. 20, 1921. 
Hon. Henry F. Long, Coimnissioner of Corporations and Taxation. 

Dear Sir: — You request my opinion as to your authority 
and duty in the matter of auditing the books of savings de- 
partments of trust companies for the purpose of taxation, 
where it appears that the Commonwealth has not received a 
correct return for the purpose of taxation, and where it fur- 
ther appears that the Commonwealth has failed to receive a 
considerable tax. In your letter requesting my opinion you 
refer to some communications between yourself and the Com- 
missioner of Banks and his liquidating agent, relating to re- 
turns of a certain trust company for the six months' period 
ending April 30, 1920, and Oct. 31, 1920, respectively, and 
a suggested examination of its books ''in order to render a 
proper tax bill for the two 1920 taxes." 

G. L., c. 63, contains provisions applicable to the taxation 
of savings banks and savings departments of trust companies. 
Section 11 provides for the taxation of deposits in savings 
banks and trust companies having savings departments. It 
is as follows: — 

Every savings bank and every trust company having a savings de- 
partment, as defined respectively in chapters one hundred and sixty- 
eight and one hundred and seventy-two, shall pay to the state treas- 
urer, on account of its depositors, an annual tax of one half of one per 
cent, which shall be levied on the amount of the deposits in a savings 
bank, and on the amount of such of the deposits in the savings depart- 
ment of a trust company as do not exceed in amount the limits imposed 
upon deposits in savings banks by section thirty-one of chapter one 
hundred and sixty-eight, to be assessed and paid as follows : one fourth 
of one per cent shall be assessed by the commissioner upon the average 
amount of such deposits for the six months preceding May first, and 
paid on or before May twenty-fifth; and a like percentage shall be 
assessed upon the average amount of such deposits for the six months 
preceding November first, and paid on or before November twenty- 
fifth. 

Section 13 contains provisions requiring semi-annual returns, 
and provisions for penalties for failure to make such returns 
and for false statements in such returns. It is as follow^s: — 

Every savings bank and every trust company having a savings de- 
partment shall semi-annually, on or before May tenth and November 
tenth, make a return to the commissioner, signed and sworn to by its 



1922.] PUBLIC DOCUMENT — No. 12. 269 

president and treasurer, of the amount of its deposits if a sa\ings bank, 
and if a trust company of the amount of deposits in its savings depart- 
ment, on the first day of each of said months, and of the average amount 
of such deposits for the six months preceding each of said last men- 
tioned days. A corporation neglecting to make such return shall for- 
feit fifty dollars for each day during which such neglect continues. If 
it wilfully makes a false statement in such return it shall be punished 
by a fine of not less than five hundred nor more than five thousand 
dollars. 

Section 69, relative to the inspection of books and exam- 
ination of officers of certain corporations, including savings 
banks and trust companies having savings departments, pro- 
vides as follows: — 

' Every corporation taxable under this chapter, except a foreign cor- 
poration taxable under section twenty-one, twenty-three or fifty-eight, 
shall, when required for the purposes of any tax except that imposed 
on its income by section thirty-two or thirty-nine, submit its books to 
the inspection of the commissioner, and its treasurer and directors to 
examination on oath relative to all matters affecting the determinations 
to be made by said commissioner. 

Section 80 provides for the collection of penalties and for- 
feitures, as follow^s: — 

Penalties and forfeitures imposed by this chapter may be collected 
by an action of contract under section seventy-three or by an informa- 
tion under section seventy-five. 

Section 73 is as follow^s: — 

If a corporation, company or association fails to pay a tax levied un- 
der this chapter, except the excise imposed by section sixty-two, the 
treasurer may recover the same in contract in the name of the com- 
monwealth. 

Section 75 provides that, in addition to other methods, 
"taxes under this chapter . . . may be collected by an infor- 
mation brought in the supreme judicial court by the attorney 
general at the relation of the state treasurer." 

G. L., c. 63, § 69, first appears in St. 1864, c. 208, § 16, 
as follows : — 

Every corporation taxed by this act shall, when required, submit its 
books to the inspection of the board of commissioners named in section 
five of this act. 



270 ATTORNEY-GENERAL'S REPORT. [Jan. 

This act applied to every ''corporation or banking association 
not exempted from taxation, state and municipal, by the laws 
of the United States" (§ 5), and included savings banks. 

This act was amended by St. 1865, c. 283, section 17 of 
which was as follows: — 

Every corporation to be taxed by this act shall, when required, sub- 
mit its books to the inspection of the tax commissioner, and its treas- 
urer and directors to examination on oath in regard to all matters af- 
fecting the determinations which are to be made by said commissioner. 

This provision was continued in practically identical form 
down to the General Laws, when in said section 69 the words 
"for the purposes of any tax except that imposed on its income 
by section thirty-two or thirty-nine" were inserted after the 
words "when required." 

In Commontvealth v. Cary Improvement Co., 98 Mass. 19, 
22, the court, referring to St. 1864, c. 208, § 16, said: — 

The provision of the sixteenth section of the act, that corporations 
shall, when required, submit their books to the inspection of the com- 
missioners, does not imply an investigation and valuation of their 
property, unless such investigation becomes necessary by reason of the 
absence of other means of information by which to determine the 
value of the stock. 

The two 1920 taxes were required by the statute (now G. L., 
c. 63, § 11) to be assessed and paid on or before May 25, 
1920, and Nov. 25, 1920, respectively. I assume that taxes 
based on the returns which were made were assessed and paid 
accordingly. There is no provision, such as is found in the 
law relating to the assessment of local taxes (G. L., c. 59, 
§ 75), the law relating to the taxation of incomes (G. L., c. 62, 
§§ 36, 37), and the law relating to the taxation of business 
corporations (G. L., c. 63, §§ 45, 46), for the subsequent as- 
sessment of an additional tax upon discovery that the tax 
first assessed was incorrect. The only provision covering the 
case where, by reason of an incorrect return, the proper tax 
has not been assessed and paid is in G. L., c. 63, § 13, for the 
punishment by fine of a corporation which wilfully makes a 
false statement in the required return. 

Such a fine is a penalty which, by section 80, may be col- 
lected by an action of contract by the Treasurer and Re- 



1922.] PUBLIC DOCUMENT — No. 12. 271 

ceiver-General or by an information by the Attorney-General 
at the relation of the Treasurer and Receiver-General. 

In my judgment, the Commissioner is not authorized by 
section 69 to inspect the books of a trust company for the 
purpose of verifying returns made to him on which taxes have 
already been assessed and paid. The Commissioner, having 
assessed the taxes in question, in my opinion, has no further 
duty relating to the matter of those taxes. Such authority 
and duty in the premises as may exist are given by statute 
primarily to the Treasurer and Receiver-General and second- 
arily to the Attorney-General. Applying the language of 
section 69, the inspection is not required ''for the purposes of 
any tax," nor does it relate to any matter "affecting the 
determinations to be made by the commissioner." The in- 
spection, if made, would be for the purpose of determining 
whether liability to a penalty existed, and would relate to a 
matter to be determined by the Treasurer and Receiver- 
General. 

The case of Old Colony Trust Co. v. Commonwealth, 220 
Mass. 409, 413, holding that the Tax Commissioner in assess- 
ing such taxes is not restricted in the sources of information on 
which his assessments are based to the sworn returns, is not 
in point. The point is that the Commissioner, having as- 
.sessed the taxes, has under the statute no further power or 
duty in the matter. 

I do not intend in this opinion to determine the question 
whether, in view of the fact that the corporation to which 
you refer is in the hands of the Commissioner of Banks, it is 
now liable to pay a penalty which must come out of funds 
which would otherwise go to other depositors, or whether the 
Treasurer and Receiver-General has the power, or is under 
the obligation, to bring proceedings under G. L., c. 63, §§ 73 
or 75. 

See in this connection Atlas Bank v. Nahant Bank, 3 Met. 
581, 582, 583; Greenfield Savings Bank v. Commonwealth, 211 
Mass. 207, 210. 

Very truly yours, 

J. Weston i\.LLEN, Attorney -General. 



272 ATTORNEY-GENERAL'S REPORT. [Jan. 



Boards of Health — Regulations — Approval of Attorney- 
General. 

G. L., c. Ill, § 31, is applicable to all regulations made by local boards of 
health. 

Under G. L., c. Ill, § 31, the approval of the Attorney-General is required 
only when regulations made thereunder themselves provide a penalty, 
and not where the penalty is provided by statute. 

In St. 1921, c. 303, a penalty is provided by the statute, and therefore regu- 
lations made thereunder need not be approved by the Attorney- 
General. 

Sept. 21, 1921. 

Eugene R. Kelley, M.D., Commissioner of Public Health. 

Dear Sir: — You ask my opinion whether regulations made 
by local boards of health under the provisions of St. 1921, 
c. 303. come under the provisions of G. L., c. Ill, § 31, re- 
quiring approval by the Attorney-General before they become 
effective. 

St. 1921, c. 303, is entitled ''An Act regulating the manu- 
facture or bottling of certain non-alcoholic beverages." It 
amends G. L., c. 94, by inserting after section 10 and under 
the heading '* Non-Alcoholic Beverages" five new^ sections, lOA 
to lOE, inclusive. 

Section lOA authorizes local boards of health to grant per- 
mits to engage in business. Section lOB requires them to 
examine the premises of persons having permits. Section 
IOC requires materials used to be uncontaminated and whole- 
some. The remaining sections are as follows: — 

Section lOD. The department of public health and local boards of 
health may make rules and regulations to carry out the three preceding 
sections. 

Section lOE. Any person w^ho engages in the business of the man- 
ufacture or bottling of carbonated non-alcoholic beverages, soda waters, 
mineral or spring waters without the permit provided for in section ten 
A or who violates any provision of sections ten A to ten D, inclusive, 
or of any rule or regulation made thereunder, shall be punished for a 
first offence by a fine of not more than one hundred dollars and for a 
subsequent offence by a fine of not more than five hundred dollars. 

G. L., c. Ill, § 31, is as follows: — 

Boards of health may make reasonable health regulations which 
shall be published once in a newspaper if one is pubHshed in the town, 
other^^^se in a newspaper published in the county. All regulations 



1922.] PUBLIC DOCUMENT — No. 12. 273 

made hereunder which provide a penalty for violation thereof shall, 
before taking effect, be approved by the attorney general. Such pub- 
lication shall be notice to all persons. 

Said chapter 111 relates to "Public Health," and sections 
26 to 32, inclusive, of that chapter are under the heading 
" City and Town Boards of Health." 

In the Revised Law^s the corresponding chapter is chapter 
75, entitled "Preservation of the Public Health," of which 
sections 9 to 15 are under the heading "City and Town Boards 
of Health." Section 14 of said chapter, as amended by St. 
1914, c. 90, is as follows: — 

The board of health of a town shall publish all regulations made by 
it in a newspaper of its town, or shall post them up in a public place in 
the town. Such publication or posting shall be notice to all persons. 

The w^ord "town," when used in any statute, includes city. 
G. L., c. 4, § 7, cl. 34. 

There are many statutes now appearing in the General Laws 
which authorize local boards of health to make regulations on 
specific subjects. Many of these statutes are old and well 
established, and local boards of health have frequently acted 
under them in making regulations for the public health and 
safety. Among the subjects covered by such statutes are 
nuisances (G. L., c. Ill, §§ 122, 127); cemeteries (G. L., 
c. 114, § 37); articles of food (G. L., c. 94, §§ 146, 148); milk 
stations (G. L., c. 94, § 32); sausage factories (G. L., c. 94, 
§ 144); bakeries (G. L., c. Ill, §§ 37, 38); dispensaries 
(G. L., c. Ill, § 50); day nurseries (G. L., c. Ill, §§ 60, 62); 
dangerous diseases (G. L., c. Ill, §§ 92, 95, 105); noisome 
trades (G. L., c. Ill, §§ 143, 146); stables (G. L., c. Ill, 
§§ 155, 157); quarantine (G. L., c. Ill, § 177); vaccination 
(G. L., c. Ill, § 181); and manicuring (G. L., c. 140, § 51). 

In the statute relating to articles of food (G. L., c, 94, 
§ 146) the regulations are made subject to the approval of 
the Department of Public Health. This is the only provision 
of which I am aware, except that appearing in G. L., c. Ill, 
§ 31, for supervision of regulations of local boards of health 
before they become effective. In most of the statutes a pen- 
alty is provided for violation of such regulations, such penalty 
being generally a fine and sometimes a loss of license. 

By G. L., c. 114, § 37, local boards of health are authorized 



274 ATTORNEY-GENERAL'S REPORT. [Jan. 

to impose penalties not exceeding $100 for breach of regula- 
tions concerning burial grounds and interments. I know of 
no other provision granting such authority prior to the pas- 
sage of the statute of 1920, hereinafter referred to. 

In G. L., c. 94, § 146, and c. 114, § 37, there are pro- 
visions requiring publication of regulations before they become 
effective. Such provisions do not occur in the other statutes 
cited. Prior to the enactment of the General Laws there was 
a general statutory requirement that all regulations made by 
local boards of health should be published. R. L., c. 75, 
§ 14, as amended. Whether this requirement is continued in 
the General Laws is a question to be considered. 

In 1920 the General Court passed an act (c. 591) entitled 
" An Act to make certain substantive changes in and addi- 
tions to the laws relating to towns." That act contains a 
number of sections which are in the form of amendments to 
previous statutes, and some which are not. Among the latter 
is section 17, which is as follows: — 

Health Regulations. 
\ ,Town boards of health may make reasonable health regulations 
which shall be published once in a newspaper if one is published in the 
town, otherwise in a newspaper pubUshed in the county. All regula- 
tions made hereunder which pro\dde a penalty for violation thereof 
shall, before taking effect, be approved by the attorney-general. 

The proper construction of this statute is considerably 
affected by the disposition made of it in the General Laws. 
It is there combined with R. L., c. 75, § 14, as amended, and 
thus combined appears as G. L., c. Ill, § 31. St. 1920, 
c. 591, § 17, standing by itself, might well be interpreted simply 
to authorize, under the conditions stated, the making of 
various kinds of reasonable health regulations not authorized 
by any other statute. But this statute has been combined 
in the General Laws with a general requirement for publica- 
tion, which must have a broader application. It is my opinion 
that the requirement with respect to publication was intended 
by the General Court to be a general one, applicable to all 
cases where no specific provision is made. Doubtless, also, 
the section has the effect of giving power to boards of health 
to make reasonable health regulations in cases not covered 
by other statutes. 



1922.] PUBLIC DOCUMENT — No. 12. 275 

It remains to consider and determine the meaning of the 
words "all regulations made hereunder which provide a pen- 
alty for violation thereof shall, before taking effect, be ap- 
proved by the attorney-general." I am not able to say that 
this provision was intended to apply only in cases where no 
other statute is applicable. Nor do I overlook the use of the 
word "hereunder," taken from the statute of 1920. In my 
judgment, the provision for publication in G. L., c. Ill, § 31, 
makes that section applicable to all regulations made by local 
boards of health. But the provision for review by the Attor- 
ney-General does not apply to all such regulations. By its 
terms it is confined to regulations which themselves provide 
a penalty for violation thereof, as distinguished from regula- 
tions for which a penalty is provided by statute. No doubt a 
board of health may fix a penalty for violation of its regula- 
tions when authorized so to do by the Legislature. Carthage 
V. Colligan, 216 N. Y. 217; cf. Lowell v. Archamhault, 189 
Mass. 70, 73. But^where the Legislature has by statute fixed 
the penalty for such violation, the board of health has no 
jurisdiction in that matter. Johnston v. Belmar, 58 N. J. 
Eq. 354. The penalty in such a case is provided by the 
statute and not by the regulations. 

In cases where the making of regulations is particularly 
provided for by statute the General Court has almost uni- 
formly provided the penalty. In cases not thus covered, 
where boards of health may desire to make regulations, they 
may desire also to provide penalties for violation thereof. 
In such cases, and also in the case of regulations made under 
G. L., c. 114, § 37, and other statutes, if any there be, where 
the General Court has left the matter of providing penalties 
to the local boards of health, and in those cases only, such 
regulations must, in my opinion, be submitted to the At- 
torney-General. 

In the statute to which you refer (St. 1920, c. 303) the 
General Court has provided a penalty. I am therefore of the 
opinion that regulations made under that statute need not 
be approved by the Attorney-General. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



276 ATTORNEY-GENERAL'S REPORT. [Jan. 



Treasurer and Receiver-General — Legacy and Succession Tax 
— Determination of Liability of an Estate to a Tax. 

The Treasurer and Receiver-General cannot determine, and should not 
attempt to advise, whether real estate is charged with a lien for pay- 
ment of a legacy and succession tax which may become due in the 
future . 

Sept. 22, 1921. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — You ask my opinion whether there is a lien 
to-day for a succession tax which might possibly, but not 
probably, become due hereafter under the terms of a will 
which, as stated by you, show a possibility of a future interest 
in the decedent's estate passing in such a way as to become 
liable to a collateral inheritance tax. I am informed that this 
opinion is requested at the instance of a bank which is con- 
sidering the advisability of making a loan on real estate which 
was part of the decedent's property. 

In an opinion of a former Attorney-General to the Treas- 
urer and Receiver-General it was stated that "the Treasurer 
of the Commonwealth has neither the power to determine nor 
the duty to advise in advance in any case as to whether a 
particular legacy is taxable, or for how much it is taxable, 
or when the tax shall be paid, or any other such question." 
I Op. Atty.-Gen. 85. 

Even more clearly the Treasurer and Receiver-General can- 
not determine, and should not attempt to advise, whether a 
lien now exists which cannot until some future time be en- 
forced. The authority of the Treasurer and Receiver-General 
in such cases is limited to an application to the Probate Court 
to determine the amount of taxes which have become payable, 
and of interest thereon, for which the real estate is charged 
with a lien, and after such determination to collect said 
taxes and interest. St. 1910, c. 440; G. L., c. 65, § 31. Un- 
til a tax becomes payable, the Treasurer and Receiver-Gen- 
eral has no authority or duty in the matter. 

I think you should say, in substance, in answer to the in- 
quiry made of you, that you cannot undertake to answer the 
inquiry or to give advice upon it, and that certainly you 
cannot now waive any claim of lien to which the Common- 
wealth may be entitled. See in this connection St. 1903, 
c. 276. 

I should add that officers of the State government are en- 



1922.] PUBLIC DOCUMENT — No. 12. 277 

titled to the opinion of the Attorney-General only upon ques- 
tions necessary or incidental to the discharge of the duties of 
their office. See I Op. Atty.-Gen. 565; II Op. Atty.-Gen. 100. 
The question which you ask seems to me not to fall within 
that class. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Fisheries and Game — Lobsters — License — Alien — Actually 
engaged in Lobster Fishing for Five Years preceding Date 
of License. 

In the matter of granting a license to an alien to catch or take lobsters 
under St. 1921, c. 116, the determination as to whether or not the 
alien in question has actually been engaged in lobster fishing in the 
county for five years next preceding the date of the license is for the 
official upon whom the responsibility rests in a given case. 
In determining the question, the intent of the applicant with respect to 
his occupation during the period as well as the facts respecting his 
employment are to be taken into consideration. 

Sept. 22, 1921. 
Hon. W. A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You have requested my opinion upon a 
question of law in connection with the interpretation of St. 
1921, c. 116, which is an act relative to the granting of licenses 
for the catching of lobsters. Section 1 provides, in part, that 
the clerk of any town in certain counties therein enumerated, 
situated on the shores of the Commonwealth, may grant a 
license to catch or take lobsters "to any individual who is an 
alien and who resides in the county where the town lies; 
provided, that such alien has resided in said county, and has 
been actually engaged in lobster fishing therein, for five 
years next preceding the date of the license." 

You have before you the case where an alien who is an ap- 
plicant for such a license found it necessary, during a period 
of one year within the limit of the five years preceding the 
date of his application for a license, to refrain from lobster 
fishing and to go back from the coast on account of his 
physical condition and on the advice of his medical adviser. 
During his temporary absence he showed no intention of dis- 
posing of his gear used in the fishing, and subsequently re- 
turned to engage again in the business, and was engaged in 
no other business in the meantime. You ask whether this 



278 ATTORNEY-GENERAL'S REPORT. [Jan. 

interim of one year during the period of five years deprives 
the applicant from having issued to him a lobster fisherman's 
license. 

Your inquiry, of course, requires a construction of the 
proviso that an alien applicant "has been actually engaged in 
lobster fishing therein, for five years next preceding the date 
of the license." 

In the case of In re Strawbridge & Mays, 39 Ala. 367, 375, 
a statute of that State exempted from militia duty in the 
State persons engaged in certain occupations so long as they 
are "actually engaged" therein. The court, in that case, 
held that the words "so long as they are actually engaged" 
could not be construed to mean that all those persons who 
are exempted shall continually employ their own personal 
skill and labor in any and all pursuits or occupations on 
account of which they were exempted. In discussing the ques- 
tion the court said: — 

When we say of a man that he is actually engaged in farming or 
planting, we mean that he is really or truly engaged, engaged in fact. 
The words "actually engaged," in common parlance, are the opposite 
or antithesis of "seemingly" or " pretendedly " or "feignedly en- 
gaged." 

This line of reasoning, in my opinion, applies to the con- 
struction of the words "actually engaged" as found in the 
Massachusetts statute under consideration. 

The statutory requirement does not mean that an individual 
must be in fact engaged in lobster fishing every day or every 
week or every month of the specified period of five years. 
Whether he has been "actually engaged" in lobster fishing 
during the period is, like the question of domicil, a mixed 
question of law and fact, and it is for the official upon whom 
the responsibility rests in a given case to determine whether 
the applicant for a license has been actually engaged in 
lobster fishing within the meaning of the statute. In deter- 
mining the question, the intent of the applicant with respect 
to his occupation during the period, as well as the facts 
respecting his employment, are to be taken into consideration. 
Whether the applicant in a given case, when he was unable 
to engage in lobster fishing, in fact engaged in any other 
work, or whether he was incapacitated for any work, whether 
in the case cited the gear used by him in the fishery during 



1922.] PUBLIC DOCUMENT — No. 12. 279 

his disability was used by another person in his stead, or 
whether he had any interest in the business if his gear was in 
use, and other facts relating to each particular case, are to be 
taken into consideration. The question must be determined 
by the official upon whom rests the responsibility of passing 
upon the qualification of the applicant. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Constitutional Law — Searches and Seizures — Searches for 
Game or Fish — Powers of Inspector of Fish. 

Under Mass. Const., pt. 1st, art. XIV, searches and seizures are not un- 
reasonable if they relate to contraband, illicit or stolen property, and 
if they are conducted under a warrant which meets the constitutional 
requirements. 

Under Mass. Const., pt. 1st, art. XIV, an arrest without a warrant may be 
made of a person in the act of committing a crime or upon reasonable 
suspicion of having committed a felony, and doors may be broken 
without a warrant where there is a breach of the peace or reasonable 
ground to believe a felony has been committed, to apprehend the 
felon; but a search of a dwelling for contraband, illicit or stolen prop- 
erty without a warrant cannot lawfully be made without the consent 
of the owner; and the constitutional protection extends as well to a 
man's person, his papers arid all his possessions. 

The prohibition against unreasonable searches includes all searches without 
a warrant, with the exceptions noted, whether or not the search is con- 
ducted in a dwelling house. 

Right of search is to be distinguished from right of inspection, authorized 
by statutes in numerous cases and upheld as a valid exercise of the 
police power. 

G. L., c. 130, § 6, purporting to authorize searches without a warrant of 
suspected places, for game or fish unlawfully taken or held, is un- 
constitutional. 

The State Inspector of Fish and his deputy inspectors, authorized by G. L., 
c. 94, § 1, to enforce the provisions of G. L., c. 94, §§ 74-80, inclusive, 
are not authorized to make arrests or to serve warrants, and they 
are not authorized to exercise any of the powers conferred by G. L., 
cc. 130 and 131. 

Sept. 27, 1921. 

Hon. W. A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You ask my opinion concerning the powers of 
the Inspector of Fish and his deputy inspectors, appointed 
under G. L., c. 21, § 8, to search in suspected places, seize 
unlawful goods and make arrests for violations. I assume 
that your question refers to violations of the statutes appear- 



280 ATTORNEY-GENERAL'S REPORT. [Jan. 

ing in G. L., c. 94, §§ 74-82, inclusive, and perhaps also in 
G. L., cc. 130 and 131. 

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

Every subject has a right to be secure from all unreasonable searches, 
and seizures, of his person, his houses, his papers, and all his posses- 
sions. All warrants, therefore, are contrary to this right, if the cause 
or foundation of them be not previously supported by oath or affirma- 
tion, and if the order in the warrant to a civil officer, to make search 
in suspected places, or to arrest one or more suspected persons, or to 
seize their property, be not accompanied with a special designation of 
the persons or objects of search, arrest, or seizure; and no warrant 
ought to be issued but in cases, and with the formalities prescribed by 
the laws. 

The purpose of this provision, which appears in similar 
form in the Fourth Amendment to the Constitution of the 
United States, may be learned from contemporary history of 
controversies on the subject in this country and in England, 
well known to the framers of our Constitution. In the colonies 
the practice had obtained of issuing wTits of assistance to the 
revenue officers empowering them, in their discretion, to 
search suspected places for smuggled goods. This practice 
James Otis pronounced " the worst instrument of arbitrary 
power, the most destructive of English liberty and the funda- 
mental principles of law, that ever was found in an English 
law book," since it placed "the liberty of every man in 
the hands of every petty officer.'' Cooley's Constitutional 
Limitations, 7th ed., pp. 426-428. The illegality of proceed- 
ings under general warrants was established in the case of 
Entick V. Carrington, 19 Howell's State Trials, 1029. 

Under this constitutional provision searches and seizures 
are not unreasonable if they relate to contraband, illicit or 
stolen property, and if they are conducted under a warrant 
which meets the constitutional requirements. Commonwealth 
V. Dana, 2 Met. 329, 334-336; Fisher v. McGirr, 1 Gray, 1, 
27-31; Robinson v. Richardson, 13 Gray, 454; Boyd v. 
United States, 116 U. S. 616, 622-630; Veeder v. United 
States, 252 Fed. Rep. 414, 418; 24 Op. Atty.-Gen. (U. S.) 
685, 688. 

By statute in this Commonw^ealth search warrants may be 
issued to search for property stolen or fraudulently concealed, 
counterfeit coin, bank notes or trademarks, unwholesome 
meat or provisions, diseased animals, obscene literature, certain 



1922.] PUBLIC DOCUMENT — No. 12. 281 

drugs and medicines, lottery tickets, gaming apparatus and 
furniture, pool tickets, and dangerous weapons, bombs and 
explosives, kept for an unlawful purpose. G. L., c. 276, § 1. 
Search warrants may also be issued for intoxicating liquors 
(G. L., c. 138, §§ 61-64), and for game or fish unlawfully 
taken and concealed (G. L., c. 130, § 7). Property of the 
kinds enumerated in these statutes is properly made subject 
to search and seizure. Fisher v. McGirr, 1 Gray, 1, 27, 28; 
Boijd V. United States, 116 U. S. 616, 623, 624; Cooley's 
Constitutional Limitations, 7th ed., pp. 432, 433. 

Searches and arrests without warrant are authorized only 
in particular classes of cases. An arrest without warrant 
may be made by a peace officer, generally speaking, of a per- 
son in the act of committing a crime {Commonwealth v. Hast- 
ings, 9 Met. 259; Commonwealth v. Tohin, 108 Mass. 426); 
or upon reasonable suspicion of having committed a felony 
{Commonwealth v. Carey, 12 Cush. 246, 252; Commonwealth 
V. Phelps, 209 Mass. 396, 404). A peace officer has the right 
to break open doors without a warrant where there is an af- 
fray, assault or breach of the peace, or where he has reason- 
able ground to believe that a felony has been committed, to 
apprehend the felon. McLennon v. Richardson, 15 Gray, 74, 
77; Commonwealth v. Tobin, 108 Mass. 426, 429; Ford v. 
Breen, 173 Mass. 52; Commonwealth v. Phelps, 209 Mass. 396, 
407, 408; Delafoile v. New Jersey, 54 N. J. L. 381. 

But a search of a dwelling for contraband, illicit or stolen 
property without a warrant cannot lawfully be made except 
with the consent of the owner. Weeks v. United States, 232 
U. S. 383, 389-392; McClurg v. Brenton, 123 la. 368; United 
States v. Rykowski, 267 Fed. Rep. 866, 871; 35 Cyc. 1265. 
While every man's house is his castle, and therefore especially 
inviolable, the constitutional protection extends as well to a 
man's person, his papers and all his possessions. Ex parte 
Jackson, 96 L^. S. 727, 733; Gouled v. United States, 255 
U. S. 298; Amos v. United States, 255 U. S. 313; cf. Dunn 
w' Lowe, 203 Mass. 516, 518. 

In Gouled v. United States, the court says: — 

It would not be possible to add to the emphasis with which the 
framers of our Constitution and this court . . . have declared the im- 
portance to political liberty and to the welfare of our country of the 
due observance of the rights guaranteed under the Constitution by 
these two amendments (4th and 5th). ... It has been repeatedly 



282 ATTORNEY-GENERAL'S REPORT. [Jan. 

decided that these amendments should receive a liberal construction, 
so as to prevent stealthy encroachment upon or "gradual depreciation" 
of the rights secured by them, by imperceptible practice of courts or 
by well-intentioned, but mistakenly overzealous, executive officers. 

I am of opinion that the prohibition against unreasonable 
searches includes all searches without warrant, with the ex- 
ceptions noted, whether or not the search is conducted in a 
dwelling house. 

A distinction should be noted between right of search and 
right of inspection. A "search" is a quest by an officer of 
the law. Hale v. Henkel, 201 U. S. 43, 76. As applied to 
searches and seizures, the term means an examination of a 
man's house, premises or possessions, or of his person, with a 
view to the discovery of some particular personal property. 
Black's Law Diet. The word "inspection," on the other 
hand, is derived from the Latin word inspectio, meaning the 
act or process of looking into. An inspection has been de- 
fined as "something which can be accomplished by looking at 
or weighing or measuring the thing to be inspected, or apply- 
ing to it at once some crucial test." People v. Compagnie 
Gen. Transatlantique, 107 U. S. 59, 62. The term "inspection 
laws" appears in the Constitution of the United States, art. 
I, § 10, and is there used with reference to State laws regu- 
lating the quality of articles of commerce and the kind of 
packages containing them. Gihhons v. Ogden, 9 Wheat. 1, 
203; Turner v. Maryland, 107 U. S. 38. 

Laws authorizing inspection of articles of food, merchandise, 
machinery and buildings, and entry on a person's premises for 
that purpose, are common in every State. State v. Mc- 
Gough, 118 Ala. 159, 167; People v. Harper, 91 111. 357, 367; 
Willis V. Standard Oil Co., 50 Minn. 290; Cincinnati Gas 
Light arid Coke Co. v. State, 18 Oh. St. 237; Abbott's Law 
Diet. Such provisions in our statutes are too numerous to 
enumerate, but include the following objects: milk (G. L., 
c. 94, §§ 33, 35), cold-storage warehouses (G. L., c. 94, §§ 67, 
68), slaughterhouses and carcasses (G. L., c. 94, §§ 121-124, 
126), meat and provisions (G. L., c. 94, § 146), weights and 
measures (G. L., c. 98, §§ 32, 42), hospitals (G. L., c. Ill, 
§ 72), water supply (G. L., c. HI, § 165), intoxicating liquor 
(G. L., c. 138, § 47), lodging houses (G. L., c. 140, §§ 25, 
37, 38), plumbing (G. L., c. 142, § 11), buildings (G. L., c. 143, 
§§ 6, 13, 28, 35, 48, 50), elevators (G. L., c. 143, §§ 62-64), 



1922.] PUBLIC DOCUMENT — No. 12. 283 

tenement houses (G. L., c. 144, § 86; c. 145, § 51), boilers 
(G. L., c. 146, § 5), buildings for fire prevention (G. L., 
c. 148, §§ 5, 44) and places of employment (G. L., c. 149, §§ 
10, 17). Many of these statutes expressly authorize entry on 
premises, and some provide for taking of samples. See also 
G. L., c. 94, § 304. 

Questions concerning the constitutionality of such legislation 
seem rarely to have been considered, but there are a few de- 
cisions in this Commonwealth where laws of that sort have 
been upheld as a valid exercise of the police power; and the 
distinction between an entry on premises for inspection and 
for a search has been pointed out. 

In Commonwealth v. Ducey, 126 Mass. 269, 273, the court 
had under consideration the constitutionality of an act re- 
lating to intoxicating liquors, which authorized certain of- 
ficers to enter upon the premises of any person licensed to 
sell thereunder. The court sustained the act, stating their 
reasons as follows: — 

The power conferred by this section upon the officers therein named, 
to ''enter upon the premises of any person licensed to sell under this act, 
to ascertain the manner in which such person conducts his business, 
and to preserve order," does not authorize any search or seizure of 
person or property; and is therefore not open to the objection ... of 
not providing for a previous oath or affirmation, and a special designa- 
tion of the persons or objects of search, arrest or seizure, as required 
by the fourteenth article of the Declaration of Rights. It is but a 
reasonable exercise of the police power to preserve the public peace, 
and to see that the business carried on in the buildings described in the 
several licenses is conducted according to the conditions of the license, 
the provisions of the statute under which it is granted, and the stipu- 
lations of the bond executed by the licensee himself. 

The court specifically stated that the evidence did not re- 
quire them to consider the validity of another provision of the 
act authorizing the taking of samples of liquors, nor whether 
the officers would have the right, after demanding and being 
refused admittance, to break outer doors to make entry. 

In Commonwealth v. Carter, 132 Mass. 12, 14, 15, the court 
held constitutional an act which authorized inspectors of milk 
to enter carriages used in the conveyance of milk, and when 
they had reason to believe any milk found therein was adul- 
terated to take specimens for analysis. The reasons which the 
court gave were, in part, as follows: — 



284 ATTORNEY-GENERAL'S REPORT. [Jan. 

If the statute had required that all milk offered for sale should first 
be inspected, it would hardly be contended that the trifling injury to 
property occasioned by taking samples for inspection would be such a 
taking of private property for public use as to require that compensa- 
tion be made therefor. Such an injury to propert}^ is a necessary in- 
cident to the enforcement of reasonable regulations affecting trade in 
food. Private property is held subject to the exercise of such public 
rights, for the common benefit; and in the case of licensed dealers in 
merchandise, the injur}" suffered by inspection is accompanied by ad- 
vantages which must be regarded as a sufficient compensation. . . . 
Instead of requiring all milk offered for sale to be first inspected, the 
Legislature for obvious reasons has permitted licensed dealers to sell 
milk without inspection, has imposed penalties for selling adulterated 
milk, has defined what shall be deemed adulterated milk, and has pro- 
vided that when the inspector of milk has reason to believe that any 
milk has been adulterated he may take specimens thereof in order that 
by analysis or otherwise he may determine whether the milk has been 
adulterated. Such a seizure of milk for the purposes of examination is 
a reasonable method of inspection, and does not require a warrant. 
It is a supervision under the laws by a public officer of a trade which 
concerns the public health, and is within the police power of the Com- 
monwealth. 

In Commonwealth v. Smith, 141 Mass. 135, 138, the court, 
referring to the preceding case, said: — 

The right given bj' the statutes to take specimens of milk was held 
to be a constitutional exercise of the police power of the Commonwealth, 
in Commonwealth v. Carter, 137 Mass. 12, on the ground that it was a 
reasonable method of inspecting an article of food. 

In brief, these cases sustain the right of an officer, author- 
ized b}^ a statute which is justified as a legitimate exercise of 
the police powder, to make peaceable entry for purposes of in- 
spection, and also to take samples without compensation, as a 
reasonable method of inspection, in view of the trifling injury 
to property caused thereby. The cases do not hold that doors 
may be broken where entry is opposed. Whether that would 
be lawful is left in doubt. 

With respect to the powder to search for game or fish un- 
lawfully taken or held, R. L., c. 91, § 91, provided as fol- 
low^s: — 

For the purpose of enforcing the provisions of section eighty-eight, 
any one of the commissioners on fisheries and game or their deputy or 



1922.] PUBLIC DOCUMENT — Xo. 12. 285 

any member of the district police may search in suspected places for, 
seize and remove lobsters which have been unlawfully taken, held or 
offered for sale. 

In 1904 a statute was passed (St. 1904, c. 367) authorizing 
search to be made "with a warrant" for game or fish unlaw- 
fully taken or held in places other than dwelling houses. 

In Dunn v. Lowe, 203 Mass. 516, the plaintiff brought suit 
against the defendant, a duly qualified deputy fish and game 
commissioner, for forcibly seizing and opening sacks containing 
lobsters in the manual possession of the plaintiff. The court 
held, with respect to R. L., c. 91, § 91, that it did not con- 
template or authorize such a violation of personal rights, and 
ordered judgment for the plaintiff. Referring to St. 1904, 
c. 367, the court said: — 

The St. 1904, c. 367, purports to cover the whole subject of searches 
by a commissioner or deputy commissioner on fisheries and game 
for game or fish believed to be taken or held in violation of law. 
Seemingly it was intended to relieve the subject of constitutional ob- 
jections that might be made to searches under the R. L. c. 91, §91. 
See Constitution of Massachusetts, Declaration of Rights, art. 14; 
Fisher v. McGirr, 1 Gray, 1. This later statute includes searches for 
lobsters, and supersedes and repeals by implication, so much of § 91, 
relied on bj'' the defendant, as relates to searches. It is therefore un- 
necessary to consider the constitutional question discussed at the 
argument. 

After this decision was rendered, the General Court, by 
St. 1910, c. 548, amended St. 1904, c. 367, § 1, in certain 
respects not here material and by inserting after the word 
"with" and before the words "a warrant" the significant 
words "or without." This statute now appears in G. L., 
c. 130, § 6, in the following form: — 

The director, a warden, deputy or state police officer, may, without 
a warrant, search any boat, car, box, locker, crate or package, and any 
building, where he has reason to believe any game or fish unlawfully 
taken or held may be found, and may seize any game or fish so taken 
or held, which shall be disposed of in such manner as the director deems 
for the best interests of the commonwealth; provided, that this section 
shall not authorize entering a dwelling house, or apply to game or fish 
passing through this commonwealth under authoritj' of the laws of the 
United States. 



286 ATTORNEY-GENERAL'S REPORT. [Jan. 

In the light of the previous discussion, and in accordance with 
what is apparently the view indicated in Dunn v. Lowe, supra, 
it is my opinion that section 6, in purporting to authorize the 
director and other officers without a warrant to make searches 
for game or fish unlawfully taken or held, is in violation of 
Mass. Const., pt. 1st, art. XIV, quoted above. In my opinion 
to you under date of July 2, 1920 (V Op. Atty.-Gen. 589), 
where the application of the statute to a search of parts of a 
hotel not used for dwelling purposes was considered, this 
constitutional question was not referred to by the inquiry or 
discussed. I am stating my opinion on that question now 
for the protection of the officers in your department who might 
otherwise unwittingly be subjected to some civil or criminal 
liability. It should be added that the statute might be re- 
framed as an inspection law in such form as to remove the 
constitutional objection. On that point I express no opinion. 

Your letter asks as to the powers of the Inspector of Fish 
and deputy inspectors whose appointment is authorized by 
G. L., c. 21, § 8. 

The Inspector of Fish is expressly authorized by G. L., 
c. 94, § 81, to enforce the provisions of sections 74 to 80, in- 
clusive, of that chapter, and his deputy inspectors have the 
same authority. A deputy is one who by appointment exercises 
an office in another's right. Carter v. Hornback, 139 Mo. 238; 
Willis V. Melvi7i, 53 N. C. 62; Bouvier's Law Diet.; cf. 
Attorney-General v. Tillinghast, 203 Mass. 539, 544. In en- 
forcing those provisions they have not, however, the powers of 
peace officers to make arrests or to serve warrants. G. L., 
c. 276, § 23; Rohan v. Sawin, 5 Cush. 281, 284; Averill v. 
Chadicick, 153 Mass. 171; Beard v. Seavey, 191 Mass. 503. 
Nor do I find any provision authorizing search warrants to be 
issued in cases of violations of said sections 74 to 80, inclusive. 

I find no provision authorizing the Inspector of Fish or his 
deputy inspectors to exercise any of the powers described in 
chapters 130 and 131. The powers of enforcement therein 
given are confined to the director, the wardens and deputy 
wardens. State police, and officers qualified to serve criminal 
process. In this category the Inspector of Fish and his 
deputies are not included. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 287 



Inland Waters — Licensing of Fishermen. 

Unless the contrary appears by express provision or clear implication, the 
words "inland waters," as used in G. L., c. 131, § 3, apply to waters 
where the tide does not ebb and flow. 

Sept. 29, 1921. 

Hon. W. A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — i\.n opinion was requested last year as to the 
meaning of the words ''inland waters," as used in Gen. St. 
1919, c. 296, § 1, incorporated in G. L., c. 131, § 3, the par- 
ticular question at issue being whether Bass River, which lies 
between the towns of Yarmouth and Dennis, is an inland 
water, within the meaning of the statute. An oral opinion 
was given at that time, but I am giving you an opinion in 
writing in order that you may have a permanent record in 
the files of your department. 

The section referred to provides, in part, as follows: — 

It shall be unlawful for any person to hunt, pursue, take or kill any 
bird or quadruped, or to fish, except as hereinafter provided, in any of 
the inland waters of the commonwealth which have been stocked by 
the board of commissioners on fisheries and game, hereinafter called 
the commissioners, since January first, nineteen hundred and ten, 
without having first obtained a certificate of registration as hereinafter 
provided. 

Bass River was stocked w^ith fish after Jan. 1, 1910, by 
the Board of Commissioners on Fisheries and Game. You 
state that the river is tidewater for practically, if not actually, 
its entire length. The question, then, resolves itself into this: 
Is a tidal river within the meaning of the term ''inland 
waters" as used in the act? 

The words "inland waters" are variously defined with re- 
spect to their use for special purposes, w^idely diverse, which 
have no special relation to each other. 

For example, in cases arising under a Federal statute re- 
garding the seizure of property in time of war, the United 
States Supreme Court has defined these waters to include 
rivers where the tide ebbs and flows. Porter v. United States, 
106 U. S. 607, 611; see also The Cotton Plant, 10 Wall. 577. 

In dealing with a policy of marine insurance, a New York 
court has held that inland waters include not only rivers but 
bays and arms of the sea between projections of land. Cogs- 
well V. Chubb, 1 App. Div. (N. Y.) 93. 



288 ATTORNEY-GENERAL'S REPORT. [Jan. 

It is clear that definitions relating to navigation, insurance 
and the uses to be made of inland waters in time of war can 
have little application to fishing rights in such waters. 

This Commonwealth has not hesitated to incur large ex- 
pense in cultivating fish life in the fresh waters of the State. 
At the outset, the chief concern of the Department of Fisheries 
and Game was the protection and propagation of fresh-water 
fish. In recent years the department has extended its ac- 
tivities to the study of the shellfish industries and the pro- 
tection and propagation of lobsters, clams and scallops, as 
well as smelts and alewives. I am informed that in tidal 
rivers there is a general mingling of fresh-water and salt- 
water fish, and that trout and herring, for example, may be 
caught in the same waters. 

The activity of the department in the protection and prop- 
agation of salt-water fish raises the inquiry and makes neces- 
sary a determination as to the meaning and application of the 
statute in question. It is clear that the statute is not in- 
tended to apply to the coast fisheries nor to require the 
licensing of fishermen, except in so far as is necessary to pro- 
tect the inland waters which have been stocked by the de- 
partment. To require a license for fishing in a river where the 
tide ebbs and flows, because it may have been stocked with 
fish, would be but one step removed from requiring a license 
to fish in harbors and bays where trout or other fresh-water 
fish may at times be found. 

In determining the purpose and intent of the statute, an 
examination of the statutes in other States having tidal rivers 
is of value. In Maine (R. S., c. 33, § 17) the application of 
the law defining the annual closed season on trout is limited 
to "brooks, streams and rivers of the state above tide waters." 
Similarly, in section 26 of the same chapter, the prohibition 
with respect to taking smelts with a dip-net is limited to "all 
the inland waters of the state above tide waters." 

In New Hampshire the closed season on pike, perch or 
white perch and black bass originally extended to "any of the 
waters of this state" (P. S., c. 133, § 8), but in 1893, by an 
act of the Legislature (St. 1893, c. 20, § 2), the words "ex- 
cept tide waters" were inserted. Similarly, fishing through 
the ice is subject to certain restrictions (St. 1897, c. 54, § 1) 
"except in tide waters within the state." The Supreme Court 
of that State has held, in Scott v. Willson, 3 N. H. 321, 
325: — 



1922.] PUBLIC DOCUMENT — Xo. 12. 289 

The common law considers all rivers, where the tide does not ebb 
and flow, as inland rivers, not na\igable, and as belonging to the owners 
of the adjacent soil. (Citing 4 Burr. 2162.) 

In a Connecticut case the term ** inland rivers" is used to 
designate rivers in w^hich the tide does not ebb and flow. 
Adams v. Pease, 2 Conn. 481. 

I am of the opinion that, in all laws providing for the 
licensing of fishermen and imposing limitations upon fishing 
in inland waters, unless the contrary appears by express pro- 
vision or clear implication, the words "inland -waters" are to 
be taken to apply to waters where the tide does not ebb and 
flow. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Sale of Shares of Capital Stock — Word "Certificate" — 
H. V. Greene Company. 

The provisions of G. L., c. 174, do not apply to the sale of shares of the 
capital stock of corporations on the partial payment or instalment 
plan. 

Sept. 29, 1921. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — I am in receipt of your inquiry as to whether 
the H. V. Greene Company comes within the provisions of 
G. L., c. 174. 

The facts, as I understand them, upon which your inquiry 
is based, are these: — 

The H. V. Greene Company is a corporation organized 
under the laws of this Commonwealth, and among its pur- 
poses, as stated in its articles of organization, are to be found 
the following: "to draw, accept, indorse, acquire and sell 
all or any negotiable or transferable instruments or securities, 
including bonds, bills of exchange; . . . sell, exchange and 
deal in shares, stocks, bonds, obligations or securities of any 
private or public corporation, government or municipality; 
... to sell . . . shares of the capital stock, bonds, inden- 
tures or other evidence of indebtedness created by this or any 
other corporation or corporations of this or any other state or 
country. ..." 

This company has, under its charter, been selling on the 



290 ATTORNEY-GENERAL'S REPORT. [Jan. 

partial payment or instalment plan shares of the capital 
stock, common and preferred, of The Mutual Finance Cor- 
poration, The Commercial Finance Corporation and The 
First People's Trust, the first two corporations being organized 
under the laws of this Commonwealth, and the latter operated 
under a declaration of trust. 

G. L., c. 174, § 1, provides as follows: — 

The business of issuing, negotiating or selling any bonds, certifi- 
cates or obligations of any kind on the partial payment or instalment 
plan, unless such bond, certificate or obligation shall at the time of 
issuance, negotiation or sale be secured by adequate property, real or 
personal, shall be transacted in the commonwealth only by corpora- 
tions subject to the requirements of this chapter. Every such cor- 
poration before doing business in the commonwealth shall have at 
least one hundred thousand dollars of capital stock fully paid in, 
which, for the benefit and protection of all its investors equally shall 
be deposited in trust with the state treasurer or with the duly au- 
thorized officer of some other state, . . . 

Section 3 provides: — 

No corporation shall transact the business described in section one 
without receiving a certificate of authority from the commissioner of 
banks. Upon the making of the deposit with the state treasurer or 
the filing with the commissioner of the certificate required by section 
one and upon an examination or exhibition of the assets and liabilities 
of the corporation showing that it is in a sound financial condition, 
and if it is other\\ise duly qualified under the laws of the common- 
wealth to transact business therein, the commissioner shall issue to it 
a certificate of authority to do business in the commonwealth. 

The business referred to in section 1 of this act is that "of 
issuing, negotiating or selling any bonds, certificates or 
obligations of any kind." The particular business carried on 
by the H. V. Greene Company, with reference to which this 
inquiry is addressed, is that of selling shares of capital stock 
issued by a corporation other than its own. The question 
which presents itself, therefore, is whether the word "certifi- 
cate," as used in said section, can be said to include and 
apply to shares of stock or certificates of stock. 

Where words have a peculiar and appropriate meaning in 
the law they should be construed and understood according 
to such meaning. This is the rule of exposition laid down in 



1922.] PUBLIC DOCUMENT — No. 12. 291 

G. L., c. 4, § 6, cl. 3. It is also well settled that statutes are 
to be construed according to the intention of the framers. 

The word "certificate," in its broad sense, means a docu- 
mentary declaration. There are any number of different 
kinds of certificates. When the word stands alone the par- 
ticular kind of certificate that it has reference to is to be 
determined from the remainder of the text. The words used 
in section 1 of the act are "bonds, certificates or obligations 
of any kind." The words "obligations of any kind" modify 
the words "bonds" and "certificates," and clearly denote 
that the word "certificate," as used in said section, was in- 
tended to be used in the sense of an obligation or certificate 
of indebtedness. 

A share or certificate of stock, though carried as a liability 
of the corporation or joint stock company issuing the same, 
is not an obligation in the sense of its being a promise to pay. 
It is an official voucher as to the ownership of a share in a 
corporation or a joint stock company. 

A careful examination of the statutes dealing with corpora- 
tions discloses but one instance where the Legislature used 
the word "certificate" as applying to shares or certificates of 
stock. (G. L., c. 155.) It manifested this intention by de- 
fining the word "certificate" under section 26 of said chapter. 
In all other instances the words used are "shares," "shares 
of stock" and "certificates of stock." 

It is to be noted that just prior to the time that said 
chapter 174 was first enacted (St. 1904, c. 427) a number of 
corporations, foreign and domestic, organized as so-called 
bond and investment companies, engaged in the business of 
issuing and selling bonds on the partial payment or instal- 
ment plan, with promises of a maturity value far in excess of 
the aggregate of the instalments and any reasonable interest. 
These companies preyed upon the public and gave them 
nothing in return for their investment other than unguaranteed 
promises of large interest in the future. Finding that these 
companies were able to operate under the then existing laws 
without proper supervision, the Legislature, on the recom- 
mendation of the Commissioner of Corporations, the Insurance 
Commissioner and the Savings Bank Commissioners, passed 
said act as "An Act to regulate bond and investment com- 
panies." It was unquestionably because of this desire to 
protect purchasers of such obligations, and not purchasers of 



292 ATTORNEY-GENERAL'S REPORT. [Jan. 

shares of stock in business corporations, as appears in the 
communications addressed by the Attorney-General to the 
Insurance Commissioner and the Commissioner of Corpora- 
tions, enclosing a draft of a bill providing for the licensing 
and examination of corporations doing this class of business, 
which were, in turn, submitted to the Legislature by His 
Excellency John L. Bates (see House Document No. 1295, 
1904), that the Legislature passed the act. 

To hold that said chapter was intended to apply to and to 
include shares of stock would mean that no person, partner- 
ship or association could engage in the business of selling 
stock on the partial payment or instalment plan in this 
Commonwealth as broker or selling agent, as under the pro- 
visions of section 1 of said chapter the business could be 
carried on only by corporations subject to the requirements 
of said chapter. This was clearly not the intention of the 
Legislature. 

I am therefore of the opinion that, on the facts as stated, 
the H. V. Greene Company does not come within the pro- 
visions of G. L., c. 174, and that it was therefore unnecessary 
for it to receive a certificate of authority from you, as Com- 
missioner of Banks, before it engaged in the business of selling 
certificates of stock on the partial payment or instalment 
plan. 

The General Court at its last session, upon the report of a 
special commission which recommended legislation relating to 
the issue and sale of negotiable securities, enacted St. 1921, 
c. 499, which must be considered in relation to the questioQ 
presented by your letter. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 293 



Department of Education — Continuation Schools — Refusal 
to maintain — Forfeiture of Funds by the Commonwealth. 

It is the duty of the Department of Education to require the maintenance 
of a continuation school in those municipahties in which, in any year, 
200 or more minors under sixteen are employed not less than six 
hours per day, by authority of employment certificates or home 
permits, exclusive of minors employed only during vacations. 

A town which has accepted Gen. St. 1919, c. 311, and in which, during 
1920, 308 minors of the class described were employed not less than 
six hours per day, by authority of employment certificates or home 
permits, exclusive of minors employed only during vacations, is re- 
quired to maintain a continuation school during the ensuing school 
year. 

If such town has refused or neglected to appropriate the money necessary 
for the maintenance of such a continuation school, in compUance 
with G. L., c. 71, § 26, it becomes the duty of the Department of 
Education to estimate the sum necessary properly to provide for the 
maintenance of the school, and to notify the Treasurer and Receiver- 
General that the said town has forfeited from funds due it from the 
Commonwealth a sum equal to twice that so estimated. 

Oct. 4, 1921. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion on certain 
questions of law involving the construction to be given G. L., 
c. 71, § 21. Said section 21 and the five following sections 
contain the statutory provisions relative to the establishment 
and maintenance of continuation schools. Section 21 reads as 
follows: — 

Every town which has accepted chapter three hundred and eleven 
of the General Acts of nineteen hundred and nineteen, and in which, 
in any year, two hundred or more minors under sixteen are employed 
not less than six hours per day by authority of employment certifi- 
cates or home permits described in section one of chapter seventy- 
six, exclusive of minors employed only during vacations, shall, and 
any other town wliich has accepted said chapter, may, through its 
school committee, local board of trustees for vocational education, or 
both, establish at the beginning of the next school year and maintain 
continuation schools or courses of instruction for the education of 
such minors, and for such others as may be required to attend under 
section twenty-five. The said schools or courses shall be in session 
the same number of weeks in each year as the local high schools, and 
the sessions shall be between the hours of eight in the morning and 
five in the afternoon of any working days except Saturday. 

You state that the town of Braintree has accepted the pro- 
visions of Gen. St. 1919, c. 311, and that the oflftcial report 



294 ATTORNEY-GENERAL'S REPORT. [Jan. 

from that town and other towns having minors described in 
said section 21 employed in Brain tree showed by count that 
there were 380 such minors employed there in the calendar 
year 1920. You further state that the school committee of 
Braintree has notified you in writing that the town refuses 
to continue the continuation school. You state that the town 
of Braintree contends that during some portion of the calendar 
year of 1920 less than 200 minors were in attendance at its 
continuation school, and that because of this fact there were 
not 200 or more minors employed in Braintree during the 
year 1920, and that therefore the town of Braintree is not 
obliged to maintain this continuation school during the 
present school year. 

Considering your questions in the order submitted, the 
first is: — 

1. Is it not incumbent upon the Department of Education to 
determine a procedure for securing the count of minors described in 
G. L., c. 71, § 21? 

It is clearly the duty of the Department of Education to 
require the maintenance of a continuation school in those 
municipalities in which, in any year, 200 or more minors 
under sixteen are employed not less than six hours per day, 
by authority of employment certificates or home permits, 
exclusive of minors employed only during vacations. By the 
provisions of G. L., c. 69, § 1, it is the duty of the Commis- 
sioner of Education to collect information relative to the 
performance of their duties by school committees. Further, 
by the provisions of G. L., c. 149, § 89, records and statistics 
concerning the issuance of employment certificates, as may be 
prescribed by the Department of Education, shall be kept, 
and shall be open to the inspection of said department, its 
officers or agents. Clearly, it is your duty to collect the in- 
formation, in order to ascertain whether or not 200 or more 
minors, in any year, are employed under the conditions set 
forth in said section 21. 

2. Your second question is as follows : — 

Does the count of minors, as secured and used by the Division of 
Vocational Education in the Department of Education, in determining 
the obhgations of towns under the provisions of G. L., c. 71, § 21, 
determine those obligations fairly and equitably as well as legally? 



1922.] PUBLIC DOCUMENT — No. 12. 295 

You have submitted to me Booklet No. 8, entitled "Com- 
pulsory Continuation Schools," issued under date of February, 
1921, on pages 8 and 9 of which is printed a blank form for 
return as to minors between fourteen and sixteen years of age, 
who within the last calendar year were employed while the 
schools were in session. In my judgment, the form of return 
is a proper one, as a matter of law, and is within the authority 
of your department, under the statutory provisions for obtain- 
ing information as set forth above. The question as to 
whether the return secures the count fairly and equitably is 
not strictly within my province to answer, but an examination 
of the return does not indicate, in my opinion, anything of 
an unfair or inequitable nature. 

3. My answer to your second question makes it unnecessary 
to take up your third question. 

4. Your fourth question is as follows: — 

Is the town of Braintree required by G. L., c. 71, § 21, to maintain 
continuation schools during the ensuing school year? 

According to the facts submitted by you to me, the official 
report from the town of Braintree shows that during 1920, 
380 minors of the class described in G. L., c. 71, § 21, were 
employed in 1920 not less than six hours per day, by au- 
thority of employment certificates or home permits, exclusive 
of minors employed only during vacations. On the facts 
given, the town of Braintree having accepted Gen. St. 1919, 
c. 311, it becomes, by the provisions of said section 21, 
mandatory upon the town of Braintree to maintain a con- 
tinuation school for the present school year. 

5. Your fifth question is as follows: — 

What responsibilities devolve upon the Commissioner of Education 
in administering the provisions of G. L., c. 71, § 26? 

Said section 26 reads as follows: — 

A towTi required by section twenty-one to establish and to main- 
tain continuation schools or courses which refuses or neglects to ap- 
propriate money necessary therefor, shall forfeit from funds due it 
from the commonwealth a sum equal to twice that estimated by the 
department as necessarj^ properly to provide for the same. A sum 
equal to three fifths of such forfeiture shall be paid by the state 
treasurer to the school committee of the delinquent to^^^l, and the 



296 ATTORNEY-GENERAL'S REPORT. [Jan. 

committee shall expend the sam.e for such estabUshment and main- 
tenance to the same extent as if it had been regularly appropriated by 
the town therefor. 

The first duty of your department is to ascertain whether 
or not the town of Braintree has appropriated the money 
necessary for the maintenance of the continuation school at 
Braintree for the present school year. If the town of Brain- 
tree has refused or neglected to appropriate the said money, 
your department should then estimate the sum necessary 
properly to provide for the maintenance of the school, and 
forthwith notify the Treasurer and Receiver-General that the 
town of Braintree has forfeited from funds due it from the 
Commonwealth a sum equal to twice that estimated by your 
department as necessary properly to provide for the main- 
tenance of the school. I am informed that a general payment 
is to be made to the town of Braintree on Nov. 15, 1921. 
Consequently, if the town of Braintree has refused or neglected 
to appropriate the necessary money for the continuation 
school, steps should be taken to bring about the forfeiture of 
the funds at the time of the coming payment. 

6. Your sixth question is as follows: — 

In the case of Braintree, has the town at this time, within the 
pro\dsions of the law, refused or neglected to raise and appropriate 
money for the maintenance of continuation schools, as provided by 
G. L., c. 71? 

Whether or not the town has appropriated the said money 
is a question of fact, and not properly before me for de- 
termination. 

7. Your seventh question is answered by the answer to 
question 6. 

8. Your eighth question is as follows: — 

May minors described in G. L., c. 71 (those Hable to attend con- 
tinuation schools and employed in a to"s\Ti which had more than 200 
employed in the last calendar year), legally work or legally be certified 
for employment in a town which is violating the provisions of said 
chapter 71? 

In my judgment, this question is collateral to those asked 
by you above, which directly concern the obligation of the 
town of Braintree to maintain its continuation school this 
school year, and concerning which your department has au- 



1922.] PUBLIC DOCUMENT — Xo. 12. 297 

thority in the situation. The questions involved in your 
eighth inquiry, in my opinion, do not concern the duties of 
your department but those of the Department of Labor and 
Industries. I must therefore be excused from answering the 
same. 

Finally, you will note that by the provisions of G. L., c. 71, 
§ 26, a sum equal to three fifths of the amount forfeited 
under that section shall be paid by the Treasurer and Re- 
ceiver-General to the school committee of the delinquent 
town, and the committee shall expend the same for such 
establishment and maintenance to the same extent as if it 
had been regularly appropriated by the town therefor. If, 
after such sum shall be paid to the school committee of 
Braintree, that committee should then refuse to maintain the 
continuation school, the law may be enforced by appropriate 
proceedings. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



Women and Children — Employment in Certain Kinds of 
Business — " In Laboring." 

The inquiry whether a woman or child employed in one of the businesses 
enumerated in G. L., c. 149, § 56, is engaged "in laboring," within 
the meaning of that section, presents a mixed question of law and fact, 
to be determined under the circumstances of each case. 

If the duties discharged by a woman or child employed in one of the busi- 
nesses enumerated in G. L., c. 149, § 56, are discharged during regular 
hours, are of routine character, are of a grade similar to those or- 
dinarily performed by women or children in the businesses enumerated, 
and do not involve judgment or discretion, a finding that such woman 
or child is engaged "in laboring," within the meaning of G. L., c. 149, 
§ 56, would ordinarily be warranted, even though the labor performed 
be largely mental and only incidentally manual; but such a finding 
might in some instances be negatived by proof that similar duties are 
discharged by women and children in other businesses than those 
enumerated in said section. 

Oct. 11, 1921. 

E. Leroy Sweetser, Esq., Commissioner of Labor and Industries. 
Dear Sir: — G. L., c. 149, § 56, provides, in part: — 

No child and no woman shall be employed in laboring in an}^ factory 
or workshop, or in any manufacturing, mercantile, mechanical estab- 
lishment, telegraph office or telephone exchange, or by any express or 
transportation company more than nine hours in any one day; . . . 



298 ATTORNEY-GENERAL'S REPORT. [Jan. 

You request me to define the scope of the words ''in laboring," 
as used in this act, with respect to the kind of employment 
covered. 

The quoted portion of this section fixes the maximum num- 
ber of hours in any one day during which women and children 
may be employed "in laboring" in certain designated estab- 
lishments and businesses. The uncertainty as to the meaning 
of the words "in laboring" arises in large measure from the 
extension of the act, from time to time, to include new kinds 
of establishments and businesses. 

G. S., c. 42, § 3, forbade the employment of any child 
under twelve years of age for more than ten hours in any one 
day "in any manufacturing establishment." P. S., c. 74, § 4, 
prohibited the employment of minors under eighteen and of 
women for more than ten hours in any one day "in laboring 
in any manufacturing establishment." Under this act the 
words "in laboring" naturally apply to manual labor as dis- 
tinguished from work primarily mental. 

R. L., c. 106, §§23 and 24, extended the prohibitions con- 
tained in those sections to minors under eighteen and to 
women "employed in laboring" in mercantile, manufacturing 
and mechanical establishments. A large number of women, 
perhaps the majority of women who work in "mercantile" 
establishments, are engaged in selling goods over the counter. 
Although such work involves mental exertion coupled with 
physical exertion in greater or less degree, I cannot suppose 
that the words "in laboring" would exclude such women from 
the scope of the act as matter of law. So to construe it 
would, to a considerable extent, defeat extension of it to 
mercantile establishments. On the other hand, it cannot be 
held to extend to all women who work in such establishments, 
irrespective of the duties discharged. One of my predecessors 
has ruled that St. 1909, c. 514, § 47, which provided that 
"no child and no woman shall be employed in laboring in a 
mercantile establishment" more than fifty-eight hours in a 
week, did not apply to the female manager of a large depart- 
ment in such an establishment, whose duties required judg- 
ment and discretion and did not necessarily involve either 
manual labor or fixed and definite hours. Ill Op. Atty.-Gen. 
269. In Commonwealth v. Rile^j, 210 Mass. 387, 392; S. C, 
232 U. S. 671, which upheld the constitutionality of the latter 
act, it was pointed out that the act did not apply to women 



1922.] PUBLIC DOCUMENT — No. 12. 299 

who do not labor for full working days or who are tem- 
porarily or intermittently hired for casual tasks, such as 
sweeping floors or washing windows. See also Common- 
wealth V. Oshorn Mill, 130 Mass. 33. 

A considerable extension was made by St. 1913, c. 758, 
which provides, in part: — 

No child under eighteen years of age and no woman shall be employed 
in laboring in any factorj^ or workshop, or in any manufacturing, mer- 
cantile, mechanical estabhshment, telegraph office or telephone ex- 
change, or b}^ any express or transportation company, more than ten 
hours in any one day; . . . 

This act, with respect to the question which you raise, is 
substantially similar to G. L., c. 149, § 56. It brings within 
the scope of the prohibition telegraph offices, telephone ex- 
changes and express and transportation companies. In Com- 
monwealth V. John T. Connor Co., 222 Mass. 299 (to which 
3^ou call my attention), it was held that it could not be said 
as matter of law that a female cashier employed to make 
change in a mercantile establishment was not engaged "in 
laboring," within the meaning of the act, and that the ques- 
tion whether she was so engaged was properly submitted to 
the jury upon all the evidence. In that case the duties dis- 
charged by the cashier involved mental and, in a minor de- 
gree, manual exertion, did not involve judgment or dis- 
cretion, were of routine character and were performed during 
regular hours. They did not differ sensibly in degree from 
those discharged by telephone and telegraph operators, and, 
presumably, from those discharged by female employees of 
transportation and express companies. While it could not be 
said, as matter of law, either that she was or was not engaged 
"in laboring," a finding of fact that she was so engaged could 
not be disturbed. 

In my opinion, that decision establishes that each case must 
rest upon its own facts, which are to be tested by the standard 
therein laid down. If the duties discharged by a woman em- 
ployed in one of the enumerated industries are discharged 
during regular hours, are of routine character, are of a grade 
substantially similar to those ordinarily performed by female 
employees in the businesses enumerated, and do not involve 
judgment and discretion, a finding that the female employee 
is engaged "in laboring," within the meaning of the act, 



300 ATTORNEY-GENERAL'S REPORT. [Jan. 

would probably be warranted even though the labor per- 
formed was largely mental and only incidentally manual. 
If, however, the position and duties be common to businesses 
not included in the act as well as to businesses within it, a 
finding that such female employee is not engaged "in labor- 
ing" may well be made, since it is not to be presumed that 
the Legislature intended to include some members of the class 
because they work in selected industries, while excluding other 
members of the same class simply because they work in other 
industries. On the latter ground a finding that female account- 
ing clerks, bookkeepers and stenographers are not employed 
"in laboring" might be supported. IV Op. Atty.-Gen. 118. 
Yours very truly, 

J. Weston Allen, Attorney-General 



Taxation — Trust Companies — Liability to Tax where Com- 
pany is in the Hands of the Commissioner of Banks or has 
voluntarily ceased to do Business. 

Trust companies in the hands of the Commissioner of Banks on April 1 

are not subject to tax under G. L., c. 63, § 58. 
Trust companies having ceased to do business on April 1 are, nevertheless, 

subject to tax under G. L., c. 63, § 58. 

Oct. 20, 1921. 

Hon. Hexry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You ask my opinion whether you are to assess 
a tax upon certain trust companies, of which five are now 
and have been since various dates prior to April 1, 1921, in 
the hands of the Commissioner of Banks, and two others 
voluntarily ceased doing business on various dates prior to 
April 1, 1921. 

Trust companies are taxable under G. L., c. 63, §§ 53, 55 
and 58, which are, in part, as follows : — 

Section 53. Every corporation organized under general or special 
laws of the commonvrealth for purposes of business or profit, having a 
capital stock divided into shares, except banks whose shares are other- 
wise taxable under this chapter, except insurance companies with 
capital stock and mutual insurance companies with a guaranty capital 
or permanent fund whose premiums are otherwise taxable under this 
chapter, and except corporations taxable under sections thirty to 
fifty-one, inclusive, in addition to all returns required by its charter, 



1922.] PUBLIC DOCUMENT — No. 12. 301 

and in addition to all returns otherwise required under this chapter, 
shall annuall}', between April first and tenth, make a return to the com- 
missioner, on oath of its treasurer, stating the name and place of busi- 
ness of the corporation, and setting forth as of April first of the year in 
which the return is made : 

Section 55. The commissioner shall ascertain from the returns or 
other\Adse the true market value of the shares of each corporation re- 
quired to make a return under section fifty-three or fiftj^-four, and 
shall estimate therefrom the fair cash value of all the shares constitut- 
ing its capital stock on April first preceding, which, unless by the charter 
of a corporation a different method of ascertaining such value is pro- 
vided, shall, for the purposes of this chapter, be taken as the true value 
of its corporate franchise. From such value there shall be made the 
following deductions: 

Section 58. Every corporation subject to sections fifty-three or 
fifty-four shall annually pay a tax upon its corporate franchise, after 
making the deductions provided for in section fifty-five, at a rate equal 
to the average of the annual rates for three years preceding that in 
which such assessment is laid, . . . but the total amount of the tax to 
be paid by a trust company in any year upon the value of its corporate 
franchise shall amount to not less than two fifths of one per cent of the 
total amount of its capital stock, surplus and undivided profits at the 
time of said assessment, as found by the commissioner. 

The tax imposed by those sections is an excise tax upon the 
value of the corporate franchise on the first day of April. 
Commonwealth v. People's Five Cents Savings Bank, 5 Allen, 
428, 438; Commonwealth v. Lancaster Savings Bank, 123 Mass. 
493, 496; Farr Alpaca Co. v. Commomvealth, 212 Mass. 156, 
162. 

On the first day of April, 1921, five of the seven trust 
companies to which you refer were in the hands of the Com- 
missioner of Banks. These corporations, then, were not sub- 
ject to the franchise tax for the year 1921 imposed by G. L., 
c. 63, § 58. Greenfield Savings Bank v. Commonwealth, 211 
Mass. 207. It was held by this decision that a savings bank 
of which the Commissioner had taken possession was not 
subject to an excise tax, and the principle applied is equally 
applicable to the case of a trust company. 

G. L., c. 63, § 16, provides for an apportionment of the tax 
imposed upon certain banks which have become incapacitated 
from doing business, by reducing the amount of the tax to 



302 ATTOI^NEY-GENERAL'S REPORT. [Jan. 

correspond with the period of incapacity. This provision was 
first passed in 1911 (St. 1911, c. 618, § 1), after the tax was 
assessed which was held to be illegally exacted in Greenfield 
Savings Bank v. Commonwealth, supra. This statute is, how- 
ever, expressly made applicable only to taxes imposed on de- 
posits in savings banks and savings departments of trust com- 
panies by G. L., c. 63, § 11, and is not applicable to the tax 
imposed by G. L., c. 63, § 58. 

It is therefore my opinion that the five trust companies in 
the hands of the Commissioner of Banks should not be as- 
sessed. 

The remaining two trust companies on the first day of April, 
1921, had ceased to do business. They were, nevertheless, 
liable to pay the franchise tax imposed by G. L., c. 63, § 58. 
The rule is stated by Knowlton, J., in Attorney-General v. 
Massachusetts Pipe Line Gas Co., 179 Mass. 15, 19, in the 
following words: — 

The franchise which subjects the corporation to taxation is the right 
to do business legally by complying with the laws. A corporation 
having this right under legislative action cannot reheve itself from 
Hability to taxation by neglecting to do business, or ceasing to do 
business. Its franchise remains, and it may do business when it 
chooses. 

See also the opinion rendered to you under date of March 21, 
1921. In that opinion the distinction w^as pointed out be- 
tween a franchise tax imposed upon the privilege of doing 
business (such as the tax here in question) and a tax imposed 
"with respect to the carrying on or doing of business" by a cor- 
poration, such as the tax on domestic business corporations. 
G. L., c. 63, § 32. The opinion held that a corporation which 
had carried on no business whatever during the preceding 
calendar year was not liable to a tax of the latter sort, dis- 
tinguishing such a tax from the ordinary franchise tax, as to 
which the rule as laid down in Attorney-General v. Massa- 
chusetts Pipe Line Gas Co., supra, is applicable. 

Accordingly, it is my opinion that said two trust com- 
panies should be assessed under G. L., c. 63, § 58. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 303 



Commissioner of Banks — Possession of Trust Compaiiy — 
Public Officer — Advice by Attorney-General or Special 
Counsel. 

When the Commissioner of Banks takes possession of a trust company under 
the authority conferred by St. 1910, c. 399 (now G. L., c. 167, §§ 22 to 
36), he acts as a pubhc officer, and may request advice of the Attorney- 
General as to the discharge of duties imposed upon him by law. 

Under St. 1910, c. 399, §§ 6 and 10 (now G. L., c. 167, §§ 26 and 30), the 
Commissioner of Banks may procure expert assistance and advice in 
the liquidation of the assets of such bank, including the advice and 
assistance of counsel, the compensation for such service to be fixed by 
the Commissioner, subject to the approval of the Supreme Judicial 
Court for the proper county, and paid out of the assets of the bank in 
his hands. 

It is not expedient to attempt to define in advance under what circum- 
stances the Commissioner should rely upon the Attorney-General, and 
under what circumstances he may properly retain counsel; each case 
must rest upon its own facts. 

Oct. 27, 1921. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You state that, acting under the authority of 
St. 1910, c. 399 (now G. L., c. 167, §§ 22 to 36, inclusive), 
you have taken possession of certain trust companies and 
have appointed liquidating agents for the same. In connec- 
tion with the liquidation of said trust companies numerous 
legal questions have arisen. You inquire how far the need 
for legal assistance should be met by the Attorney-General 
and how far you can properly retain counsel, to be paid out 
of the assets of the trust companies in process of liquidation. 

G. L., c. 12, § 3, provides: — 

The attorney general shall appear for the commonwealth and for 
state departments, officers and commissions in all suits and other civil 
proceedings in which the commonwealth is a party or interested, or in 
which the official acts and doings of said departments, officers and com- 
missions are called in question, in all the courts of the commonwealth, 
except upon criminal recognizances and bail bonds, and. in such suits 
and proceedings before any other tribunal when requested by the gov- 
ernor or bj^ the general court or either branch thereof. All such suits 
and proceedings shall be prosecuted or defended by him or under his 
direction. Writs, summonses or other processes served upon such of- 
ficers shall be forthwith transmitted by them to him. All legal services 
required by such departments, oflficers, commissions and commissioners 
of pilots for the harbor of Boston in matters relating to their official 
duties shall, except as other\\dse provided, be rendered by the attorney 
general or under his direction. 



304 ATTORNEY-GENERAL'S REPORT. [Jan. 

It seems clear that you act as a public officer in exerting 
the powers and discharging the duties imposed upon you by 
St. 1910, c. 399, now G. L., c. 167, §§ 22 to 36. Greenfield 
Savings Bank v. Commonwealth, 211 Mass. 207; Title Guar- 
anty &' Surety Co. v. Idaho, 240 U. S. 136. As to them, it is 
the duty of the Attorney-General to appear for you and to 
advise 3'ou. Such has been and is now the practice. From 
time to time your department has requested and received a 
number of opinions upon such matters. V Op. Atty.-Gen. 
460, 563, 680, 688, 691 and 726. 

On the other hand, St. 1910, c. 399, authorizes the Com- 
missioner to procure assistance in liquidating a bank of which 
he has taken possession, the cost of such assistance to be 
borne by the bank. Thus, sections 6 and 10 (now G. L., 
c. 167, §§ 26 and 30), provide: — 

Section 6. The bank commissioner may, under his hand and official 
seal, appoint an agent or agents to assist him in the duty of Hquidation 
and distribution. The certificate of the appointment of such agent or 
agents shaU be filed in the office of the bank commissioner, and a cer- 
tified copy thereof shall be filed in the office of the clerk of the supreme 
judicial court for the county in which the principal office of such bank 
is located. The bank commissioner may from time to time authorize 
such agent or agents to perform such duties connected ^\ith said liqui- 
dation and distribution as he may deem proper. The bank commis- 
sioner may procure such expert assistance and advice as he may con- 
sider necessary in the liquidation and distribution of the assets of such 
bank, and he may retain such of the officers or employees of the bank 
as he may deem necessary. The bank commissioner shall require from 
a special agent and from such assistants such security for the faithful 
discharge of their duty as he may deem proper. 

Sectiox 10. The compensation of the special agents, counsel, em- 
ployees and assistants, and all expenses of supervision and liquidation 
shall be fixed by the bank commissioner, subject to the approval of the 
supreme judicial court for the county in which the principal office of 
such bank is located, on notice to such bank and, upon the certificate 
of the bank commissioner, shall be paid out of the funds of the bank 
in his hands. 

Although section 6 does not in terms authorize the Commis- 
sioner to retain counsel — unless the authority to '' procure 
. . . expert assistance and advice" be held to include counsel 
— the express reference to payment of counsel in section 10 
indicates that he has such power. 



1922.] PUBLIC DOCUMENT — No. 12. 305 

Taking these provisions together, it seems plain that no 
cast-iron rule can be laid down in advance as to the point 
where the duties of the Attorney-General end and the power 
to retain private counsel begins. The powers and duties of 
the Commissioner of Banks engaged in liquidating a bank of 
which he has taken possession are of dual character. The 
entire liquidation proceeding may be viewed as the exercise 
of statutory powers by a public officer. On the other hand, 
many of the services performed by him closely resemble those 
rendered by a chancery receiver engaged in liquidating a cor- 
poration under the direction of the court. In many instances 
both attributes will coexist in the same duty or service. 

Under these circumstances, it seems inexpedient to attempt 
to define in advance under what circumstances the Commis- 
sioner should rely upon the Attorney-General, and under what 
circumstances he may properly retain counsel to assist him or 
his liquidating agents. Each case must rest upon its own 
facts. But practical considerations reinforced by existing 
practice suggest that the maximum efficiency at the least cost 
to both bank and Commonwealth may be best secured by 
consultation with the Attorney-General as to the propriety of 
retaining counsel and with respect to the counsel to be em- 
ployed for any particular duties. 

The employment of different general counsel by the several 
agents for the purpose of obtaining legal advice with respect 
to legal questions involved in the liquidation of these com- 
panies, as well as the employment of special counsel in par- 
ticular cases, may result in needless expenditure of the de- 
positors' money when these counsel are acting independently 
and without co-operation with the Attorney-General. As I 
think that this course may at any time bring criticism upon 
your department, I am writing you to confirm the position 
w^hich I took upon this matter when it first came to my 
attention in May of the current year. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



306 ATTORNEY-GENERAL'S REPORT. [Jan. 



County Accounts — Additional Compensation to Persons re- 
ceiving Salaries from Counties. 

Under G. L., c. 262, §§50 and 53, a police officer is not entitled to a fee for 
testifying as a witness in a criminal case during the time for which he 
receives a salary or allowance ; but if he is employed and paid for night 
work, and is called into court during the day, he should be paid his 
fees; and if he attends as a witness at a place other than his residence, 
he may be allowed a witness fee instead of his expenses. 

Whether a regular police officer is entitled to additional compensation for 
services in bringing to land a human body found in any of the harbors, 
rivers or waters of the Commonwealth, under G. L., c. 38, § 17, de- 
pends upon whether he is acting within the scope of his duties, on the 
one hand, or in violation of duty, on the other hand. 

Where a probation officer is appointed by the court to act as temporary 
clerk, or a clerk of court is appointed by the court to act as probation 
officer, additional salaries are properly paid. 

Oct. 29, 1921. 

Hon. Henry F. Long, Co7mnissioner of Corporations and Taxation. 

Dear Sir: — You have asked my advice with respect to 
certain questions arising upon the examination of county 
accounts. These questions relate to the payment of addi- 
tional compensation to persons receiving salaries from coun- 
ties. Therefore, the statute which prohibits a person from 
receiving at the same time more than one salary from the 
treasury of the Commonwealth (G. L., c. 30, § 21) has no 
application. The question in each case will depend for its 
answer upon some statute or upon general considerations in- 
volving incompatibility of office or employment. The ques- 
tions are as follows: — 

1. You ask whether a regular or special police officer who happens to 
be on patrol duty at night and is called upon to attend court as a wit- 
ness for the Commonwealth is entitled to a witness fee. 

The answer to this question depends upon a construction 
of G. L., c. 262, §§ 50 and 53 (St. 1890, c. 440, §§ 1, 6). 
Section 50 provides, in part, as follows: — 

No officer in attendance on any court, sheriff, deputy sheriff, jailer, 
constable, city marshal or other poUce officer w^ho receives a salary or 
an allowance by the day or hour from the commonwealth or from a 
county, city or town shall, except as otherwise hereinafter provided, be 
paid any fee or extra compensation for official services performed by 
him in any criminal case; or for aid rendered to another officer; or for 



1922.] PUBLIC DOCUMENT — No. 12. 307 

testifying as a witness in a criminal case during the time for which he 
receives such salary or allowance; or for services or as a witness at an 
autopsy or inquest; or in proceedings for commitment of insane per- 
sons; but his expenses, necessarily and actually incurred, and actually 
disbursed by him in a criminal case tried in the superior court, shall, 
except as provided in section fifty-two, be paid by the county where 
the trial is held, or in a criminal case tried in a district court or before 
a trial justice, by the town where the crime was committed. 

Section 53 is, in part, as follows: — 

Any officer named in section fifty who attends as a witness at a place 
other than his residence shall, instead of his expenses, be allowed the 
witness fee in the court or before the trial justice where he testifies. 
A police officer on duty at night who attends the superior court as a 
witness for the commonwealth shall be paid the same fees as any other 
witness. A police officer who is a witness for the commonwealth, and 
who under the direction of the district attorney aids in securing the 
attendance of other witnesses, may receive, instead of his expenses, 
witness fees for one day's attendance. 

In Sackett v. Sanbor7i, 205 Mass. 110, 112, the application of 
corresponding provisions in the Revised Laws (R. L., c. 204, 
§§ 42, 44) was considered. The plaintiff, who was chief of 
police of Norwood, sued to recover witness fees and travel 
for attendance as a witness at the court in Dedham in various 
criminal cases. It appeared that by the town by-laws it was 
the plaintiff's duty to be prosecuting officer and have charge 
of all complaints. The court held that inasmuch as the 
plaintiff was attending court in the performance of his official 
duties he came under the provisions of the former section, and 
that the latter section was not applicable. The opinion con- 
tains the following general statement of the object of the 
statute: — 

The object of the statute is to provide that officers who receive com- 
pensation for their services by salary or otherwise, and attend court in 
the discharge of duties which they are thus paid to perform, shall not 
receive further compensation by way of witness fees, but that any ex- 
penses necessarily and actually incurred or disbuused by them in the 
performance of such duties in attending court in criminal cases shall 
be reimbursed to them. If they attend court, but not in the per- 
formance of the duties for which they are paid, at a place other than 
their residence, then, according to the provision quoted above . . . , 
instead of their expenses they are to be allowed witness fees. 



308 ATTORNEY-GENERAL'S REPORT. [Jan. 

The same provisions were also considered by a former At- 
torney-General. In two opinions (I Op. Atty.-Gen. 594 and 
603) he held that testifying in court as a witness is not an 
official service, but that by the provisions of the statute 
constables and police officers are prohibited from receiving 
fees for testifying if, during the time of such attendance, 
they are on duty as officers. He said (I Op. Atty.-Gen. 594, 
595) : — 

There are, for example, many constables and police officers who are 
employed and paid for night work. If such officers were called into 
court during the day, it was the intention of the Legislature that they 
should be paid their fees for travel and attendance as witnesses, such 
service being no part of their official duties, and not being performed 
during the time of their emplojTnent. 

With respect to witness fees, the rule is stated clearly 
enough by the sections above quoted. An officer such as is 
described is not to be paid a fee for testifying as a witness in 
a criminal case during the time for which he receives a salary 
or allowance. If he is employed and paid for night work, and 
is called into court during the day, according to the opinion 
referred to he should be paid his fees, such service being no 
part of his official duties and not being performed during the 
time of his employment. If any such officer attends as a 
witness at a place other than his residence, he may be allowed 
a witness fee instead of his expenses, by the express pro- 
visions of G. L., c. 262, § 53. 

2, You ask whether regular police officers are entitled to additional 
compensation for ser\qces in bringing to land a human body found in 
any of the harbors, rivers or waters of the Commonwealth, under G. L., 
c. 38, § 17. 

The rule is clearly settled that a peace officer is not en- 
titled to extra compensation, such as a reward, for services 
performed in the course of his duties. Pool v. Boston, 5 
Gush. 219; Davies v. Burns, 5 Allen, 349; Hartley v. Gran- 
ville, 216 Mass. 38, 40. It would seem that this rule should 
apply where a reward is authorized by an act of the Legis- 
lature, in the absence of an express provision that the reward 
should be payable to peace oflfiicers as well as others, although 
in United States v. Matthews, 173 U. S. 381, a majority of 
the court appear to have held the contrary. But a contract 



1922.] PUBLIC DOCUMENT — No. 12. 309 

or reward for services rendered by a public officer outside and 
not inconsistent with his official duties is enforceable. Studley 
V. Ballard, 169 Mass. 295, 296; Hartley v. Granville, 216 
Mass. 38, 41. 

The duties of police officers are largely defined by ordinance 
or town by-law. Their general duties, like those of con- 
stables, are to be vigilant to preserve the peace, to prevent 
the commission of crime, to make arrests and to procure 
warrants. Hartley v. Granville, 216 Mass. 38, 39. In the 
case just cited a distinction is said to exist between the duties 
of constables in country communities and those of members 
of an organized police force, in that the former are not ex- 
pected to devote a considerable portion of their time to the 
work of their office, while the latter have regular hours during 
which they are on duty. 

The right of a regular police officer to claim the compen- 
sation provided by G. L., c. 38, § 17, depends entirely upon 
the scope of his duties and the strictness of the requirement 
with respect to the time to be devoted to such duties. If 
the duty of a police officer includes the rescuing of human 
bodies from the water, clearly he cannot receive extra com- 
pensation for such service. If such an act is outside the scope 
of his duties, and if it is a violation of his duty to perform 
such an act while on duty, the two services are inconsistent, 
and again, in my opinion, he cannot recover extra compensa- 
tion. If, however, the performing of such an act is outside 
the scope of his duty, and is properly performed by him at 
the time of performance, then, in my opinion, he may recover. 
It is for you to determine in any particular case, under the 
principle which I have stated, whether the service rendered 
was or was not one for which the officer was entitled to have 
extra compensation. Cf. V Op. Atty.-Gen. 697. 

3. You ask whether a probation officer receiving a stated annual 
salary may be designated, in case of the illness or vacation of the clerk, 
to act as clerk pro tern and be paid as both probation officer and clerk; 
and also whether a clerk of court may be appointed to act as probation 
officer, in case of the illness or vacation of the probation officer, and 
receive an additional salary as probation officer. 

Temporary clerks and assistant clerks are appointed by 
the courts. G. L., c. 221, §§ 8-10. The compensation of a 
temporary clerk is fixed by the court appointing him, and the 



310 ATTORNEY-GENERAL'S REPORT. [Jan. 

compensation of each temporary assistant clerk is the same 
as the assistant clerk for whom he is acting. G. L., c. 221, 
§100. 

Appointments of probation officers, both permanent and 
temporary, also are made by the courts, who to a large extent 
define their duties and fix their compensation, subject, how- 
ever, except in the case of appointments by the Superior 
Court, to approval by the county commissioners. G. L., 
c. 276, §§ 83, 85, 89. Catheron v. Coiinhj of Suffolk, 227 
Mass. 598. 

Where an officer occupies two offices which are not in- 
compatible, he is entitled to the compensation attached to 
both offices. United States v. Saunders, 120 U. S. 126. 

Any question as to the propriet}^ of an appointment to 
either office would involve a consideration of the action of 
the judicial branch of the government, which it is improper 
for me to attempt. The fact that the appointment is made 
by the court in accordance with statutory provisions is a suf- 
ficient determination of the fact that in that particular case, 
at least, the duties to be performed are not inconsistent and 
may be performed by one person. The compensation to be 
paid is also fixed either b}' statute or by the court, with or 
without the approval of the county commissioners, in such a 
manner that it is not open to revision. V Op. Atty.-Gen. 
186. I advise you, therefore, that in such cases the addi- 
tional salaries are properly paid. 

Very trul}' yours, 

J. Weston Allen, Attorney-General. 



Pilgrim Tercentenary Commission — Surplus Material — Sale 
— Disposition of Proceeds. 

Under Spec. St. 1919, c. 187, the Pilgrim Tercentenary Commission has 
the power by sale to dispose of such property and equipment as cannot 
be utilized, but the money received by the commission through the 
sale of such surplus property must be paid into the treasur}^ of the 
Commonwealth, where it becomes part of the general fund or ordinary 
revenue of the Commonwealth, and as such can be expended only in 
the manner provided by G. L., c. 29, § 18. 

Nov. 3, 1921. 

Pilgrim Tercentenary Commission. 

Gentlemen: — My opinion is requested on a question 
arising out of the following situation : — 



1922.] PUBLIC DOCUMENT — No. 12. 311 

The commission will receive a certain sum as payment for 
buildings demolished on the water front at Plymouth, and 
will also receive other sums for the sale of surplus curbing 
and other material. You state that it is desired to use this 
money as an addition to the money already appropriated by 
the Legislature to do the work at Plymouth. You ask as to 
whether or not the commission may legally and properly 
utilize such receipts for its work. 

The general powers of the commission in relation to work 
to be done at Plymouth are found in Spec. St. 1919, c. 187, 
and while in that act there is no special provision authorizing 
the sale of property by the commission, there can be no ques- 
tion but that, under its general powers, the commission has 
the right to dispose of such property and equipment as cannot 
be utilized by it. Such a right is incidental to and is an 
essential part of the general duties of the commission. This 
right to sell surplus property, however, does not confer upon 
the commission the right to expend the money received from 
the sale of such property. 

Mass. Const. Amend., art. LXIII, § 1, provides as fol- 
lows: — 

Collection of Revenue. — All money received on account of the com- 
monwealth from any source whatsoever shall be paid into the treasury 
thereof. 

The money received by the commission through sales is 
subject, in my opinion, to this constitutional provision, and 
when paid into the treasury of the Commonwealth it becomes 
part of the general fund or ordinary revenue of the Common- 
wealth, and as such can be expended only in the manner pro- 
vided by G. L., c. 29, § 18, to wit, by "a warrant from the 
governor drawn in accordance with an appropriation then in 
effect, and after the demand or account to be paid has been 
certified by the state auditor." 

The provisions of Spec. St. 1919, c. 187, clearly indicate 
that it was intended by the Legislature that the money to 
be expended for the purposes of the act was to be made up 
by the amount available by appropriation by the General 
Court and by the sums received by gift, grant or devise under 
the provisions of section 2 of said chapter 187. The language 
found in section 10 of said chapter 187, to the effect that "it 
is the purpose and understanding of the general court that 



312 ATTORNEY-GENERAL'S REPORT. [Jan. 

the sum of two hundred and fifty thousand dollars is the sum 
total of all appropriations which the commonwealth shall 
make for the purposes of this act," is a strong indication, in 
n^y judgment, that it was not intended that any money re- 
ceived incidentally by the commission, through the sale of 
surplus property, was to be available in addition to the money 
appropriated, but that such receipts from sales should be paid 
into the treasury of the Commonwealth under the constitu- 
tional requirement set forth above. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Legal Holiday — Governor — Proclamation — Legislative Power, 

The establishment of a legal holiday calls for the exercise of legislative 
power, and the Governor has no power to establish a legal holiday 
by proclamation. 

Nov. 4, 1921. 

His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You ask my opinion whether the Governor of Massa- 
chusetts has the right to establish a legal holiday by procla- 
mation, with particular reference to making November 11 a 
legal holiday. 

Under the Constitution of Massachusetts the Governor has 
authority, with the Council, to ''hold and keep a council, for 
the ordering and directing the affairs of the commonwealth, 
agreeably to the constitution and the laws of the land." 
Const, pt. 2d, c. II, § I, art. IV. 

Legislative powder is conferred upon the General Court 
"from time to time to make, ordain, and establish, all manner 
of wholesome and reasonable orders, laws, statutes, and or- 
dinances, directions and instructions, either with penalties or 
without; so as the same be not repugnant or contrary to this 
constitution, as they shall judge to be for the good and welfare 
of this commonwealth, and for the government and ordering 
thereof, and of the subjects of the same, and for the necessary 
support and defence of the government thereof." Const, pt. 
2d, c. I, § II, art. IV. 

In the Public Statutes there was no definition of the term 
"legal holiday." There was a provision enumerating certain 
days on which the General Court should hold no session and 
the public offices should be closed (P. S., c. 2, § 34); and 



1922.] PUBLIC DOCUMENT — No. 12. 313 

another provision which referred to a "Fast or Thanksgiving 
day appointed or recommended by the Governor of the Com- 
monwealth or by the President of the United States." That 
provision is P. S., c. 77, § 8, and is, in part, as follows: — 

Bills of exchange, drafts, promissory notes, and contracts, due and 
payable or to be performed on a Sunday, on a Fast or Thanksgiving 
day appointed or recommended by the governor of the commonwealth 
or by the President of the United States, on Christmas day, on the 
twenty-second day of February, on the thirtieth day of May, on the 
fourth day of July, or on the following day when either of the three 
days last mentioned occurs on a Sunday, shall be payable or perform- 
able upon the business day next preceding said days; . . , 

This provision was held by a former Attorney-General to 
contain a sufficient implication of authority in the Governor to 
appoint a day of fasting or thanksgiving at his discretion. 
I Op. Atty.-Gen. 66. The statute was, however, superseded 
by the statutes hereinafter mentioned. 

In 1887 the Legislature passed an act making the first 
Monday of September a legal public holiday **in the same 
manner as Thanksgiving, Fast and Christmas days, the 
twenty-second of February, the thirtieth day of May and 
the fourth day of July, are now by law made public holidays" 
(St. 1887, c. 263); and in 1894 Fast Day was abolished and 
the nineteenth day of April in each year was made a legal 
public holiday. St 1894, c 130. 

In the same year and in the following year statutes were 
passed, the effect of which was to repeal those provisions of 
P. S., c. 77, § 8, which gave any discretion to the Governor of 
the Commonwealth or the President of the United States to 
declare a holiday which should affect the time of payment or 
performance of negotiable instruments and contracts. St. 
1894, c. 333, § 427; St 1895, c 201. 

In the year 1919 the General Court by statute authorized 
the Governor to designate a holiday for proper observance of 
the return of Massachusetts soldiers, sailors and marines, pro- 
viding that the day so designated should be a holiday for the 
year only in which it occurred. Said statute (Gen. St. 1919, 
c. 126, § 1) is as follows: — 

The governor is hereby authorized to designate by proclamation a 
day which in his judgment may appropriately be set apart for the gen- 
eral observance and celebration throughout the commonwealth of the 
home-coming of Massachusetts soldiers, sailors and marines, and the 



314 ATTORNEY-GENERAL'S REPORT. [Jan. 

day so designated shall, for the year only in which it occurs, be a holiday 
within the meaning of the ninth clause of section five of chapter eight 
of the Revised Laws and the amendments thereof, and all the public 
offices shall be closed on that day. 

In G. L., c. 4, § 7, cl. 18, the General Court has now de- 
fined the term "legal holiday" as follows: — 

" Legal holiday" shall include January first, February twenty-second, 
April nineteenth. May thirtieth, July fourth, the first Monday of 
September, October twelfth. Thanksgiving day and Christmas day, or 
the day following when any of the five days first mentioned, October 
twelfth or Christmas day occurs on Sunday, and the public offices 
shall be closed on all of said daj's. 

There are other provisions in the statutes for the closing 
of the courts and offices of the State government and regu- 
lating the effect of holidays on various transactions; but 
there is nothing providing for the proclamation of other 
holidays by the executive branch of the government. 

It is my opinion that the establishment of a legal holiday, 
affecting in any respect legal rights, is an act calling for the 
exercise of legislative power, that this power has been exer- 
cised by the General Court in a way which now gives no 
power over the subject to the executive branch of the gov- 
ernment, and that the General Court, by the statute of 1919, 
authorizing the Governor to designate a holiday to celebrate 
the home-coming of Massachusetts soldiers, sailors and marines 
for one year only, has indicated the intention that there 
should be no holiday for such an occasion in other years, or 
any holiday w^ithout legislative enactment. 

I must advise you, therefore, that, in my opinion, the Gov- 
ernor or the Governor and Council have no power to establish 
a legal holiday by proclamation. I do not intend to suggest 
that the Governor may not by proclamation request the people 
to observe any particular day in a particular manner. The 
question whether the Congress or the President of the United 
States may establish a legal holiday effective throughout the 
United States, and whether Your Excellency may join with 
the Governors of other States in proclaiming such a holiday at 
the request of Congress or of the President, is not before me; 
and on that matter I express no opinion. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.] PUBLIC DOCUMENT — No. 12. 315 



Teachers^ Retirement System — Teachers' Pensions — Basis of 
Reimhursement paid to Cities and Towns. 

In view of St. 1921, c. 460, the reimbursement paid to cities and towns on 
account of pensions paid to teachers retired by cities and towns under 
G. L., c. 32, § 16, should be based upon the pension factors estabhshed 
by G. L., c. 32, § 10, from and after Aug. 26, 1921, the date when said 
St. 1921, c. 460, became effective. 

Nov. 4, 1921. 

Dr. Payson Smith, Chairman, Teachers' Retirement Board. 

Dear Sir: — You have requested my opinion as to whether 
or not the reimbursement paid to cities and towns in respect 
of pensions paid by them to teachers retired prior to May 12, 
1920, should be based upon the new pension factors established 
by St. 1920, c. 335 (now G. L., c. 32, § 10), from and after 
Aug. 26, 1921, the date when St. 1921, c. 460, became ef- 
fective. 

St. 1908, c. 498, authorized cities and towns which should 
accept the act to establish a non-contributory system of pen- 
sions for the retirement of teachers in its public schools. St. 
1908, c. 589, as amended by St. 1910, c. 617, imposed upon 
Boston a non-contributory system of pensions for teachers in 
its public schools. St. 1913, c. 832 (now, as amended, G. L., 
c. 32), established a State-wide retirement association, effective 
July 1, 1914, for all teachers employed by a board of trustees 
or school committee in a public day school within the Com- 
monwealth. Under St. 1913, c. 832, § 6, cl. 4 (now, as 
amended, G. L., c. 32, § 10, cl. 4), payment to a teacher 
retired thereunder consisted of (1) an annuity based upon 
contributions by said teacher; and (2) a non-contributory pen- 
sion of equal amount paid out of the treasury of the Com- 
monwealth. St. 1913, c. 832, § 13 (now G. L., c. 32, § 16), 
provided, in part : — 

(1) Whenever, after the first day of July, nineteen hundred and four- 
teen, a tow^n or city retires a teacher who is not eligible to a pension 
under the provisions of section six, paragraph (4) of this act, and pays 
to such teacher a pension in accordance with 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, and the school com- 
mittee of said town or city certifies under oath to the retirement board 
to the amount of said pension, said toun or city shall be reimbursed 



316 ATTORNEY-GENERAL'S REPORT. [Jan. 

therefor annuallj^ by the commonwealth: 'provided, that no such re- 
imbursement shall be in excess of the amount, as determined by the 
retirement board, to which said teacher would have been entitled as a 
pension, had he become a member of the retirement association under 
the provisions of section three, paragraph (2) of this act. 

It will be noted that under this section the reimbursement is 
confined to teachers retired after July 1, 1914, under the city 
or town system, who are ineligible to retirement under the 
State system, and must not exceed the amount of the i)ension 
(excluding the annuity) which said teacher would have re- 
ceived if he had been retired under the State system. The 
amount of such pension is equal to the annuity which such 
teacher would have received if he had joined the State Re- 
tirement Association and had made the required contribution. 
St. 1920, c. 335, which took effect May 12, 1920, and is 
now continued in G. L., c. 32, § 10, modified the manner in 
which the annuity payable upon retirement under the State 
system should be determined, and therefore affected the 
amount of the equal pension paid out of the treasury of the 
Commonwealth. But this act applied only to teachers retired 
under the State system after the date w^hen it took effect. It 
did not affect the amount of annuity, and so the amount of 
pension paid to teachers previously retired under that system, 
and therefore did not affect the amount of reimbursement 
payable to cities and towns on account of pensions paid by 
them to teachers previously retired under the city or town 
system. St. 1921, c. 460, which took effect on Aug. 26, 1921, 
provides: — 

The provisions of section ten of chapter thirty-two of the General 
Laws, shall hereafter apply to all members of the state teachers' re- 
tirement association irrespective of the date of retirement; provided, 
that in no case shall the present pension of a retired teacher be reduced. 

This act extended the benefits of St. 1920, c. 335, now G. L., 
c. 32, § 10, to teachers retired by the State association pre- 
vious to May 12, 1920. On and after Aug. 26, 1921, their 
annuities, and consequently their pensions, are determined 
according to the new plan, subject, of course, to the proviso 
that no annuity or pension shall be thereby diminished. A 
like benefit would have accrued to teachers retired by the 
cities and towns since July 1, 1914, under the acts specified in 



1922.] PUBLIC DOCUMENT — No. 12. 317 

St. 1913, c. 832, § 13, now G. L., c. 32, § 16, if such teachers 
had been members of the State Retirement Association. I 
am therefore of opinion that the limit of reimbursement to 
cities and towns in respect of teachers so retired is corre- 
spondingly increased, and that on and after Aug. 26, 1921, 
such reimbursement is to be calculated in accordance with the 
factors established by St. 1920, c. 335, now G. L., c. 32, § 10. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Harvard College — Power to confer Academic Degrees. 

Mass. Const., pt. 2d, c. V, § I, art. I, ratified and confirmed the power 
of the President and Fellows of Harvard College to grant academic 
degrees of every kind. 

Nov. 10, 1921. 

Hon. F. W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You state that there is no record in your de- 
partment of any express grant of power to the President and 
Fellows of Harvard College to confer academic degrees, and 
inquire whether they possess this power. 

There can be no doubt that Harvard College granted 
academic degrees long prior to the adoption of the Constitu- 
tion in 1780. I Quincy, History of Harvard, pp. 71, 589. 
Indeed, the degree of doctor of laws was conferred on George 
Washington in 1776. Mass. Const., pt. 2d, c. V, § I, art. I, 
provides as follows: — 

Whereas our wise and pious ancestors, so early as the year one thou- 
sand six hundred and thirty-six, laid the foundation of Harvard Col- 
lege, in which university many persons of great eminence have, by the 
blessing of God, been initiated in those arts and sciences which qualified 
them for public emplo^aiients, both in church and state; and whereas 
the encouragement of arts and sciences, and all good literature, tends 
to the honor of God, the advantage of the Christian religion, and the 
great benefit of this and the other United States of America, — it is 
declared, that the President and Fellows of Harvard College, in 
their corporate capacity, and their successors in that capacity, their 
officers and servants, shall have, hold, use, exercise, and enjoy, all the 
powers, authorities, rights, liberties, privileges, immunities, and fran- 
chises, which they now have, or are entitled to have, hold, use, exercise, 
and enjo}" and the same are hereby ratified and confirmed unto them, 
the said president and fellows of Harvard College, and to their suc- 
cessors, and to their officers and servants, respectively, forever. 



318 ATTORNEY-GENERAL'S REPORT. [Jan. 

This provision ratified, confirmed and continued in force the 
power to grant degrees theretofore exercised and possessed. 
It has been exercised ever since publicly and notoriously, 
without question from any public authority. I therefore ad- 
vise you that, in my opinion, the President and Fellows of 
Harvard College, in their corporate capacity, are authorized 
by law to confer all academic degrees. 
Yours very truly, 

J. Weston Allex, Attorney-General. 



Records and Papers — Certification — What may he certified by 
the Secretary of the Commonwealth. 

A written opinion given by the Attorney-General to the Secretary of the 
Commonwealth is a "paper in his department," within the meaning 
of G. L., c. 9, § 11, copies of which may be certified and furnished by 
the Secretary in the manner prescribed by law. 

Where an officer is authorized by law to furnish a certified copy of a record 
or paper in his custody, his certificate that a fact is established by such 
record or paper cannot be substituted for the copy so authorized. 

Nov. 12, 1921. 
Hon. F. W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You inquire whether you can properl\^ certify 
that the President and Fellows of Harvard College are au- 
thorized by law to confer academic degrees, including that of 
bachelor of laws. 

G. L., c. 9, § 11, provides as follows: — 

The state secretary shall have the custody of the great seal of the 
commonwealth; and copies of records and papers in his department, 
certified by him and authenticated by said seal, shall be evidence like 
the originals. 

Under date of Nov. 10, 1921, I advised you that, in my 
opinion, the President and Fellows of Harvard College, in 
their corporate capacity, are authorized by law to confer 
academic degrees of every kind. This opinion is a "paper" 
in your department, within the meaning of the above section. 
A copy thereof, certified by you and authenticated with the 
great seal, would be evidence of such authority to the same 
extent as the original. In my opinion, you are authorized to 
furnish such copies under the conditions prescribed by law. 



1922.] PUBLIC DOCUMENT — No. 12. 319 

You are not, however, authorized to certify to the fact, as 
distinguished from furnishing a copy in the manner prescribed 
by G. L., c. 9, § 11. Commonwealth v. Richardson, 142 Mass. 
71, 74; Commomcealth v. Kozlowsky, 238 Mass. 379. Where 
a public officer is authorized by law to furnish a certified copy 
of a record or document in his custody, his certificate that a 
fact is established by such record or document cannot be 
substituted for the copy so authorized. Oakes v. Hill, 14 
Pick. 442, 448; Robbins v. Towjisend, 20 Pick. 345, 350; 
Wayland v. Ware, 109 Mass. 248, 250; Hanson v. South 
Scituate, 115 Mass. 336, 342; Frariklin Savings Rank v. 
Framingham, 212 Mass. 92, 94. The reason is that the record 
or document speaks for itself through the certified copy, while 
the officer may be mistaken as to the proper conclusion to be 
drawn from it. Hanson v. South Scituate, 115 Mass. 336, 
342. Hence a certificate that it appears by the records in 
your department that the President and Fellows of Harvard 
College are authorized by law to confer academic degrees of 
every kind would not be competent as a substitute for a cer- 
tified copy of the paper which establishes that authority. 
Commonwealth v. Richardson, 142 Mass. 71. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Garages — Gasoline — Permits — City of Roston — Fire 
Marshal. 

Under St. 1913, c. 577, as amended by St. 1914, c. 119, authority to issue 
permits for the erection of garages in the city of Boston is vested ex- 
clusively in the street commissioners of said city, whose action in 
granting or refusing a permit is not subject to review by the Depart- 
ment of Public Safety of the Commonwealth. 

Under G. L., c. 148, § 30, authority to issue permits for the storage of 
gasoline within the metropolitan district is vested in the State Fire 
Marshal. 

Under G. L., c. 148, § 31, the State Fire Marshal may delegate the power 
vested in him by section 30 to any designated officer in any city or 
town in the said district, but subject to the appeals provided for in 
section 45. 

Even though the State Fire Marshal, acting under G. L., c. 148, § 31, dele- 
gates to an appropriate officer the powers vested in him by section 30, 
he may, in his discretion, take original jurisdiction of any question 
arising under section 30, and, if he does so, the validity of the delega- 
tion, the action of the officer thereunder, and the propriety of any ap- 
peal therefrom become immaterial. 



320 ATTORNEY-GENERAL'S REPORT. [Jan. 

Nov. 16, 1921. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — In your letter of recent date you make the 
following inquiry: — 

On Aug. 3, 1921, the company petitioned the street commission- 
ers of Boston for a license to erect, maintain and conduct a garage, and 
also a license for the keeping and storage of gasoline, not exceeding 
1,000 gallons in tank underground, in a building in the Charlestown 
district of the city of Boston. 

After due notice and hearing held on Aug. 24, 1921, the licenses were 
granted Sept. 13, 1921. 

The mayor, while he had up to that time signed all licenses of this 
nature granted by said street commissioners, requested the opinion of 
the law department of the city of Boston upon the question whether it 
is his duty to approve or disapprove the granting of a permit by the 
board of street commissioners for the erection and maintenance of a 
garage within the limits of the city of Boston. 

The law department of the city of Boston gave an opinion to the 
maj^or as follows: — 

I am of the opinion that the power to grant permits for such purposes is 
solely and exclusively within the jurisdiction of the street commissioners, and is 
not subject to your control. 

Basing his action on this opinion, as I understand, the mayor declined 
to approve the permit to erect said garage and the license to keep or 
store 1,000 gallons of gasoline, as granted by the board of street com- 
missioners to said company. 

A designation was made by the Fire Prevention Commissioner, in 
accordance with St. 1914, c. 795, §§ 3 and 4, in the following words: — 

I, John A. O'Keefe, duly appointed and quaUfied Fire Prevention Commis- 
sioner for the metropolitan district of Massachusetts, by virtue of the authority 
vested in me by section four of chapter seven hundred and ninety-five of the acts 
of the year nineteen hundred and fourteen, do hereby delegate to the honorable 
mayor and board of street commissioners of the city of Boston the following 
powers, conferred on me by said chapter, to be exercised by them within the city 
of Boston, in accordance with the rules and regulations now estabhshed or here- 
after to be established by the Fire Prevention Commissioner in reference sev- 
erally to said powers. This delegation of power shall continue in force until a 
revocation thereof shall have been filed with the city clerk of said city of Boston. 

1. The right to issue licenses for all garages in the city of Boston in which one 
or more automobiles using gasoUne are kept, stored or repaired. 

2. The right to license the manufacture, keeping or sale of volatile inflammable 
fluids in quantity exceeding one hundred and thirty gallons, or for other than 
private use. 

An appeal was made to the State Fire Marshal from the decision of 
the street commissioners, and on Oct. 28, 1921, a hearing was given by 
the State Fire Marshal at the State House on this appeal. Exceptions 
were made to the Fire Marshal's proceeding with the hearing, on the 



1922.] PUBLIC DOCUMENT — No. 12. 321 

claim that the permit and hcense did not have the approval of the 
mayor, and .therefore the action of the street commissioners was not 
subject to an appeal; and it is upon this question that I respectfully 
request the opinion of the Attorney-General. 

Was the permit and license as issued by the street commissioners to 
the company valid without the approval of the mayor in writing? 

The permit to erect the garage in question and the permit 
to store gasoline therein are wholly distinct from each other, 
and are governed by different statutes. V Op. Atty.-Gen. 
718. I therefore proceed to consider each separately. 

1. The Permit to erect the Garage. — Permits for the erec- 
tion of garages in the city of Boston are governed by St. 1913, 
c. 577, as amended by St. 1914, c. 119, which provides, in 
part, as follows: — 

In the city of Boston no building shall be erected for, or maintained 
as a garage for the storage, keeping or care of automobiles until the 
issue of a permit therefor by the board of street commissioners of the 
city after notice and a public hearing upon an apphcation filed with 
said board. . . . 

The city law department, in an opinion which you furnish me, 
has advised the mayor that under said statutes authority to 
issue permits for the erection of garages in the city of Boston 
is vested exclusively in the street commissioners, and that the 
mayor has no duty in respect to or power over such issue. I 
concur in this conclusion. But if this power be vested ex- 
clusively^ in the street commissioners, it follows that the issue 
or refusal of such a permit is not a matter which is subject to 
review by the Department of Public Safety. Practical con- 
siderations may render it advisable for your department to 
ascertain, before issuing a license to store gasoline, whether 
such a permit to erect the garage has been issued. But these 
considerations confer no authority to review or reverse the 
action of the street commissioners in granting or withholding 
such a permit. No question of the power of the Depai'tment 
of Public Safety to regulate such garage or the construction 
thereof as a fire risk is before me, and upon that point I ex- 
press no opinion. 

2. The Permit to store Gasoline. — St. 1914, c. 795, created 
a Fire Prevention Commissioner for the metropolitan district. 
Sections 3 and 5, as amended and now codified in G. L., 
c. 148, § 30, provide: — 



322 ATTORNEY-GENERAL'S REPORT. [Jan. 

The marshal shall have within the metropolitan district the powers 
given by sections ten, thirteen, fourteen, twenty, twenty-one and 
twenty-two to license persons or premises, or to grant permits for, or 
to inspect or regulate, the keeping, storage, use, manufacture, sale, 
handling, transportation or other disposition of gunpowder, djmamite, 
nitroglycerine, camphine or any similar fluids or compounds, crude 
petroleum or any of its products, or any explosive or inflammable 
fluids or compoimds, tablets, torpedoes, rockets, toy pistols, fireworks, 
firecrackers, or any other explosives, and the use of engines and fur- 
naces as described in section one hundred and fifteen of chapter one 
himdred and forty; provided, that the city council of a city or the select- 
men of a town may disapprove the granting of such a license or permit, 
and upon such disapproval the permit or license shall be refused. In 
Boston certificates of renewal of licenses as provided in section fourteen 
shall be filed annually for registration with the fire commissioner, ac- 
companied by a fee of one dollar. 

Section 4, as now codified in G. L., c. 148, § 31, provides: — 

The marshal may delegate the granting and issuing of any licenses or 
permits authorized by sections thirty to fifty-one, inclusive, or the 
carrying out of any la\N^ul rule, order or regulation of the department, 
or any inspection required under said sections, to the head of the fire 
department or to any other designated officer in any city or iovm in the 
metropolitan district. 

Section 18, now G. L., c. 148, § 45, provides: — 

The 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 his authority, done or made or purporting to 
be done or made under the provisions of sections thirty to fifty-one, in- 
clusive, and shall make all necessary and proper orders thereon. Any 
person aggrieved by any such action of the head of a fire department or 
other person may appeal to the marshal. 

Gen. St. 1919, c. 350, §§ 99, 101, 104, abolished the said 
oflfice of Fire Prevention Commissioner and vested his powers 
in the State Fire Marshal, who is an official of the Department 
of Public Safety created by that act. See G. L., cc. 22 and 
48. 

Taking these sections together, it is plain that power to 
grant permits to keep and store gasoline is vested in the first 
instance in the Fire Marshal, but subject to review by the 
Commissioner. V Op. Atty.-Gen. 454. He may, however, 
delegate this power, subject to the provisions of G. L., c. 148, 



1922.] PUBLIC DOCUMENT — No. 12. 323 

§ 30. If he does so delegate, section 45 confers a right of 
appeal to the Fire Marshal. V Op. Atty.-Gen. 718. But 
such delegation does not deprive the Fire Marshal of power, 
if he sees fit, to pass on the question as if no delegation had 
been made. He may, of course, insist that the question be 
passed on in the first instance by the officer or board to whom 
he has made such delegation, and may decline to consider a 
premature appeal taken before such officer or board has fully 
passed on the matter. But when the question comes before 
him, either upon an appeal duly taken or because he sees fit 
to take jurisdiction without a sufficient appeal, he exercises 
an original jurisdiction vested in him by the statute, and not 
simply an appellate jurisdiction. In either case, the order 
made by him has the same force and effect as if he had de- 
termined the question in the first instance, and renders im- 
material any question as to the propriety of the delegation or 
the sufficiency of the appeal. I therefore advise you that, in 
the instant case, an order of the Fire Marshal would not be 
invalid either because the mayor failed to act with the street 
commissioners upon this permit or because of any insuf- 
ficiency in the appeal. 

While this view renders it unnecessary to determine whether 
Commissioner O'Keefe delegated the power in question to the 
mayor and the street commissioners as a single board, in 
which a majority of such board would control, or to each 
independently, so that no effective action could be taken with- 
out the concurrence of both the mayor and a majority of the 
street commissioners, it is evident that such a question might 
be presented if the Fire Marshal should decline to take juris- 
diction of an appeal to him, prosecuted as of right, under 
circumstances similar to the instant case. In my opinion, 
this question should be eliminated by a new delegation of 
power. The terms of that new delegation are for the Fire 
Marshal to determine, subject to your approval. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



324 ATTORNEY-GENERAL'S REPORT. [Jan. 



Civil Service — Assistant Registers of Probate — Clerks in the 
Registries of Probate for Suffolk and Middlesex Counties — 
Stenographers — Clerical Assistants. 

Appointments to the positions of assistant registers in the several registries 
of probate are not to be made under the regulations of the Department 
of Civil Service. 

The position of clerk of the Suffolk registry of probate, under the pro- 
visions of G. L., c. 217, § 28, is not to be filled under civil service regu- 
lations. 

The position of clerk of the Middlesex registry of probate, under G. L., 
c. 217, § 29, is to be filled under civil service regulations. 

The Commonwealth, under St. 1921, c. 42, having assumed the payment 
of tKe salaries of certain stenographers and other clerical assistants 
in the several registries of probate, appointments to these positions, 
in the future, must be made in accordance with civil service rules and 
regulations. 

Nov. 21, 1921. 

Patson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You have requested my opinion as to whether 
any appointments that may be made to the positions of 
assistant registers, clerks and stenographers in the several 
registries of probate are to be filled under the regulations of 
the Department of Civil Service, in those cases where the 
holders of said positions are paid by the Commonwealth under 
the terms of St. 1921, c. 42. 

So far as is pertinent to the present inquiry, St. 1921, 
c. 42, allows annually to the registers of probate for the 
several counties such sums, to be paid by the Commonwealth, 
as shall annually be appropriated by the General Court, and 
further provides that all clerical employees in the various 
registries of probate shall be subject to the statutory provisions 
relative to the classification of State offices and positions. 

Considering, first, the position of assistant register, it is 
to be noted that the statutory provisions concerning assistant 
registers are found in G. L., c. 217, §§ 23 to 27, inclusive. 
By section 23, the judges of probate for each county, except 
Dukes County and Nantucket, may appoint an assistant 
register, who shall hold office for three years unless sooner 
removed by the judge. Before entering upon the performance 
of his duties, an assistant register is required to take the oath 
prescribed by the Constitution, and to give bond to the 
Treasurer and Receiver-General for the faithful performance 
of his official duties. Section 24 provides for the appoint- 



1922.] PUBLIC DOCUMENT — No. 12. 325 

ment of a second assistant register in the counties therein 
specified, who shall hold office for three years unless sooner 
removed b}^ the judge. Section 25 provides for the appoint- 
ment by the judges of probate in Middlesex County of a third 
assistant register, who shall hold office for three years unless 
sooner removed by the judge. Section 27 provides: — 

An assistant register shall perform his duties under the direction of 
the register, and shall pay over to him all fees and amounts received 
as such assistant. He may authenticate papers and perform such 
other duties as are not performed by the register. In case of the 
absence, neglect, removal, resignation or death of the register, the 
assistant may complete and attest any records remaining unfuiished 
and may act as register until a new register is qualified or the disability 
removed. 

A former Attorney-General stated that civil service rules 
look to the character of the service rather than to the desig- 
nation of the office, and that he could not believe that it 
was intended by the statutes relating to civil service that an 
officer holding an important, confidential and responsible posi- 
tion must be selected by competitive examination. Referring 
to the secretary of the overseers of the poor of Lowell, 
he stated that "the character of his employment is such that 
no form of competitive examination would be so likely to 
secure an efficient officer as would be the case if the employing 
board had the right of personal selection." See I Op. Atty.- 
Gen. 216, 218. This line of reasoning applies, in my opinion, 
even more strongly to an assistant register of probate and 
insolvency. 

An equally strong indication that the position of assistant 
register is not wuthin the civil service rules is contained in the 
provision that, after being appointed by the judges of probate, 
an assistant register shall hold office for three years unless 
sooner removed by the judges. If assistant registers were 
under civil service, they could not be removed at any time 
during tenure of office by the appointing power, but would 
be subject to removal only in compliance with the provisions 
of G. L., c. 31, § 43, which is the section containing the pro- 
visions as to the removal of persons in the classified public 
service of the Commonwealth. 

The above considerations make it unnecessary for me to 
consider and determine the question as to whether or not 



326 ATTORNEY-GEXERAL'S REPORT. [Jan. 

assistant registers of probate are "judicial officers," within 
the meaning of G. L., c. 31, § 5, because they are appointed 
by the judges of probate, and also because of the nature of 
their duties. 

I assume that your inquiry relative to clerks has to do with 
the clerks appointed in Suffolk County under the provisions 
of G. L., c. 217, § 28, and in Middlesex County under section 
29, as distinguished from those employees designated as cleri- 
cal assistants. 

Section 28 reads as follows: — 

The register for Suffolk county may, subject to the approval of the 
judges of probate for said county, appoint a clerk and may remove 
him at pleasure. 

Section 29 provides: — 

The register of Middlesex county may, with the approval of the 
judges of probate for said county, appoint a clerk who may administer 
such oaths required in probate proceedings, as are not prescribed bj^ 
law to be administered by the judge or register, and shall perform such 
clerical and other duties as may be required by the register, with the 
approval of the judges, and he may be removed by the register with 
the consent and approval of the judges in the manner provided by 
section forty-three of chapter thirty-one. 

In the case of the Suffolk clerk, he may be removed at 
pleasure, and this, in my opinion, takes him out of the civil 
service classification. 

On the other hand, the Middlesex clerk may be removed 
only in the manner provided for those under civil service, to 
wit, G. L., c. 31, § 43. This requirement as to method of 
removal, in my opinion, indicates that the Legislature intended 
that the Middlesex clerk should be subject to civil service 
rules and regulations. 

Taking up for consideration the positions of stenographers 
and other clerical assistants in the several registries of pro- 
bate who are paid by the Commonwealth, under the provi- 
sions of St. 1921, c. 42, I would point out that G. L., c. 31, 
§ 3, provides that the Civil Service Commission shall, subject 
to the approval of the Governor and Council, from time to 
time make rules and regulations which shall regulate the 
selection of persons to fill appointive positions in the govern- 
ment of the Commonwealth, and the classification of offices 



1922.] PUBLIC DOCUMENT — No. 12. 327 

and employments to be filled and the rules made by the com- 
missioners, with the approval of the Governor and Council, 
have the force of laws and are binding upon the appointing 
officers. Opinion of the Justices, 145 Mass. 587, 590. 

Clause 5 of Rule 1 of the Civil Service Rules provides: — 

Persons paid by the Commonwealth or any city, whether carried on 
the regular payroll, on special payroll or by presenting a bill personally 
or by some other person, company or corporation, shall be deemed to 
be "in the service of the Commonwealth or the city" within the mean- 
ing of these rules. 

Under " Classification of the Service. First Division. — The 
Official Service," in class 3 you have grouped clerks, copy- 
ists, private secretaries, recorders, messengers, office boys and 
persons doing similar work, and under class 9, stenographers, 
typewriters, telegraphers and telephone operators. Within 
these groups, in my judgment, fall the clerical assistants and 
stenographers in the several registries of probate who are paid 
by the Commonwealth. It is to be noted that by the provi- 
sions of St. 1921, c. 42, clerical employees in the registries of 
probate are subject to the provisions of G. L., c. 30, § 45 
to 50, inclusive, which have to do with the classification of 
certain State offices and positions. 

Consequently, it is my opinion that your department has 
classified the positions of clerical assistants and stenographers 
as among those to be filled under the provisions of the civil 
service statute, and has required that whenever there is a 
vacancy to be filled in such offices the appointing officer or 
power shall make requisition upon the department for names 
of eligible persons. The Commonwealth having assumed the 
payment of the salaries of certain clerical employees in the 
several registries of probate, these positions are brought within 
the civil service rules and regulations, and future appoint- 
ments must be made in accordance with such rules and regu- 
lations. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



328 ATTORNEY-GENERAL'S REPORT. [Jan. 



D elitists — Reciprocity Certificates. 

G. L., c. 112, § 48, providing for registration, without examination, of 
dentists who have been lawfully in practice in another State, applies 
only to dentists registered in the individual States of the United States 
of America, and does not include dentists registered in a foreign coun- 
try. 

Dec. 3, 1921. 
Mr. William F. Craig, Director of Registration. 

Dear Sir: — You request an interpretation of G. L., c. 112, 
§ 48, as to whether or not the privilege therein extended 
to a practitioner coming from another State can be inter- 
preted to include dentists coming from a foreign country. 

Said statute provides : — 

The board may, without examination, upon the payment of twenty 
dollars, register, and issue a certificate to, a dentist who has been law- 
fully in practice for at least five years in another state, or a dentist 
registered therein, if he presents to the board his certificate of registra- 
tion from the board of dental examiners or other like board where he 
last practiced; provided, that such other state shall require a degree 
of competency equal to that required of applicants in this common- 
wealth. 

While it is true that the word "state," in its broadest sense, 
signifies a political community organized under a distinct 
government, and hence may include foreign countries, never- 
theless, as the expression is used in the Federal Constitution 
and the constitutions and statutes of the several States of the 
United States, it is almost universally held to mean "other 
States of the United States," and does not embrace foreign 
countries. See to this effect Warren v. Pirn, 66 N. J. Eq., 
353; Eidman v. Martinez, 184 U. S. 578; Employers Liability 
Insurance Co. v. Insurance Commissioners, 64 Mich. 614; 
People V. Black 122 Calif. 73; G. L.. c. 4, § 7, cl. 31. 

There can be no doubt that the intent of the Legislature 
in enacting said section 48 was to limit the expression " another 
State" to the individual States of the United States of America 
and to exclude all foreign countries, inasmuch as said statute as 
originally passed by the Legislature (see Gen. St. 1915, c. 301, 
§ 8) expressly provided that — 

Said board in its discretion may, without examination, upon the 
payment of a fee of twenty dollars, register and issue a certificate to a 



1922.] PUBLIC DOCUMENT — No. 12. 329 

dentist who has been lawfully m practice for at least five years in another 
state or territory, or in the District of Columbia; or to any dentist regis- 
tered in another state, territory or the District of Columbia: . . . 

In my opinion, therefore, the provisions of G. L., c. 112, 
§ 48, do not apply to dentists coming from a foreign country. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Banks and Banking — State Banks — Interest on Deposits — 
Savings Departments. 

State banks may not pay interest on deposits except in the instances 

enumerated in R. L., c. 115, § 40. 
Under G. L., c. 167, § 12, it is not lawful for State banks to maintain sav- 
ings departments and to solicit accounts in the manner of savings 
banks. 

Dec. 5, 1921. 
Mr. Joseph C. Allen. Commissioner of Banks. 

Dear Sir: — You ask my opinion on the following questions 
relative to the operation of State banks under R. L., c. 115: — 

1. Is it permissible for State banks to pay interest on deposits except 
as provided for in section 40? 

2. Is it lawful for such banks to maintain savings departments and 
soHcit accounts in the manner of savings banks, in view of G. L., c. 167, 
§12? 

I reply to your two questions as follows : — 
1. State banks are authorized to receive deposits by R. L., 
c. 115, § 30, which defines in a general w^ay the powers of such 
banks to carry on the business of banking. R. L., c. 115, § 40, 
contains limitations upon those general powers. The section 
is as follows: — 

No bank shall make or issue a note, bill, check, draft, acceptance, 
certificate or contract for the payment of money at a future day certain 
or with interest, except for money borrowed of the commonwealth or 
of a domestic institution for savings or money deposited by an assignee 
as provided in section sixty-two of chapter one hundred and sixty- 
three; and except also that debts due to one bank from another, includ- 
ing bills of the bank indebted, may draw interest; and banks may con- 
tract with cities and towns in this commonwealth for the payment or 
receipt of interest upon an account current of money deposited with 
and drawn from them by said cities and to^\^lS. 



330 * ATTORNEY-GENERAL'S REPORT. [Jan. 

Under this statute it has been held that a contract with 
a depositor to pay the amount of the deposit on a day cer- 
tain is illegal and void. White v. FrariJdin Bank, 22 Pick. 
181. The same rule was applied not only to contracts for 
the payment of deposits at a future day certain, but appar- 
ently also to contracts for the payment of interest on such 
deposits, in Atlas Bank v. Naliajit Bank, 3 Met. 581, 585. 
On the authority of these two cases, as well as on what seems 
to be a plain construction of the statute, I must advise you 
that it is not permissible for State banks to pay interest on 
deposits except in the instances enumerated in said section 40. 

2 G L., c. 167, § 12, prohibits the transacting of business 
in the manner of a savings bank except by savings banks and 
trust companies incorporated under the laws of this Com- 
monwealth and certain foreign banking corporations. Said 
section 12 is, in part, as follows: — 

No corporation, domestic or foreign, and no person, partnership or 
association except savings banks and trust companies incorporated 
under the laws of this commonwealth, or such foreign banking corpora- 
tions as were doing business in this commonwealth, and were subject 
to examination or supervision of the commissioner on June first, nine- 
teen hundred and six, shall hereafter make use of any sign at the place 
where its business is transacted having thereon any name, or other 
words indicating that such place or office is the place or office of a sav- 
ings bank; . . . nor shall any such corporation, person, partnership or 
association, or any agent of a foreign corporation not having an estab- 
lished place of business in this commonwealth, solicit or receive de- 
posits or transact business in the way or manner of a savings bank, or 
in such a way or manner as to lead the public to beheve, or as in the 
opinion of the commissioner might lead the public to believe, that its 
business is that of a savings bank; . . . 

The Attorney-General has ruled that the provisions of this 
statute are applicable to a corporation organized prior to its 
passage. Ill Op. Atty.-Gen. 250. State banks are neither 
savings banks nor trust companies. In the Revised Laws 
provisions relative to savings banks are incorporated in chap- 
ter 113, and provisions relative to trust companies are incor- 
porated in chapter 116, while the organization and powers of 
State banks are provided for by chapter 115, which by Gen. 
St. 1918, c. 12, has been discontinued except as to banks al- 
ready incorporated therein. A State bank, being a domestic 
corporation which is not a savings bank or a trust company. 



1922.] PUBLIC DOCUMENT — No. 12. 331 

is a corporation which is clearly prohibited from soliciting 
or receiving deposits or transacting business in the way or 
manner of a savings bank by the express provisions of G. L., 
c. 167, § 12. I must advise you, therefore, in answer to your 
second question, that it is not lawful for such banks to main- 
tain savings departments and to solicit accounts in the man- 
ner of savings banks. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



Fishing and Hunting Licenses — License to rear Wild Birds or 
Game for Sale as Food — Surrender of License by Person 
convicted of Violation of Fish and Game Laws. 

Licenses to hunt and fish, or to rear wild birds or game for sale as food, 
become ipso facto void upon the conviction of the licensee of a violation 
of the fish and game laws of the Commonwealth, and a refusal to sur- 
render such license upon such conviction constitutes a misdemeanor, 
subjecting the licensee to the penalty imposed by G. L., c. 131, §§ 84 
and 88, respectively. 

Dec. 5, 1921. 

Hon. W, A. L. Bazeley, Comm,issioner of Conservation. 

Dear Sir: — You ask my opinion and advice as to what 
procedure your department should take to enforce the fish 
and game laws in regard to obtaining the surrender of fishing 
and hunting licenses by persons convicted thereunder who 
refuse to give them up, as required by the provisions of G. L., 
c. 131, §§ 14 or 84. Said sections provide as follows: — 

Section 14. Whoever makes a false representation as to birthplace, 
requirements for identification, or of facts relative to propert}^ qualifica- 
tions, or naturalization, or otherwise violates any provision of sections 
three to fourteen, inclusive, or is in smy way directly or indirectly a 
party thereto, shall be punished by a fine of not less than ten nor more 
than fiftj^ dollars or by imprisonment for not more than one month, or 
both. The certificate of any person convicted of a violation of the fish 
and game laws or of any provision of sections three to fourteen, in- 
clusive, shall be void, and shall unmediately be surrendered to the of- 
ficer securing such conviction. The officer shall forthwith forward the 
certificate to the director, who shall cancel the same and notify the 
clerk issuing the certificate of the cancellation thereof, and no person 
shall be given a certificate during the period of one year from the date 
of conviction. Any certificate issued to such person within one year of 
his conviction as aforesaid shall be void, and shall be surrendered on 



332 ATTORNEY-GENERAL'S REPORT. [Jan. 

demand of any officer authorized to enforce the fish and game laws. 
No fee received for a certificate cancelled under this section shall be 
returned. 

Section 84. Any person holding a license under section eighty-two, 
eighty-three or eighty-six, convicted of any violation of the fish and 
game laws, shall forfeit such license and be debarred from securing a 
new license for a period of one year from the date of conviction, in ad- 
dition to being subject to the penalties provided in section eighty-eight. 
No person and no corporation of which he is a member shall be eligible 
to hold a license under said section if he has been convicted of any vio- 
lation of the fish and game laws within one year prior to application 
therefor. 

It is evident that the certificate of any person, upon con- 
viction of a violation of the fish and game law^s, becomes ipso 
facto void, so that, as a matter of law, there is no certificate 
outstanding, the original certificate becoming in law but a 
blank piece of paper, and thereafter the status of such con- 
victed party, as to his right to hunt or fish, is the same as 
if he had never received a certificate, its mere retention and 
possession conferring no rights. 

It would seem, however, that the provisions of section 14 
are comprehensive enough to provide for a separate punish- 
ment for a person who refuses to surrender his certificate upon 
conviction, inasmuch as it is therein provided that "whoever 
makes a false representation ... or otherwise violates any 
provision of sections three to fourteen, inclusive, or is in any 
way directly or indirectly a party thereto, shall be punished 
by a fine of not less than ten nor more than fifty dollars or 
by imprisonment for not more than one month, or both." 
One of the provisions of said section 14 is that "the cer- 
tificate of any person convicted of a violation of the fish and 
game laws or of any provision of sections three to fourteen, 
inclusive, shall be void, and shall immediately be surrendered 
to the officer securing such conviction." 

In my opinion, therefore, refusal to surrender such cer- 
tificate immediately upon conviction to the officer securing 
such conviction constitutes a distinct offence, for which the 
party is liable to the punishment provided in said statute. 

As to the provisions of section 84, above quoted, it is ap- 
parent that the license therein referred to (to rear wild birds 
or game for sale as food) is likew^ise forfeited upon conviction 
of the holder thereof of any violation of the fish and game 



1922.] PUBLIC DOCUMENT — No. 12. 333 

laws, and it would seem that refusal to surrender such license 
constitutes a distinct misdemeanor, for which the penalty 
imposed by section 88 of said chapter 131 may be imposed. 

I might suggest another method of securing the surrender 
of such certificates or licenses, which may prove to be even 
more efficacious, namely, that the officer of your department, 
upon securing a conviction, could request the court to con- 
tinue the case for sentence for a definite period of time, as, 
for example, one week, and if in the meantime the defendant 
refuses to surrender said certificates or licenses, this fact could 
be brought to the attention of the court as bearing on the 
matter of sentence. 

Yours very truly, 

J. Weston Allen, Attorney -General, 



Constitutional Law — Apportionment of Senators and Repre- 
sentatives — Census of Legal Voters — Substitution of Ap- 
portio7iment based on Local Enumeration for Constitutional 
Census — Date of Census — Executive Construction of Con- 
stitution — '^ Legal Voter.'' 

Under Mass. Const, Amend. XXI and XXII, a statute which provides 
that an enumeration of legal voters made by local authorities shall be 
substituted for the enumeration required by those amendments would 
be unconstitutional. 

A statute which provides that the State census shall be taken in the same 
year as the Federal census would be unconstitutional because in con- 
flict with the requirement of Mass. Const. Amend. XXI and XXII, 
that the State census be taken in 1865 and "of every tenth year 
thereafter." 

The constitutional apportionment of senators and representatives cannot 
be based upon those persons who have complied with the registration 
statute. 

The words "legal voter" embrace all who possess the constitutional quali- 
fications for the ballot, whether registered or not. 

While an executive construction of a constitution or statute cannot control 
the plain meaning of the words employed, it is of weight in determining 
the meaning of a doubtful phrase if long continued and acquiesced in. 

Dec. 5, 1921. 

Commission on State Administration and Expenditures. 

Dear Sir: — You have made the following inquiries in re- 
gard to the decennial State census: — 

1. Would a statute which substitutes an enumeration of legal voters 
made by local officers for the enumeration now made in connection with 
the State census be constituticnal? 



334 ATTORNEY-GENERAL'S REPORT. [Jan. 

2. Would it be constitutional to provide by statute that the State 
census shall be taken at the same time as the Federal census? 

3. Does the term "legal voter" mean a registered voter or one who 
possesses all the qualifications for the ballot required by the Constitu- 
tion although he is in fact unregistered? 

1. Mass. Const. Amend. XXI provides, in part: — 

A census of the legal voters of each city and to^Mi, on the first day of 
Maj^, shall be taken and returned into the office of the secretary of the 
commonwealth, on or before the last day of June, in the year one 
thousand eight hundred and fifty-seven; and a census of the inhabit- 
ants of each city and town, in the year one thousand eight hundred 
and sixty-five, and of every tenth year thereafter. In the census afore- 
said, a special enumeration shall be made of the legal voters; and in 
each city, said enumeration shall specify the number of such legal 
voters aforesaid, residing in each ward of such city. The enumeration 
aforesaid shall determine the apportionment of representatives for the 
periods between the taking of the census. 

The house of representatives shall consist of two hundred and forty 
members, which shall be apportioned by the legislature, at its first ses- 
sion after the return of each enumeration as aforesaid, to the several 
counties of the commonwealth, equally, as nearly as may be, according 
to their relative numbers of legal voters, as ascertained by the next 
preceding special enumeration; . . . 

It further prescribes how representative districts shall be de- 
termined. Amendment XXII contains similar provisions for 
the census and enumeration of legal voters, provides that such 
enumeration shall determine the apportionment of senators for 
the periods between the taking of the census, and prescribes 
the manner in which senatorial districts shall be determined. 
These articles superseded Amendment XIII, which provided 
for a census of "inhabitants" of each city and town in 1840 
and in every tenth year thereafter, and made such census the 
basis of apportionment of both senators and representatives. 
Opinion of the Justices, 122 Mass. 594. 

Nothing can more deeply concern the freedom and stability, 
the harmony and success of a representative government, 
nothing more directly affects the political and civil rights of 
its members and subjects, than the manner in which its legis- 
lative department is constituted. Opinion of the Justices, 10 
Gray, 613, 615; Attorney-General v Apportionment Commis- 
sioners, 224 Mass. 598, 601. A representative legislative de- 
partment is based upon the constitutional right to vote and 



1922.] PUBLIC DOCUMENT — Xo. 12. 335 

upon the due apportionment of representation among the 
voters. It is not now necessary to consider the constitu- 
tional qualifications for the ballot further than to point out 
that they cannot be increased or diminished by statute. 
Kinneen v. Wells, 144 Mass. 497; Opinion of the Justices, 226 
Mass. 607; see also Capen v. Foster, 12 Pick. 485. Amend- 
ment XIII formerly prescribed, and Amendments XXI and 
XXII now prescribe, the mode in which representation in the 
House and Senate shall be apportioned. Due compliance 
with the mandates of Amendments XXI and XXII is a con- 
stitutional right which may be enforced not only by the At- 
torney-General, as the representative of all the people {At- 
torney-General V. Apportionment Commissioners, 224 Mass. 
598), but also by any voter who is aggrieved by failure to 
obey them. Donovan v. Apportionment Commissioners, 225 
Mass. 55; McGlue v. County Commissioners, 225 Mass. 59; 
Brophy v. Apportionment Commissioners, 225 Mass. 124. 

The census for which Amendments XXI and XXII provide 
is the basis of the apportionment prescribed by those amend- 
ments. Opinion of the Justices, 142 Mass. 601; Opinion of 
the Justices, 157 Mass. 594. While the census taken in 1857 
was a special census of "legal voters" only (see Opinion of 
the Justices, 220 Mass. 608), the census to be taken in 1865 
and in every tenth year thereafter was and is a census of 
"inhabitants" (see Opinion of the Justices, 122 Mass. 594), 
in which "a special enumeration of the legal voters" must be 
made. As the Constitution expressly requires that such 
enumeration shall be made "in the census aforesaid," and 
further provides that "the enumeration aforesaid" shall de- 
termine the apportionment of both senators and represent- 
atives, such apportionment cannot constitutionally be based 
upon an enumeration made in a different manner. The Su- 
preme Judicial Court has so advised on two occasions. In 
Opinion of the Justices, 142 Mass. 601, the justices said, at 
page 604: — 

We have no doubt that the amendment imposes upon the General 
Court, in each tenth year, the duty of providing by suitable legislation 
that a census and enumeration of legal voters shall be taken and re- 
turned into the office of the Secretary of the Commonwealth. The 
great object of the amendment was to establish the Senate upon the 
basis of legal voters, and to provide for a method of ascertaining the 
number of legal voters, so as to furnish a guide to the General Court in 



336 ATTORNEY-GENERAL'S REPORT. [Jan. 

dividing the State into senatorial districts. The fundamental idea is, 
that an enumeration shall be made under the authority and direction 
of the Commonwealth, and that this enumeration alone shall guide the 
General Court in making the division. Such enumeration must ''de- 
termine the apportionment of senators," and the division must be 
made ''according to the enumeration aforesaid." The General Court 
is to be governed entirely by this enumeration, and is not at liberty to 
look to any other source for information as to the number of legal 
voters in any territory which it proposes to erect into a senatorial dis- 
trict. It must act upon the enumeration returned to the office of the 
Secretary of the Commonwealth, and by hmi laid before the Legis- 
lature. 

So also in Opinion of the Justices, 157 Mass. 594, 595, the 
justices said: — 

The clause that "The enumeration aforesaid shall determine the ap- 
portionment of representatives (or senators) for the periods between 
the taking of the census," must mean that the apportionment is to be 
made upon the enumeration, and that the apportionment, after it is 
made, must determine the representative and senatorial districts and 
the number of representatives appropriate to each representative dis- 
trict until a new enumeration and an apportionment have been made. 
The enumeration and the apportionment are parts of one proceeding 
for distributing among the cities and towns of the Commonwealth in 
just proportion, every ten years, the senators and representatives to 
be elected during that period. 

I am therefore of opinion that an enumeration of legal 
voters made by local officers cannot constitutionally be sub- 
stituted for the enumeration prescribed by Amendments XXI 
and XXII. 

2. The requirement that the census be taken in May and 
June applied only to the census of legal voters to be taken 
in 1857. Opi7iion of the Justices, 220 Mass. 608. But both 
Amendments XXI and XXII require that a census of in- 
habitants shall be taken in 1865 and "of every tenth year 
thereafter." The Federal Act of July 2, 1909, c. 2, § 1, 36 
Stat. 1, provides for a Federal census in the year 1910, and 
every ten years thereafter. The gap between the State cen- 
sus period and the Federal census period is therefore five 
years. The year in which the State census is taken fixes the 
recurring dates of reapportioning representation in both the 
House and Senate. I am therefore of opinion that the con- 
stitutional provision w^hich requires the State census to be 



1922.] PUBLIC DOCUMENT — No. 12. 337 

taken in 1865 and in every tenth year thereafter is mandatory, 
and that it cannot be altered by statute to coincide Avith the 
year prescribed for the Federal census. I may further point 
out that for the reasons already set forth the apportionment 
of representatives and senators in our State Legislature could 
not properly be based upon the Federal census. 

3. The Constitution contains no definition of "legal voter." 
V Op. Atty.-Gen. 502. But as Amendments XXI and XXII 
required a census of "legal voters" in 1857, and still require 
an enumeration of "legal voters" in the census of 1865 and 
of every tenth year thereafter, compliance with that mandate 
made necessary an executive construction of the term. I am 
informed that the executive construction adopted in 1857 and 
since adhered to does not confine the term to those voters 
who have registered, but, on the contrary, embraces all those 
who possess the constitutional qualifications for the ballot, 
whether registered or not. While an executive construction 
of a constitution or statute cannot control the plain meaning 
of the words employed, it is of weight in determining the 
meaning of a doubtful phrase if long continued and acquiesced 
in. Pierce v. Dreiv, 136 Mass. 75, 79; Costley v. Commonivealth, 
118 Mass. 1, 36; Opinion of the Justices, 214 Mass. 602, 606. 

The Constitution neither requires nor provides for regis- 
tration of those qualified to vote. The first registration law 
was enacted in 1821 and was upheld in Capen v. Foster, 12 
Pick. 485, which was decided in 1831. Amendments XXI 
and XXII were adopted on May 1, 1857. At that time the 
statutes requiring registration as a condition precedent to 
voting had been in force for over thirty-five years. It cannot 
be supposed that the persons who drafted these amendments 
or the people who ratified them were ignorant of the practice. 
If the intention was to base the apportionment of both House 
and Senate upon the number of registered voters, that inten- 
tion could have been easily expressed in clear and unam- 
biguous words. Moreover, if that had been the intention, no 
census would have been required. An enumeration of the 
registration lists would have sufficed. Instead, the amend- 
ments avoid the use of the term "registered voter," use the 
phrase "legal voter," and provide for a census of "legal 
voters" in 1857 and for an enumeration of "legal voters" in 
the census of "inhabitants" to be taken in 1865 and in every 
tenth year thereafter. 



338 ATTORNEY-GENERAL'S REPORT. [Jan. 

To found the constitutional apportionment of senators and 
representatives upon registered voters would introduce a 
serious defect into the legislative structure. Registration now 
depends upon statute only. If apportionment were based 
upon those who had complied with the statute, the repeal of 
the registration law would destroy the whole basis of appor- 
tionment. A construction of Amendments XXI and XXII 
which would make the continued existence of the Legislature 
itself dependent upon a law, as distinguished from the Con- 
stitution, is not to be adopted unless clearly required. The 
phrase "legal voter,' taken in connection with the constitu- 
tional qualifications for the vote, naturally refers to those who 
possess those qualifications, rather than to those who have 
complied with the registration act. I am therefore of opinion 
that the words "legal voter" embrace all who possess the 
constitutional qualifications, whether registered or not. 
Yours very truly, 

J. Weston Allen, AUorncy -General. 



Constitutional Law — Civil Service — Veterans' Preference — 
Creation of Office of Controller — Delegation of Delegated 
Power — Continuation Schools. 

G. L., c. 31, §§ 21-28, providing for veterans' preference in the civil service, 

are constitutional. 
The Legislature has power to create a new administrative office, such as 

that of controller, to which certain of the duties of the Auditor and the 

Treasurer and Receiver-General may be transferred. 
The commission appointed by the Legislature to care for the welfare of 

soldiers cannot delegate their powers and duties to the American 

Legion. 
G. L., c. 71, § 24, providing for State reimbursement for continuation schools, 

is constitutional. 

Dec. 5, 1921. 
Commission on State Administration and Expenditures. 

Dear Sir: — You have put to me a number of inquiries, 
the first of which I have answered in a separate communica- 
tion. The remaining questions, numbered as in your letter, I 
answer as follows : — 

2. You ask whether the provisions for veterans' preference in the 
civil service are constitutional. 

The question of the constitutionality of veterans' preference 
acts has been considered by our court. 



1922.] PUBLIC DOCUMENT — No. 12. 339 

St. 1895, c. 501, §§ 2 and 6, provided, in substance, that 
veterans who had made application for employment in the 
public service, in the manner therein provided, should be 
preferred for certification and appointment in preference to all 
other applicants not veterans, except women, with a proviso 
as to age limit. These sections were held in Brown v. Russell, 
166 Mass. 14, to be unconstitutional, on the ground that their 
purpose was to make the appointment of veterans compulsory, 
whether or not they were found or thought to be qualified to 
perform the duties of the office or employment which they 
sought. 

Thereupon St. 1896, c. 517, was passed, which made some 
changes in the previous law. 

Section 2 provided that veterans might apply for ex- 
amination for any position in the qualified public service, and 
that if they passed the examination they should be preferred 
in appointment to all male persons not veterans. 

Section 3 gave a discretion to the appointing power to ap- 
point veterans to certain offices and employments without an 
examination, if in its opinion the needs of the public service 
required that to be done. 

Section 6 provided that the Civil Service Commissioners 
should establish rules to secure the employment of veterans 
in the labor service of the Commonwealth, and of the cities 
and towns thereof, in the class for which they made applica- 
tion, in preference to all other persons except women, giving 
the commissioners authority to recognize an age limit in cer- 
tain instances. 

These sections were held to be constitutional by a majority 
of the justices in Opinion of the Justices, 166 Mass. 589. This 
opinion has been cited in later decisions and has not been 
overruled. Ransom v. Boston, 192 Mass. 299, 304; Phillips 
V. Metropolitan Park Commission, 215 Mass. 502, 506; cf. 
I Op. Atty.-Gen. 340. 

The present law appears in G. L., c. 31, §§ 21 to 28. By 
section 21 the meaning of the word ''veteran," previously 
confined to persons who had served in the War of the Rebel- 
lion or who had received a medal of honor from the President 
of the United States for distinguished service in the army or 
navy of the United States, was enlarged to include persons 
who had served in the army, navy or marine corps of the 
United States in time of war or insurrection and had been 



340 ATTORNEY-GENERAL'S REPORT. [Jan. 

honorably discharged from service or released from active 
duty therein. 

Sections 22, 23 and 24 are as follows: — 

Section 22. A veteran of the civil war, or a person who has re- 
ceived a medal of honor as provided in the preceding section, may ap- 
ply to the commissioner for appointment or emplo3^ment in the classi- 
fied civil service without examination. In such application, he shall 
state on oath the facts required by the rules. Age, loss of limb or other 
disability which does not in fact incapacitate shall not disqualify him 
for appointment or emploj^ment under this section. Appointing officers 
may make requisition for the names of any or all such veterans and 
appoint or employ any of them. 

Section 23. The names of veterans who pass examinations for ap- 
pointment to any position classified under the civil service shall be placed 
upon the respective eligible lists in the order of their respective standing, 
above the names of all other applicants, and upon receipt of a requisi- 
tion not especially calling for women, names shall be certified from such 
lists according to the method of certification pr;escribed by the ciA'il 
service rules applying to civilians. 

Section 24. A veteran who registers for employment in the labor 
service of the commonwealth and of the cities and towns thereof, if 
found qualified, shall be placed on the eligible list for the class for which 
he registers ahead of all other applicants. The names of eligible vet- 
erans shall be certified for labor service in preference to other persons 
eligible according to the method of certification prescribed by the civil 
service rules applying to civilians. If, however, the appointing officer 
certifies in the requisition for laborers that the work to be performed 
requires young and vigorous men, and, on investigation, the commis- 
sioner is satisfied that such certificate is true, he may fix a limit of age 
and certify only those whose age falls within such limit. 

These sections correspond to St. 1896, c. 517, §§ 3, 2 and 
6, respectively. While the language of the provisions has 
been changed, the substance of these sections remains as it 
was in the earlier acts, except for the enlargement of the mean- 
ing of the word "veteran" in sections 23 and 24. 

The decisions of our court and of the New York court upon 
the constitutionality of statutes providing for the payment of 
bonuses to veterans [Opinion of the Justices, 211 Mass. 608; 
People V. Westchester County National Bank, 132 N. E. Rep. 
[N. Y.] 241] would seem to have little bearing. 

The Attorney-General does not advise upon the constitu- 
tionality' of existing laws except under unusual circumstances; 
but for the purpose of aiding your commission in its de- 



1922.] PUBLIC DOCUMENT — No. 12. 341 

liberations I do not deem it improper to call your attention to 
the authorities above cited. 

3. You ask whether an administrative head, such as a controller, 
can be created, with certain legislative powers to be taken from the 
office of the Auditor or of the Treasurer and Receiver-General. 

The office of Treasurer and Receiver-General was recog- 
nized in the original Constitution, of which chapter II, sec- 
tion IV, article I, provided as follows : — 

The secretar}^, treasurer and receiver-general, and the commissary- 
general, notaries public, and naval officers, shall be chosen annually, 
by jomt ballot of the senators and representatives in one room. And, 
that the citizens of this commonwealth may be assured, from time to 
time, that the moneys remaining in the public treasury, upon the set- 
tlement and liquidation of the public accounts, are their propert}^ no 
man shall be eligible as treasurer and receiver-general more than five 
years successively. 

The office of Auditor was created by the Legislature by St. 
1849, c. 56, entitled "An iVct to establish the office of auditor 
of accounts." The duties of the Auditor, as provided gen- 
erally by this statute, were to examine accounts and demands 
against the Commonwealth, to approve and countersign re- 
ceipts given by the Treasurer, to keep a distinct account of 
all public receipts and expenditures under appropriate heads, 
to examine the books and accounts of the Treasurer, w^ith the 
vouchers, to submit to the Legislature a complete statement 
of the public property of the Commonwealth, its debts and 
obligations, revenue and expenses during the preceding year 
and the balance left in the treasury, and to submit also an 
estimate of expenses for the current year and of the ordinary 
income of the Commonw^ealth. Many of these duties are 
continued in G. L., c. 11, while some of them are placed with 
the heads of departments. 

The office of Auditor w^as recognized by the Constitution 
in article XVII of the Amendments, which provides for the 
election of the Secretary, Treasurer and Receiver-General, 
Auditor and Attorney-General as follows : — 

The secretary, treasurer and receiver-general, auditor, and attorney- 
general, shall be chosen annually, on the day in November prescribed 
for the choice of governor; and each person then chosen as such, duh' 



342 ATTORNEY-GENERAL'S REPORT. [Jan. 

qualified in other respects, shall hold his office for the term of one year 
from the third Wednesday in January next thereafter, and until another 
is chosen and qualified in his stead. 

Mass. Const, pt. 2d, c. I, § I, art. IV, gives power to the 
General Court "to name and settle annually, or provide by 
fixed laws for the naming and settling, all civil officers within 
the said commonwealth, the election and constitution of 
whom are not hereafter in this form of government otherwise 
provided for; and to set forth the several duties, powers, and 
limits, of the several civil and military officers of this com- 
monwealth." 

It is a well-recognized principle that where an office is es- 
tablished by the Constitution without provision as to the term 
or duties thereof, the latter may be altered, enlarged or modi- 
fied in such manner as the Legislature may deem for the 
public interest. Wales v. Belcher, 3 Pick. 508, 509, 510; 
Dearborn v. Ames, 8 Gray, 1; Commonwealth v. Intoxicatiyig 
Liquors, 110 Mass. 172; Opinion of the Justices, 117 Mass. 
603; Opinion of the Justices, 216 Mass. 605, 606; Attorney- 
General V. Tufts, 239 Mass. 458; III Op. Atty.-Gen. 546, 
549. 

It is my opinion, therefore, that the Legislature clearly has 
power to create a new administrative office to which certain 
of the duties of the Auditor and of the Treasurer and Re- 
ceiver-General may be transferred. As a matter of nomen- 
clature I make the suggestion that the title "controller," 
which you have suggested, means the same thing as "auditor." 

4. You ask whether the commission appointed to care for the welfare 
of soldiers can turn over their work to the American Legion, allowing 
the American Legion to send vouchers to the commission in regard to 
expenditures. 

The commission you refer to was established by Gen. St. 
1919, c. 125, entitled "An Act to establish the Soldiers' and 
Sailors' Commission." Section 1 of that act states the duties 
of the commission as follows : — 

There is hereby established the Soldiers' and Sailors' Commission 
whose object shall be to investigate the economic or other conditions 
which have resulted in the nonemployment of many soldiers, sailors and 
marines who have been honorablj^ discharged or have been released 
from the service of the United States; to procure employment for 



1922.] PUBLIC DOCUMENT — No. 12. 343 

them; to take such measures as may be legal and proper to induce 
former employers of soldiers and sailors to reinstate them in the posi- 
tions which they held before entering the service; to provide means of 
support for them and their dependents if they are unable to procure 
emplojinent, or if they are unable to work on account of disability or 
illness; and, in general, to befriend, protect and encourage those 
citizens of the commonwealth who have received or shall hereafter re- 
ceive an honorable discharge or release from the military or naval serv- 
ice of the United States. 

Section 2 provides that the commission shall consist of the 
persons designated under Spec. St. 1919, c. 112, section 1 of 
which is as follows : — 

To provide for aiding returned soldiers, sailors and marines to find 
emplo5anent, the sum of ten thousand dollars is hereby appropriated 
out of the general fund or ordinary revenue of the commonwealth, to 
be expended under the direction and with the approval of a commission, 
to consist of the commissioner of labor, the commissioner of state aid 
and pensions, the adjutant general and six other citizens of the com- 
monwealth, to be appointed by the governor with the advice and con- 
sent of the council, for the purpose of investigating the economic and 
other conditions which have resulted in the non-employment of soldiers, 
sailors and marines, and of procuring employment for them. 

Sections 3 and 4 of Gen. St. 1919, c. 125, contain further 
provisions as to the powers and duties of the commission, and 
section 5 provides that the commission shall continue in 
existence until it is dissolved by proclamation made by the 
Governor. 

Appropriations for the purpose of securing employment for 
returned soldiers, sailors and marines, under the direction of 
this commission, were made by St. 1920, c. 621, and by St. 
1921, c. 203, § 2, item 139. 

By the express terms of Gen. St. 1919, c. 125, the work of 
investigating conditions and procuring employment was made 
a duty of the commission. The subsequent appropriations 
were made to be expended under the direction of the com- 
mission and for the purpose of continuing its work. It is a 
general principle that a delegated power cannot be dele- 
gated. Stoughton v. Baker, 4 Mass. 522, 530, 531; Sanborn 
V. Carleton, 15 Gray, 399, 403. In my judgment, it is clear 
that a committee appointed by the Legislature, with certain 
powers and duties, cannot delegate those powers and duties 



344 ATTORNEY-GENERAL'S REPORT. [Jan. 

to be performed by some other body. I must therefore answer 
this question in the negative. 

5. Your last question, as I understand it, is whether G. L., c. 71, 
§ 24, providing for State reimbursement for continuation schools, is 
constitutional. 

Mass. Const., pt. 2d, c. I, § I, art. lY, gives to the General 
Court full power and authority ''from time to time to make, 
ordain, and establish, all manner of wholesome and reasonable 
orders, laws, statutes, and ordinances, directions and instruc- 
tions, either with penalties or without; so as the same be 
not repugnant or contrary to this constitution, as they shall 
judge to be for the good and welfare of this commonwealth, 
and for the government and ordering thereof, and of the 
subjects of the same, and for the necessary support and de- 
fence of the government thereof." 

In the recent case of Knights v. Treasurer and Receiver- 
General, 237 Mass. 493, the court says: — 

The distribution of public moneys in way of expenditures either di- 
rectly by State officers or indirectly through countj^, city, town, or dis- 
trict officers need not be according to any principle of apportionment 
or equahty other than such as commends itself to the wisdom of the 
General Court. Lowell v. Oliver, 8 Allen, 247, 255; Duffy v. Treasurer 
and Receiver-General, 234 Mass. 42. 

I cannot advise you that the provision in question is in 
any respect unconstitutional. In my opinion, it is within the 
legislative discretion. 

Very truly yours, 

J. Weston Allex, Attorney-General. 



Constitutional Law — '' Anti-Aid'' Amendment — Appropria- 
tion of Public Funds — State Vocational Education — Con- 
tracts with Private Teaching Agencies. 

Mass. Const. Amend. XLVI, the so-called "anti-aid" amendment, acts 
as a bar to the State Board of Vocational Education contracting with 
private institutions and persons for the furnishing of vocational in- 
struction, if thereby there is involved the payment of any of the 
moneys appropriated by the Legislature for the use of said board. 

Dec. 14, 1921. 
Dr. Paysox Smith, Commissioner of Education. 

Dear Sir: — On behalf of the State Board for Vocational 
Education you have submitted to me for approval as to 



1922.] PUBLIC DOCUMENT — Xo. 12. 345 

matters of form a draft of agreement to be entered into by 
that board with certain private institutions and individuals 
for vocational instruction to be given persons injured in in- 
dustry or otherwise, said board acting in the matter pursuant 
to the provisions of St. 1921, c. 462. 

In your communication you also inquire as to whether 
Mass. Const. Amend. XLVI, the so-called "anti-aid" amend- 
ment, is a bar to said board contracting with private institu- 
tions and persons for the furnishing of vocational instruction. 

On June 2, 1920, the 66th Congress passed an act entitled 
" An Act to provide for the promotion of vocational rehabilita- 
tion of persons disabled in industry and otherwise and their 
return to civil employment." By this act of Congress there 
was appropriated for the use of the States which accepted the 
provisions of the act certain Federal moneys for vocational 
rehabilitation, and all moneys expended under the provisions 
of the act are to be expended upon certain conditions, one 
of which is that "for each dollar of Federal money expended 
there shall be expended in the State under the supervision 
and control of the State board at least an equal amount for 
the same purpose." By St. 1921, c. 462, the Commonwealth 
of Massachusetts accepted the provisions of this act of Con- 
gress, and the Legislature, by St. 1921, c. 502, item 334rt, 
appropriated $10,000 for the purpose of carrying out the 
provisions of the act. 

So far as is pertinent to the present inquir}-, Mass. Const. 
Amend. XLVI, § 2, provides that "no grant, appropriation 
or use of public money or property or loan of public credit 
shall be made or authorized by the commonwealth . . . for 
the purpose of founding, maintaining or aiding any school or 
institution of learning, whether under public control or other- 
wise, wherein any denominational doctrine is inculcated, or 
any other school, or any college, . . . institution, or educa- 
tional, charitable or religious undertaking which is not pub- 
licly owned and under the exclusive control, order and super- 
intendence of public officers or public agents authorized by 
the commonwealth or federal authority or both." 

These provisions, in my opinion, act as a bar to the execu- 
tion of a contract, as proposed by you, which involves the 
payment to a private institution or individual of any of the 
moneys appropriated by the Commonwealth. 

The funds, however, which are allotted to this Common- 
wealth from appropriations made under the act of Congress, 



346 ATTORNEY-GENERAL'S REPORT. [Jan. 

and of which the Treasurer and Receiver-General is custodian, 
may, in my opinion, be expended pursuant to the terms of an 
agreement for instruction entered into with private institu- 
tions and persons by the State Board for Vocational Edu- 
cation. 

The distinction between moneys appropriated by the Com- 
monwealth and those allotted by the Federal government to 
the Commonwealth should be kept clearly in mind, and only 
the latter funds should be paid out to private institutions or 
individuals which are not publicly owned and which are not 
under the exclusive control, order or superintendence of public 
officers or public agents authorized by the Commonwealth. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



Constitutional Laic — House of Representatives — Incompatible 
Offices — Effect of accepting Incompatible Office — Power 
to determine Disqualification — Right of De Facto Member 
to Salary. 

Under Mass. Const. Amend. VIII, the office of Deputy Collector of In- 
ternal Revenue of the United States is incompatible with the office of 
representative to the General Court. 

Where a member of the House of Representatives of Massachusetts accepts 
the incompatible office of Deputy Collector of Internal Revenue of 
the United States, he ceases to be a de jure member of the House, but 
remains a de facto member until the House either accepts the resigna- 
tion or declares the seat vacant. 

While the House of Representatives is the exclusive judge of the qualifica- 
tions of the members thereof, it has been accustomed in such cases to 
follow the rules of law. 

A de facto officer is not entitled to salary or compensation. 

Dec. 15, 1921. 
Committee on Rules, House of Representatives. 

Gentlemen: — You inquire whether a member of the 
House of Representatives of this Commonwealth, who was ap- 
pointed a Deputy Collector of Internal Revenue of the United 
States, and who took the oath of office on October 10, 1921, 
has vacated his seat as representative. 

Mass. Const. Amend. VIII provides: — 

No judge of any court of this commonwealth, (except the court of 
sessions,) and no person holding any office under the authority of the 
United States, (postmasters excepted,) shall, at the same time, hold 



1922.] PUBLIC DOCUMENT — No. 12. 347 

the office of governor, lieutenant-governor, or councillor, or have a seat 
in the senate or house of representatives of this commonwealth; and 
no judge of any court in this commonwealth, (except the court of ses- 
sions,) nor the attorney-general, solicitor-general, county attorney, 
clerk of any court, sheriff, treasurer and receiver-general, register of 
probate, nor register of deeds, shall continue to hold his said office after 
being elected a member of the Congress of the United States, and ac- 
cepting that trust; but the acceptance of such trust, by any of the of- 
ficers aforesaid, shall be deemed and taken to be a resignation of his 
said office; and judges of the courts of common pleas shall hold no 
other office under the government of this commonwealth, the office of 
justice of the peace and militia offices excepted. 

In my opinion, one who is appointed a Deputy Collector of 
Internal Revenue of the United States and takes the oath of 
office is a "person holding an office under the authority of the 
United States," within the meaning of this amendment. 
Such office is manifestly not within the exception as to post- 
masters. I am therefore of opinion that the two offices are 
incompatible. 

It seems that the acceptance of this Federal office does not 
in and of itself vacate the office of representative. The 
amendment provides that "the acceptance of such trust, by 
any of the officers aforesaid, shall be deemed and taken to be 
a resignation of his said office." There is serious doubt as to 
whether a member of the House or Senate can divest himself 
of that office by resignation until action is taken thereon by 
the House or Senate, as the case may be. In Fitchburg Rail- 
road Co. V. Grand Junction, etc., Co., 1 Allen, 552, Chief Justice 
Shaw, sitting at 7iisi prius, ruled that a senator, by simply 
tendering his resignation, did not divest himself of the office, 
but this point was left undecided by the full bench. See also 
Badger v. United States ex rel. Bolles, 93 U. S. 599; III Op. 
Atty.-Gen. 1. A judicial officer who accepts an incompatible 
office is liable to removal in a direct proceeding by the 
Commonwealth. Commonwealth v. Haivkes, 123 Mass. 525. 
But until removed he remains an officer de facto though not 
de jure. Sheehan's Case, 122 Mass. 445. In my opinion, some 
action by the House is required to render the resignation 
effective. As no precept for a special election to fill a vacancy 
can issue without an order of the House, this view produces 
no sensible inconvenience. Opinion of the Attorney-General to 
the Speaker of the House of Representatives, June 15, 1921. 



348 ATTORNEY-GENERAL'S REPORT. [Jan. 

Mass. Const., pt. 2d, c. I, § III, art. X, provides, in part: — 

The house of representatives shall be the judge of the returns, elec- 
tions, and qualifications of its own members, as pointed out in the 
constitution; . . . 

No court possesses jurisdiction to determine whether a 
member of the House is disqualified, or to remove him for a 
disqualification if such exists. That power is vested exclusively 
in the House. Binan v. Sicig, 223 Mass. 516. But while the 
power of the House over the subject is absolute, and is sub- 
ject to no review, it may be proper to add that the House 
has been accustomed in such cases to follow the rules of law. 
Opinion of the Attorney-General to the Speaker of the House 
of Representatives, June 15, 1921; I Op. Atty.-Gen. 3, 8. 

In view of Amendment VIII I am of opinion that in the 
present case the House may properly accept the "resigna- 
tion" or declare the seat vacant. As the member became 
only a de facto member on Oct. 10, 1921, he is not entitled to 
any salary or compensation subsequent to that date. Phelon 
V. Granville, 140 Mass. 386; Dolliver v. Parks, 136 Mass. 499. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



State Officers — Judges of Certain Courts — District Attorneys — 
Duty to furnish Information to the Supervisor of Adminis- 
tration. 

The words "every state officer, department or head thereof," as used in 
G. L., c. 30, § 38, when construed in connection with Mass. Const. 
Amend. LXVI, and G. L., c. 30, § 1, are confined to officers of the 
executive branch and do not include officers of the judicial branch. 

G. L., c. 30, § 38, does not require the Supreme Judicial Court, the Superior 
Court, the Land Court and courts of probate and insolvency to furnish 
information to the Supervisor of Administration. 

Although district attorneys are not "officers of the commonwealth," within 
the meaning of Mass. Const., pt. 2d, c. I, § II, art. VIII, they are 
"state officers," within the meaning of G. L., c. 30, § 38, and must 
furnish information prescribed by that section to the Supervisor of 
Administration. 

Dec. 20, 1921. 

Mr. Thomas W. White, Supervisor of Administration. 

Dear Sir: — You inquire whether the Supreme Judicial 
Court, the Superior Court, the courts of probate and insol- 
vency, the Land Court and the district attorneys are w^ithin 



1922.] PUBLIC DOCUMENT — No. 12. 349 

the meaning of the phrase "every state officer, department or 
head thereof," as employed in G. L., c. 30, § 38, which pro- 
vides as follows: — 

Every state officer, department or head thereof shall, whenever re- 
quired by the supervisor, furnish him with such information as he pre- 
scribes concerning all officials and emploj^ees of the commonwealth em- 
ployed in or bj^ such office or department for whose services money has 
been paid by the commonwealth. 

Gen. St. 1916, c. 296, abolished the Commission on Economy 
and Efficiency and the State Board of Publication and vested 
their powers in the Supervisor of Administration, to whom the 
word "him" in the above section refers. See now G. L., c. 7. 
On Nov. 5, 1918, the people adopted Amendment LXVI, 
which provided, in part, that on or before Jan. 1, 1921, "the 
executive and administrative work of the commonwealth shall 
be organized in not more than twenty departments." This 
was done by Gen. St. 1919, c. 350. G. L., c. 30, contains 
general provisions relative to State departments, commis- 
sions, officers and employees. Section 1 reads as follows: — 

The following words, as used in this chapter, shall have the following 
meanings, unless the context otherwise requires: 

"Departments," except in section two, all the departments of the 
commonwealth, except the departments of banking and insurance and 
of civil service and registration but including in lieu thereof the divisions 
of banks and loan agencies, of msurance, of savings bank life insurance 
and of civil service and the several boards serving in the division of 
registration of the department of civil service and registration, and 
also including the metropolitan district commission. 

"Supervisor," supervisor of admmistration. 

Section 38 must be read with and is restrained by Amend- 
ment LXVI, Gen. St. 1919, c. 350, and the definition of 
"departments" contained in the above section. When so con- 
strued, it is plain that the words "every state officer, depart- 
ment or head thereof" are confined to the executive branch 
of the government and do not include the judicial branch. 
This construction is confirmed by G. L., c. 30, § 45, which 
provides that the Supervisor shall classify " all appointive of- 
fices and positions in the government of the commonwealth, 
except those in the judicial branch and those in the legislative 
branch," with an exception in the latter branch not here ma- 



350 ATTORNEY-GENERAL'S REPORT. [Jan. 

terial. I am therefore of opinion that section 38 does not 
apply to the courts named in your inquiry. 

Mass. Const. Amend. XIX provides, in substance, that dis- 
trict attorneys shall be chosen by the people of the several 
districts for such term of office as the Legislature shall pre- 
scribe. Although they are paid by the Commonwealth and 
may interchange official duties, their duties are ordinarily of 
local character. G. L., c. 12, § 27; Commonwealth v. Bea- 
man, 8 Gray, 497; Parker v. May, 5 Cush. 336, 339-340; 
Attorney -General v. Tufts, 239 Mass. 458. They are not 
"officers of the commonwealth" who can be removed only by 
impeachment. G. L., c. 211, § 4; Attorney-General v. Tujts, 
supra. On the other hand, the powers and duties of district 
attorneys are prescribed by G. L., c. 12, which also defines 
and declares certain of the powers and duties of the Attorney- 
General. To him, as the chief law officer of the Common- 
wealth, they are in many respects subject. Commonicealth v. 
Kozlowshy, 238 Mass. 379. The Department of the Attorney- 
General is one of the administrative departments provided for 
and classified by Gen. St. 1919, c. 350, § 33. In an opinion 
rendered to you on Dec. 27, 1920, I advised you that until 
G. L., c. 12, § 2, took effect on Dec. 31, 1920, an increase in 
the salary of an Assistant Attorney-General required the ap- 
proval of the Supervisor. Under these circumstances, I am 
of opinion that even though a district attorney is not "an 
officer of the Commonwealth," within the meaning of Mass. 
Const., pt. 2d, c. I, § II, art. VIII, he is within the words 
"state officer" as employed in G. L., c. 30, § 38. 
Yours very truly, 

J. Weston Allen, Attorney -General. 



Constitutional Law — Appropriation of Public Funds — Public 
Purpose — State House — Assignment of Location — Veter- 
ans of Foreign Wars — Furnishings. 

The temporary locations for the Massachusetts Department of the Veterans 
of Foreign Wars assigned, under G. L., c. 8, § 17, as amended by St. 
1921, c. 459, by the Superintendent of Buildings, are to be furnished 
by the Superintendent. 

The statute providing for the assignment of a location in the State House 
for the free use of the Veterans of Foreign Wars is constitutional, for 
the assignment of the space for the preservation of relics and records 
of war is for a public purpose. 



1922.] PUBLIC DOCUMENT — No. 12. 351 

Dec. 21, 1921. 
Mr. Fred H. Kimball, Superintendent of Buildings. 

Dear Sir: — You have requested my opinion as to whether 
or not the quarters to be assigned to the Massachusetts De- 
partment of the Veterans of Foreign Wars under the provi- 
sions of G. L., c. 8, § 17, as amended by St. 1921, c. 459, are 
to be furnished by your department. 

The essential provisions of the statute referred to are as 
follows: — 

There shall be set apart suitably furnished rooms in the state house 
for the use of the Grand Army of the Republic of the department of 
Massachusetts and the Massachusetts department of The American 
Legion, respectively, and there may be assigned by the superintendent, 
with the approval of the governor and council, certain spaces in the 
state house, suitably furnished, for the use of the Massachusetts de- 
partment of the United Spanish War Veterans, and temporary loca- 
tions for the Massachusetts department of the Veterans of Foreign 
Wars shall be assigned by the superintendent within the rooms or 
spaces set apart for the Massachusetts department of The American 
Legion, such rooms or spaces to be under the charge of the state com- 
manders of the respective departments, subject to this chapter. 

As it was provided that the locations for the Veterans of 
Foreign Wars are to be assigned by you within the rooms or 
spaces set apart for The American Legion, and it has been 
provided that the rooms set apart for The American Legion are 
to be suitably furnished, it necessarily follows that the space 
allotted to the Veterans of Foreign Wars is to be furnished. 

Your inquiry necessarily draws in question your authority 
to expend public money to furnish these quarters. This ques- 
tion cannot be answered without considering the constitu- 
tionality of the act. This statute contains provisions as to 
preservation of relics and records, similar to those of House 
Bill No. 1445, which related to quarters in the State House for 
the use of the United Spanish War Veterans. This depart- 
ment advised that House Bill No. 1445 was constitutional. 
V Op. Atty.-Gen. 526. For the reasons there stated, the 
present act is not, in my opinion, open to constitutional 
objection. 

Yours very truly, 

J. Weston Allen, Attorney -General. 



352 ATTORNEY-GENERAL'S REPORT. [Jan. 



Appropriation — Neponset Valley Improvement — Payment for 
Construction Work in Lieu of Damages. 

The balance of an appropriation made by the Legislature in 1911 for 
damages caused by the taking of land, easements or rights in land, 
in connection with the protection of the public health in the valley 
of the Neponset River, can be paid out of the treasury only as money 
for such damages, and cannot be used for certain construction work 
in favor of landowners in lieu of the payment of money for damages. 

Dec. 22, 1921. 
Dr. E. R. Kelley, Commissioner of Public Health. 

Dear Sir: — You have requested my opinion upon a ques- 
tion of law arising out of an opinion given to you under date 
of Sept. 20, 1921, relative to the disposition of a balance re- 
maining from an appropriation for land damages under St. 
1911, c. 655, § 10, which had to do with the protection of the 
public health in the valley of the Neponset River. You state 
that "when the new appropriation of $3,000 was made by the 
Legislature of 1921, it was with the understanding that the 
balance of the 1911 appropriation was to be used in addition 
to the appropriation of this year in the construction of bridges 
as payment or compensation for damages arising under the 
1911 act." Your specific question is as to whether or not the 
balance of the 1911 appropriation can be used for work to be 
constructed as payment or compensation for, or in lieu of, 
land damages arising under the 1911 act. 

Lender the authority" of the 1911 statute 3'ou made takings 
of certain parcels of land bordering on the Neponset River. 

The fee in such lands thus having passed to the Common- 
wealth, the owners of property rights in the lands became 
possessed of a vested right. This vested right consisted of 
the constitutional right to reasonable compensation and of the 
statutory right to have it assessed and paid in money. Hellen 
V. Medford, 188 Mass. 42. 

In the case of Commoniccalth v. Peters, 2 Mass. 125, it was 
decided that the Commonwealth had no power to award a 
landowner anything but money in compensation for his 
damages in laying out a highway over his land. The court, 
in that decision, pointed out that the statute explicitly pro- 
vided that damages were to be paid in money, and, that being 
the case, the Commonwealth could not compensate the owner 
by giving him title to other land, because it would not be the 
satisfaction which the law had determined should be given. 



1922.] PUBLIC DOCUMENT — No. 12. 353 

The same situation exists in the present case. The Legis- 
lature, by St. 1911, c. 655, § 10, provided that damages shall 
be paid in money, the section reading as follows: — 

The sum of five thousand dollars is hereby appropriated for damages 
arising under this act, caused b}^ the taking of land, easements or rights 
in lands. 

As stated above, a landowner can insist upon the payment 
of money as compensation, but in answering your question 
it is necessary to consider the situation where a landowner is 
willing to waive the constitutional protection of his property 
rights, and consents to the payment of his land, damages in 
service or in kind. These facts make it necessary to determine 
what powers, if any, the Department of Public Health has to 
compromise a landowner's claim by making compensation in 
service or in kind. 

It has been decided that an executive officer has no inherent 
power to compromise a contested right for a valuable consider- 
ation. Williain Cramp & Sons Co. v. United States, 216 U. S. 
494; United States v. Beebe, 180 U. S. 343. 

For your department to compromise upon any basis, there 
must be valid statutory authority to that effect. An exami- 
nation of your powers under the Neponset Valley act, so 
called, discloses no authority conferred upon your department 
to compromise with landowners upon the basis of payment 
in service or in kind. In fact, the sole medium made available 
to the department by the Legislature in settling damages with 
landowners is that of money. 

Accordingly, it is my opinion that the balance of the 1911 
appropriation can be paid out of the treasury only as money 
for damages caused by takings by eminent domain, and that 
said balance cannot be used for certain construction work in 
favor of landowners in lieu of the payment of mone}' for 
damages. 

Very truly yours, 

J. Weston Allen, Attorney-General. 



354 ATTORNEY-GENERAL'S REPORT. [Jan. 



Patents — Right of the Massachusetts Agricultural College to 
use a Patented Formula for Experimental Purposes. 

Use of a patented article, formula or process for experimental purposes, 
without the consent of the patentee or his assigns, would be unjusti- 
fiable, constituting an infringement of the patent, even though there 
be no sale or profit derived from such use. 

Dec. 22, 1921. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You inquire whether or not the Massachusetts 
Agricultural College has a right to use for experimental pur- 
poses the formula for the treatment of butter and ice cream 
with carbon dioxid, as patented by the persons named in your 
letter. 

It appears that the ice-cream freezing process in question 
was patented on Jan. 27, 1920, and the process of making 
butter on July 12, 1921. You do not state whether or not 
the patentees are or have been employed by or connected 
with said college, and this opinion is accordingly rendered on 
the assumption that they have not been so connected. I also 
assume that the use of said formula is purely for experimental 
purposes, and the products thereof are not to be sold or put 
into actual use. 

The Constitution of the United States, article I, section 8, 
gives Congress power "to promote the progress of science 
and useful arts, by securing for limited times to authors and 
inventors the exclusive right to their respective writings and 
discoveries." The patent act provides that every patent shall 
contain a grant to the patentee, his heirs and assigns, for a 
certain term of years, of "the exclusive right to make, use 
and vend the invention or discovery throughout the United 
States." 

It has, accordingly, been repeatedly declared by the Su- 
preme Court of the United States that neither the United 
States nor any State has any more right than a private person 
to use a patented invention without license of the patentee 
or making compensation to him. United States v. Burns, 12 
Wall. 246; Hollister v. Benedict & Burnham Mfg. Co., 113 U. S. 
59; United States v. Palmer, 128 U. S. 262; Belknap v. Schild, 
161 U. S. 10; McCormick Harvesting Machine Co. v. Aultman 
Co., 169 U. S. 606; International Postal Supply Co. v. Bruce, 
194 U. S. 601, 607. 

It is well settled that the exclusive privilege of a patentee 
is to be protected to the full extent of his invention and 



1922.] PUBLIC DOCUMENT — No. 12. 355 

grant, equally against an improver and the general public. 
See Kokomo Steel & Wire Co. v. Columbia Wire Co., 200 
U. S. 621. 

There is perhaps no exact definition of the term "infringe- 
ment," but speaking broadly it relates to a condition which 
arises out of the combination of events, the creation of the 
monopoly by the government and the invasion of that mo- 
nopoly by the person. Thus, infringement may consist either 
in making, using or selling the invention, or in all three. 
See Birdsell v. Shaliol, 112 U. S. 485. Accordingly, it is held 
that use of a patented article or process for personal benefit 
or convenience is an infringement, even though there be no 
sale or profit derived from such use. See Beedle v. Bennett, 
122 U. S. 71. 

There is some authority for the proposition that "the 
making of a patented invention for amusement or scientific 
investigation, with no intent of using it practically, is not an 
actionable infringement; but it is otherwise where the thing 
made is sold or put into actual use." 30 Cyc. 972, and cases 
cited. In view of what appears to be the great weight of au- 
thority, however, I am of the opinion that the Massachusetts 
Agricultural College would not be justified in using, even for 
experimental purposes, the formula referred to, unless it first 
procures the consent of said patentees or their assignees. 
Very truly yours, 

J. Weston Allen, Attorney-General. 



Taxatiofi — Legacies and Successions — Exemptions — Gift to 
he used for Such Charitable Purposes as the Donee may 
deem Best. 

Exemptions from taxation are not to be lightly inferred even in the case of 
a charity. 

A gift by will to an individual "to be used by him for such charitable pur 
poses as he may deem best" is not exempt from an inheritance tax, 
under Gen. St. 1916, c. 268, § 1 (now G. L., c. 59, § 1), since the gift is 
neither ''to or for the use of charitable . . . societies or institutions, 
the property of which is by law exempt from taxation," nor "for or 
upon trust for any charitable purpose to be carried out within this 
commonwealth." 

Dec. 23, 1921. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You direct my attention to the eleventh 
paragraph of the will of A. Paul Keith, who died domiciled 



356 ATTORNEY-GENERAL'S REPORT. [Jan. 

in this Commonwealth in October, 1918, and inquire whether 
the bequest made by said paragraph to Cardinal William 
O'Connell is subject to an inheritance tax. 

The eleventh paragraph of the will provides : — 

Eleventh: All the rest, residue and remainder of my property and 
estate, real, personal and mixed, of every name, nature and description, 
and wheresoever situated, I give, devise and bequeath unto His Emi- 
nence William O'Connell of Boston, Massachusetts, a Cardinal of the 
Holy Roman Catholic Church, and to the President and Fellows of 
Harvard College, a Massachusetts corporation, to be divided between 
him and that corporation in equal shares, share and share alike, and I 
direct that what is received by him shall be used by him in his discre- 
tion for such charitable purposes as he may deem best, in memory of my 
mother, Mary Catherine Keith, and that what is received bj^ the Presi- 
dent and Fellows of Harvard College shall be devoted by that corpora- 
tion to the general purposes of Harvard University. 

As the testator died in 1918 the statute appHcable is Gen. 
St. 1916, c. 268, § 1, which excepts from the inheritance tax 
gifts — 

to or for the use of charitable, educational or religious societies or in- 
stitutions, the property of which is by the laws of this commonwealth 
exempt from taxation or for or upon trust for any charitable purposes, 
to be carried out wdtliin this commonwealth, or to or for the use of the 
commonwealth or any city or town within this commonwealth for 
public purposes. 

Exemptions from taxation are not to be lightly inferred, but 
must appear plainly either from the express words or necessary 
intendment of the statute. Wheelivright v. Tax Commissioner, 
235 Mass. 584, 586. The rule applies to exemptions in favor 
of charity. Miljord v. County Commissioners, 213 Mass. 162, 
165; Hooper v. Shaw, 176 Mass. 190. The present statute 
exempts three classes of charitable gifts, each class being 
subject to definite and express limitations. As was said in 
Pierce v. Stevens, 205 Mass. 219, 221: — 

The question is whether this gift is within either of the exemptions 
created by the statute. These are three in number. The first is of 
gifts "to or for the use of charitable, educational or religious societies 
or institutions, the property of which is by law exempt from taxation"; 
the second is of property given "to a trustee or trustees for public 
charitable purposes within the Commonwealth"; and the third is of 
property given "to or for the use of a city or town for public purposes." 
R. L., c. 15, § 1. 



1922.] PUBLIC DOCUMENT — Xo. 12. 357 

The common ground for all three exemptions is the benefit 
which accrues to the public of this Commonwealth from the 
use of that which is exempted. See Davis v. Treasurer and 
Receiver-General, 208 Mass. 343, 345. Hence, each exemption 
is subject to a limitation which attaches the exempted gift 
in some way to the Commonwealth. 

A bequest to or for the use of a charitable, educational or 
religious society or institution is not exempt under the first 
clause unless the property of such society or institution is " by 
the laws of this commonwealth exempt from taxation." First 
Universalist Society v. Bradford, 185 Mass. 310. This clause 
does not exempt testamentary gifts to charitable societies or 
institutions in other States. Minot v. Winthrop, 162 Mass. 
113; Rice v. Bradford, 180 Mass. 545; Batt v. Treasurer and 
Receiver-General, 209 Mass. 319, 320. Nevertheless, a bequest 
to or for the use of a Massachusetts charitable society or in- 
stitution of the proper character is exempt, because within the 
precise w^ords of the exemption, even though such society or 
institution carries on activities outside the Commonwealth. 
Batch V. Shaw, 174 Mass. 144; Parkhurst v. Treasurer and 
Receiver-General, 228 Mass. 196. To restrict this exemption 
to those charitable societies and institutions which are both 
organized under the laws of this Commonwealth and also re- 
strict their activities wholly within its borders would super- 
add a limitation which the Legislature has not made. 

The exemption of gifts "to or for the use of the common- 
wealth or any city or town w^ithin this commonwealth for 
public purposes" is restricted by the express words of the 
statute to Massachusetts cities and towns. Even before this 
restriction was declared in express words, by St. 1909, c. 527, 
§ 1, the earlier act had the same meaning. Davis v. Treas- 
urer and Receiver-General, 208 Mass. 343. 

Hooper v. Shaw, 176 Mass. 190, decided in 1900, held that 
a testamentary gift in trust for public charitable purposes to 
be carried out within this Commonwealth was not within 
the exemption conferred by the first clause, because neither 
donee nor beneficiary was a "society or institution." St. 1906, 
c. 436, § 1, added a further exemption of gifts "to a trustee 
or trustees for charitable purposes within the commonwealth." 
This exemption was extended by St. 1907, c. 563, § 1, to in- 
clude gifts "for or upon trust for any charitable purposes," 
but the restriction to purposes "to be carried out within this 
commonwealth" was restored by St. 1909, c. 527, § 1, and 



358 ATTORNEY-GENERAL'S REPORT. [Jan. 

has been preserved ever since. G. L., c. 59, § 1. The dis- 
tinction between this exemption and the exemption made by 
the first clause is vital. Under the first clause the donee or 
beneficiary must be a Massachusetts society or institution of 
the proper character. Hooper v. Shatv, 176 Mass. 190. Under 
the second clause the charitable purpose must be carried out 
within the Commonwealth. Pierce v. Stevens, 205 Mass. 219. 
The exemption which embraces gifts to or for the use of 
cities or towns manifestly does not apply to the present case. 
In an opinion rendered to you on Aug. 26, 1921, I advised you 
that this bequest is to Cardinal O' Council in his personal 
capacity, and not to the Roman Catholic Archbishop of Bos- 
ton, who is created a corporation sole by St. 1896, c. 506, § 1. 
I further advised you that as the will provides that "what is 
received by him [Cardinal O'ConnellJ shall be used by him in 
his discretion for such charitable purposes as he shall deem 
best," the trust is for charitable purposes generally, to be 
selected by the Cardinal, and not for any specific institution, 
society or corporation. Such a bequest is plainly not within 
the provision which exempts gifts to or for the use of char- 
itable ''societies or institutions the property of which is by 
the laws of this commonwealth exempt from taxation." 
Hooper v. Shaw, 176 Mass. 190. There is nothing in the will 
which constrains the Cardinal to carry out this charity within 
this Commonwealth. The testator may or may not have 
anticipated that the Cardinal would probably apply the fund 
to Massachusetts charities. But an unexpressed anticipation 
of the testator, if he had it, cannot restrain or control the 
broad power of selection which he has conferred by express 
words. The taxability of this bequest is determined at the 
moment of death. Hooper v. Bradford, 178 Mass. 95; Pierce 
V. Stevens, 205 Mass. 219. A taxable gift for a foreign char- 
itable purpose cannot be brought within the exemption by 
subsequently creating a Massachusetts charitable corporation 
to execute it. Pierce v. Stevens, 205 Mass. 219. In my 
opinion, this bequest is not and cannot be brought within the 
exemption conferred by the second clause upon gifts "for or 
upon trust for any charitable purposes to be carried out 
within this commonwealth." I therefore advise you that the 
bequest to Cardinal O' Council is subject to an inheritance tax 
under Gen. St. 1916, c. 268. 

Yours very truly, 

J. Weston Allen, Attorney-General. 



1922.1 PUBLIC DOCUMENT — No. 12. 359 



Justice of the Peace — Notary Public — Time of Residence iri 
Massachusetts. 

There is no legal requirement as to time of residence in Massachusetts be- 
fore a person may become a justice of the peace or notary public. 

Dec. 27, 1921. 

His Excellency Channing H, Cox, Governor of ike Commonwealth. 

Sir: — I acknowledge receipt of your communication 
wherein you request my opinion as to the time of residence 
in Massachusetts required before one may become a justice 
of the peace or notary public. 

Mass. Const., pt. 2d, c. II, § I, art. IX, provides as fol- 
lows: — 

All judicial officers, (the attorney-general,) the solicitor-general, (all 
sheriffs,) coroners, (and registers of probate,) shall be nommated and 
appointed by the governor, by and with the advice and consent of the 
council; and every such nomination shall be made by the governor, 
and made at least seven days prior to such appointment. 

Mass. Const. Amend. IV, provides: — 

Notaries public shall be appointed by the governor in the same 
manner as judicial officers are appointed. . . . 

Although the Constitution expressly provides that residence 
for a certain fixed period of time within the Commonwealth 
is a prerequisite to the election or appointment of many of- 
ficers (for example, Governor, Mass. Const., pt. 2d, c. II, § I, 
art. II; Lieutenant-Governor, Mass. Const., pt. 2d, c. II, 
§ II, art. I; Councillors, Mass. Const. x\mend. XVI; Senators, 
Mass. Const. Amend. XXII; Representatives, Mass. Const. 
Amend. XXI; Secretary, Treasurer and Receiver-General, 
Auditor and Attorney-General, Mass. Const. Amend. XVII), 
nevertheless, nowhere in the Constitution or in the General 
Laws is there to be found any requirement as to time of 
residence in Massachusetts before a person may become a 
justice of the peace or notary public. 
Yours very truly, 

J. Weston Allen, Attorney-General. 



360 ATTORNEY-GENERAL'S REPORT. [Jan. 



Medical Registration — Pathologist. 

A person acting as a pathologist should be registered under G. L., c. 112, 
§§ 2-12, providing for medical registration. 

Dec. 27, 1921. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You request an opinion on the following 
question: — 

Should a person employed by the Department of Mental Diseases, 
for the purpose of making autopsies, reporting on findings and acting 
as a pathologist, be registered imder the law providing for medical 
registration? 

G. L., c. 112, §§ 2-12, provide for the registration of 
physicians and surgeons. Section 6 provides, in part, as fol- 
lows: — 

Whoever, not being la'W'fully authorized to practice medicine within 
the commonwealth and registered under section two, . . . holds himself 
out as a practitioner of medicine or practices or attempts to practice 
medicine in any of its branches, . . . shall be punished by a fine of not 
less than one hundred nor more than five hundred dollars or bj^ im- 
prisonment for three months, or both. 

The Standard Dictionary defines a pathologist as "one who 
is learned or skilled in pathology." Pathology is therein de- 
fined as "the branch of medical science that treats of morbid 
conditions, their causes, symptoms, nature, physiology and 
anatomy. ... It embraces also as special departments mor- 
bid anatomy, etiology, nosology, and therapeutics." 

In the case of Commonivealth v. Zimmerman, 221 Mass. 184, 
the court said: — 

Medicine relates to the prevention, cure and alleviation of disease, 
the repair of injury, or treatment of abnormal or unusual states of the 
body and their restoration to a healthful condition. It includes a 
broad field. It is not confined to the administering of medicinal sub- 
stances or the use of surgical or other instruments. It comprehends 
"a knowledge, not only of the functions of the organs of the human 
body, but also of the diseases to which these organs are subject, and of 
the laws of health and the modes of living which tend to avert or over- 
come disease, as well as of the specific methods of treatment that are 
most effective in promoting cures." ... In order to practice medicine 
one need not cover the entire field of the science. If he devotes himself 



1922.] PUBLIC DOCUMENT — No. 12. 361 

to a ven- restricted part of it, he still may be found to practice medicine. 
It is matter of common knowledge that there has been great specializa- 
tion in that profession in recent years. To that effect are the decisions. 

To the same effect see Commonivealth v. Jewelle, 199 Mass. 
558; Commonwealth v. Porn, 196 Mass. 326; People v. Gor- 
don, 194 111. 560; People v. Allcutt, 189 N. Y. 517. 

It is therefore my opinion that a person "acting as a pa- 
thologist" should be registered under the law providing for 
medical registration. 

Very truly 3^ours, 

J. Weston Allen, Attorney-General. 



362 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



INDEX TO OPINIONS. 



PAGE 

Abatement of penalty; income tax return ...... 46 

Abutter; garage .......... 35 

Accounts of institutions; approval ....... 156 

Administrative office; creation of ...... . 338 

Agricultural societies; fairs; license ....... 195 

Aircraft; landing places; great ponds ....... 182 

Alien; license to engage in lobster fishing ...... 277 

"Anti-aid" amendment; public funds; vocational education . . . 344 

Armory; use for public ball ........ 69 

Attorney-General; approval of regulations of boards of health . . 272 

Power to compromise claims . . . . . . .162 

To advise Bank Commissioner in liquidation of trust companies . 303 
Travel outside the Commonwealth ...... 132 

Attorneys at law; citizens of the United States ..... 129 

Automobile; sale by sheriff; notice to registrar of motor vehicles . . 73 

Automobile service company; insurance contract ..... 143 

Automobiles; operation; lights . . . . . . . .169 

Bankers, private; surrender of license; bond ..... 77 

Banks, Commissioner of, to furnish certain information to Governor 
and Council ....... 

Banks, private; possession of, by Commissioner of Banks 
Betterments; assessments; collection; Salisbury Beach Road 
Births, registration of; illegitimate chUdren .... 

Boards of health; regulations; approval .... 

Bonds; registers of probate; premiums .... 

Boxing exhibitions; gross receipts ..... 

Boxing matches; license fee; refund ..... 

Bridge, private, over highway; damages; liability 

Broker; registration; corporation engaged in selling own securities 

Brokers; registration of ...... • 

Census; time of taking ....... 

Charitable trust; power of Legislature to terminate 

Charter of corporation; right to sell ..... 

Chauffeurs; operating own car ...... 

Check sent by Commonwealth; lost; duplicate 

Children ; employment in certain kinds of business 

Civil service; assistant registers of probate .... 

Conviction for violation of automobile laws . 

Matrons; house of detention, Boston .... 

Special duty; examination ...... 

Claims due Commonwealth; power of Attorney-General to compromise 
Collection agency; branch office; bond .... 

Commission appointed by General Court; report; expenditures 
Commissioner of Banks; trust companies; legal advice by Attorney- 
General .......... 303 



1922.1 



PUBLIC DOCUMENT — No. 12. 



363 



Commonwealth; liability on note; statute of limitations 

Payment by check; duplicate ..... 
Constitutional law; "anti-aid" amendment; vocational instruction 

"Anti-aid" amendment; zoological society; corporation 

Apportionment of senators and representatives; census; legal 
voters ......... 

Assignment of rooms for Veterans of Foreign Wars 

Attorneys at law; citizens ...... 

Charter of religious corporation; repeal 

Corporate charter; contract; legislative relief 

Impairment of contract; Eastern Massachusetts Street Railway 
Company ........ 

Legislative power; Eighteenth Amendment . 

Legislature; incompatible office; salary 

Physicians and dentists; citizens of United States . 

Police power; smoke and cinders ..... 

Power of Legislature to ratify acts of certain city officials 

Private bridge over highway; damages .... 

Searches and seizures; fish and game .... 

Taxation; headquarters of Spanish War Veterans . 

Unenforceable provisions in leases .... 

Veterans' preference; administrative office 

Women as justices of the peace ..... 

Women as representatives to the General Court 
Continuation schools ........ 

Maintenance; funds ....... 

Contractor; subcontractor; materials furnished; lien 
Contracts; instalment plan; redemption in numerical order . 
Con^dction; violation of automobile laws; civil service . 
Co-operative banks; loans on shares ..... 

Corporate charters; contract; legislative relief 

Corporation; issue of stock; consideration .... 

Corporations not engaged in business; taxation 

Counties; additional compensation to persons receiving salaries from 

Credit report guaranteeing statement; insurance contract 

Credit unions; right to own real estate .... 

Dentists; reciprocity certificates ..... 

Dispensary; establishment of, by towns .... 

Eastern Massachusetts Street Railway Company; impairment of 
tract ......... 

Eighteenth Amendment; delegation of legislative power 
Elections; expenditures of candidates ..... 

Special; precept; validity ...... 

Fire prevention rules; establishment of ... . 

Fisheries and game; extension of privileges to aliens 
Fishing and hunting licenses; surrender of; violation of laws 
Fishway; Red Brook; alewives ...... 

Foreign mutual fire insurance company; admission; contingent lia- 

bHity 

Foreign trust company; authority to act as trustee under will 
Fuel Administrator; power to summon witnesses . 
Garage, erection of; abutting land ..... 
Garages; gasoline; permits for storage .... 

Governor and Council; determination of salaries; concurrent action 

Power to require Commissioner of Banks to furnish information 



PAGE 

222 
163 
344 
111 

333 

350 

129 

56 

63 

140 

171 

346 

134 

52 

167 

50 

279 

107 

185 

338 

239 

217 

338 

.293 

71 

47 

59 

79 

63 

255 

89 

306 

11 

75 

328 

29 

140 
171 
234 
204 
220 
168 
331 
184 

43 
34 
60 
35 

319 
125 

114 



364 



ATTORNEY-GENERAL'S REPORT. 



[Jan. 



word 



'week" 



PAGE 
216 

182 

289 

317 

312 

194 

235 

206 

198 

250 

15 

41 

46 

130 

346 

287 

143 

11 

43 

137 

348 

359 

153 

194 

202 



Great ponds; fishing; rights of public 

Landing places for aircraft . 
H. V. Greene Company; capital stock 
Harvard College; power to confer degrees . 
Holiday; proclamation by Governor . 
Hours of labor; women and children; meaning of 
Houses of correction; transfer of prisoners . 
Illegitimate children; distribution of property 

Registration of birth .... 
Income tax; charity; exemption 

Distribution of assets of corporation 

Gains and profits; lease 

Return; penalty; abatement 

Sale of lease ..... 

Incompatible office; Legislature; salary 
Inland waters; licensing of fishermen . 
Insurance; automobile ser\ace company; contract 

Credit report; guaranteeing statement . 

Foreign mutual fire insurance company ; contingent liability 

Foreign mutual fire insurance company; guaranty capital 
Judicial officers; Supervisor of Administration .... 

Justice of the peace; notary public; residence .... 

Juvenile offenders; custody; parole ...... 

Labor and industries; hours of employment; meaning of word "week" 
Labor performed under State contracts; care of tools, etc. 
Laundry work; authority of Commission on Necessaries of Life to inves 
tigate .......... 

Lease, execution of; State department ..... 

Legacy and succession tax; gift for charitable purposes 

Gift to wife ......... 

Legal voters; qualifications ....... 

Lien; materials furnished subcontractor ..... 

Lien; care of tools .......... 202 

Lobsters; license to alien to fish ........ 277 

Married woman; settlement ....... 120,219 

Massachusetts Agricultural College; salaries of employees; right to 

fix 

Massachusetts Institute of Technology; right to sell land to the Com- 
monwealth ....... 

Matrons of house of detention, Boston; civil service 
Mattresses; manufacture and sale; inspection 
Milk bottles; filling point; weights and measures 
Minimum Wage Commission; decree; publication of names 
Minor child; settlement .... 

Motor vehicles; owner of; chauffeur's license 
Nautical School; salaries of employees; increase 
Neponset Valley improvement; payment for work 
Obligations redeemable in numerical order . 
Parole; successive sentences 
Patents; Massachusetts Agricultural College 
formula ..... 

Pathologist; registration .... 

Peabody; superintendent of schools 

Pedler; license; places of business 

Penal institutions; diseased inmates; treatment and discharge 



right to use patented 



242 
53 
355 
152 
333 
71 



100 

25 
145 

246 

118 

227 

120 

7 

5 

352 

47 

31 

354 

360 

54 

55 

95 



1922.1 PUBLIC DOCUMENT — No. 12. 365 



PAGE 

Physicians and dentists; citizenship requirement for registration . .134 

Pilgrim Tercentenary Commission; sale of material 

Pilot; residence ......... 

Police officer; detailed for special work; subject to police regulations 

Poll taxes; exemption; military and naval ser\dce 

Prisoner; parole; successive sentences ..... 

Prisoners afflicted with disease; treatment and discharge 

Paroles; deductions ........ 

Private bankers; license; bond ....... 

Property, distribution of; illegitimate children .... 

Province lands; local taxation; structures ..... 

Public library; support by towns ...... 

Records and papers; certification; Secretary of the Commonwealth 
Registers of probate; bonds; premiums ..... 

Religious organization; charter; repeal ..... 

Rent; leases; unenforceable provisions ..... 

Representative to General Court; appointment to position in State 
ser\dce .... 

Salaries; employees; Massachusetts Agricultural College; right to 
fix 

Employees; Massachusetts Nautical School; increa 
Savings banks; authorized investments 

Taxation; inspection of books .... 

Trustee; bankruptcy; eligibility .... 
Securities; sale; registration ..... 

Sale by corporation of its owti ; registration . 
Senators and representatives; apportionment 
Set-off; debt due from insolvent trust company . 
Settlement; married woman ..... 

Married woman; minor chUd .... 

Sinking funds; temporary use of other funds 
Smoke and cinders; ordinances to control; police power 
Soldiers' and sailors' memorial; land of Massachusetts Institute of 
Technology .... 

Spanish War Veterans; headquarters; right of town to appropriate 
money for .... 

State Aid and Pensions, Commissioner of; super\dsor and assistant 
supervisor of accounts; ci\'il service .... 

State banks; interest on deposits ...... 

State funds; transfer of balances ...... 

State highways; construction; certain labor performed; blacksmith 

Surface water; land of abutters ...... 

Taking of land ; notice; indemnification .... 

State officers; judges of courts; Supervisor of Administration 
Statute, construction of . . . 

Time of taking effect . 
Superintendent of schools; Peabody . 
Tax return; income tax; verification . 

Penalty; abatement 
Taxation; corporation return; abatement 

Corporations not engaged in business 

Corporations that have ceased to do business 

Correction of tax ..... 

Income tax; distribution of assets of corporation 

Savings bank deposits; inspection of books . 



310 

209 

207 

98 

31 

95 

109 

124 

206 

81 

18 

318 

3 

56, 94 
185 

210 

100 
5 
165 
267 
217 
237 
253 
333 
261 
219 
120 
264 
52 



107 

1 
329 
200 
202 
148 

22 
348 
200 
189 

54 
225 

46 
213 

89 
300 
226 

15 
267 



366 ATTORNEY-GENERAL'S REPORT. [Jan. 



PAGE 

Taxes; abatement; remedy ........ 28 

Rate of interest .......... 37 

Teachers' Retirement System; pensions; reimbursement . . .315 

Tenure of office; Speaker of House of Representatives; President of 

Senate . . 190 

Treasurer and Receiver-General ; determination of liability; legacy tax . 276 

Trust companies which have ceased to do business; taxation . . . 300 

Trust company; Federal reserve system ; reserve agent ... 91 

Limitation of investments ........ 241 

Right to sell charter ......... 231 

Set-off 261 

Stock issue, pajonent for ........ 150 

Trust company, foreign; right to act as trustee under will ... 34 
Trust company in possession of Commissioner of Banks; inspection of 

books 211 

Vendor; conduct of business in more than one place . . . .55 

Veterans of Foreign Wars; assignment of rooms in State House . . 350 

Veterans' preference .......... 338 

Warehouseman ; surrender of license ....... 265 

Weights and measures; milk bottles; point of filling . . . .118 

Woman, married; settlement ........ 219 

Women; eligibility as representatives to General Court . . . 217 

Justices of the peace ......... 239 

Women and children; employment in certain kinds of business , . 297 
Zoological society; private corporation; appropriation; "anti-aid" 

amendment .......... Ill 



1922.1 PUBLIC DOCUMENT — Xo. 12. 367 



GRADE CROSSINGS, 



The following petitions for the abolition of grade crossings 
are pending: — 

Berkshire County. 
North Adams, Mayor and Aldermen of, petitioners. Petition 

for abolition of State Street and Furnace Street crossings. 

Edmund K. Turner, David F. Slade and William G. 

McKechnie appointed commissioners. Commissioners' re- 
port filed. Pending. 
Pittsfield, Mayor and Aldermen of, petitioners. Petition for 

abolition of Merrill crossing in Pittsfield. Thomas W. 

Kennefick, Frederick L. Green and Edmund K. Turner 

appointed commissioners. Pending. 
Stockbridge. Berkshire Railroad, petitioner. Petition for 

abolition of Glendale station crossing. Pending. 
West Stockbridge, Selectmen of, petitioners. Petition for 

abolition of grade crossing at Albany Street. James D. 

Colt, Charles W. Bosworth and James L. Tighe appointed 

commissioners. Pending. 

Bristol County. 
Taunton, Mayor and Aldermen of, petitioners. Petition for 
abolition of grade crossings at Danforth and other streets 
in Taunton. Thomas M. Babson, George F. Swain and 
Edwin U. Curtis appointed commissioners. Charles H. 
Beckwith appointed commissioner in place of Thomas M. 
Babson, deceased. Commissioners' report filed. James 
A. Stiles appointed auditor. Pending. 

Essex County. 
Gloucester. Directors of Boston & Maine Railroad, peti- 
tioners. Petition for abolition of grade crossing between 
Washington Street and tracks of Boston & Maine Rail- 
road. Pending. 



368 ATTORNEY-GENERAL'S REPORT. [Jan. 

Lawrence, Mayor and iVldermen 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 & L^mn 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. 

FranMin 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. 



1922.] PUBLIC DOCUMENT — No. 12. 369 

Hampden County. 
Palmer, Selectmen of, petitioners. Petition for abolition of 
Parley'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 Hollis and Waushakum streets crossings. Pending. 

Framingham, Selectmen of, petitioners. Petition for the abo- 
lition of Claflin Street crossing. Pending. 

Framingham, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Willis Crossing. Pending. 

Lowell, Mayor and Aldermen of, petitioners. Petition for 
abolition of 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. 



370 ATTORXEY-GEXERAL'S REPORT. [Jan. 

Marlborough, Mayor and Aldermen of, petitioners. Petition 
for abolition of Hudson Street crossing in Marlborough. 
AYalter 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. 
Report filed and recommitted. Pending. 

Watertown, Selectmen of, petitioners. Petition for abolition 
of grade crossings at Cottage, Arlington, School, Irving 
and other streets in W^atertown. 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. 



1922.] PUBLIC DOCUMENT — Xo. 12. 371 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W. 
Wiggin, George F. Swain and Arthur Lord appointed com- 
missioners. Commissioners' report filed and recommitted. 
Pending. 

Norfolk County. 

Braintree, Selectmen of, petitioners. Petition for the abolition 
of the Pearl Street crossing at South Braintree. Patrick 
H. Cooney, Frank N. Nay and George F. Swain ap- 
pointed commissioners. Pending. 

Braintree. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
grade crossing at School, Elm, River and Union streets in 
Braintree. John L. Bates, Winfield S. Slocum and Arthur 
H. Wellman appointed commissioners. Commissioners' 
report filed. Pending. 

Dedham, Selectmen of, petitioners. Petition for the abolition 
of Eastern Avenue and Dwught Street crossings in Ded- 
ham. Alpheus Sanford, Charles Mills and J. Henry Reed 
appointed commissioners. Commissioners' report filed. 
Fred E. Jones appointed auditor. Pending. 

Dover, Selectmen of, petitioners. Petition for abolition of 
grade crossing at Springdale Avenue and Dedham and 
Haven streets. Public Service Commission appointed 
commissioners. Pending. 

Needham, Selectmen of, petitioners. Petition for abolition of 
Charles River Street crossing in Needham. Pending. 

Quincy. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Saville and Water streets crossings in Quincy. John L. 
Bates, Winfield S. Slocum and Arthur H. Wellman ap- 
pointed commissioners. Commissioners' report filed and 
recommitted. Joseph B. Lyons appointed commissioner 
in place of Winfield S. Slocum, deceased. 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. 



372 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 Comity. 

Auburn. Boston & Albany Railroad Company, petitioner. 
Petition for abolition of Cemetery Road, a private way. 
The Public Service Commission appointed commissioners. 
Pending. 

Clinton, Selectmen of, petitioners. Petition for abolition of 
Sterling, Water, Main, High and Woodlawn streets cross- 
ings. George W. Wiggin, William E. McClintock and 
James A. Stiles appointed commissioners. Commissioners' 
report filed. David F. Slade appointed auditor. Frederic 
B. Greenhalge appointed auditor in place of David F. 
Slade deceased. Auditor's fourteenth 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. i 



1922.] PUBLIC DOCUMENT — No. 12. 373 

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. 



374 ATTORNEY-GENERAL'S REPORT. [Jan. 



EULES OF PRACTICE 

In Interstate Rendition. 



Every application to the Governor for a requisition upon the 
executive authority of any other State or Territory, for the de- 
livery up and return of any offender who has fled from the 
justice of this Commonwealth, must be made by the district or 
prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original 
papers, or certified copies thereof. 

The following must appear by the certificate of the district 
or prosecuting attorney: — 

(a) The full name of the person for whom extradition is 
asked, together with the name of the agent proposed, to be 
properly spelled. 

(b) That, in his opinion, the ends of public justice require 
that the alleged criminal be brought to this Commonwealth 
for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the 
conviction of the fugitive. 

(d) That the person named as agent is a proper person, and 
that he has no private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisi- 
tion for the same person growing out of the same transaction, 
it must be so stated, with an explanation of the reasons for a 
second request, together with the date of such application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or crim- 
inal arrest in the State or Territory to which he is alleged to 
have fled, the fact of such arrest and the nature of the pro- 
ceedings on which it is based must be stated. 

(g) That the application is not made for the purpose of en- 
forcing the collection of a debt, or for any private purpose 
whatever; and that, if the requisition applied for be granted, 
the criminal proceedings shall not be used for any of said 
objects. 



1922.] PUBLIC DOCUMENT — No. 12. 375 

(h) The nature of the crime charged, with a reference, when 
practicable, to the particular statute defining and punishing 
the same. 

(i) If the offence charged is not of recent occurrence, a satis- 
factory reason must be given for the delay in making the ap- 
plication. 

1. In all cases of fraud, false pretences, embezzlement or 
forgery, when made a crime by the common law, or any penal 
code or statute, the affidavit of the principal complaining wit- 
ness or informant that the application is made in good faith, 
for the sole purpose of punishing the accused, and that he does 
not desire or expect to use the prosecution for the purpose of 
collecting a debt, or for any private purpose, and will not di- 
rectly or indirectly use the same for any of said purposes, shall 
be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 
the Executive that the alleged criminal has fled from the jus- 
tice of the State, and is in the State on whose Executive the 
demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged 
crime was committed at the time of the commission thereof, 
and is found in the State upon which the requisition was 
made, shall be sufficient evidence, in the absence of other 
proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in dupli- 
cate, must accompany the application. 

4. If an indictment has not been found by a grand jury, the 
facts and circumstances showing the commission of the crime 
charged, and that the accused perpetrated the same, must be 
shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) 
It must also be shown that a complaint has been made, copies 
of which must accompany the requisition, such complaint to 
be accompanied by afiidavits 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. 



376 ATTORNEY-GENERAL'S REPORT. [Jan. 1922. 

6. Upon the renewal of an application, — for example, on 
the ground that the fugitive has fled to another State, not 
having been found in the State on which the first was granted, 
— new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been convicted of any 
crime, and escapes after conviction, or while serving his sen- 
tence, the application may be made by the jailer, sheriff, or 
other officer having him in custody, and shall be accompanied 
by certified copies of the indictment or information, record of 
conviction and sentence upon which the person is held, with 
the affidavit of such person having him in custody, showing 
such escape, with the circumstances attending the same. 

8. No requisition will be made for the extradition of any 
fugitive except in compliance with these rules.