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

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Public Document No. 12 



Sl)c (Jlommontocaltt) of illas5acl)usctt0 



REPORT 



ATTORNEY GENERAL 



Year ending January 17, 1923 




BOSTON 

WRIGHT & POTTER PRINTING CO., STATE PRINTERS 

32 DERNE STREET 



®l)e CcmtnoniDealtl) of illa00acl)U0ett6 



Department of the Attorney General, 
Boston, Jan. 17, 1923. 

To the Honorable Senate and House of Represe7itatives. 

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. 



^[)t Comntonroealtl) of ilTa05acl)U5ett5 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
J. WESTON ALLEN. 

Assistants. 
Edwin H. Abbot, Jr. 
Alexander Lincoln. 
Jay R. Benton. 
Albert Hurwitz. 
Lewis Goldberg. 
Charles R. Cabot. 
A. Chesley York. 
James H. Devlin. ^ 

Chief Clerk. 
Louis H. Freese. 



Appointed June 1, 1922. 



STATEMENT OF APPROPRIATION AND EXPENDITURES. 



Appropriation for 1922 $102,950 92 

Appropriation for 1921, unexpended balance brought 
forward to pay 1921 bills 4,401 93 



$107,352 85 



Expenditures. 

For salary of Attorney-General $8,000 00 

For law library 1,228 55 

For salaries of assistants 30,750 01 

For clerks 7,870 00 

For office stenographers 7,075 00 

For telephone operator 921 00 

For legal and special ser\dces and expenses .... 23,314 97 

For office expenses and travel 8,452 07 

For court expenses 3,307 83 

Total expenditures $90,919 43 



^\)t (HotnmoniDealtl) of illasBatliusettB 



Department of the Attorney General, 
Boston, Jan. 17, 1923. 

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 12,451, are tabulated below: — 

Corporate franchise tax cases 5,156 

Extradition and interstate rendition 273 

Grade crossings, petitions for abolition of 60 

Indictments for murder 56 

Inventories and appraisals 3 

Land Court petitions 218 

Land-damage cases arising from the taking of land by the De- 
partment of Public Works 48 

Land-damage cases arising from the taking of land by the Metro- 
politan District Commission 25 

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-dam.age cases arising from the taking of land by the De- 
partment of Mental Diseases 4 

Land-damage cases arising from the taking of land by the Pil- 
grim Tercentenary^ Commission 6 

Miscellaneous cases arising from the work of the above-named 

commissions 11 

Miscellaneous cases 655 

Petitions for instructions under inheritance tax laws ... 47 

PubUc charitable trusts 168 

Settlement cases for support of persons in State hospitals . . 57 
All other cases not enumerated above, which include suits to 
require the filing of returns by corporations and individuals 
and the collection of money due the Commonwealth . .5,661 



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 : — 

Louis Arone, indicted in Middlesex County, June, 1921, 
for the murder of Dominic Falcone, at Watertown, on May 
11, 1921. He was arraigned March 9, 1922, and pleaded 
guilty to manslaughter. This plea was accepted by the 
Commonwealth, and the defendant was thereupon sentenced 
to the house of correction for one year. James H. Vahey, 
Esq., appeared as counsel for the defendant. The case was 
in charge of District Attorney Endicott P. Saltonstall. 

Julius B. Arthur, indicted in Norfolk County, Septem- 
ber, 1921, for the murder of John Bodey, at Quincy, on 
June 18, 1921. The defendant was arraigned April 20, 1922, 
and pleaded guilty to manslaughter. This plea was ac- 
cepted by the Commonwealth, and the defendant was there- 
upon sentenced to the house of correction for fourteen 
months. J. J. McAnarney, Esq., and John D. Smith, Esq., 
appeared as counsel for the defendant. The case was 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 
Jan. 5, 1921. He was arraigned Dec. 30, 1921, and pleaded 
not guilty. Sherman L. Whipple, Esq., J. J. McAnarney, 
Esq., and J. W. McAnarney, Esq., appeared as counsel for 
the defendant. In March, 1922, the defendant was tried 
by a jury before Sanderson, J. The result was a verdict of 
not guilty. The case was in charge of District Attorney 
Frederick G. Katzmann. 

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. Wil- 
liam J. Granfield, Esq., and John M. Noonan, Esq., ap- 
peared as counsel for the defendant Albert J. Duhaine, and 



1923.] PUBLIC DOCUMENT — No. 12. ix 

Harry M. Ehrlich, Esq., and Thomas F. Moriarty, Esq., 
appeared as counsel for the defendant George E. Belanger. 
On May 10, 1922, the defendant Albert J. Duhaine re- 
tracted his former plea, and pleaded guilty to murder in 
the second degree. This plea was accepted by the Com- 
monwealth, and the defendant Albert J. Duhaine was there- 
upon sentenced to State Prison for life. In November, 1922, 
the defendant George E. Belanger was tried by a jury be- 
fore Thayer, J. The result was a verdict of guilty of mur- 
der in the second degree. The defendant George E. Be- 
langer was thereupon sentenced to State Prison for life. 
The cases were in charge of District Attorney Charles H. 
Wright. 

John Fkongillo, 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. John F. McDonald, Esq., appeared as 
counsel for the defendant. On March 24, 1922, 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 State Prison 
for a term of not more than twenty years nor less than 
eighteen years. The case was in charge of District Attorney 
Endicott P. Saltonstall. 

Philip J. McDermott, indicted in Essex County, Sep- 
tember, 1921, for the murder of Monica Morrill, at Lynn, 
on Sept. 9, 1921. He was arraigned June 29, 1922, and 
pleaded not guilty. J. Frank Williams, Esq., appeared as 
counsel for the defendant. Later the defendant retracted 
his former plea, and pleaded guilty to murder in the second 
degree. This plea was accepted by the Commonwealth, and 
the defendant was thereupon sentenced to State Prison for 
life. The case was in charge of District Attorney S. Howard 
Donnell. 

LuiGi Pecano, indicted in Hampden County, December, 
1921, for the murder of Carlo Muia, at Springfield, on Oct. 



X ATTORNEY GENERAL'S REPORT. [Jan. 

21, 1921. He was arraigned Jan. 5, 1922, and pleaded not 
guilty. John T. Moriarty, Esq., and Milton L. Davis, Esq., 
appeared as counsel for the defendant. On Feb. 13, 1922, 
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 five years nor less than 
three and one-half years. The case was in charge of District 
Attorney Charles H. Wright. 

Giovanni Percoco, indicted in Middlesex County, March 
Term, 1916, for the murder of Samuel Wolkon, at Somer- 
ville, on April 29, 1916. The defendant was apprehended in 
Italy, and tried there by the Corte di Assisi at Velletri, in 
July, 1922. He was convicted, and was sentenced to prison 
for a term of twenty years, seven months and twenty-seven 
days. 

ViTO Salvo, indicted in Middlesex County, January, 1922, 
for the murder of Giovanni Parinello, at Natick, on Dec. 29, 
1921. He was arraigned Jan. 6, 1922, and pleaded not 
guilt}'. Francis B. Burns, Esq., appeared as counsel for the 
defendant. Later the defendant retracted his former plea, 
and pleaded guilty to murder in the second degree. This 
plea was accepted by the Commonwealth, and the defendant 
was thereupon sentenced to State Prison for life. The case 
was in charge of Distiict Attorney Endicott P. Salton stall. 

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 over- 
ruled. The defendant was thereupon sentenced to be elec- 
trocuted during the week beginning June 12, 1922. June 



1923.] PUBLIC DOCUMENT — No. 12. xi 

10, 1922, a respite was granted until July 10, 1922, which 
was later extended to Sept. 16, 1922. On Aug. 30, 1922, the 
sentence was commuted to imprisonment in the State Prison 
for life. The case was in charge of District Attorney Endi- 
cott 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, 
1921, and pleaded not guilty. Richard M. Walsh, Esq., and 
Felix Forte, Esq., appeared as counsel for the defendant. 
On Feb. 27, 1922, the defendant retracted her former plea, 
and pleaded guilty to manslaughter. This plea was accepted 
by the Commonwealth, and the defendant was thereupon 
sentenced to the house of correction for one year. The case 
was in charge of District Attorney Endicott P. Saltonstall. 

MiCHELE ToTOLO, indicted in Middlesex County, January, 
1918, for the murder of Palma Ditino, at Acton, on Jan. 3, 
1918. The defendant was apprehended in Italy, and tried 
there by the Corte di Assisi at Lucera, in June, 1921. He 
was convicted, and sentenced to prison for a term of twelve 
years and six months. 

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 prosequi 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 
case was in charge of District Attorney Charles H. Wright. 



xii ATTORNEY GENERAL'S REPORT. [Jan. 

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

Herman Alheit, alias, and James W. Wickham, indicted 
in Plymouth County, February, 1922, for the murder of 
Edward C. Cardinal, at Kingston, on Dec. 8, 1921. They 
were arraigned March 2, 1922, and pleaded not guilty. John 
P. Feeney, Esq., J. P. Vahey, Esq., and J. J. McAnarny, 
Esq., appeared as counsel for the defendants. June 12, 1922, 
the defendant Herman Alheit retracted his former plea, and 
pleaded guilty to manslaughter. This plea was accepted by 
the Commonwealth, and the defendant Herman Alheit was 
thereupon sentenced to State Prison for a term of not more 
than seven years nor less than four and one-half years. In 
June, 1922, the defendant, James W. Wickham was tried by 
a jury before Nelson P. Brown, J. The result was a verdict 
of not guilty. The cases were in charge of District Attorney 
Frederick G. Katzmann. 

Giovanni Barbogallo, alias, and Domenic Misite, alias, 
indicted in Middlesex County, June, 1922, for the murder of 
Salvatore Carlino, at Arlington, on June 25, 1922. The 
defendants were arraigned Sept. 21, 1922, and pleaded not 
guilty. Moses P. Libby, Esq., appeared as counsel for the 
defendant Giovanni Barbogallo, and John F. McDonald, 
Esq., appeared as counsel for the defendant Domenic Misite. 
Later the defendants retracted their former pleas, and 
pleaded guilty to manslaughter. These pleas were accepted 
by the Commonwealth, and the defendant Giovanni Bar- 
bogallo was thereupon sentenced to State Prison for a term 
of not more than five years nor less than three years, and 
the defendant Domenic Misite was sentenced to the house of 
correction for one year. These cases were in charge of Dis- 
trict Attorney Endicott P. Saltonstall. 

Albert W. Bartlett, alias, indicted in Suffolk County, 
October, 1922, for the murder of Frank E. Small, on Sept. 
29, 1922. He was arraigned Oct. 4, 1922, and pleaded not 
guilty. James E. O'Connell, Esq., and Daniel F. O'Connell, 
Esq., appeared as counsel for the defendant. In December, 



1923.] PUBLIC DOCUMENT — No. 12. xiii 

1922, the defendant was tried by a jury before Sisk, J. 
During the trial 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 Thomas C. O'Brien. 

John Bedrosian, indicted in Middlesex County, Septem- 
ber, 1922, for the murder of Hagop Sarkisian, at Dracut, on 
Aug. 16, 1922. He was arraigned Nov. 13, 1922, and pleaded 
not guilty. E. J. Tierney, Esq., and M. G. Rogers, Esq., 
appeared as counsel for the defendant. In November, 1922, 
the defendant was tried by a jury before Nelson P. Brown, J. 
The result was a verdict of guilty of murder in the second 
degree, and the defendant was thereupon sentenced to State 
Prison for life. The case was in charge of District x\ttorney 
Endicott P. Saltonstall. 

Joseph Bova, indicted in Middlesex County, April, 1922, 
for the murder of Antonio De Napoli, at Cambridge, on 
March 26, 1922. He was arraigned April 20, 1922, and 
pleaded not guilty. John F. McDonald, Esq., appeared as 
counsel for the defendant. Later the defendant retracted 
his former plea, and pleaded guilty to manslaughter. This 
plea was accepted by the Commonwealth, and the defendant 
was thereupon sentenced to State Prison for a term of not 
more than fifteen years nor less than twelve years. The 
case was in charge of District Attorney Endicott P. Salton- 
stall. 

Mary G. Brady, indicted in Middlesex County, October, 
1922, for the murder of Frederick W. Brady, at Lowell, on 
Sept. 29, 1922. She was arraigned Oct. 9, 1922, and pleaded 
not guilty. Edward J. Tierney, Esq., appeared as counsel 
for the defendant. In December, 1922, the defendant was 
tried by a jury before Hammond, J. The result was a ver- 
dict of not guilty by reason of insanity. The defendant 
was thereupon committed to the Danvers State Hospital. 
The case was in charge of District Attorney Endicott P. 
Saltonstall. 



xiv ATTORNEY GENERAL'S REPORT. [Jan. 

George Hosten, indicted in Middlesex County, June, 
1922, for the murder of Albert Bembray, at Cambridge, on 
May 22, 1922. He was arraigned June 30, 1922, and pleaded 
not guilty. John W. Schenck, Esq., appeared as counsel 
for the defendant. Later the defendant retracted his former 
plea, and pleaded guilty to manslaughter. This plea was 
accepted by the Commonwealth, and the defendant was 
thereupon sentenced to State Prison for a term of not more 
than twenty years nor less than eighteen years. The case 
was in charge of District Attorney Endicott P. Saltonstall. 

Carrie N. Hubbard, indicted in Suffolk County, May, 
1922, for the murder of William B. Hubbard, on May 2, 
1922. She was arraigned May 9, 1922, and pleaded not 
guilty. J. P. Feeney, Esq., and Willard P. Lombard, Esq., 
appeared as counsel for the defendant. On Sept. 15, 1922, 
the defendant retracted her former plea, and pleaded guilty 
to manslaughter. This plea was accepted by the Common- 
wealth, and the defendant was thereupon sentenced to the 
Reformatory for Women for a term of five years and one 
month. The case was in charge of District Attorney Thomas 
C. O'Brien. 

FoNG Jow, alias, and Ang Lock, indicted in Suffolk 
County, May, 1922, for the murder of Ung Shi Ging, on 
April 18, 1922. They were arraigned May 9, 1922, and 
pleaded not guilty. Ralph H. Willard, Esq., and William 
H. Taylor, Esq., appeared as counsel for the defendant 
Fong Jow, and Guy A. Ham, Esq., and J. F. Myron, Esq., 
appeared as counsel for the defendant Ang Lock. In 
November, 1922, the defendants were tried by a jury before 
Dubuque, J. During the trial the defendant Fong Jow 
pleaded guilty to manslaughter. This plea was accepted 
by the Commonwealth, and the defendant was thereupon 
sentenced to State Prison for a term of not more than 
eighteen years nor less than fourteen years. The court 
directed that a verdict of not guilty be entered as to the 
defendant Ang Lock. The cases were in charge of District 
Attorney Thomas C. O'Brien. 



1923.] PUBLIC DOCUMENT — No. 12. xv 

Alfred Myrie, indicted in Suffolk County, May, 1922, 
for the murder of May Myrie, on March 30, 1922. He was 
arraigned May 16, 1922, and pleaded not guilty. John W. 
Schenck, Esq., and Jordan P. Williams, Esq., appeared as 
counsel for the defendant. Later the defendant retracted 
his former plea, and pleaded guilty to murder in the second 
degree. This plea was accepted by the Commonwealth, 
and the defendant was thereupon sentenced to State Prison 
for life. The case was in charge of District Attorney 
Thomas C. O'Brien. 

Eugene Pires, indicted in Plymouth County, October, 
1922, for the murder of Joseph Pina, at Wareham, on Sept. 
15, 1922. He was arraigned Oct. 24, 1922, and pleaded 
guilty to murder in the second degree. This plea w^as ac- 
cepted by the Commonwealth, and the defendant was there- 
upon sentenced to State Prison for life. John P. Leahy, 
Esq., James F. Bento, Esq., and J. F. Kiernan, Esq., ap- 
peared as counsel for the defendant. The case was in 
charge of District Attorney Frederick G. Katzmann. 

John J. Pullen, indicted in Middlesex County, February, 
1922, for the murder of Thomas F. Kiley, at Somerville, on 
Jan. 6, 1922. He was arraigned Feb. 17, 1922, and pleaded 
not guilty. Albert E. Hughes, Esq., appeared as counsel for 
the defendant. Later the defendant retracted his former 
plea, and pleaded guilty to manslaughter. This plea was 
accepted by the Commonwealth, and the defendant was 
thereupon sentenced to State Prison for a term of not more 
than twenty years nor less than eighteen years. The case 
was in charge of District Attorney Endicott P. Saltonstall. 

Joseph Rizzo, indicted in Middlesex County, September, 
1922, for the murder of Angelo Bennici, at Waltham, on 
May 29, 1922. He was arraigned Sept. 15, 1922, and pleaded 
not guilty. William J. Bannan, Esq., and Thomas E. Ban- 
nan, Esq., appeared as counsel for the defendant. In No- 
vember, 1922, the defendant was tried by a jury before 
Nelson P. Brown, J. The result was a verdict of not guilty 
by order of the court. The case was in charge of District 
Attornev Endicott P. Saltonstall. 



xvi ATTORNEY GENERAL'S REPORT. [Jan. 

John Williams, alias, and Julius Evans, indicted in 
Suffolk County, May, 1922, for the murder of Edward F. 
Conley, on July 12, 1921. On April 6, 1922, the defendant 
John Williams was committed to the Bridgewater State 
Hospital. The defendant Julius Evans was arraigned May 
18, 1922, 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 de- 
fendant Julius Evans. On June 19, 1922, the defendant 
Julius Evans retracted his former plea, and pleaded guilty 
to manslaughter. This plea was accepted by the Common- 
wealth, and the defendant Julius Evans was thereupon sen- 
tenced to State Prison for a term of not more than ten years 
nor less than five years. The cases were in charge of District 
Attorney Thomas C. O'Brien. 

The following indictments for murder are now pending: — 

Ignatzio Carluccio and Theresa Marangi, indicted in 
Suffolk Count}^, December, 1922, for the murder of Leo 
Marangi, on Nov. 24, 1922. The defendants were arraigned 
Dec. 13, 1922, and pleaded not guilty. William R. Scharton, 
Esq., appeared as counsel for the defendants. The defendant 
Theresa Marangi was released in $25,000 bail. No further 
action has been taken in these cases. The cases are in 
charge of District Attorney Thomas C. O'Brien. 

ViTO Caruso, indicted in Essex County, September, 1922, 
for the murder of Marie Caruso, at Lawrence, on July 2, 
1922. He was arraigned Dec. 26, 1922, and pleaded not 
guilty. Michael A. Sullivan, Esq., appeared as counsel for 
the defendant. In December, 1922, the defendant was tried 
by a jury before Quinn, J. The result was a verdict of 
guilty of murder in the second degree. Sentence was 
deferred, pending the filing of a motion for a new trial. 
The case is in charge of District Attorney William G. 
Clark. 

Paul Dascalakis, alias, indicted in Suffolk County, May, 
1920, for the murder of Alice Arseneault, on Dec. 26, 1919. 



1923.] PUBLIC DOCUMENT — No. 12. xvii 

He was arraigned Sept. 26, 1921, and pleaded not guilty. 
John W. Schenck, Esq., William C. Matthews, Esq., and 
Jordan P. Williams, Esq., appeared as counsel for the de- 
fendant. In June, 1922, the defendant was tried by a jury 
before Keating, J. The result was a verdict of guilty 
of murder in the first degree. The defendant's exceptions 
taken at the trial of the case are pending. The case is in 
charge of District Attorney Thomas C. O'Brien. 

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 JioUe 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 Thomas C. O'Brien. 

Peter Dempsky, indicted in Bristol County, November, 

1922, for the murder of Mary Dempsky and Jennie 
Gerowaki. On Nov. 24, 1922, the defendant was committed 
to the Bridgewater State Hospital. John B. Tracy, Esq., 
appeared as counsel for the defendant. The case is in charge 
of District Attorney Stanley P. Hall. 

Anthony M. Gaeta, alias, indicted in Suffolk County, 
June, 1922, for the murder of Joseph Veto, on May 21, 1922. 
The defendant has not yet been arraigned. No further 
action has been taken in this case. The case is in charge of 
District Attorney Thomas C. O'Brien. 

John Gancarz, indicted in Essex County, September, 
1922, for the murder of Boleslew Golubowsrf^% at Lawrence, 
on June 5, 1922. He was arraigned Dec. 11, 1922, and 
pleaded not guilty. John P. S. Mahoney, 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 William G. 
Clark. 



xviii ATTORNEY GENERAL'S REPORT. [Jan. 

J. Thomas Gettigan, indicted in Suffolk County, Febru- 
ary, 1922, for the murder of Lizzie M. Cook. He was ar- 
raigned Feb. 15, 1922, and pleaded not guilty. Roscoe 
Walsworth, Esq., appeared as counsel for the defendant. 
In_ May, 1922, the defendant was tried by a jury before 
Dubuque, J., which resulted in a disagreement by the jury. 
In October, 1922, the defendant was again tried by a jury 
before Dubuque, J. The result was a verdict of guilty of 
manslaughter. The defendant was thereupon sentenced to 
State Prison for a term of not more than fifteen years nor 
less than twelve years. The defendant's exceptions taken 
at the trial of the case are pending. The case is in charge 
of District Attorney Thomas C. O'Brien. 

Albert L. Harvey, indicted in Norfolk County, Decem- 
ber, 1922, for the murder of Ida G. Anderer, at Quincy, on 
Nov. 24, 1922. The defendant has not yet been arraigned. 
J. J. McAnarney, Esq., appeared as counsel for the defend- 
ant. No further action has been taken in this case. The 
case is in charge of District Attorney Harold P. Williams. 

John Kalapotharakos, alias, indicted in Middlesex 
County, December, 1922, for the murder of Kiriaki Kala- 
potharakos, at Lowell, on May 10, 1921. He was arraigned 
Dec. 22, 1922, and pleaded not guilty. No further action 
has been taken in this case. The case is in charge of District 
Attorney Arthur K. Reading. 

Elizabeth M. Ivezer, indicted in Suffolk County, Decem- 
ber, 1921, for the murder of Eldon L. Kezer, on Nov. 30, 
1921. The defendant has been committed to the Boston 
State Hospital. The case is in charge of District Attorney 
Thomas C. O'Brien. 

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. 



1923.] PUBLIC DOCUMENT — No. 12. xix 

The defendant has been committed to the Bridgewater State 
Hospital for observation. The case is in charge of District 
Attorney Charles H. Wright. 

Joseph Lombardi and Elizabeth Montrossi, indicted 
in Essex County, January, 1922, for the murder of Dominic 
Tirone, at Newburyport, on Oct. 24, 1921. They were ar- 
raigned June 29, 1922, and pleaded not guilty. William E. 
Sisk, Esq., appeared as counsel for the defendant Joseph 
Lombardi, and Robert E. Burke, Esq., appeared as counsel 
for the defendant Elizabeth Montrossi. In October, 1922, 
the defendants were tried by a jury before Lummus, J. 
The result was a verdict of guilty of murder in the second 
degree in the case of the defendant Joseph Lombardi, and 
a verdict of not guilty in the case of the defendant Elizabeth 
Montrossi. The defendant Joseph Lombardi was thereupon 
sentenced to State Prison for life. The defendant's motion 
for a new trial was denied, and his exceptions taken at the 
trial are now pending. The case is in charge of District 
Attornev William G. Clark. 



CoNSTANTi Marrotti, indicted in Essex County, Janu- 
ary, 1916, for the murder of Gallo Alici, at Lawrence, on 
Sept. 19, 1915. He was arraigned Sept. 19, 1922, and 
pleaded not guilty. Wilfred B. Keenan, Esq., appeared as 
counsel for the defendant. No further action has been 
taken in this case. The case is in charge of District Attorney 
William G. Clark. 

Stefano Militello and Antonio Bianco, indicted in 
Suffolk County, November, 1922, for the murder of Giuseppe 
Simboli, on Sept. 30, 1922. They were arraigned Nov. 20, 
1922, and pleaded not guilty. William S. Kinney, Esq., ap- 
peared as counsel for the defendant Stefano Militello, and 
John W. Connelly, Esq., appeared as counsel for the de- 
fendant Antonio Bianco. No further action has been taken 
in these cases. The cases are in charge of District Attorney 
Thomas C. O'Brien. 



XX ATTORNEY GENERAL'S REPORT. [Jan. 

Joseph Morello, indicted in Suffolk County, October, 
1922, for the murder of Salvatore Procopio, on Sept. 24, 
1922. The defendant has not yet been arraigned. Thomas 
J. Grady, Esq., appeared as counsel for the defendant. No 
further action has been taken in this case. The case is in 
charge of District Attorney Thomas C. O'Brien. 

William Morgan, indicted in Norfolk County, Decem- 
ber, 1922, for the murder of Henry V. Reynolds, at Brook- 
line, on Sept. 21, 1922. The defendant has not yet been 
arraigned. No further action has been taken in this case. 
The case is in charge of District Attorney Harold P. Wil- 
liams. 

Jesse Murphy, alias, indicted in Suffolk County, June, 
1922, for the murder of Edward T. Foley, on Feb. 17, 1917, 
and of Ordway R. Hall, on Feb. 21, 1917. He was arraigned 
Aug. 18, 1922, and pleaded not guilty. William T. Mc- 
Carthy, Esq., appeared as counsel for the defendant. No 
further action has been taken in this case. The case is 
in charge of District Attorney Thomas C. O'Brien. 

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. 

Anthony Pass, indicted in Hampden County, September, 

1922, for the murder of Stanislaw Grotkow^ski, at Chicopee, 
on Aug. 1, 1922. He was arraigned Sept. 22, 1922, and 
pleaded not guilty. Joseph F. Carmody, Esq., appeared as 
counsel for the defendant. The defendant has been com- 
mitted to the Northampton State Hospital. The case is in 
charge of District Attorney Charles H. W>ight. 

Dominic Procopio, alias, indicted in Middlesex County, 
December, 1922, for the murder of Bruno Montegna, at 
Cambridge, on Oct. 29, 1922, and Giacento Sanzi, indicted 



1923.] PUBLIC DOCUMENT — No. 12. xxi 

as accessory before and after the fact to the murder of 
Bruno Montegna. They were arraigned Dec. 11, 1922, and 
pleaded not guilty. Joseph T. Zottoli, Esq., appeared as 
counsel for the defendant Dominic Procopio. No further 
action has been taken in these cases. The cases are in 
charge of District Attorney Arthur K. Reading. 

George L. Rollins, alias, indicted in Suffolk County, 
March, 1917, for the murder of Ordway R. Hall, at Boston, 
on Feb. 21, 1917. He was arraigned April 20, 1917, and 
pleaded not guilty. Herbert L. Baker, Esq., and Thomas L. 
Walsh, Esq., appeared as counsel for the defendant. 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 Thomas C. 
O'Brien. 

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. McAnar- 
ney, Esq., appeared, as counsel for the defendadt 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 Harold 
P. Williams. 

Eugene Sciebelli, indicted in Hampden County, May, 

1922, for the murder of Antonio Bonavito, at Springfield, 
on Dec. 13, 1920. He was arraigned May 18, 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. 



xxii ATTORNEY GENERAL'S REPORT. [Jan. 

Joseph Simboli, Luigi DIPadova and Guiseppe Anzardo, 
indicted in Suffolk County, April, 1922, for the murder of 
Michael Scarpone, on Jan. 20, 1922, and Francesco Tos- 
CANo, Salvatore Tornamei, alias, Domenic Bontorno, 
alias, and Antonio Mascatti, indicted in June, 1922, as 
accessory before the fact to the murder of Michael Scarpone. 
The defendants Joseph Simboli, Luigi DiPadova and Gui- 
seppe Anzardo were arraigned April 10, 1922, and pleaded 
not guilty. The defendants Francesco Toscano, Salvatore 
Tornamei, Domenic Bontorno and Antonio Mascatti were 
arraigned June 23, 1922, and pleaded not guilty. F. Forti, 
Esq., appeared as counsel for the defendant Joseph Simboli, 
William T. McCarthy, Esq., appeared as counsel for the de- 
fendant Luigi DiPadova, J. Vecchione, Esq., appeared as 
counsel for the defendant Guiseppe Anzardo, P. C. Borre, 
Esq., appeared as counsel for the defendant Francesco Tos- 
cano, J. T. Zottoli, Esq., appeared as counsel for the de- 
fendant Salvatore Tornamei, H. E. Lawler, Esq., appeared 
as counsel for the defendant Domenic Bontorno, and Thomas 
J. Grady, Esq., appeared as counsel for the defendant An- 
tonio Mascatti. In July, 1922, the defendants were tried 
by a jury before Dubuque, J. The result was a verdict of 
guilty of murder in the second degree in the case of Guiseppe 
Anzardo, a verdict of guilty of being accessory before the fact 
to the murder of Michael Scarpone in the case of Antonio 
Mascatti, and a verdict of not guilty against the defendants 
Joseph Simboli, Francesco Toscano, Salvatore Tornamei and 
Domenic Bontorno. The defendant Luigi DiPadova was 
declared insane during the trial, and was committed to the 
Bridgewater State Hospital. The defendant Guiseppe An- 
zardo was thereupon sentenced to State prison for life. The 
defendant Antonio Mascatti has not yet been sentenced, 
pending a decision upon his motion for a new trial. The 
cases are in charge of District Attorney Thomas C. O'Brien. 

Anthony Stamatopailos, indicted in Essex County, Sep- 
tember, 1922, for the murder of Charles Dantos, at Haver- 
hill, on Aug. 8, 1922. He was arraigned Dec. 11, 1922, and 
pleaded not guilty. Frederic H. Magison, Esq., appeared as 



1923.1 PUBLIC DOCUMENT — No. 12. xxiii 

counsel for the defendant. In December, 1922, the defendant 
was tried by a jury before Quinn, J. The result was a 
verdict of guilty of murder in the second degree. The de- 
fendant's motion for a new trial is now pending. The case 
is in charge of District Attorney William G. Clark. 

Ramon Velez, indicted in Suffolk County, May, 1922, for 
the murder of Pablo Bfarie, on May 15, 1922. On Aug. 30, 
1922, the defendant w^as committed to the Bridgewater State 
Hospital for observation. Edgar P. Benjamin, Esq., and 
Curtis J. Wright, Esq., appeared as counsel for the defendant. 
The case is in charge of District Attorney Thomas C. 
O'Brien. 

BiAGio Vessella, indicted in Suffolk County, July, 1922, 
for the murder of Frederico Spiriti, on June 21, 1922. The 
defendant has not yet been arraigned. James H. Vahey, 
Esq., and Robert J. Crowley, Esq., appeared as counsel for 
the defendant. No further action has been taken in this case. 
The case is in charge of District Attorney Thomas C. 
O'Brien. 

Giovanni Vilardi, indicted in Suffolk County, January, 
1922, for the murder of John Arzenti, on Jan. 5, 1922. The 
defendant has been committed to the Bridgew^ater State 
Hospital. The case is in charge of District Attorney Thomas 
C. O'Brien. 

Need for Reform in the Criminal Law. 

The attention of the General Court was directed in my last 
annual report to the serious problem which is presented in 
the administration of the criminal law, and it was then 
pointed out that the machinery which had been provided 
for the prosecution of crime and which was sufficient under 
the conditions existing at the time it was devised is no 
longer adequate for the protection of the public. The legis- 
lation enacted during the last session has not availed to 
relieve the congestion of the criminal dockets in the Com- 
monwealth, and particularly in the more populous counties. 



xxiv ATTORNEY GENERAL'S REPORT. [Jan. 

The legislation which was enacted last year has for the 
most part affected the civil business of the Superior Court, 
and was ably discussed by Chief Justice Hall of the Superior 
Court before the Worcester County Bar Association on 
June 15 of last year. On that occasion he pointed out that 
the enlarged authority given to the Supreme Judicial Court 
to transfer cases over which it had original jurisdiction to 
the Superior Court for partial or final disposition, in so far 
as it serves its intended purpose of relieving the burden upon 
the Supreme Court, which I pointed out in my last report 
was excessive, must, to the same extent, increase the burden 
upon the Superior Court. 

The statute extending the concurrent original jurisdiction 
in divorce to the probate courts in some degree relieves the 
pressure upon the Superior Court, but how^ much relief will 
be afforded is not yet determined. In any event it will not 
relieve the situation. 

A more important step in reducing the work of the 
Superior Court was the creation of appellate divisions for 
civil business of the district courts, but it is not expected that 
all of these changes will result in more than a small net de- 
crease of the civil business of the court. 

The need of prompt administration of criminal justice is 
emphasized by Chief Justice Hall, who points out that it is 
obvious that one of the most potent remedies is to be found 
in prompt action, with a resulting final disposition of in- 
dictments and appeals. In this connection he says: — 

The criminal side of the superior court is congested and must remain 
so until a sufficient number of judges are assigned from its present 
quota, or new justices created, to bring this department back to normal. 

Abolition of Double Tria^ls for Minor Offences. 

The remedy for the congestion in the work of the court 
is not to be found in constant increases in the number of 
permanent judges. Already this court, with thirty judges, 
is one of the largest in the country, and the present con- 
gested criminal docket is due in large measure to appeals 
from the lower courts, which are a direct result of the in- 
ability to try these cases in the Superior Court. 



1923.] PUBLIC DOCUMENT — No. 12. xxv 

Chief Justice Bolster has made an exhaustive study of the 
subject of criminal appeals in this Commonwealth, and the 
results were presented before the Massachusetts branch of 
the American Institute of Criminal Law" and Criminology 
in April of last year. He points out that those who commit 
felonies are permitted but one trial, whereas those who are 
guilty of small offences are allowed two trials at the expense 
of the Commonwealth. In this connection he says: — 

On economic grounds, it seems indefensible, unless one is prepared 
to urge some reason why a small case, such as simple assault, should 
engage the successive attention of two courts, but a murder or robbery 
of but one. Yet the cases in the district court which are inevitably 
headed for an appeal include the bulk of those which consume the 
great time and effort of the district courts. They are usually repre- 
sented by counsel, and the plea is generally "not guilty," that being 
the more advantageous basis for a trade after appeal. This involves 
continuances ''to prepare for trial" (often a euphemism for collection 
of a retainer), further attendance of witnesses at public expense, 
further inroads upon the outside duties of the police, and, finally, the 
time of the trial, unless, after continuances of varying number, the 
defendant, when brought to bay, adopts the growing habit of ''ad- 
mitting a finding." The cost of maintenance of the seventy-odd 
district courts of the state runs into the millions, and at least half of 
that represents expenditure for time spent in utterly inconsequential 
effort. 

The objections on grounds of policy to the present system are even 
graver. The district courts, after all is said and done, are our first 
line of defence against crime. But thej^ instill no fear in the mind of 
the deliberate criminal. For him, such a court is only one additional 
hurdle, which the prosecution must clear or stumble upon, to his 
advantage. If he loses, the words ''I appeal" give him a new start. 
When, then, should he fear justice in that quarter, and what respect 
■can he, his friends, or the public have for such an impotent tribunal? 

I concur in his opinion that defendants in the municipal 
court for the city of Boston and in the district courts should 
be required to elect whether they will stand trial in those 
courts, w^aiving trial by jury, or whether their cases shall 
be sent to the Superior Court for jury trial without trial 
in the lower court. The suggested change w^ould require 
provision for the correction of errors of law in trials in the 
lower courts, and a possible further provision, as pointed 
out by Chief Justice Bolster, for the equalization of sen- 



xxvi ATTORNEY GENERAL'S REPORT. [Jan. 

tences, but the machinery would appear to be available in 
the appellate division of the municipal court of the city of 
Boston and in the newly created appellate divisions of the 
district courts of the Commonwealth. 

The abolition of double trials for small offences will be an 
important step in expediting final judgment in these cases, 
and would relieve the Commonwealth of a substantial 
financial burden. 

Waiver of Jury Trial in the Superior Court in Crim- 
inal Cases. 

A further forward step along similar lines may be accom-- 
plished by providing that defendants in criminal cases in 
the Superior Court may waive the right of trial by jury. 
Nothing in the Federal Constitution requires the States to 
accord a jury trial in criminal cases, provided the accused 
is otherwise assured due process of law. Maxwell v. Doio, 
176 U. S. 606. Moreover, the right to a jury trial, if 
granted, may be waived. For over one hundred and forty 
years Maryland has provided that one accused of crime may 
elect to be tried by the court rather than by a jury. Last 
year Connecticut followed the example of Maryland. I am 
advised by judges in Connecticut that the plan is working^ 
excellently. In Maryland, since 1852, the system has in- 
cluded even capital cases. It is described at length by the 
Hon. Carroll T. Bond, judge of the Supreme Court of 
Baltimore, in 6 Mass. Law Quarterly, pp. 89-96. In the 
course of his description he says : — 

We can hardlj^ conceive of a (criminal) docket entirely of jury 
trials. The thought of such a thing would dismaj^ us. It would slow 
down our work greatl}^, and we should have to multipl}^ courts to 
dispatch business. 

I recommend serious consideration of a system which has 
worked successfully in Maryland for over one hundred and 
forty years, which has materially aided in the swift and 
efficient dispatch of criminal business, and which has re- 
cently been adopted by Connecticut and is there giving, 
satisfaction. 



1923.] PUBLIC DOCUMENT — No. 12. xxvii 



More Prompt Disposition of Criminal Cases in the 
Superior Court. 

In lieu of further increasing the number of permanent 
justices in the Superior Court, two methods of providing 
for additional jury trials in criminal cases have been sug- 
gested: one, appropriate legislation to authorize the exten- 
sion of the jury system to the municipal and district courts; 
and the other, a statute which would authorize the drafting 
of municipal and district court judges for service in the 
Superior Court for the trial of appealed cases and the minor 
offences originating by indictment in the Superior Court. 

I am of the opinion that the extension of the jury system 
to the district and municipal courts is not feasible because 
many of the district judges are not sufficiently experienced 
for the trial of jury cases, and the necessary accommoda- 
tions and officers for the conduct of jury trials are not 
provided. 

I believe that a permissive statute enabling the chief 
justice of the Superior Court to call to his aid municipal and 
district court justices, including associate and special justices, 
for the trial of jury cases would provide the necessary means 
of relieving the congestion of the criminal docket without in- 
creasing the already large number of permanent judges. 
There are judges in the lower courts of ability and broad 
experience in the criminal law who are fully equipped to 
render temporary service when called upon in the Superior 
Court. It would afford the chief justice of the Superior 
Court the opportunity to summon only the necessary number 
of judges to relieve the burden upon the Superior Court from 
time to time and thereby provide an elastic system which 
would automatically expand and contract according to the 
needs of the situation. The experience gained by occasional 
service in the Superior Court would also be of great value in 
the more efficient handling of the criminal business of the 
lower courts. The Judicature Commission, in its second and 
final report to the Legislature in 1921, recommended this 
method of relief, and I renew my recommendation of last 



xxviii ATTORNEY GENERAL'S REPORT. [Jan. 

year that enabling legislation to permit the calling of the 
justices of our lower courts for service in the Superior Court 
be enacted. 

Changes in the Criminal Law recommended at the 
Instance of the District Attorneys. 

With a view to securing greater co-operation among the 
district attorneys in the eight districts of the Common- 
wealth, and a resultant increased efficiency in the adminis- 
tration of the criminal law, I invited the district attorneys to 
a conference in April of last year. It was the general opinion 
that the conference was of great assistance to the district 
attorneys, and at their suggestion conferences have been 
since held on two occasions, with a view to securing an ex- 
change of opinions with regard to needed changes in the 
criminal law. Numerous suggestions have been made, and 
at the final conference recently held they unanimously voted 
to authorize me, upon their behalf, to recommend in my re- 
port to the Legislature certain needed changes in the criminal 
statutes. Except as elsewhere discussed in this report, the 
recommendations are as follows: — 

a. Assaults resulting in Serious or Permanent Physical 
Injury. — I recommend that a law be enacted providing that 
whoever assaults another with a dangerous weapon, sub- 
stance, chemical or through physical force, and by such 
assault disfigures, cripples or inflicts serious or permanent 
physical injury upon another person, and whoever is privy to 
such intent or is present and aids in the commission of such 
crime, shall be punished by imprisonment in the State Prison 
for not more than twenty years or by a fine of not more 
than 11$ 1,000 and imprisonment in jail or a house of correction 
for not more than two and one-half years. 

h. Concealment of Automobiles with Intent to defraud In- 
surer. — A statute should be enacted making it an offence 
to steal, remove or conceal, with intent to defraud the in- 
surer, automobiles which are at the time insured against 
theft. The penalt}' imposed by such statute should be con- 
sistent with the provisions of G. L., c. 266, § 10, relating to 
burning goods with intent to defraud the insurer; of sec- 



1923.] PUBLIC DOCUMENT — No. 12. xxix 

tion 28 of the same chapter, relating to theft of automobiles; 
and of section 82 of that chapter, relating to the conceal- 
ment of mortgaged personal property. 

c. Conspiracy to commit a Felony. — I recommend that 
legislation be passed providing that a conspiracy to commit 
a felony shall be punished in the same manner and to the 
same extent as an attempt to commit a felony. 

d. Venue of Crimes. — (1) The prosecuting officer is at 
times uncertain from the state of the evidence then in his 
possession as to whether a crime was committed in one 
county or another. As a result, prosecution is instituted in 
one county and during the trial it develops that the crime 
was actually committed in another county, and the de- 
fendant is discharged because of wrong venue. This neces- 
sitates a submission of the facts to another district attorney 
and a new prosecution, and involves a needless expenditure 
of money. This duplication of effort and expense will be 
largely avoided if the law relative to venue of crimes be so 
amended as to permit, whenever the prosecuting authorities 
are uncertain in which of several counties a crime has been 
committed, a prosecution in any one of those counties, upon 
petition to the court by the Attorney-General or a district 
attorney representing that he is in doubt as to the proper 
venue of the crime. 

(2) Persons are at times conveyed from one place to some 
unknown place and there assaulted or raped. The true 
venue of the crime is therefore unknown, and it is difficult, 
if not impossible, properly to prosecute for offences committed 
under such circumstances. I suggest such changes' in legis- 
lation as will permit prosecution for such crimes in the place 
from which such person or persons were taken. 

e. Report of the Department of Mental Diseases as Evidence 
in Criminal Cases. — St. 1921, c. 415, provides that when- 
ever a person is indicted for a capital offence, or whenever 
a person, who is known to have been indicted for any other 
offence more than once or to have been previously convicted 
of a felony, is indicted or bound over for trial in the Superior 
Court, the Department of Mental Diseases shall cause such 
person to be examined as to his mental condition, and that 



XXX ATTORNEY GENERAL'S REPORT. [Jan. 

its report shall be admissible as evidence. The district 
attorneys are of the opinion that this statute should be 
amended by striking out the provision that the report of 
the Department of Mental Diseases shall be admissible as 
evidence of the mental condition of the accused, and I so 
recommend. 

/. Defence of Insanity. Pleadings. — Existing legislation 
should be so amended that the defence of insanity of a 
defendant cannot be raised except by leave of court, unless 
a special plea of insanity is filed with the clerk of the court 
at least three days prior to the coming in of the court at the 
sitting at which the defendant is to be tried. I further 
recommend that the statutes be amended so as to provide 
that all dilatory pleadings, motions to quash, and requests 
for bills of particulars shall be filed at least three days prior 
to the coming in of the court at the sitting at which the 
respective cases are to be tried. 

g. Precedence of Certain Prosecutions. — G. L., c. 212, § 24, 
provides that certain cases shall have precedence in the order 
of trial next after the cases of persons who are actually 
confined in prison and awaiting trial. The district attorneys 
are thereby prevented for extended periods from trying any 
cases except those given precedence by the statute, and 
certain classes of offences are barred from trial. Not infre- 
quently, important cases, which, for special reasons should 
be tried, are postponed for long intervals. I recommend 
that the section be so amended as to provide that the court 
shall have discretion to modify the order of trial if in his 
opinion there is sufficient ground for so doing. 

Limitation upon Practice in Criminal Cases by Special 

Justices. 

At the instance of the district attorneys, I renew my 
recommendation made in my annual report for the year 1920 
that special justices of municipal and district courts be pro- 
hibited from practicing in their own courts in criminal cases 
either as prosecuting officers or as defendants' attorneys. 
Under the provisions of G. L., c. 218, § 17, it is provided 
that a special justice shall not be retained or employed in 



1923.] PUBLIC DOCUMENT — No. 12. xxxi 

any case in which he acts or has acted as justice, but a 
practice has grown up on the part of special justices in 
certain districts in the western and southern parts of the 
State of engaging extensively in the trial of criminal cases. 
There is a grave impropriety in such a practice, for when a 
special justice conducts a criminal case before the justice 
of his own court there is occasion for distrust, lest by virtue 
of his office, he may have undue influence upon the court. 

Proposal to Amend General Laws, Chapter 111, Sec- 
tion 31. 

I renew my recommendation for amendment of G. L., c. 
Ill, § 31, which provides 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 pubHshed 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 
publication shall be notice to all persons. 

This provision confers upon local boards of health a general 
power to make regulations. If such regulations provide 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 regula- 
tions made thereunder, such regulations do not require the 
approval of the Attorney-General. 

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

Regulations made b}^ boards of health shall be published once in a 
newspaper if one is published in the town, otherwise in a newspaper 
published in the countj^ Such publication shall be notice to all persons. 

A Permanent Judicl\l Council. 

I renew my recommendation for the establishment of an 
unpaid judicial council, charged with the duty of studying 



xxxii ATTORNEY GENERAL'S REPORT. [Jan. 

the working of our judicial system and of suggesting needed 
changes and improvements from time to time. The value of 
such a body is apparent. Needed changes and reforms ought 
not to be left to individual initiative, which is often uncertain 
and sometimes biased in its operation. Unprejudiced ex- 
pert advice might eliminate defects before the consequences 
become serious. Furthermore a permanent commission will 
be able to study the progress of judicial administration in 
other States and countries, which the committees of the 
Legislature changing from year to year cannot do, and the 
commission will be in a position to lay out and recommend 
a progressive and orderly program for the growth of the 
judicial administration in this Commonwealth. The estab- 
lishment of such a council was recommended last year by the 
Judicature Commission (House, No. 1205, p. 135). An 
appropriate act accompanied the recommendation. 

Liquor Legislation. 

Massachusetts and Maryland are the only two States 
which have not passed prohibition enforcement laws bringing 
the State and Federal statutes governing the manufacture, 
sale and transportation of intoxicating liquors into substan- 
tial conformity. 

Additional legislation is imperatively needed to meet the 
grave situation in this Commonwealth, which is fostering 
disrespect for law and encouraging those who are spreading 
the propaganda of nullification. At the present time the 
Federal prohibition enforcement agents (about thirty in 
number during the past year) are too few to afford reasonable 
enforcement, and the State and local police and officials (to 
the number of about four thousand) are without authority 
to require obedience to the law of the land. 

The rejection upon referendum of the law passed by the 
General Court at the last session has had the effect of lead- 
ing many to believe that the prohibition laws may now be 
violated with impunity. Such a belief, if permitted to con- 
tinue, will inevitably lead to practical nullification, and this 
Commonwealth, which has always stood for the supremacy 
of the law and against nullification, will invite the boot- 



1923.] PUBLIC DOCUMENT — No. 12. xxxiii 

legger from other jurisdictions to come here to ply his trade 
without molestation. 

Whatever the significance of the vote against the act 
passed last year, we have a right to assume that a majority 
of the people believe in the enforcement of law and will 
approve any law which they think it necessary to secure 
reasonable enforcement. 

The late police commissioner, the Hon. Edwin U. Curtis, 
fearless and uncompromising champion of law and order, in 
his last annual report, urged the need of conformity between 
the State and Federal prohibition laws in justice to the 
police in the performance of their duties. He was not ad- 
vocating prohibition, or approving or disapproving the pro- 
visions of the Volstead Act, but, speaking solely for more 
efficient enforcement, he said : — 

The liquor situation in Boston to-day, as regards the work of the 
police in relation thereto, is substantially different from what it was 
prior to the passage of the Eighteenth Amendment and the Volstead 
Act. There is not on our statute books to-day an act the same in all 
respects as the Volstead Act, and for that reason the handling of the 
liquor situation is and must be unsatisfactory. It is a fact that the 
amendment to the Constitution is now in existence, but there is no 
adequate enforcement act upon our statute books in this State, with 
the result that the State officers of the law come in for a great deal of 
well-meant but unjust criticism. 

To the same effect, but in even more emphatic terms. His 
Excellency the Governor, in his address to the General 
Court last year, after referring to the difficulty of preventing 
traffic in intoxicating liquors, reported by ofl[icers especially 
charged with the duty of law enforcement, declared that 
"considerations of impelling force require that the laws of 
Massachusetts be made to conform to the laws of the United 
States in this respect." Those considerations obtain with 
even greater force to-day than when the message of the 
Governor was delivered. 

I urge upon your consideration the good sense of making 
the legal definition of intoxicating liquor uniform in the 
State and Nation, in order that there may be greater op- 
portunity for co-operation in securing reasonable enforce- 



xxxiv ATTORNEY GENERAL'S REPORT. [Jan. 

ment. I believe that the defeat of the legislation enacted 
last year was largely due to the fact that it included provi- 
sions for search and seizure, not understood by the voters, 
and regarded by them as an unwarranted interference with 
their personal liberty and the privacy of their homes. I am 
of the opinion that no special legislation authorizing search 
and seizure by prohibition enforcement agents is desirable. 

In the present state of public opinion I believe that the 
enforcement of the prohibition law will receive the largest 
measure of approval when directed primarily not against 
those caught taking a drink, but against those who engage 
in the business of manufacturing, selling or transporting 
liquor illegally, and who are chiefly responsible for present 
conditions. Similarly, the drinking of liquors at public 
banquets and in public places will be most effectively checked 
if legislation is directed to holding to strict accountability 
those innkeepers who violate their innkeepers' licenses by 
encouraging or permitting the illegal use of intoxicating 
liquors in their hotels or restaurants. 

At the recent conference of district attorneys and dis- 
trict attorneys-elect, at which all the districts of the State 
were represented, it was the opinion of the conference 
that, as officers who are not directly concerned with legisla- 
tion but solely charged with the enforcement of existing law, 
they should not at that time undertake to make concrete 
recommendations for legislation to regulate further the 
existing illegal traffic in liquor in advance of the opening 
of the General Court and the remedial legislation which 
would be proposed for the consideration of the Governor 
and the legislators. It was, however, the unanimous opinion 
of all who attended the conference that additional legislation 
was needed, and that the attention of the Legislature should 
be called to the fact that in the new codification of the 
statutes of the Commonwealth the statute relating to the 
transportation of intoxicating liquor had been omitted. As 
a result of this apparently unintentional omission, the dis- 
trict attorneys, in a number of instances, have found them- 
selves unable effectively to prosecute illegal liquor cases, 
and I accordingly recommend, on their unanimous request. 



1923.] PUBLIC DOCUMENT — No. 12. xxxv 

that the Legislature consider the passage of a law forbidding 
transportation of, or having in possession with intent to 
transport, liquor which is intoxicating, under the law of 
the Commonwealth. A majority of the public are not 
aware that at the present time there is no law upon our 
statute books forbidding the manufacture of intoxicating 
liquors. At the instance of the conference, I further recom- 
mend that a law be passed prohibiting the manufacture of 
intoxicating liquor with intent to sell. 

Defects in the Administration of the Jury System. 

The most important subject which is presented for your 
consideration in this report is the need of reform in the jury 
system. Although the corruption which was practiced in 
the administration of the district attorney's office in Suffolk 
County and in the administration of the closed trust com- 
panies has been disclosed, some of those who are respon- 
sible have been able to escape punishment through their 
ability to prevent indictments by the grand jury. 

The corruption disclosed by the removal proceedings was 
not confined to maladministration within the district at- 
torney's oflSce. It also involved corrupt control of grand 
juries. There is reason to believe that the same corruption 
was practiced in some instances upon petit juries. L^nless 
threats of prosecution could be made good, whether there 
was evidence upon which indictments could properly be 
found or not, the blackmailing operations disclosed by the 
removal proceedings could not have been successfully carried 
through. It is significant that the court removed District 
Attorney Tufts in part for misconduct before a grand jury, 
and that in the so-called Jack Mann case, presented in 
connection with the Pelletier removal proceedings, the action 
of the assistant district attorney before the grand jury was 
severely condemned. These instances indicate that the 
forces which found profit in corrupt control of district at- 
torneys gave attention to the control of juries also. The 
methods which they employed disclose defects in the system 
by which grand and petit juries are selected, of which these 
sinister forces still continue to avail themselves. 



xxxvi ATTORNEY GENERAL'S REPORT. [Jan. 

The secrecy of grand jury proceedings offers to these 
sinister forces an opportunity to use the grand jury as a 
barrier against punishment. 

Both in Middlesex and in Suffolk, the district attorneys 
since removed and the forces behind them did not propose, 
if they could help it, that the prosecuting powers of the 
Attorney General should be revived and exercised. It is 
significant that after Special Assistant Attorney General 
Hurlburt appeared before a grand jury in Middlesex County 
in connection with prosecutions for thefts of automobiles, 
the plea in abatement filed by the defendant in that case 
was supported by a brief, filed as amicus curiae, by Joseph 
C. Pelletier, then district attorney for the Suffolk District. 
Although the prosecuting powers of the Attorney General 
were fully confirmed by the decision of the Supreme Judicial 
Court in Commomcealth v. Kozloicshy, 238 Mass. 379, de- 
cided in May, 1921, every effort was made, both before and 
after that decision, to prevent the exercise of those powers 
by the Attorney General. The significant feature of the 
facts hereafter set forth is that those who were able to in- 
voke the forces of organized corruption were able to prevent 
indictment, while, in cases substantially similar, those who 
did not possess this influence were indicted by the same 
grand juries. 

In order that the General Court may have full knowledge 
of the need of a reform in the jury system, I deem it my 
duty to lay before it the facts disclosed by recent investiga- 
tions. 

In September, 1920, Joseph C. Allen, Commissioner of 
Banks, reported to me certain violations of the banking laws, 
as disclosed by an investigation of the affairs of the Hanover 
Trust Company. After investigation, I became satisfied 
that certain officers of this company were guilty of criminal 
offences. I thereupon caused to be presented the evidence 
against these officers to the regular Suffolk grand jury. The 
grand jury usually hears only the government's case. Con- 
trary to the almost universal practice, two of the officers of 
that trust company were on their request permitted to 
appear and make statements to the grand jury. As soon 



1923.] PUBLIC DOCUMENT — No. 12. xxxvii 

as the evidence was closed, the prosecuting officers, contrary 
to the usual practice, were ordered out of the grand jury 
room during the deliberations of the jury. That grand 
jury returned "no bills" against these bank officials, although 
the evidence presented was, in my opinion, not only amply 
sufficient to sustain an indictment but also a conviction. 

In February, 1922, the Commissioner of Banks, having 
previously reported to me violations of the banking laws in 
connection with the affairs of several other closed trust 
companies, I determined, after full investigation, that these 
cases should be presented to the grand jury. I first pre- 
sented evidence against the president of the Cosmopolitan 
Trust Company. While the case was being presented, he 
requested the grand jury to hear him, agreeing to waive im- 
munity. The grand jury refused this request. At the con- 
clusion of the evidence the grand jury voted indictments. 

As I was satisfied that improper influences had been 
brought to bear upon the former grand jury, and that the 
jurors had not based their vote upon the evidence presented 
against the officers of the Hanover Trust Company, I pre- 
sented those cases to this grand jury. The evidence was 
as strong as in the case of the Cosmopolitan Trust Company, 
where the grand jury had just voted indictments. A change 
in the attitude of the grand jurors was immediately apparent 
when the Hanover case was taken up. A request by two 
of the officials of this company to come before the grand 
jury was granted, although the same request had been re- 
fused in the case of the Cosmopolitan Trust Company. It 
was apparent that certain grand jurors were receiving in- 
structions from persons outside the grand jury room. They 
asked the witnesses questions upon matters not disclosed 
by the evidence, the apparent purpose of which was to dis- 
credit the government witnesses and to shield the officials 
under investigation. This time, when the evidence was 
concluded, the grand jury excluded the prosecuting officers 
and voted "no bills." It was later reported to me that the 
president of the Cosmopolitan Trust Company had been 
approached and advised that, upon payment by him of a 
certain sum of money, the grand jury would vote to hear him 



xxxviii ATTORNEY GENERAL'S REPORT. [Jan. 

and would refuse to indict him, but that he ignored the sug- 
gestion. In view of the action taken in the Hanover Trust 
Company case, I decided not to present any more cases to 
this grand jury. 

In September, 1922, the chief justice of the Superior 
Court, at my request, caused to be summoned a special 
grand jury in Suffolk County. To this grand jury I first 
presented evidence in connection with the so-called H, V. 
Greene cases, which had been under investigation in my 
department for a considerable length of time. H. V. Greene 
requested the grand jury to hear him, waiving immunity. 
The grand jury denied his request, and he and a number 
of other persons were indicted. I then presented evidence 
against the officers of the Prudential Trust Company. The 
president requested the grand jury to hear him, waiving 
immunity. This request the grand jury denied, and indict- 
ments were returned against him and the former treasurer 
of that company. 

I then presented the Hanover Trust Company case to this 
grand jury. There was an immediate change in the attitude 
of the jurors. As on the previous occasion, questions were 
asked by the grand jurors in respect to matters not before 
them, apparently designed, as before, to discredit witnesses 
and to shield the persons under investigation. Although the 
grand jury had refused to hear the defendants in the two 
previous cases, it now reversed its action and gave a hearing 
to the treasurer of the Hanover Trust Company. x\t the 
conclusion of the evidence, the prosecuting officers were 
permitted to remain in the grand jury room, but the vote, 
contrary to the usual practice, was by secret ballot. Some 
indictments were voted, but when the jury reconvened the 
next morning, these indictments were reconsidered before 
they could be signed and returned. 

As a result of their action and because of further informa- 
tion which I had received, I discharged the jury from further 
serv^ice. 

While the Hanover Trust Company cases were being pre- 
sented, certain of the members of this grand jury, on their 
own initiative, came to me and informed me that it was 



1923.] PUBLIC DOCUMENT — No. 12. xxxix 

useless to introduce further evidence, that from what was 
being said and done, both inside and outside the grand jury 
room, it was apparent to them that no indictments would 
be returned against the officials of the Hanover Trust Com- 
pany, no matter what evidence the government might pre- 
sent. On this occasion they informed me that they had 
observed the foreman and several other jurors meet, as if by 
appointment, at a place outside the Court House, the officer 
of the Hanover Trust Company who was under investigation 
and had just testified before them. They watched them and 
saw them walk away together. 

I also learned that anonymous communications, tending to 
discredit the prosecution, were sent by mail to each of the 
grand jurors. In addition to these anonymous letters three 
of the persons whose conduct was under investigation ad- 
dressed signed communications to the grand jury, upon w^hich 
they were adjudged in contempt by the court and fined. 
The court found that their acts tended to obstruct and 
degrade the administration of justice. 

At my request a second special grand jury was convened 
on Dec. 26, 1922. To this grand jury I presented evidence 
in seven cases which were before the Supreme Judi'ual Court 
in the Pelletier removal proceedings. In all these cases 
evidence was presented as fully as when they were presented 
to the court. In six of these cases the court had found the 
district attorney guilty of conspiracy to extort by threat 
to accuse of crime, and in some of them of actual extortion 
by that means. In the seventh case, where the finding of 
the court w^as "not proved," additional evidence not avail- 
able at the removal trial was presented to the grand jury. 
In addition to this, in the so-called Herman case, there w^as 
presented to the grand jury so much of the confession of 
William J. Corcoran as related to his participation in that 
case. Corcoran had been found by the court in the removal 
proceedings to have been a co-conspirator in the Berman 
case. In order that the Legislature may know the informa- 
tion which was contained in the Corcoran confession, in so 
far as it related to his participation in the Berman case, this 
portion of the confession is annexed to this report and 



xl ATTORNEY GENERAL'S REPORT. [Jan. 

marked Appendix A. When a vote was about to be taken 
in the Berman case, the prosecuting officers were ordered 
from the room by the grand jury, and were afterwards 
recalled and a vote taken. No indictments were voted, even 
against Corcoran, whose confession was before them. 

Following the evidence in the Berman case, which was the 
first presented, the evidence in the other six cases was 
presented to the jury upon the question of a general con- 
spiracy to extort. When the evidence in these cases had 
been completed, the prosecuting officers were again ordered 
out of the grand jury room. A vote was taken on the 
question of a general conspiracy to extort, and no bill was 
voted. 

From the time the grand jury convened it became in- 
creasingly apparent, from what occurred both inside and 
outside the jury room, that a majority of the members would 
not consider the evidence upon its merits. As soon as the 
grand jury had elected a foreman it came to my attention 
that, previous to convening, solicitation had been made over 
the telephone to secure the election of Martin J. McGuire 
as foreman. He was elected. 

Shortly after the convening of the grand jury I was 
advised that a son-in-law of Daniel H. Coakley had asked 
a certain person if he knew any members of the new special 
grand jury, saying that, if he did, there was a big bunch of 
money available. This statement is supported by an affi- 
davit in my possession. 

I am advised that on the first day of the sitting, before 
any evidence was introduced, one of the grand jurors stated 
to a fellow grand juror that the defendants had only held 
up rich men; good luck to them. 

Later I was informed that a certain person who is a close 
business associate of Daniel H. Coakley, and who has a 
reputation at the Court House of being a jury fixer, had 
met one of the grand jurors by appointment at a club house 
in a neighboring city, just prior to the convening of the jury, 
and conferred with him there. 

During the sitting of the grand jury, questions were asked 
of witnesses by certain jurors which indicated that these 



1923.] PUBLIC DOCUMENT — No. 12. xli 

jurors were being instructed outside the jury room by persons 
interested in preventing indictments. 

Subsequently, I was informed that two jurors had stated 
to friends that they would not indict Coakley and Pelletier 
no matter what the evidence might be. 

It is significant, bearing in mind the solicitation that had 
been made before the jury convened for the election of 
McGuire as foreman, that all of the jurors who voted for 
McGuire as foreman failed to vote for an indictment. 

Immediately after the vote on the question of a general 
conspiracy was taken, one of the jurors arose and stated 
that he was satisfied that a majority of the jurors were deter- 
mined to vote "no bills" regardless of the evidence, and 
that it was useless to proceed further. Not one of the jurors 
who voted a "no bill" took exception to or resented his 
statements or ventured to make reply. 

Before any vote had been taken upon the question of 
general conspiracy, several of the jurors informed me that 
they were satisfied that, because of what occurred within 
and without the jury room, it would be useless to proceed 
further and that they were prepared so to inform the court, 
as they were convinced that no indictments would be returned 
no matter what further evidence might be presented. In 
view of this information, which confirmed my own opinion 
that the grand jury were not considering the evidence upon 
its merits, I did not present any further cases after the 
evidence in these seven cases was concluded. I was prepared 
to present further cases which had been presented in the 
Supreme Judicial Court, and upon which the court found 
Pelletier guilty, and other cases which were not known to 
me at the time of that hearing, in three of which the sum 
extorted, according to the evidence, was S400,000. 

After certain jurors had appeared in court and stated that 
from what had occurred in the jury room, both from the 
actions of the grand jurors and what had been said, they 
were of the opinion that the purpose for which the grand 
jury had been called would not be served by continuing in 
further session and had requested that the jury be discharged, 
before any vote had been reported and without any request 



xlii ATTORNEY GENERAL'S REPORT. [Jan. 

having been made upon me that the vote should be reported, 
I discharged the grand jury. 

The series of events above described cannot be explained 
by chance or by incompetence, or both. They show in- 
competence but they show much more. They demonstrate 
incompetence m.olded by corrupt forces to achieve corrupt 
ends. The completeness of control which those corrupt 
forces have secured should need no further demonstration, 
but in order that the Legislature may learn from the lips 
of a co-conspirator what methods were used and how 
complete that corrupt control over grand jurors had become 
in the hands of Coakley and Pelletier, I am attaching to 
this report (Appendix B) that portion of Corcoran's con- 
fession in which he discloses the plan of Coakley to prevent 
the trial of Pelletier by securing the indictment of judges of 
the Supreme Judicial Court. 

The evils in the administration of the jury system are not 
confined to grand juries. 

It is difficult to conceive a stronger case for conviction 
than that presented against Charles Ponzi, in which a verdict 
of acquittal was returned. The foreman of that jury has 
written me that he will be glad to co-operate in securing 
reform of the jury system, and has stated that as a result 
of his experience in the Ponzi trial he is convinced that under 
the present system men totally unfit are drawn for jury 
service. He orally stated that he and the others who were 
holding out for conviction were greatly influenced in finally 
voting for acquittal by the distress of one of the jurors whose 
father had died the previous night and who was begging 
them to agree in order that he might go home, and that 
after the final vote was taken he (the foreman) stated to 
the jury that the verdict was an outrage. 

In the recent trial of the so-called "black hand" cases in 
Sufi^olk County, which were conducted by the district 
attorney's office, the jury, after being out for more than 
twenty-four hours, found two of the defendants guilty of 
murder in the second degree and acquitted the third 
defendant, although the evidence against the one who was 
acquitted was as strong or stronger than that presented 



1923.] PUBLIC DOCUMENT — No. 12. xiiii 

against the others. Because of the verdict, an investigation 
was made by the district attorney's office, and it was 
discovered that one of the jurors, w^ho, I am informed, was 
most active in urging the acquittal of this defendant, had a 
criminal record. 

In investigating the venires that are drawn for traverse 
juries in Suffolk County it is not infrequently found that 
men who have been drawn have criminal records and are 
thereby disqualified for service. No adequate investigation 
is made of the qualifications and past records of those who 
are placed upon the jury list. 

Changes Recommended in the Jury System. 

The present system of selecting those who shall be placed 
on the jury list is primarily responsible for the failure to 
obtain jurors who meet the requirements of the law. The 
statute requires that jurors shall be "of good moral char- 
acter, of sound judgment, and free from all legal exceptions. " 

If the jury lists from which the venires are drawn for 
grand and petit juries include persons who do not meet these 
requirements, some of the men ultimately drawn upon juries 
will lack the requisite qualifications, since the fountain cannot 
rise higher than the source. It has been demonstrated that 
proper lists are not prepared under the present system, 
especially in our larger cities. The remedy lies in removing 
from political influence the responsibility for the selection of 
those who shall be placed upon the jury lists. 

I therefore recommend that the present system of making 
up and drawing venires for grand and petit juries be abol- 
ished. In its place I recommend that a State commission 
of five members shall be established. I suggest that this 
commission shall be appointed by the chief justice of the 
Supreme Judicial Court, or, in the alternative, that it shall 
consist of a justice of the Supreme Judicial Court, a justice 
of the Superior Court, the clerk of the Supreme Judicial 
Court for the Commonwealth, and two paid members to be 
selected by them. Provision should be made for the ap- 
pointment by the commission of local or district boards, or 
a corps of inspectors, to aid the commission in the selection 



xliv ATTORNEY GENERAL'S REPORT. [Jan. 

of qualified persons for the jury lists and the maintenance 
of the lists when established at the required number of men 
qualified under the statutes. 

I further recommend that the venires of grand and petit 
juries shall be drawn by the clerks of the Superior Courts 
for the several counties. 

I suggest that the Legislature should consider the advisa- 
bility of removing some of the exemptions from jury serv^ice 
which now exist. 

Partial Substitutiox of Informations for Indictments. 

In this Commonwealth a grand jury consists of not less 
than thirteen nor more than twenty-three persons. They 
are drawn, summoned and returned in the same manner as 
traverse jurors. The regular grand jury is drawn for six 
months and meets at the beginning of each month. Twelve 
jurors must concur in finding an indictment, which is both 
a finding that there is sufficient cause to believe that the 
accused has committed a crime and a formulation of the 
charge. If the grand jury votes a true bill, the indictment 
is actually drawn by the prosecuting officer who presents the 
evidence. 

The reason which led to the creation of the grand jury 
was the need of protection from royal oppression in Eng- 
land. It was necessary that its deliberations should be 
secret. The rule of secrecy grew up because in the Earl of 
Shafteshun/s Case, 8 How. St. Trials, 759 (1681), the judges 
attempted to compel a grand jury to find an indictment. 
At that time judges did not hold their office during good 
behavior, but at the pleasure of the King. The need for 
such a safeguard against such oppression has disappeared. 

For many years in this Commonwealth minor offences 
have been tried upon complaints brought in the district 
courts, and, if appealed, have been retried in the Superior 
Court upon the same complaint. No one would think of 
suggesting that in such cases an indictment was either 
necessary or desirable. 

With a view to learning what was being done in other 
States, I made inquiry of a large number of the Attorneys 



1923.] PUBLIC DOCUMENT — No. 12. xlv 

General in all sections of the country. The answers indi- 
cate that the States are one by one discarding indictments 
as a method of instituting criminal proceedings. Experience 
has shown that as compared with prosecution by informa- 
tion indictments are cumbersome, inefficient and expensive. 

In 1859, over fifty years ago, Michigan substituted pros- 
ecution by information for prosecution by indictment, the 
grand jury being summoned only upon order of the district 
court and used for making investigations. Arizona, Cali- 
fornia, Colorado, Connecticut, Florida, Idaho, Indiana, 
Iowa, Louisiana, Kansas, Missouri, Nebraska, North Da- 
kota, Oklahoma, Utah, Vermont and Wyoming all provide 
to a greater or less extent for prosecution by information 
(or some substantially similar proceeding) instead of by 
indictment. The grand jury is usually retained but is 
generally used only in extraordinary cases. In some cases 
it is resorted to to collect evidence under oath as to an 
alleged crime. Occasionally it is used to prosecute corrupt 
officials or to institute proceedings where a corrupt official 
refuses to take action. In some of the States a grand 
jury can only be summoned upon petition of a required 
number of citizens. In others, it is summoned only by a 
special order of the court. 

The details of the method pursued in instituting criminal 
proceedings vary somewhat in the different States. 

Thus, in Connecticut and Vermont, crimes punishable by 
death or imprisonment for life must be prosecuted by in- 
dictment, while all other crimes may be prosecuted by in- 
formation. In other States, such as Nebraska and North 
Dakota, a hearing before a magistrate and a finding of 
probable cause are conditions precedent to prosecution by 
information. In a considerable number of States the system 
of prosecution by information has been in force for years. 

Nothing in the Federal Constitution prevents the States 
from substituting prosecution by information for prosecu- 
tion by indictment. Hurtado v. California, 110 U. S. 516. 
It has been held, however, that article XII of the Massa- 
chusetts Bill of Rights requires an indictment in cases of 
felony; that is, in cases where the punishment may be 



xlvi ATTORNEY GENERAL'S REPORT. [Jan. 

either death or imprisonment in State Prison. Jones v. 
Rohhins, 8 Gray, 329. But this decision permits prosecu- 
tion by complaint in cases of misdemeanor even though a 
sentence to the jail or house of correction may be imposed, 
such punishment not being ''infamous" in the constitutional 
sense. There is no constitutional objection to prosecuting 
misdemeanors by information both in the district courts 
and in the Superior Court. 

The reports contained in the letters received from the 
Attorneys General indicate that prosecution by information 
has worked satisfactorily, and that it has superseded prose- 
cution by indictment in the great majority of cases, and 
that there is no sentiment in favor of returning to the 
older and more cumbersome system of indictment by the 
grand jury. 

I therefore recommend appropriate legislation to provide 
that the prosecution of all crimes which are not punishable 
by death, or by imprisonment in the State Prison, shall be 
initiated by information filed in the Superior Court at the 
instance of the district attorney or by complaint filed in the 
district court, provided that court has jurisdiction. If it be 
thought desirable, provision may be made that a justice of 
the Superior Court, before granting leave to the district 
attorney to file an information, may require as a condition 
precedent a finding of probable cause by a justice of the 
district or municipal court. 

Department of the Attorney General. 

The work of the Department during the year ending 
Dec. 31, 1922, has shown an increase over that of the pre- 
vious year, and has taxed the members of the staff to meet 
the requirements, and both the Assistant Attorneys General 
and the members of the clerical staff have rendered service 
outside of the usual ofiice hours to meet the special demands 
occasioned by the extra work in the conduct of important 
cases. It is probable that the regular work of the Depart- 
ment will continue to show an increase, but it is to be hoped 
that the exigencies which have required the prosecution of 



1923.] PUBLIC DOCUMENT — No. 12. xlvii 

crime and the investigation of corrupt practices by public 
officials will not arise in the future. 

The number of official opinions rendered by the Depart- 
ment during the year was 170. In the United States courts 
9 cases have been argued before the Supreme Court, and 3 
in the district court. Nineteen cases have been argued be- 
fore the full bench of the Supreme Judicial Court, and there 
have been 45 hearings and trials before a single justice of 
the Supreme Judicial Court. Twenty-four cases have been 
tried in the civil session of the Superior Court, and 7 in the 
criminal session. Indictments have been procured against 
20 defendants before general and special grand juries. 
Twenty-two cases have been tried in the probate courts of 
the Commonwealth, and 1 in the probate court of Marquette 
County, Michigan. The Department has been in attendance 
at 22 hearings before the Industrial Accident Board. Hear- 
ings have been held in 17 extradition cases, and, in addi- 
tion, 2 hearings have been attended before the Governors of 
Maine and Pennsylvania. 

The collections of the Department for the jSscal year 
amounted to 11,621,220.07. 

No resignations from the staff have occurred during the 
year. On June 1, 1922, James H. Devlin, Esq., who was 
formerly legislative agent for the city of Boston and for a 
number of years secretary to Police Commissioner Edwin 
U. Curtis, was appointed an Assistant Attorney General. 

The increase in the routine work of the Department dur- 
ing the three years of my incumbency is indicated by the 
amount of business which has been handled in the collection 
of tax claims and other claims due the Commonwealth. The 
amount collected during the past three years is as follows: 
1920, S302,623.22; 1921, Sl,139,452.42; and 1922, $1,621,- 
220.07. In 1921 the receipts for the first time exceeded 
SI, 000,000, and during the past year this amount has been 
increased by nearly half a million. 

In retiring from my duties as Attorney General I desire 
to record the high degree of efficiency which has been main- 
tained by the legal staff of this Department. The excellent 
quality of their work, both in the preparation and presenta- 



xlviii ATTORNEY GENERAL'S REPORT. [Jan. 

tion of cases, has set a standard for public service, and has 
been shown by the marked success which has attended their 
efforts. During the period of three years the Commonwealth 
has won approximately 90 per cent of the cases in which 
she has been a party in the United States courts and in the 
courts of the Commonwealth, and millions of dollars of 
revenue and of expenditure have depended upon the out- 
come of these cases. 

When I succeeded to the duties of the Attorney General's 
office three years ago, conditions attending the administra- 
tion of the criminal law were menacing the good name of 
the State and the safety of its citizens. Corruption was rife 
in the two largest counties. The authority of district at- 
torneys in the nol prossing of cases was uncontrolled, and 
cases were filed upon recommendation of prosecuting officers 
without adequate reasons and with insufficient investiga- 
tion. The duties of bail commissioner were subject to great 
abuse, and in Suffolk County extortion was practiced by 
bail commissioners and professional bondsmen who had ob- 
tained a practical monopoly of the business. Defaults by 
defendants in criminal cases were increasing in number, and 
no serious effort was being made to hold the sureties account- 
able for such defaults. The zeal of police officials in many 
of our larger cities was diminished, for they found that their 
efforts to apprehend criminals did not result in prosecution 
and punishment. Crime was on the increase, due to the 
new trinity of crime, — hooch, the gun and the stolen 
automobile. 

My successor. Jay R. Benton, Esq., enters upon his duties 
under more favorable conditions. Honest and efficient dis- 
trict attorneys are now administering these important offices. 
Greater co-operation between these officials and the estab- 
lishment of an efficient State Constabulary have checked 
the increase in crime. The abuse of the power to nol pros 
and file cases has been restrained by appropriate legislation. 
Similarly, the extortionate practices of professional bail 
men have been largely eradicated. The court has revoked 
the authority of all bail commissioners in Suffolk County, 
and care is being taken in the selection of new commissioners. 



1923.] PUBLIC DOCUMENT — No. 12. xlix 

The ctongestion in the criminal business of the Superior 
Court and the grave defects in the present jury system still 
remain uncorrected, but my successor is familiar with con- 
ditions and fully prepared to aid in securing remedial legis- 
lation. Trained under three successive Attorneys-General, 
he brings to the office a broad experience, sound judgment, 
and marked ability. The Commonwealth may well have 
confidence in his administration. 

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

Respectfully submitted, 

J. WESTON ALLEN, 

Attorney-General. 



ATTORNEY GENERAL'S REPORT. [Jan. 



Appendix A. 



Extract from the Confession of William J. Corcoran 
MADE ON Jan. 19, 1922, relating to his Participation 
IN THE So-called Berman Case. 

[Note. — In the Berman case as presented in the Pelletier removal proceed- 
ings {Attorney General v. Pelletier, 240 Mass. 264, 335-337) the court found, in 
substance (among other things), that $50,000 was demanded "in settlement of 
a claim which he [Corcoran] purported to have, growing out of the circumstance, 
as was said, that ' a married woman came in with a strange husband and slept 
in the house overnight'"; that S35,000 was stated by Mr. Coakley to be the 
least sum that would be accepted; and that Mr. Coakley said that "if the claim 
was not settled, Berman, his two sons and Gordon would all *be indicted to- 
morrow.'" The $35,000 was paid to Mr. Coakley. The court found that 
"the respondent [Pelletier] consciously used the powers of his office to aid in 
the extortion of this money, . . . and is guilty of this charge."] 

Now, then. I will take up the Higgins Hotel case and 
give a narrative of my connection with that. I was up in 
the Bellevue Hotel. I don't know the dates. It was during 
the latter part of my term as district attorney in Cambridge, 
and I have forgotten the time of day, and I cannot tell by 
the fact that I was eating there at the time, because I fre- 
quently ate luncheon or dinner or breakfast, or all three 
meals there, although I was living at home, because often I 
would come in with just having coffee at home. So there is 
no way to determine what time of day it was except that it 
was daylight. 

I got a call to come to the phone and Coakley was on the 
phone. I was eating there all alone, and he said to me, "I 
have been telephoning you all over hell's kitchen," and he 
says, "Do you spend all your time in the Bellevue?" 

So I said, "No, I am just having a bite to eat." 

He said, "I want to see you. How soon will you be 
through?" 

I said, "I haven't got my order yet. I will be through in 
half or three-quarters of an hour. Are you coming up here?" 

"No, I have got a matter that I want you to handle, so," 
he said, " when I telephone, to with your dinner or what- 
ever you are eating; you come right down here." 



1923.] PUBLIC DOCUMENT — No. 12. li 

So I said, "All right." 

He said, "You will hear from me in a minute." So in a 
minute he rang me and in a very brusque way says, "Mr. 
Corcoran?" 

"Yes." 

"Hello, Bill. Now I got a matter I want to see you about. 
Where are you?" 

"I am in the Bellevue Hotel." 

"You are right near here. Could you come down to my 
office and see me and some other men?" 

"Yes, I will be down." 

So he said, "I will see you in a few minutes." 

I had got started out of the Bellevue when the waiter 
called me back and Coakley was on the phone again. He 
said, "There is one thing I meant to tell when I first talked 
to you. I haven't got time to talk about this matter. This 
is a matter involved, more or less; it is a matter I am not 
going to explain over the phone. So you do a lot of listening 

and ■ little talking, see. So if anything occurs to you in 

the course of the conversation, let me handle it. You do the 
heavy looking on, and as soon as I get through talking that 
will be your time to take your hat and coat and get along. 
Don't have anything to say and save your prayers." I re- 
member that very well. 

He says, "Get that, because these people are all friends of 
mine." So I said, "All right." I was announced. 

I was shot right in. In Coakley's private office was Coak- 
ley and Ike Gordon was sitting there and I think there was 
some young fellow sitting there. My impression is he was a 
relative of this man Berman. Now, Berman was there. Yes. 
I never knew his name unless I heard it that day, I suppose, 
until this case came along. As I remember, there was a man 
of Jewish appearance, I think, with a beard or chin whiskers; 
I should say a man fifty-five or sixty years of age, of medium 
size. 

And there may have been other people there. My impres- 
sion is there was quite a group of people there, but I don't 
recall any others. There was nobody else, as I remember, 
there that I knew except Ike Gordon, whom I knew very 
well. 

As soon as I got in there Coakley jumped up and he said, 
" Well, now, here is brother Corcoran." And he says, " Cor- 
coran, Mr. Yip, Mr. So-and-So, Mr. So-and-So," and intro- 



lii ATTORNEY GENERAL'S REPORT. [Jan. 

duced me to two or three people, and there was the ordinary 
bustle of men getting up, " How do you do," and so forth. 

And Coakley immediately began to talk and it was a 
rapid-fire, sharp talk — these " Everybody here is a friend of 
mine and you are a friend of mine, and now, regarding this 
case, what he demands and what is wanted, and I understand 
that the claim is for $50,000, or suit for $50,000," and Coakley 
talked until I can only say that he left the impression that 
he wanted me to bring a suit for $50,000 against the Higgins 
Hotel or else defend a suit for $50,000 against the Higgins 
Hotel, and as Christ is my judge, that is the truth, and it 
was a deliberately designed and framed conversation that I 
did not know what was going on. 

Now, at that time and never before or never since had I 
had any case or any claim against the hotel or against any- 
body in connection with the hotel, and I knew Ike Gordon 
ran the hotel and I knew Ike well enough, if I had any case 
against the hotel, to ring him up on the telephone and talk 
to him about it, and I knew him well enough so that I would 
not take any case against the hotel or against him that would 
hurt him. 

And I would put right in here, too, that I never talked with 
Pelletier about the Higgins Hotel; I never asked Pelletier to 
send for any books from the Higgins Hotel, and I never knew 
any book of the Higgins Hotel was sent for until I heard of 
it in connection with this case, and I think the first thing I 
heard of it in connection with this case was when I read 
McDevitt's, the police officer's, testimony that he went down 
and got them. And I do not know where I will find words or 
need words to fully and completely disassociate myself from 
ever having had a claim or client against the Higgins Hotel 
since, before or during this period. And I never called Pelle- 
tier or anybody connected with his office about the Higgins 
Hotel or Ike Gordon about it. I want to disown any asso- 
ciation of Pelletier and me in connection with any claim 
against the Higgins Hotel. I want to, as clearly and as em- 
phatically as I can, deny that I ever had a claim against the 
Higgins Hotel, directly or indirectly, except in so far as 
Coakley hurrahed me into his office for five minutes and hur- 
rahed me out, and did all the talking, as you well know how 
he talks, Billy. And I did all the listening, and of course you 
know that anybody that is a friend of Coakley does most of 
that. And I have got enough association with Dan Coakley 



1923.] PUBLIC DOCUMENT — No. 12. liii 

to answer for without answering for something that I do not 
propose to be framed in on by him. 

Now, something was said about my being abusive there. 
I have no recollection of saying a word, unless I assented to 
myself bringing a suit for $50,000 or defending a suit for 
$50,000. And I say that this man Berman is correct when he 
said he did not understand what claim was being made there. 
Nobody ever did understand what claim was being made 
there and it was purposely and designedly put in that form 
by Dan Coakley so nobody would know what kind of a claim 
was being made there. And he did not want me to know 
what kind of a claim was being made there because he did 
not want, if any money — $35,000 or $50,000, or $35 or $50 
— was paid, I was counted all out, his conception of partners 
being that a partner is a partner on liabiHties but never on 
assets. 

So, if you are at a loss to understand why a man with my 
experience at the bar should walk into Coakley's office and 
be a participant in such a situation as that, I do not suppose 
that any one in the world will believe it except you or some- 
body that knows Dan Coakley as you and I know him. But 
it is a fact that I was rushed in there and rushed out of there, 
and it is a fact that Berman, or Berwind, or whatever his 
name is, is correct when he said that there was nobody down 
there to give him any conception of what kind of a case was 
being brought against him. 

He says something in his testimony about my being abusive. 
I guess he is a little thin skinned on that, because the only 
recollection I have of that is abuse I made of Ike Gordon, 
because Coakley said it was not the Hotel Touraine. He said 
it was run a great part especially for the accommodation of 
people who did not like to go to the Hotel Touraine or did 
not have the means to go there, and I, knowing Ike Gordon 
very well, laughed out loud when he said it must be a good 
hotel because Ike Gordon wouldn't have anything to do with 

it otherwise. I said, "What the are you talking about, 

a nice hotel? I remember the Higgins Hotel ever since I 
remember anything, and I never thought I would live to hear 
anybody say it was nice or anything was nice about it unless 
the income from it was nice," and then Coakley gave me the 
eye to get out. 

" And I know you are in a hurry and I will take this matter 
up with you after I have a further conference with my clients." 



liv ATTORNEY GENERAL'S REPORT. [Jan. 

Now, as I hope for anything in this world, that is the con- 
versation. 

He says, "I know you are in a hurry, so hurr}^ along and 
I will see you later." 

So as I go out the door which leads from his office into the 
office of Mr. Sugrue which adjoins Mr. Coakley's and has a 
connecting door between, he says, "Wait a minute." So he 
says. "I will talk to you privately. Perhaps I can talk more 
freely privately." 

I walked out into Sugrue's office and Sugrue was there and 
I was just speaking to Sugrue when he came out. So he says 
— I was just saying hello to Sugrue when Coakley called me 
going through the door, and I says, "What is it?" 

He says, "Nothing at all. I don't want to talk to you any 
more. Go along if you are in a hurry and I will join you a 
little later. I just want to give these people a stall I am 
having a conference with you. Well, I will go in the library 
to have a smoke. I suppose you are in a hurry." 

I says, "Why don't you come up and have a bite with me?" 

He said, "I will stay out here. I have a word or two I will 
possibly have with Dan." 

I went along up to the Bellevue. 

Now, within two or three days of that incident I was in 
the Bellevue and Dan Coakley came in and came over and 
sat down with me. There was no appointment or anything, 
and we got talking about Nate Tufts who was running for 
district attorney at the time. This was before election. 
These dates were before election day, because I saw the 
Higgins Hotel people prior to this second interview with 
Coakley, and this second interview was before Nate Tufts 
was elected district attorney. 

I think it was either election day of that year or the day 
before election. I can't say which, but it was one or the 
other. We got talking about Nate Tufts' fight and he 
brought the matter up and I discussed the size of his majority, 
which was the only question, and he asked me how much it 
would be in my judgment. 

"Well, it depends upon whether he can get out the vote or 
not." I think it was presidential election and Hughes was 
running. I said, "This fellow will get more majority than 
Hughes, because Hughes may have more whiskers but he 
has more feet. He gets around the ground a great deal 
more than Hughes does, and as a walking candidate he has 



1923.] PUBLIC DOCUMENT — No. 12. Iv 

got the world beat," and I says, "He knows everybody since 
this thing started. And he needs workers at the polls," I 
says. 

He says, "How much will he need?" 

And I said, "$1,500 or S2,000." 

He says, "Well, you know that matter that you was in the 
office about the other day, the Higgins Hotel matter of Ike 
Gordon." 

And I says, "Yes." 

He says, "I closed that matter," and he says, "I am going 
to give you $1,500 or $2,000 (whichever the amount was he 
gave me)." It was either one or the other sum, and I can- 
not remember which, because the money was not given to me 
for my own use. 

And he says, "We might as well let the tail go with the 
hide on this fellow and give him his majority." He said, " I 
will put that money up. I think it is good politics." 

So he gave me a check for one amount or the other, and 
my impression is it was either a check of the Higgins Hotel 
or a check of one of the Hermans or somebody affiliated with 
them for that amount. 

And he said to me, "This check is perfectly all right, so 
you can go down to your bank and cash it and get the cash 
and dig this fellow up and give him the money and give it 
to him in cash." 

And that is the reason that I am particularly sure my 
recollection is correct, because if it was his own check there 
would have been no conversation relative to the check being 
"perfectly all right." 

And I said, "All right." 

I finished what I had to eat, and he said, "You go along 
now and get a car and jump and get ahold of this fellow." 

I went down to the Beacon Trust Company. I don't know 
but I might have had my own car. I went down to the 
Beacon Trust Company and cashed the check over the 
counter, and I am sure I endorsed it, and I got $1,500 or 
$2,000, whatever the amount was in hundred dollar bills, 
and got hold of Tufts and gave it to him. And I am sure it 
was the day before election. 

Now I complete the whole story of my connection with the 
Higgins Hotel case with that statement. The hotel case 
was never mentioned by Coakley to me from that day until 
this Pelletier information was filed, and I was dumbfounded 



Ivi ATTORNEY GENERAL'S REPORT. [Jan. 

when I heard about the $35,000 or $50,000 conspiracy with 
Pelletier and me to extort that much money from these 
people. 

In the first place, as I said to you, the only association I 
had with money of that size in connection with the Higgins 
Hotel is the recollection that it was an ad damnum of that 
size. I did not think the Higgins Hotel was worth $50,000 
or $35,000, either. 



"Well," he said, "you know, on this Higgins hotel case 
you have got to stand for it that you got $35,000 and I 

don't know how the you are going to do it. What do 

you say on that proposition?" 

Before, I say it very frankly, that, at the time, and up to 
the time when I found Coakley and Pelletier were betraying 
every confidence that I had and satisfied myself that the only 
thought they had in common to-day was a regret on the part 
of each that he could not sell out the other to save himself, 
I was prepared to do anything that my sense of loyalty and 
devotion and friendship to Dan Coakley called on me to do 
to save him. And I say this: That I would have done it 
with little regard for myself, as I have often done things for 
him. 

But I said to him, "With regard to the Higgins hotel case, 

of course, this is for me. I never knew anything about 

it. You know I was hurrahed into it and hurrahed out of it, 
and I never knew anything about any $35,000, and my income 
tax returns to the State and the government show that. I 
never had any client, and the Supreme Court will never be- 
lieve that I had any phony client that was a short, tall, dark 
complexioned blond and his first name was Marty. They will 
never believe that; and I never saw him before or knew where 
he came from or never saw him since. I can't do that. The 
only thing I can do," I told him, "I am over beyond the line 
of their process, except on the process of the New York 
courts, and on that proposition I will tell the New York 

courts to go to and that I won't testify, and it will be 

two years from now before they will make me testify, and 
there is no contempt of court there for refusing to testify 
before a commissioner; that I haven't got grounds enough in 
law on this process here — or can get them — to refuse to 
answer on legal grounds; and then take the matter up to the 



1923.] PUBLIC DOCUMENT — No. 12. Ivii 

New York Court of Appeals, and by the time those gentlemen 
get around to say I should have answered, I will be all ready 
to answer; I may be dead and buried by that time. But I 
can't come into court and say that I got that money. In the 

first place, as I said, my income tax knocks it to . In 

the second place, my bank accounts show it isn't so; and in 
the third place, it is incredible I had a client in a case of that 
importance and never saw him before or since or knew where 
he came from, or anything of that sort. Nobody will believe 
it." I said, "I can't see anything to it except refusing to 
testify." 

And he said, "That is bad, too." 

I said to him, "How the can my refusal be charged 

up to Pelletier? I don't give a what reasons are given 

for my refusal. My attitude might very well be: I am in 

New York, I am out of the State of Massachusetts; to 

with the State of Massachusetts and its officials, and what 
they do and don't do. How can that be charged up to Pel- 
letier? I will adopt any attitude of belligerency or abuse that 
is necessary, or Pelletier can make any explanation that he 
wants to of why I won't go through. I will stand for any 
explanation at all. But I can't stand for getting that money 
when I didn't get it and the complete records — every record 
in existence shows that I didn't get it." 



Iviii ATTORNEY GENERAL'S REPORT. [Jan. 



Appendix B. 



Extract from the Confession of William J. Corcoran 
MADE Jan. 19, 1922, disclosing the Plan of Daniel 

H. COAKLEY TO PREVENT THE TrIAL OF PeLLETIER BY 

indicting Judges of the Supreme Court. 

Weeks before the indictments were returned by the Suf- 
folk County grand jury against Mr. Justice Pierce and At- 
torney-General Allen, the exact date of which I will be able 
to refresh mj- memory on later, I was at Dan Coakley's 
house, having been informed by him that indictments were 
being sought for by Allen, as a result of which I came from 
New York to Boston and went out to his house and spent 
several hours in conversation with him. The date of this 
visit with Coakley was prior to the indictment (by the same 
grand jury that indicted me) of Allen and Judge Pierce. 

I discussed the charges which were said to be in the pos- 
session of Allen in great detail with Coakley and was told 
in so many words, and practically literally in these words, 
by him at that time: 

Go back to New York and go to sleep on any indictment before this 
grand jury so far as you are concerned, Bill. I am getting ready to throw 

the harpoon into Allen and also into Pierce, and if stands up in 

his boots, also into old , and the indictments that that grand jury 

will return will be indictments against those gentlemen, and when I 
get through with Allen, your troubles will be over, as well as my own, 
because I will see to it that he is rushed to trial before Pelletier, and 
with criminal conviction, the Legislature will take him like Grant 
took Richmond. 

And I said to him, "W^hat does Joe (meaning Pelletier) 
say on the evidence? Have you got the goods?" 

He says, "We have got the goods on Allen all right, I 
guess, . . . that the larceny was small enough but it was 

larceny all right, and to with it whether there was or 

not, because there was enough to go to a jury after his in- 
dictment, and any Suffolk grand jury would take Allen all 
right." 



1923.] PUBLIC DOCUMENT — No. 12. lix 

So I said to him, "Well, what about the Pierce situation?" 
And he told me in a good deal of detail the connections that 
Pierce is said to have had with a lawyer by the name of 
Ulmer that lived down at Nantasket Beach near Pelletier, 
or used to live down there in the summer. . . . 

And I said to him, "It would have to be pretty strong 
stuff on a judge of the Supreme Court, and is there anything 
more to it than any lawyer might do who was socially friendly 
with the judge, sending him some flowers or being on pleasant 
sociable terms with him, as many lawyers are with many 
judges, and as I have been on pleasant terms with many 
judges; that there was no corruption involved with them. . . ." 

I said, "Let's get to the point, because I know something 
about criminal practice. Have you got the goods on them?" 

And he said, "The Suffolk grand jury is eating 

out of my hand and will do any thing I want done. 

I have got them and the Suffolk jury will do any- 
thing I want done, and I will have it for them." 

He said, "We have goods enough on them to make them 
see that Dan Coakley is on the job, and those fellows don't 
want to go through with the indictment if they are wise." 

I said to him, "Well, that is all right; that ends this situ- 
ation if you can bring that about, but," I said, "I don't 

know; I can't conceive — I don't think a of a lot of 

Allen, but, by , I can't see, unless you have got him 

cold or dead to rights, where it does the Pelletier situation 

and everybody's situation a sight more harm than 

good; and what to benefit is it going to do any situ- 
ation to take Pierce and indict him?" And I said, "So far 

as old man is concerned, don't believe that old man 

■ — — would get out of his chair to help Pierce or any other 
man on earth in fixing up any master's report," which was 
the story that I got; that it was a conspiracy to corrupt 
justice; ..." 

And he said to me, "I don't know whether we can get 

them to hang the tag on or not but," he said, " , 

I am going to break my back that is indicted, too," 

"and then we get the liver scared out of . . ." 

And he says, " With two judges under indictment and 

with a belly ache, it is all he can handle. Where the 

do they get off to get a majority to try Pelletier? They 

will try Pelletier after they have gone over the hot sands 



Ix ATTORNEY GENERAL'S REPORT. [Jan. 1923. 

themselves; that is when they will try Pelletier," and he 
says, "They can try you, and you can take my word on it, 
after they are through trying themselves." So he says, 
" Don't you worry about that thing." He says, " I am always 

worried about facts till I get the facts bottled up," and 

he says, "And I am glad you came in because we have 

got to have another talk about this Pelletier situation." 



OPINIONS. 



Armories — Office Furniture and Equipment — Chief Quarter- 
master — Superintsndent of Buildings. 

Under G. L., c. 33, § 44, the care and maintenance of all armories belong- 
ing to the Commonwealth, including the purchase of furniture and 
equipment therefor, devolves upon the chief quartermaster. 

Jan. 5, 1922. 
Brig. Gen. Jesse F. Stevens, The Adjutant General. 

Dear Sir: — On behalf of the Armory Commission you 
request my opinion as to whom authority has been given to 
purchase certain furniture and equipment for State armories. 

In your letter you point out that G. L., c. 33, § 45, pro- 
vides that the Armory Commission shall erect, furnish and 
equip armories, and that, under G. L., c. 8, § 6, it is provided 
that the Superintendent of Buildings "shall have charge of 
purchasing all office furniture, fixtures, equipment, stationery 
and office supplies for all executive and administrative depart- 
ments and officers. ..." 

At the outset, let me call to your attention that by G. L., 
c. 33, § 45, it is provided that the iVrmory Commissioners 
"shall rebuild, remodel or repair armories of the first class 
injured or destroyed by fire, and may reconstruct, remodel, 
enlarge or otherwise improve existing state armories, if they 
deem the needs of the service so require, and shall construct 
additional armories until the volunteer militia shall be pro- 
vided with adequate quarters. They shall designate the 
location of armories so to be constructed and shall thereupon, 
on behalf of the commonwealth, . . . acquire . . . suitable 
lots of land . . ., and shall erect, furnish and equip thereon 
armories sufficient for one or more companies of militia. ..." 
You will note, however, that by the preceding section (§ 44) 
it is provided that, on the completion and acceptance of all 
armories erected by the Commonwealth, the care and main- 
tenance thereof, as well as the care and maintenance of all 
armories belonging to the Commonwealth, shall devolve upon 
the chief quartermaster. 



2 ATTORNEY GENERAL'S REPORT. [Jan. 

Previously the provision as to the care and maintenance 
of armories devolving upon the chief quartermaster was 
found in Gen. St. 1917, c. 327, § 40, and the provision as to 
the Superintendent of Buildings having charge of purchasing 
supplies was found in Gen. St. 1919, c. 350, § 19. 

When the statutes of the Commonwealth were revised by 
the commissioners and consolidated into the General Laws, 
both these statutory provisions were brought forward and 
made a part of the General Laws, as above stated. Both, 
therefore, must be taken as independent and co-existing 
statutes: the one, G. L., c. 33, § 44, relating to a particular 
field of purchasing office supplies, to wit, for the armories 
belonging to the Commonwealth, the other, G. L., c. 8, § 6, 
relating to the purchasing of office supplies in general. This 
being so, the rule of construction, that when the provisions 
of a particular statute conflict with those of a general statute 
they are in force as to the particular matters with reference 
to which they are enacted, should be applied. 

Accordingly, in my judgment, the chief quartermaster has 
charge of purchasing the furniture and equipment in question 
for the State armory, the care and maintenance of which 
have been placed upon him by a particular statute. 
Yours very truly, 

J. Weston Allex, Attorney General. 



Billboard Advertising — Rules and Regulations of the Division 
of Highways — Public Ways — Permits. 

Where outdoor advertising signs and devices project into or over public 
ways in any city or town, the duty of granting permits for the plac- 
ing and maintenance of such signs rests with the municipal board or 
officer having charge of the laying out of pubHc ways. 

Jan. 11, 1922. 
Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You request my opinion upon a question 
of law based on the following facts : — 

Your department is in receipt of two applications for 
permission to erect advertising signs which will be located 
inside the highway location of the streets of the city of 
Boston. One of these signs is to be located at the corner 
of HoUis and Tremont streets, the other is to be located on 



1923.] PUBLIC DOCUMENT — No. 12. 3 

the second story of a building at the corner of Tremont and 
Eliot streets. 

You ask whether or not the signs in question can be 
placed within highway locations, contrary to your rules and 
regulations concerning outdoor advertising. 

G. L., c. 93, §§ 29 to 33, inclusive, provide, so far as is 
pertinent to your question, that the Division of Highways 
shall make rules and regulations for the proper control and 
restriction of billboards, signs and other advertising devices 
on public ways or on private property within public view 
of any highway, public park or reservation, and that no one 
shall post, erect, display or maintain on any public way or 
on private property within public view from any highway, 
public park or reservation any billboard or other advertising 
device, unless such billboards or device conforms to the 
rules and regulations. Your rules for the erection of adver- 
tising signs and devices, under date of June 29, 1921, provide, 
by section 5, clause A, that "no outdoor advertising shall be 
permitted within the bounds of any highway." 

G. L., c. 85, § 8, provides as follows: — 

The municipal board or officer having charge of the la^dng out of 
public ways umy grant permits for the placing and maintaining of 
signs, advertising devices, clocks, marquees, permanent awnings and 
other like structures projecting into or placed on or over public ways 
in its town, and msLj fix the fees therefor, not exceeding one dollar for 
smy one permit, and may make rules and regulations relating thereto, 
and prescribe the penalties for a breach of any such rules and regula- 
tions, not exceeding five dollars for each day during which any such 
structure is placed or maintained contrary to the rules and regulations 
so made, after five days' notice to remove tlie same has been given by 
such board or officer, or by a police officer of the town. All such 
structures shall be constructed, and, when attached to a building, 
shall be connected therewith, in accordance with the requirements of 
the inspector of buildings, building commissioner or other board or 
officer having like authorit}' in the town. 

Previously the statutory provisions as to permits for 
signs and other structures projecting into ways were found in 
Gen. St. 1915, c. 176, and the provisions for the regulation of 
advertising signs and devices within the public view were 
found in St. 1920, c. 545. When the statutes of the Com- 
monwealth were revised by the commissioners and con- 
solidated^into the General Laws both these statutory pro- 



4 ATTORNEY GENERAL'S REPORT. [Jan. 

visions were brought forward and made a part of the General 
Laws, as above stated. Both, therefore, must be taken as 
independent and co-existing statutes: the one (G. L., c. 85, 
§ 8) rehiting to particular signs, advertising devices and 
other structures projecting into or placed on or over public 
ways in a city or town, and the granting of permits therefor 
by the local authorities; the other (G. L., c. 93, §§ 29 to 
33, inclusive) relating to the control and restriction of bill- 
boards, signs, and other advertising devices on public ways 
or on private property within public view in general. This 
being so, the rule of construction, that where a matter is 
within the language of a general statute and also within 
that of a special enactment the presumption is that the 
special enactment shall control, is to be applied. 

The signs in question, when erected, will project into or 
over public ways in the city of Boston, and the duty of 
granting permits for the placing and maintaining of the 
same is placed upon the municipal board or officer of the city 
of Boston having charge of the laying out of public ways. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Const itidional Laic — Vacancy in the Executive Council — 
Selection of Successor. 

Where a member of the Executive Council dies upon the day that the 
General Court convenes, but some hours before the General Court 
does in fact convene, and such vacancy is not filled by the Governor 
and Council before the Legislature comes into session, such vacancy 
is to be filled by concurrent vote of the Senate and House of Repre- 
sentatives in the manner prescribed by Mass. Const. Amend. XXV. 

Jan. 11, 1922. 
Hon. Frank G. Allen, President of the Senate. 

Dear Sir: — I have the honor to acknowledge receipt of 
the following order: — 

Ordered, That the Senate request the opinion of the Attorney- 
General as to whether the vacancy existing in the Executive Council 
shall, under the Constitution, be filled by appointment by the Governor 
or by concurrent vote of the Senate and House of Representatives. 

Your question is answered by Mass. Const. Amend. XXV, 
which provides: — 



1923.] PUBLIC DOCUMENT — No. 12. 5 

In case of a vacancy in the council, from a failure of election, or 
other cause, the senate and house of representatives shall, by con- 
current vote, choose some eligible person from the people of the dis- 
trict wherein such vacancy occurs, to fill that office. If such vacancy 
shall happen when the legislature is not in session, the governor, with 
the advice and consent of the council, may fill the same by appoint- 
ment of some eligible person. 

I am informed that the vacancy is due to the death of a 
councillor at or about 9 o'clock in the morning of the day 
when the General Court convened. It is unnecessary to 
determine whether, during the interim between the death 
and the meeting of the General Court, the Governor might 
have filled the vacancy, with the advice and consent of the 
Council. It is sufficient that he did not do so, and that the 
vacancy still existed at the time when the General Court 
convened. Under these circumstances, I am of opinion that 
the vacancy existing in the Executive Council should be 
filled by concurrent vote of the Senate and House of Rep- 
resentatives. 

Yours very truly, 

J. Weston x\llen, Attorney Getieral. 



Division of Fisheries and Game — Emyloyee — Compensation — 
Federal Board of Vocational Education. 

Under G. L., c. 29, § 27, the Commissioner of Conservation has no right to 
employ in the Division of Fisheries and Game a deputy inspector of 
fish when there are no funds available for the salary thereof, although 
the Federal Board of Vocational Education agrees to pay such salary 
and necessary traveling expenses until such time as a sufficient appro- 
priation is made by the State. 

Jan. 13, 1922. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You request my opinion as to whether or 
not you have authority to employ in the Division of Fisheries 
and Game, as a deputy inspector of fish, a World W^ar 
veteran who is a citizen of Massachusetts and first on the 
civil service eligible list for this position, w^hen a vacancy 
may occur or more deputy inspectors of fish are added to 
the force, although there are no funds available in your 
division* for the salary of another deputy inspector of fish. 
You state that the Federal Board of Vocational Education 



6 ATTORNEY GENERAL'S REPORT. [Jan. 

agrees to pay such salary and necessary traveling expenses 
until such time as sufficient appropriation may be made by 
the State allowing the inspector of fish to increase his force 
of deputies or put on a temporar}^ deputy. Your question 
resolves itself to this: Can a person be appointed to such 
position in the Commonwealth's employ while his compensa- 
tion will be paid entirely by the United States government? 
G. L., c. 29, § 27, provides as follows: — 

No public officer or board shall incur a new or unusual expense, 
make a permanent contract, increase a salary or emploj^ a new clerk, 
assistant or other subordinate unless a sufficient appropriation to 
cover the expense thereof has been made by the general court. 

This provision of law would seem to answer your question, 
and it would seem that reasons of public policy as well 
would forbid a situation where an official or employee of the 
Commonwealth would thus be serving in a dual capacity. 

I am aware that instances have arisen in the past where 
an employee of the Commonwealth has been permitted to 
receive from the Federal government pay for overtime work 
performed for the latter. Such permission was based upon 
the fact that the overtime did not in any way interfere 
with the efficiency of the regular work of said employee for 
the Commonwealth, being done outside the hours of duty 
belonging to the Commonwealth. The decision in such 
cases, however, rests upon different facts from those pre- 
sented in your communication, and I am consequently of the 
opinion that the statutory provision above quoted should be 
strictly construed and adhered to. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Retirement Association — Employees of the Norfolk County 
Tubercular Hospital and Norfolk County Agricultural 
School — Contrihutions by Employees. 

Employees of the Norfolk County Tubercular Hospital and the Norfolk 
Count}^ Agricultural School are employees of the county and mem- 
bers of the Retirement Association under the provisions of G. L., 
c. 32, §§ 20 and 22. 

Contributions to the association should be paid by said employees from 
the date upon which they became members, as defined in § 22. 



1923.] PUBLIC DOCUMENT — No. 12. 7 

Jan. 19, 1922. 

Hon. Clarence W. Hobbs, Commissioner of Insurance. 

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

1. Are employees of the Norfolk County Tubercular Hospital and 
the Norfolk Count3^ Agricultural School employees of the county, 
within the meaning of G. L., c. 32, § 20? 

2. If the preceding question is answered in the affirmative, have 
such employees become members of the Retirement Association, under 
the p^o^'^sions of section 22 of said chapter? 

3. If the foregoing question is answered in the affirmative, should 
contributions to the association be paid by said employees from the 
date upon which they became members under the provisions of said 
section 22, or is it permissible for the association to begin to accept 
their contributions running from the present date? 

From data submitted by you it appears that the aforesaid 
institutions w^ere established after the retirement act became 
effective in Norfolk County, July 1, 1912. 

It is assumed that both the Norfolk County Tubercular 
Hospital and the Norfolk County Agricultural School are 
purely county institutions, since each is controlled by a 
board of public trustees, of which boards the county com- 
missioners form a part. The employees in question are paid 
entirely from county funds raised by taxation. 

G. L., c. 32, § 20, defines "employees" (within the meaning 
of the retirement systems and pensions) as follows: — 

Permanent and regular employees in the direct service of the county 
whose sole or principal employment is in such service. 

Section 22 of said chapter provides: — 

Whenever a county shall have voted to establish a retirement 
system under section twenty-one, or corresponding provisions of 
earlier laws, a retirement association shall be organized as follows : 

(1) All employees of the county on the date when the retirement 
system is declared established by the issue of the certificate under 
section twenty-one msiy become members of the association. On 
the expiration of thirty days after said date, every such employee 
shall thereby become a member unless he shall have, within that 
period, sent notice in writing to the county commissioners or officers 
performing like duties that he does not wish to join the association. 

(2) All employees who enter the service of the county after the date 



8 ATTORNEY GENERAL'S REPORT. [Jan. 

when the sj^stem is declared established, except persons who have 
already passed the age of fifty-five, shall, upon completing ninety 
days of service, thereby become members. ... 

I therefore answer questions 1 and 2 in the affirmative, 
and in answer to question 3 it is my opinion that it is not 
permissible for the association to begin to accept contribu- 
tions of employees running from the present date, but that 
contributions to the association should be paid by said 
employees from the date upon w^hich they became members 
under the provisions of section 22. 
Very truly yours, 

J. Westox Allex, Attorney General. 



Hunting or Fishing License — Unnaturalized Foreign-horn Resi- 
dent — Citizens. 

A native of the Phihppine Islands, resident in this Commonwealth, who 
has not been naturalized and who does not own real estate assessed 
for taxation at not less than $500, is not entitled to a hunting or 
fishing license. 

Territory acquired by conquest or purchase does not, ipso facto, become 
a part of the United States, within the meaning of the Constitution. 

The Fourteenth Amendment is limited, with respect to citizenship, to 
persons born or naturalized in the United States. 

Natives of the Philippine Islands did not become, and are not, citizens 
of the United States. 

Jan. 20, 1922. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You have requested my opinion as to whether 
a native of the Philippine Islands, resident in this Common- 
wealth, who has never been naturalized and who does not 
own real estate in this Commonwealth, is entitled to a hunting 
or fishing license. The question is whether such a person is 
an unnaturalized foreign-born resident, within the meaning 
of G. L,, c. 131, § 7, which reads as follows: — 

An unnaturalized foreign born resident owning real estate in the 
commonwealth assessed for taxation at not less than five hundred 
dollars may be granted a certificate of registration. He shall pay 
for such registration a fee of fifteen dollars to the clerk of the town 
where he resides, or for a certificate to fish only a fee of one dollar to 
the clerk or a deputy registrar. 



1923.] PUBLIC DOCUMENT - No. 12. 9 

Article IX of the Treaty of Peace with Spain, concluded 
at Paris, provides, in part, that — 

The civil rights and political status of the native inhabitants of the 
territories hereby ceded to the United States shall be determined by 
Congress. 

The act of July 1, 1902 (32 U. S. Stat. 691), reads, in 
part, as follows : — 

Sec. 1. . . . The provisions of section eighteen hundred and 
Tiinet3"-one of the Revised Statutes of eighteen hundred and seventy- 
eight shall not apply to the Philippine Islands. . . . 

Sec. 4. That all inhabitants of the Philippine Islands continuing 
to reside therein who were Spanish subjects on the eleventh day of 
April, eighteen hundred and ninety-nine, and then resided in said 
Islands, and their children born subsequent thereto, shall be deemed 
and held to be citizens of the Philippine Islands and as such entitled 
to the protection of the United States, except such as shall have 
elected to preserve their allegiance to the Crown of Spain in accordance 
with the provisions of the treaty of peace between the United States 
and Spain signed at Paris December tenth, eighteen hundred and 
ninety-eight. 

See also act of Aug. 29, 1916, c. 416, § 2 (U. S. Comp. Stat., 
1916, § 3809). 

U. S. Rev. Sts. of 1878, § 1891, referred to above, provides 
as follows: — 

The Constitution and all laws of the United States which are not 
locally inapplicable shall have the same force and effect within all 
the organized Territories, and in every Territory hereafter organized 
as elsewhere within the United States. 

Territory acquired by conquest or purchase does not, ipso 
Jacto, become a part of the United States, within the meaning 
of the Constitution. The Fourteenth Amendment is limited, 
with respect to citizenship, to persons born or naturalized 
ifi the United States, and is not extended to persons born 
in any place subject to the jurisdiction of the United States. 
Downes v. Bidivell, 182 U. S. 244, 251; Dorr v. United States, 
195 U. S. 138; Gonzales v. Williams, 192 U. S. 1. It is thus 
clear that natives of the Philippine Islands did not become 
and are not citizens of the United States. 



10 ATTORNEY GENERAL'S REPORT. [Jan. 

I am therefore of the opinion that such persons residing 
in the Commonwealth, who have not been naturalized and 
who do not own real estate in the Commonwealth assessed 
for taxation at not less than $500, are not entitled to hunting 
or fishing licenses. 

Very truly yours, 

J. Westox Allen, Attorncij General. 



Constitutional Law — Eligibility of JJ^omcn to be elected ta 

Congress. 

Under U. S. Const., art. I, §§ 2 and 5, a woman is eligible to be elected as 
a representative to Congress. 

Jan. 27, 1922. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You inquire whether women are eligible to 
be elected as representatives in Congress. The answer to 
your question depends upon the Constitution of the United 
States. U. S. Const., art. I, § 2, provides, in part: — 

The house of representatives shall be composed of members chosen 
every second j^ear by the people of the several states, and the electors 
in each state shall have the qualifications requisite for electors of the 
most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the 
United States, and who shall not, when elected, be an inhabitant of 
that state in which he shall be chosen. 

Section 5 provides, in part: — 

Each house shall be the judge of the elections, returns and quali- 
fications of its own members. . . . 

The Nineteenth Amendment to the Constitution of the 
United States further provides: — 

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. 

Congress shall have power to enforce this article by appropriate 
legislation. 

Women are included among the electorate of this Common- 
wealth by the terms of our Constitution, as modified by the 
terms of the Nineteenth Amendment to the Constitution of 



1923.] PUBLIC DOCUMENT — No. 12. 11 

the United States. Opinion of the Justices, 237 Mass. 591. 
Under U. S. Const., art. I, § 2, they are entitled to vote for 
members of the national House of Representatives. Art. I, 
§ 2, prescribes the express qualifications for membership in 
that body. Under art. I, § 5, that house is the judge of the 
qualifications of its own members. In re Loney, 134 U. S. 
372, 373. See also Dinan v. Sicig, 223 Mass. 516. 

Women have been elected to the national House of Repre- 
sentatives and have been permitted to take their seats as 
members. In my opinion, this constitutes a decision by 
that house, as the judge of the qualifications of its own 
members, that women are not impliedly excluded. The fact 
that, under the Constitution of this Commonwealth, con- 
strued in the light of decisions and advisory opinions of the 
Supreme Judicial Court, women are not eligible to election 
to the state House of Representatives has no bearing upon the 
construction placed by the national House of Representatives 
upon the Constitution of the United States. Attorney 
General's Report, 1921, p. 217. In my opinion, the decision 
of the national House admitting women to membership 
establishes that they are eligible to membership. 
Yours very truly, 

J. Weston Allen, Attorney General. 



State Finance — Public Moneys — A mount deposited in Any 
One Bank — How determined. 

Under G. L., c. 29, § 34, the ''amount deposited" by the Treasurer and 
Receiver-General in any one bank or trust company is determined 
either by the books of the bank, or by adding to the balance showTi 
by the books of the Treasurer and Receiver-General all outstanding 
checks not known to have been certified at the instance of the holder 
or paid. 

Jan. 28, 1922. 

Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — G. L., c. 29, § 34, provides, in part: — 

The state treasurer may deposit any portion of the public moneys 
in his possession in such national banks, or trust companies, lawfully 
doing business in the commonwealth, as shall be approved at least 
once in three months by the governor and council; but the amount 
deposited in any one bank or trust company shall not at any one 
time exceed forty per cent of its paid up capital.. . . . 



12 ATTORNEY GENERAL'S REPORT. [Jan. 

You inquire whether the ''amount deposited" shall be 
ascertained by deducting from the amount on deposit, as 
shown by your check book, the amount of checks drawn and 
issued against such deposit, or from the bank ledger which 
shows the actual balance on hand after deducting such 
checks as have been presented and certified or paid. You 
state that in actual practice the bank ledger balance will 
generally show a larger sum on deposit than the check book 
balance, since the bank ledger does not show outstanding 
checks which have not been presented for certification or 
payment, and that the two balances are reconciled by adding 
to the check book balance the amount of the unpresented 
checks. 

G. L., c. 29, § 34, limits the amount of public money which 
may be subjected to the risk that a particular bank may 
fail to 40 per cent of the paid-up capital of such bank. 
G. L., c. 107, § 212, provides: — 

A check of itself does not operate as an assignment of any part of 
the funds to the credit of the drawer with the bank, and the bank is 
not liable to the holder unless and until it accepts or certifies the 
check. 

This section declares the law as it previously existed in 
this Commonwealth. Carr v. National Security Bank, 107 
Mass. 45, 49; Dana v. Third Xational Bank, 13 Allen, 445. 

Since the mere issue of a check does not operate as an 
assignment of any part of the deposit, it cannot reduce the 
amount of public money which stands upon the books of the 
bank to the credit of the Commonwealth subject to the risk 
that the bank may fail. It follows that outstanding checks 
which have not been paid by the bank or certified at the 
instance of the holder (which, under G. L., c. 107, § 211, 
would discharge the Commonwealth as drawer) cannot be 
considered in determining the maximum amount which the 
Treasurer and Receiver-General may deposit in the bank 
without violating G. L., c. 29, § 34. 

On the other hand, G. L., c. 29, § 34, must receive a prac- 
tical construction. Zeal for mathematical accuracy at every 
instant of time must not be permitted to deprive the Common- 
wealth of the banking facilities which, as a practical matter, 
are essential to the discharge of public business. Neither 
deposits in nor payments by a bank automatically record 



1923.] PUBLIC DOCUMENT — Xo. 12. 13 

themselves upon the books of the bank at the instant that 
the transaction is completed. The physical limitations inci- 
dent to all human endeavor necessarily prevent the record 
from keeping pace, at every instant, with the actual trans- 
actions. In spite of this necessary discrepancy, practical 
considerations require that both the Treasurer and Receiver- 
General and the bank must be permitted to rely upon the 
records of the bank. 

The law does not ordinarily take cognizance of fractions 
of a day. Portland Bank v. Maine Bank, 11 Mass. 204; 
Clark V. Flagg, 11 Cush. 539, 540. So, also, the law will so 
arrange acts performed in one day and relating to one sub- 
ject-matter as to render them conformable to the intentions 
of the parties, without regarding which was, in fact, first 
produced or executed. Taunton & South Boston Turnpike 
Corpn. V. Whiting, 10 Mass. 326, 336; Clark v. Brown, 
3 Allen, 509, 511. I am therefore of opinion that, if the 
record of any particular day should, when extended, appear 
to show that at some time during that day the permitted 
maximum was exceeded, but should further show that sub- 
sequent transactions upon that day corrected the excess, 
neither the bank nor the Treasurer and Receiver-General 
should be deemed to have violated the statute. 

Answering your precise question, I therefore advise you 
that, in my opinion, you may determine the maximum balance 
upon deposit at any given time either by inquiry of the 
bank as to what the books show at that time, or by taking 
the balance upon your own books and adding thereto any 
outstanding checks not known to have been paid. 
Yours very truly, 

J. Weston Allen, Attorjiey General. 



Taxation — Abatement — Whether Tax correctly assessed upon 
the Basis of an Erroneous Return is illegally exacted. 

A tax correctly assessed upon the facts stated in an erroneous return is 
not "illegally exacted," within the meaning of G. L., c. 58, § 27, 
and cannot be abated under that section. 

Jan. 31, 1922. 

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

Dear Sir: — Referring to your inquiry in which my 
approval was requested, under G. L., c. 58, § 27, for the 



14 ATTORNEY GENERAL'S REPORT. [Jan. 

issuance of a certificate to the effect that a tax has been 

illegally exacted from the Bank, the facts appear to 

be as follows: — 

The bank, in the return filed by it on May 7, 1921, reported 
as the deduction allowed under G. L., c. 63, § 12, par. (/), the 
sum of $52,251.34 instead of $694,053.16. This error was not 
discovered by the bank until November. The bank, within 
the period prescribed by law for beginning legal proceedings 
to obtain a repayment of a tax illegally exacted, made appli- 
cation for an abatement of the tax. The Commissioner made 
an assessment of the tax upon the face of the return, and 
there was nothing in the return to indicate that an error 
had been made by the bank with respect to any item. 

G. L., c. o8, § 27, provides: — 

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 illegallj^ exacted, the com- 
missioner may, mth 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 certifi- 
cate for the abatement of any tax shall be issued under this section 
unless application therefor is made to the commissioner within the 
time prescribed b}^ law for beginning legal proceedings to obtain a 
repayment of the tax. This section shall be in addition to and not 
in modification of any other remedies. 

The precise question is whether a tax correctly assessed 
upon the facts which appear in the return is "illegally ex- 
acted," within the meaning of section 27. 

G. L., c. 63, § 13, prescribes the return which must be 
made. The tax is assessed upon the basis of this return. 

It may be urged that any tax which exceeds the amount 
which the defendant ought to pay upon the facts as they 
actually exist is a tax illegally exacted. In my opinion, so 
broad an interpretation cannot be put upon the words "il- 
legally exacted" as employed in this section. 

G. L., c. 58, § 27, makes no provision for correcting errors 
in the tax return at the instance of the taxpayer. In this 
respect it differs from G. L., c. 63, § 51, which provides: — 

Application for the abatement or correction of any tax assessed 
under sections thirty to fifty, inclusive, may be made within thirty 



1923.] PUBLIC DOCUMENT - No. 12. 15 

days after the date upon which the notice of assessment is sent, and 
from the decision of the commissioner thereon any corporation may 
appeal in the manner provided by section seventy-one. 

Chapter 63, section 51, does not apply to the present tax, 
since it is not assessed under sections 30 to 50. The omission 
from G. L., c. 58, § 27, of any provision for correction similar 
to that contained in chapter 63, section 51, is a significant 
indication that the provision for abatement in section 27 
extends only to error in the mode of assessment, and does 
not extend to correction of the return upon which that 
assessment rests. It follows as a necessary consequence that 
a tax correctly assessed upon the facts appearing in the 
return is not illegally exacted, within the meaning of that 
statute. The taxpayer cannot successfully attack the legality 
of the assessment by showing that he himself stated the 
facts erroneously in his return. 

I am therefore of the opinion that, since chapter 58, sec- 
tion 27, contains no provision for correction of the return 
at the instance of the taxpayer, it confers no power to abate 
a tax correctl}^ assessed upon the facts disclosed by the 
return. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Taxation — Abate me fit — Effect of Failure to ajiply for Abate- 
ment within Thirty Days after Notice of Assessment is 
sent. 

Where a corporation failed to file a proper return, and the Commissioner 
of Corporations and Taxation assessed a tax under G. L., c. 63, § 45, 
upon double the amount of income as determined by him, and gave 
notice of such assessment, a failure by the corporation to apply for 
abatement within thirty days, as required by G. L., c. 63, § 51, ter- 
minates the power of the Commissioner to correct or abate such 
assessment. 

Failure to receive a notice to file a proper return does not excuse a failure 
to apply for abatement within thirty days after the date of the notice 
of assessment of the tax. 

Feb. 3, 1922. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 
Dear Sir: — You state the following case: — 

A domestic business corporation filed a return adjudged insufficient 
by the Commissioner under G. L., c. 63, § 46. The Commissioner 



16 ATTORNEY GENERAL'S REPORT. [Jan. 

mailed a notice to the corporation to file a proper return. This notice 
was not received by the corporation, which continued in default. The 
Commissioner, acting under ?aid section 46, determined the income of 
the corporation according to his best information and belief, and 
assessed a tax upon double the amount so determined, and gave notice 
of such assessment. The corporation failed to apply for an abate- 
ment within thirty days of the date upon which notice of such assess- 
ment was sent, but did apply therefor within six months of said date. 
You inquire whether the Commissioner has any power to grant an 
abatement. 

In my opinion, the failure of the corporation to receive 
the notice that its return was insufficient is immaterial upon 
the question of an abatement. G. L., c. 63, § 51, provides 
as follows : — 

Application for the abatement or correction of any tax assessed 
under sections thirty to fifty, inclusive, may be made within thirty 
days after the date upon which the notice of assessment is sent, and 
from the decision of the commissioner thereon any corporation may 
appeal in the manner provided by section seventy-one. 

It does not appear that the corporation did not receive 
the notice of the tax. It failed to apply for correction or 
abatement within the thirty days prescribed by section 51. 
It has lost that remedy by its own default in failing to apply 
within said thirty days. I am therefore of opinion that you 
have no power to make a correction or grant an abatement 
of the tax assessed by you. 

Yours very truly, 

J. Weston Allex, Attorney General. 



Towns — State Tax — Interest — Abatement. 

Where, owing to a controversy as to the amount of reimbursement from 
the proceeds of the income tax due to a town, under G. L., c. 70, § 1, 
the amount of the State tax assessed to the town, under St. 1921, 
cc. 399 and 492, was not paid within the time required, interest assessed 
as provided by the statute cannot be abated. 

Feb. 7, 1922. 
Hon. James Jackson, Treasurer and Receiver-General. 

Dear Sir: — It appears that on Nov. 15, 1921, a town in 
this Commonwealth owed to the Treasurer and Receiver- 
General, for taxes, a balance of $26,325.08, and that on the 



1923.] PUBLIC DOCUMENT — No. 12. 17 

same day there was due to the town from the Treasurer and 
Receiver-General, as reimbursement from the income tax 
for certain school salaries, the sum of $14,416; that there 
had been a controversy between the Department of Educa- 
tion and the school department of the town as to the amount 
of the reimbursement due to the town, which had been 
settled on or about November 4, but that the amount due 
had not been certified to the Auditor of the Commonwealth 
until November 14; that consequently the Treasurer and 
Receiver-General did not receive the necessary certificate 
from the Auditor of the Commonwealth in time to include 
said amount in the annual settlement sheet on November 
15; and that on November 17 the town treasurer sent to 
the Treasurer and Receiver-General a check for $26,325.08, 
and on the same day the Treasurer and Receiver General 
sent to the town treasurer a check for $14,416. The town 
treasurer states that the town, like other towns, depends 
upon the approximate amount coming from the Treasurer 
and Receiver-General to the town treasurer in order to meet 
the State tax. Interest at the rate of 1 per cent per month 
from Nov. 15, 1921, to the date of payment, amounting to 
$26.33, was demanded by the Treasurer and Receiver-General 
of the town treasurer, and the town treasurer requests that 
the claim for interest be abated. You ask me to advise 
you whether, in my opinion, this interest should be abated. 

I assume that the balance due from the town to the Treas- 
urer and Receiver-General was a balance of the amount of 
the State tax assessed to the town by St. 1921, cc. 399 and 
492. Both these acts contain a provision, in substance, 
that if the amount due from any city or town as provided 
therein is not paid to the Treasurer and Receiver-General on 
or before November 15, the Treasurer and Receiver-General 
shall notify the treasurer of such delinquent city or town, 
*'who shall pa}^ into the treasury of the commonwealth, 
in addition to the tax, such further sum as would be equal 
to one per cent per month during the delinquency from 
and after November fifteenth." 

G. L., c. 70, § 1, provides as follows: — 

The state treasurer shall annually, on or before November fifteenth, 
pay to the several towns from the proceeds of the tax on incomes, 
which shall be available therefor without appropriation, the sums 
required for the purposes of Part I of this chapter, as part reimburse- 



18 ATTORNEY GENERAL'S REPORT. [Jan. 

ment for salaries paid to teachers, supervisors, principals, assistant 
superintendents and superintendents for services in the pubhc day 
schools rendered during the year ending the preceding June thirtieth. 

There is no provision in the acts assessing the State tax 
authorizing an abatement of the assessment of interest if 
the tax is not paid on or before November 15, and there is 
nothing in those statutes making the obligation of payment 
dependent upon receipt of the reimbursement under G. L., 
c. 70, § 1. On the other hand, there is no requirement in 
that section that the Treasurer and Receiver-General shall 
pay interest if the reimbursement is not paid on or before 
November 15. In fact, as the correspondence shows, the 
Treasurer and Receiver-General was not at fault in failing 
to pay the reimbursement in time, but the fault, if any, lay 
with the Department of Education. It must be recognized 
that there is a large measure of equity in the complaint of 
the town treasurer that the claim for interest imposes a 
hardship upon the town. Answering your question specifi- 
cally, however, I do not see that there is any way in which 
the interest imposed by the statutes, without any discretion 
in the Treasurer and Receiver-General as to its collection, 
may be abated. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Law — Commissioner of Public Health — Regula- 
tions and Standards for the Manufacture, Sale or TransjJorta- 
tion of Foods, Drugs, Medicines and Liquors — Eighteenth 
Amendment. 

Under G. L., c. 94, § 192, the Legislature has imposed upon the Depart- 
ment of Public Health the power and duty of making certain rules 
and regulations which shall conform to certain standards set forth 
in the statute, which standards may be changed from time to time, 
in which event the rules and regulations must be changed to conform 
therewith. 

Feb. 7, 1922. 

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

Dear Sir: — You request my opinion as to the constitu- 
tionality of regulations and standards made by your depart- 
ment under the provisions of G. L., c. 94, § 192, in view of 
the recent opinion of the Supreme Judicial Court of Massa- 



1923.] PUBLIC DOCUMENT — No. 12. 19 

chusetts regarding proposed legislation {Opinion of the Jus- 
tices, 239 Mass. 606), which was rendered in answer to certain 
questions propounded by the Senate of the Commonwealth 
of Massachusetts relative to House Bill No. 1612, entitled 
"An Act to carry into effect, so far as the Commonwealth of 
Massachusetts is concerned, the Eighteenth iVmendment to the 
Constitution of the United States." 

The distinguishing characteristic of that bill is that "in 
several sections it incorporates by reference laws made and 
to be made by the Congress of the United States, and regu- 
lations made and to be made thereunder, for the purpose 
of establishing offences to be punished by fine or imprison- 
ment or both, by prosecutions to be instituted in the courts 
of this Commonwealth." It w^as thereby attempted "to 
make the substantive law of the Commonwealth in these 
particulars change automatically so as to conform to new 
enactments from time to time made by Congress." The 
Opinio7i of the Justices, supra, holds that legislation of that 
nature would be contrary to the Constitution of this Com- 
monwealth, and uses the following language : — 

Legislative power is vested exclusively in the General Court except 
so far as modified by the initiative and referendum amendment. It 
is a power which cannot be surrendered or delegated or performed by 
any other agenc}^ The enactment of laws is one of the high pre- 
rogatives of a sovereign power. It would be destructive of fundamental 
conceptions of government through republican institutions for the 
representatives of the people to abdicate their exclusive privilege and 
obligation to enact laws. 

No discussion is required to demonstrate that the Congress of the 
United States cannot be treated as a subsidiary board or commission 
by the General Court. 

But the question presented by you plainly does not come 
within the principle of said opinion, and the facts involved 
in your question are different from those therein considered. 
Your department is charged with the duty of adopting 
certain rules and regulations in accordance with the pro- 
visions of G. L., c. 94, § 192, which reads as follows: — 

The department of public health and local boards of health shall 
enforce sections one hundred and eighty-six to one hundred and ninety- 
five, inclusive, and, except as to standards fixed by law, the said depart- 
ment shall adopt rules and regulations, consistent with said sections, 



20 ATTORNEY GENERAL'S REPORT. [Jan. 

standards, tolerances and definitions of purity or quality, conforming 
to the rules and regulations, standards, tolerances and definitions of 
purity or quality adopted or that may hereafter be adopted for the 
enforcement of the act of congress approved June thirtieth, nineteen 
hundred and six, and the amendments thereof, the said act being 
entitled, "An Act for preventing the manufacture, sale or transporta- 
tion of adulterated or misbranded or poisonous or deleterious foods, 
drugs, medicines, and liquors, and for regulating traffic therein and 
for other purposes," or now or hereafter adopted by the United States 
department of agriculture under any other federal law. 

Failure to comply with such rules and regulations is punish- 
able under the provisions of G. L., c. 94, § 191. 

It cannot be claimed that these sections of the General 
Laws are contrary to the Constitution of this Commonwealth. 
The rules and regulations enacted by your department 
thereunder are not enactments of the Legislature, but are 
adopted by your department under authority derived from 
the Legislature. The Legislature, in imposing upon your 
department the power and duty of making such rules and 
regulations, specifies that they shall conform to certain 
standards set forth in the statute, which standards may be 
changed from time to time, in which event the rules and 
regulations of your department must be changed to conform 
therewith. 

I am consequently of the opinion that the Opinion of the 
Justices, supra, has no application to the question raised by 
your communication. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Domicil — High School Pupil — Tuition — Transportation. 

G. L., c. 76, § 6, does not apply where a minor is a legal resident of one 
town but goes to another for purposes of employment only, inas- 
much as said minor is not residing temporarily in a town other than 
the legal residence of his parent or guardian "for the special pur- 
pose of there attending school." 

Feb. 8, 1922. 

Dr. Payson Smith, Commissioner of Education. 

Lear Sir: — You request my opinion on the following 
case : — 

The town of Orleans maintains a high school. The town of Eastham 
does not maintain a high school, but pays tuition and transporta ion 



1923.] PUBLIC DOCUMENT — No. 12. 21 

of its pupils to the Orleans high school. A boy who is a resident of 
Orleans and is attending the Orleans high school in his junior year, 
whose father is dead and whose mother is poor and has several other 
children, has an opportunity to go to Eastham and live with a family 
on an asparagus farm, at least until he graduates from high school. 
If he does go to Eastham, and works on the asparagus farm, will he 
thereby gain a residence in Eastham? If so, the town of Eastham 
would have to paj^ his tuition and transportation to the Orleans high 
school. If he does not gain a residence in Eastham, but is still a 
legal resident of Orleans, should the town of Orleans charge Eastham 
for his tuition, and would the town of Eastham be required to fur- 
nish transportation to the Orleans high school? If it does furnish 
such transportation should it render a bill to the parent, who resides 
in Orleans? 

G. L,, c. 76, §§ 5 and 6, provide as follows: — 

Section 5. Every child shall have a right to attend the public 
schools of the town where he actually resides, subject to the following 
section, and to such reasonable regulations as to numbers and quali- 
fications of pupils to be admitted to the respective schools and as to 
other school matters as the school committee shall from time to time 
prescribe. No child shall be excluded from a public school of any town 
on account of race, color or religion. 

Section 6. If a child described in section one resides temporarily 
in a town other than the legal residence of his parent or guardian for 
the special purpose of there attending school, the said town may recover 
tuition from the parent or guardian, unless under section twelve of 
chapter seventy-one, such tuition is pa3^able by a town. Tuition 
payable by the parent or guardian shall, for the period of attendance, 
be computed at the regular rate established by the school committee 
for non-resident pupils, but in no case exceeding the average expense 
per pupil in such school for said period. 

In rendering this opinion it is assumed that the boy in 
question is under the age of twenty-one years, although you 
do not so state in your communication. 

It is a w^ell-settled rule of law that the domicil of the parent 
of a minor is the domicil of the minor. Where the father 
is living, the domicil of a minor follows that of the father, 
but, as in the present case, w^here the father is dead, the 
domicil of the minor follows that of the mother. An infant, 
being 7io7i sui juris, is incapable of fixing his domicil, w^hich, 
therefore, during his minority follows that of the parent. 
See IV Op. Atty. Gen. 340. 

It is therefore my opinion that the boy in question is still 



22 ATTORNEY GENERAL'S REPORT. [Jan. 

a legal resident of Orleans, even though he may leave that 
town to go to Eastham for purposes of employment only, 
in which event G. L., c. 76, § 6, above quoted, would have 
no application, inasmuch as he is not residing temporarily 
in a town other than the legal residence of his parent or 
guardian "for the special purpose of there attending school." 
St. 1921, c. 296, provides: — 

. . . If a town of less than five hundred famihes or householders, 
according to such census, does not maintain a public high school 
offering four years of instruction, it shall pay the tuition of any pupil 
who resides therein and obtains from its school committee a certificate 
to attend a high school of another town included in the list of high 
schools approved for this purpose by the department. Such a town 
shall also, through its school committee, provide, when necessary, 
for the transportation of such a pupil at a cost up to forty cents for 
each day of actual attendance. . . . 

I am of the opinion that the present case does not come 
within this statute, inasmuch as the town of Orleans and not 
Eastham is the residence of the boy in question. It follows, 
therefore, that the town of Eastham is not required to fur- 
nish him with transportation to the Orleans high school, nor 
can it be charged with his tuition thereat. 
Very truly yours, 

J. Weston Allen, Attorney General. 



hicome Tax — Collectio7i from Non-resident Delinquent. 

Taxes are not debts or contracts, but mere local statutory obligations. 

Where the delinquent is a non-resident and has no property within the 
jurisdiction, the Commonwealth is without power either to collect a 
tax in its own courts or to invoke the aid of a sister State for that 
purpose. 

Feb. 8, 1922. 

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

Dear Sir: — You have handed me lists of certain un- 
collected income taxes for the years 1917, 1918, 1919 and 
1920 for such action as I may see fit to take in relation to 
the collection of them. 

In most of the cases appearing in the lists the delinquent 
taxpayer now apparently resides outside the Commonwealth. 
In all these cases, in my opinion, any attempt to collect the 
taxes due would be fruitless. Taxes, it has been frequently 



1923.] PUBLIC DOCUMENT — No. 12. 23 

held, are not debts or contracts, but mere statutory obliga- 
tions. There is no personal liability to pay a tax except 
under the statute imposing it, and that liability is purely 
local and statutory. Where the delinquent is outside the 
jurisdiction and has no property inside the jurisdiction, the 
State is powerless to collect a tax in its own courts and is 
powerless to invoke the aid of a sister State for that purpose. 
State of Colorado v. Harheck, 232 N. Y. 71; Kessler v. Kedzic, 
106 111. App. 1; cf. Walker v. Treasurer and Receiver-General, 
221 Mass. 600; lVisco}isin v. Pelican his. Co., 127 U. S. 265. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Laic — Impairment of Contract — Boston Ele- 
vated Railway Company — Eastern Massachusetts Street 
Railway Company. 

Spec. St. 1918, cc. 159 and 188, providing for the public operation of the 
street railway systems of the Boston Elevated Railway Company 
and the Eastern Massachusetts Street Railway Company, respec- 
tively, for a term of years by trustees to be appointed by the Gover- 
nor, with exclusive authority to fix fares and to determine the charac- 
ter of the service, having been accepted by the companies, constitute 
contracts between the Commonwealth and said companies with 
respect to the management and operation thereof. 

Certain proposed bills, if enacted, would be unconstitutional, for the 
reason that they would impair one or more of the provisions in Spec. 
St. 1918, cc. 159 and 188, giving the trustees the right to regulate and 
fix fares and to determine the character and extent of the service and 
faciHties to be furnished. 

A bill repealing Spec. St. 1918, c. 159, but providing that the act should 
take effect on its acceptance by the directors of the Boston Elevated 
Railway Company before a certain date, if enacted, would be uncon- 
stitutional, since the directors of the company cannot exercise the 
power attempted to be conferred upon them to abrogate the con- 
tractual obligations contained in said statute. 

Feb. 11, 1922. 

Hon. B. LoRiNG Young, Speaker of the House of Representatives. 

Dear Sir: — You have asked my opinion concerning four- 
teen bills referred to the House committee on rules, the ques- 
tion in each case being, — " Would this bill, if enacted into 
law, be constitutional?" These bills all relate directly or 
indirectly to the service or management of the Eastern 
Massachusetts Street Railway Company or the Boston 
Elevated Railway Compan}^, and involve a consideration of 



24 ATTORNEY GENERAL'S REPORT. [Jan. 

the application and effect of Spec. St. 1918, c. 159, and Spec. 
St. 1918, c. 188, being, respective!}^, "An Act to provide for 
the public operation of the Boston Elevated Railway Com- 
pany" and "An Act relative to the Bay State Street Rail- 
way Company." Each of these statutes provides for the 
public operation of the respective street railway systems for 
a term of years by trustees to be appointed by the Governor, 
with exclusive authority to fix fares and determine the charac- 
ter of the service, and each contains provisions for the accep- 
tance of the act by a vote of the stockholders of the company 
concerned. 

With reference to Spec. St. 1918, c. 159, the court has 
recently held, in Boston v. Treasurer and Receiver-General, 
237 Mass. 403, 413, 414, that that statute, "having been 
accepted by the railway companies (the Boston Elevated 
Railway Company and the West End Street Railway Com- 
pan3')» constitutes an agreement between the Boston Elevated 
Railway Company and the Commonwealth that the latter 
shall take over the management and operation of the railway 
company and shall pay therefor the amount specified in way 
of compensation for the use thereof," and that the act is 
constitutional. 

In an opinion to the House committee on street railways, 
dated April 22, 1921 (Attorney General's Report, 1921, 
p. 140), I had occasion to consider the effect of Spec. St. 1918, 
c. 188, and ruled that the provisions in sections 11 and 12 of 
that act, relating to the right of the trustees to regulate and 
fix fares, and to determine the character and extent of the 
service and the facilities to be furnished, and the right of the 
directors to pass upon contracts for the construction or 
operation of additional lines, constituted a contract between 
the Commonwealth and the Eastern Massachusetts Street 
Railway Company which could not be impaired without 
violating U. S. Const., art. I, § 10; that St. 1920, c. 613, as 
amended by St. 1920, c. 637, was an impairment of the contract 
contained in said Spec. St. 1918, c. 188, and was therefore 
unconstitutional, and that the proposed legislation concerning 
which my opinion was asked would also be unconstitutional. 

I. In my judgment, the bills submitted with the petitions 
numbered in your letter 1, 3, 4, 5, 7, 8, 9, 11, 12, 13 and 14 
would, if enacted into law, be unconstitutional for the reasons 
stated in my former opinion, which I now restate as appli- 
cable to each of said petitions and bills as follows: — 



1923.] PUBLIC DOCUMENT — No. 12. 25 

1. Petition for the establishment of a 5-cent fare on the lines 
of the Eastern Massachusetts Street Railway Company in the 
city of Chelsea and from said city to Scollay Square in the 
city of Boston. 

To establish a 5-cent fare on the lines named would be 
a direct impairment of the provision in Spec. St. 1918, c. 188, 
giving the trustees the right to regulate and fix fares. 

3. Petition that the service of the Boston Elevated Raihvay 
Company in Medford be extended. 

To require the Boston Elevated Railway Company to 
construct and extend its tracks in Medford, and to require 
the Eastern Massachusetts Street Railway Company to per- 
mit the Boston Elevated Railway Company to make joint 
use of its tracks in Medford, or to make arrangements for 
transfers, subject to the approval of the Department of 
PubHc Utilities, substantially as provided by the bill accom- 
panying the petition, would be a direct impairment of the 
provisions of Spec. St. 1918, c. 159, and of Spec. St. 1918, 
c. 188, giving to the trustees of the two street railway sys- 
tems the exclusive right to determine the character and 
extent of the service and facilities to be furnished. 

4. Petition for the payment of a 5-cent fare on all lines of 
the Boston Elevated Railway Company. 

The bill submitted with this petition would be a direct im- 
pairment of the contract contained in Spec. St. 1918, c. 159, 
for the reasons stated with respect to petition No. 1, above. 

5. Petition that the legal rate of fare on all lines of the Boston 
Elevated Railway Company be established at 5 cents. 

The bill proposed by this petition would be a direct impair- 
ment of the contract contained in Spec. St. 1918, c. 159, for 
the reasons stated with respect to petition No. 1, above. 

7. Petition of the mayor of the city of Chelsea that the board 
of trustees of the Boston Elevated Raihvay Cor)ipany be author- 
ized to operate lines of the Eastern Massachusetts Street Rail- 
way Company in said city. 

The bill proposed by this petition would be a direct impair- 
ment of the contracts contained in Spec. St. 1918, c. 159, and 
Spec. St. 1918, c. 188, for the reasons stated with respect to 
petition No. 3, above. 

8. Petition relative to the operation by public authority of 
street railway lines in the Hyde Park district of the city of 
Boston. 

This petition and bill is submitted to amend St. 1920, 



26 ATTORNEY GENERAL'S REPORT. [Jan. 

c. 613, § 7. Since in my opinion of x\pril 22, 1921, said 
chapter 613 was found to be unconstitutional, the proposed 
amendment thereof would also be unconstitutional. 

9. Petition relative to amounts set aside for rehabilitation, 
repair and reconstructio7i by the trustees of the Boston Elevated 
Railway Company and of the Eastern Massachusetts Street 
Railway Company. 

The bill accompanying this petition, in my opinion, would 
be unconstitutional for the reasons stated with respect to 
petition No. 3, above. 

11. Petition relative to street raihvay transportation in the 
city of Revere. 

The bill accompanying this petition directs the Boston 
Elevated Railway Company to extend its transportation 
system in the city of Revere. This bill, in m^^ opinion, 
would be unconstitutional for the reasons stated with respect 
to petition No. 3, above. 

12. Petition of the mayor of Revere that the board of trustees 
of the Boston Elevated Railway Company be authorized to 
operate the lines of the Eastern Massachusetts Street Railway 
Company in Chelsea, Revere, Maiden and Everett. 

The bill accompanying this petition, in my opinion, would 
be unconstitutional for the reasons stated with respect to 
petition No. 3, above. 

13. Petition of the mayor of Revere and others relative to 
the orders and rulings of the trustees of the Eastern Massa- 
chusetts Street Raihvay Company. 

The bill accompanying this petition purports to amend 
Spec. St. 1918, c. 188, by adding a new section limiting the 
powers of the trustees to fix fares and to determine the 
character and extent of the service and facilities to be fur- 
nished. This bill, in my opinion, would be unconstitutional 
for the reasons stated with respect to petitions Nos. 1 and 
3, above. 

14- Petition relative to the operation of certain lilies of the 
Boston d' Albany and Neiv York, New Haven & Hartford 
Railroad companies by the board of trustees of the Boston 
Elevated Railway Company, and to the electrification thereof. 

The bill accompanying this petition, in my opinion, would 
be unconstitutional for the reasons stated with respect to 
petition No. 3, above. 

II. 2. Petition for the termination of the public management 
and operation of the Boston Elevated Railway. 



1923.] PUBLIC DOCUMENT — No. 12. 27 

The bill accompanying this petition repeals Spec. St. 1918, 
c. 159, but contains a provision that the act shall take effect 
"upon its acceptance by the board of directors or a majority 
of the stockholders of the Boston Elevated Railway Company, 
providing such acceptance occurs prior to the day 

of nineteen hundred and ." 

Spec. St. 1918, c. 159, in section 2, gives to the trustees, 
for the purposes of the act, except as otherwise provided, 
the authority to have and exercise all the rights and powers 
of the company and its directors, and in section 4 provides 
that the duties of the board of directors "shall be confined to 
maintaining the corporate organization, protecting the in- 
terests of the corporation so far as necessary, and taking 
such action from time to time as may be deemed expedient 
in cases, if any, where the trustees cannot act in its place." 
There are provisions in said chapter requiring the consent 
of the directors to certain contracts made by the trustees 
involving the payment of rental or other compensation by 
the company beyond the period of public operation, and other 
provisions requiring the approval of the stockholders to the 
issuing of new preferred stock. 

It is my opinion that the directors cannot exercise the 
power attempted by the proposed act to be conferred upon 
them to impair the obligation of Spec. St. 1918, c. 159, by 
repealing that statute, which by acceptance of the stock- 
holders of the Boston Elevated Railway Company and the 
stockholders of the West End Street Railway Company 
became a binding contract. For this reason I am of opinion 
that the proposed act would be unconstitutional. 

Whether, if the bill provided simply that the act should 
take effect upon its acceptance by a majority of the stock- 
holders of the Boston Elevated Railway Company, it would 
be constitutional, I do not need to consider. Ordinarily, 
the stockholders of a corporation by a majority vote may 
assent to an amendment or repeal of a statute constituting 
a contract between the State and their corporation. Penn- 
sylvania College Cases, 13 Wall. 190; Chicago Life Ins. Co. 
v. Needles, 113 U. S. 574; cf. Durfee v. Old Colony, etc., 
R.R. Co., 5 Allen, 230. Clearl}^, the company would not be 
bound except by the acceptance of the holders of a majority 
of its stock. Whether the words "a majority of the stock- 
holders" mean "the holders of a majority of the stock" or 
merely "a majority of the persons holding the stock," whether 



28 ATTORNEY GENERAL'S REPORT. [Jan. 

the stockholders of the West End Street Railway should be 
included, and whether the holders of the preferred stock 
authorized to be issued under section 5 have any special 
rights, may be doubtful questions. On these matters I do 
not attempt to pass. 

III. 6. Petition relative to establishing a o-cent fare on the 
lines of the Boston Elevated Raihvay Company and suhsidizing 
said company from the public treasury for any resulting defi- 
ciency. 

The provisions of the bill accompanying this petition 
would plainly impair the contract contained in Spec. St. 1918, 
c. 159, if it were not for the following provision contained 
in section 6 of the bill: — 

This act shall not take effect unless it is accepted by the holders of 
not less than a majority of all the stock of the Boston Elevated Rail- 
way Company, not including the preferred stock issued under section 
five of said chapter one hundred and fifty-nine, and by the holders of 
not less than a majority of all the stock of the West End Street Rail- 
way Company, given at meetings called for the purpose, and the fihng 
with the secretary of a certificate to that effect signed by a majority 
of the directors of the Boston Elevated Railway Company. 

I am informed that the preferred stock issued under sec- 
tion 5 of said act has the same voting powder as the other 
stock of the Boston Elevated Railway Company. It is 
therefore my opinion that this bill would be unconstitutional 
because, by excluding the holders of that stock from the 
right to vote, it would in effect authorize the acceptance 
of the proposed act by the holders of less than a majority 
of the stock of the Boston Elevated Railway Company 
entitled to vote. Whether the holders of this preferred stock 
have any special rights which would be impaired by such a 
bill without their unanimous consent, I do not attempt to 
decide. 

IV. 10. Petition relative to the taking of certain interests 
in land in the city of Boston by the Boston Elevated Railway 
Company. 

This petition involves entirely different considerations and 
will be dealt with in a separate opinion. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT - No. 12. 29 



Constitutional Late — Unregistered Co-partners and Stock- 
holders in Retail Drug Corporations. 

The classification made by House Bill No. 124, forbidding unregistered 
co-partners or unregistered stockholders in . a corporation doing a 
retail drug business from actively engaging in the drug business, 
with the exceptions noted, is arbitrary and unreasonable, and would 
render the bill unconstitutional, if enacted. 

Feb. 24, 1922. 

Orlando C. Bid well, Esq., Acting Chairman of the House Committee 
on Bills in the Third Reading. 

Dear Sir: — You request my opinion on the constitu- 
tionality of House Bill No. 124, relative to unregistered co- 
partners and stockholders in retail drug corporations. Said 
bill is as follows : — 

Section thirty of chapter one hundred and twelve of the General 
Laws is herebj' amended ... so as to read as follows : — Section SO. 
Except as provided in section sixty-five, whoever, not being registered 
under section twenty-four or corresponding provisions of earlier laws, 
sells or offers for sale at retail, compounds for sale or dispenses for 
medicinal purposes drugs, medicines, chemicals or poisons, except as 
provided in sections thirty-five and thirty-six, shall be punished by a 
fine of not more than fifty dollars. This section shall not prohibit 
the employment of apprentices or assistants and the sale by them of 
any drugs, medicines, chemicals or poisons, provided, a registered 
pharmacist is in charge of the store and present therein. No unregis- 
tered copartner or unregistered stockholder in a corporation doing a 
retail drug business shall be actively engaged in the drug business 
except those who were engaged in the drug business on or before 
May twenty-eighth, nineteen hundred and thirteen. The term 
''actively engaged" as used in this section shall mean the doing of 
any work in the store. 

Unquestionably there is no vested right to engage in the 
drug business free from supervision and regulation by the 
State in the proper exercise of its police powder. Hence, in 
construing the bill in question due consideration must be 
given to the legislative purpose and to the mischief intended 
to be guarded against. Whether it is a fair, reasonable and 
valid exercise of the police power, or arbitrary and capricious, 
must be determined in the light of the object sought to be 
attained by the act. 

The bill in question selects for regulation a limited class of 



30 ATTORNEY GENERAL'S REPORT. [Jan. 

unregistered persons, namely, co-partners and stockholders in 
retail drug corporations. It does not prohibit every unregis- 
tered person from working in a drug store. The holding of 
stock in a drug corporation has no reasonable relation to the 
evil intended to be guarded against, namely, the dispensing 
of drugs by unregistered persons. Any unregistered person 
may be employed at the soda fountain, cigar stand, candy 
counter or other departments which commonly form a material 
part of practically every modern drug store. Under the terms 
of this bill, however, if such unregistered person purchased 
or acquired even one share of stock in the corporation, he 
must immediately be discharged. 

In my opinion, the classification made by the bill is arbi- 
trary and unreasonable, and would render the bill uncon- 
stitutional, if enacted. See Commonwealth v. Boston & 
Maine R.R., 222 Mass, 206, 208; Bogni v. Perotti, 224 Mass. 
152, 156. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Department of Public Health — Local Boards of Health — 
License to engage in the Business of the Manufacture or 
Bottling of N on- Alcoholic Beverages — Permit. 

Under St. 1921, c. 303, the power to grant and revoke permits for the 
manufacture and bottling of non-alcoholic beverages is vested exclu- 
sively in boards of health of cities and towns, although the Depart- 
ment of Public Health, under G. L., c. 94, §§ 186 to 196, has certain 
duties to perform relative to adulteration and misbranding of food 
and drugs. 

The Department of PubHc Health has no authority to order local boards 
of health to enforce any of the provisions of the act, should such 
boards be negligent in such duties. 

Feb. 28, 1922. 

Committee on Public Health, House of Representatives. 

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

1. Has the Massachusetts Department of Public Health, under the 
provisions of St. 1921, c. 303, the power to revoke, for cause, any li- 
cense issued under the provisions of the act by a local board of health? 

2. Has the Massachusetts Department of Public Health any power 
under the act to grant licenses to places properly constructed and 
maintained, if a local board of health refuses or neglects to do so? 



1923.] PUBLIC DOCmiENT — No. 12. 31 

3. Has the Massachusetts Department of PubHc Health any duties 
to perform under the provisions of the act, other than making regula- 
tions? 

4. Has the Massachusetts Department of Public Health the right 
and power to enforce its rules and regulations? 

5. Has the Massachusetts Department of Public Health any author- 
ity under any other statute to order local boards of health to enforce 
any of the provisions of the act, should such boards be negligent in 
such duties? 

St. 1921, c. 303, provides as follows: — 

Chapter ninety-four of the General Laws is hereby amended by 
inserting after section ten and under the heading, Non-Alcoholic Bever- 
ages, the five follomng sections: — Section 10 A. Boards of health of 
cities and towns may annually grant permits to engage in the business 
of the manufacture or bottling of carbonated non-alcoholic beverages, 
soda waters, mineral or spring waters and may fix fees for said permits 
not to exceed ten dollars. The provisions of this section and the 
following four sections shall not apply to persons registered under 
sections thirty-seven to forty, inclusive, of chapter one hundred and 
twelve. Section lOB. The board of health shall, from time to time, 
examine the premises of any person granted a permit under the pre- 
ceding section, and if such premises or the equipment used therein in 
connection with the business of such person is found to be in an un- 
sanitary condition, the board may revoke such permit after a hearing, 
ten days' notice of which shall be given such person. Section IOC. 
All materials used in the manufacture of beverages specified in section 
ten A shall be stored, handled, transported and kept in such a manner 
as to protect them from spoilage, contamination and unwholesomeness. 
No ingredient or material, including water, shall be used in the manu- 
facture or bottling of any such beverage which is spoiled or contami- 
nated, or which may render the product unwholesome, unfit for food, 
or injurious to health. Persons granted permits under section ten A, 
shall comply with sections one hundred and eighty-six to one hundred 
and ninety-six, inclusive. 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 
who engages in the business of the manufacture or bottling of car- 
bonated 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. 



32 ATTORNEY GENERAL'S REPORT. [Jan. 

1. The subject-matter of this act pertains to non-alcoholic 
beverages, and requires a permit for the business of the 
manufacture or bottling thereof. The power to grant such 
permit, and also to fix the fee therefor (not to exceed $10), 
is expressly vested in boards of health of cities and towns. 
So, also, the power to revoke such a permit is vested solely 
in such local boards of health, for the cause stated in the 
act. 

While it is required that persons granted such permits shall 
comply with G. L., c. 94, §§ 186-196, inclusive, there is 
nothing therein or in St. 1921, c. 303, which gives the Depart- 
ment of Public Health the power to revoke any license issued 
by a local board of health under the provisions of said chap- 
ter 303. I accordingly answer your first question in the 
negative. 

2. Inasmuch as St. 1921, c. 303, expressly vests the licens- 
ing power in the boards of health of cities and towns, the 
Massachusetts Department of Public Health has no power 
to grant such licenses ''even if a local board of health refuses 
or neglects to do so." The Legislature has expressly vested 
the entire discretion in this matter in such local boards, and 
the Massachusetts Department of Public Health, in my 
opinion, would have no right to substitute its own discretion 
therefor. 

3. Said St. 1921, c. 303, § lOD, provides that "the depart- 
ment of public health and local boards of health may make 
rules and regulations to carry out the three preceding sec- 
tions." But it is also provided in said act that the licensee 
shall comply with G. L., c. 94, §§ 186-196, inclusive (rela- 
tive to adulteration and misbranding of food and drugs). 

G. L., c. 94, § 192, provides: — 

The department of public health and local boards of health shall 
enforce sections one hundred and eighty-six to one hundred and ninety- 
five, inclusive, and, except as to standards fixed bj^ law, the said 
department shall adopt rules and regulations, consistent with said 
sections, standards, tolerances and definitions of purity or quality, 
conforming to the rules and regulations, standards, tolerances and 
definitions of purity or quality adopted or that may hereafter be 
adopted for the enforcement of the act of congress approved June 
thirtieth, nineteen hundred and six, and the amendments thereof, 
the said act being entitled, ''An Act for preventing the manufacture, 
sale or transportation of adulterated or misbranded or poisonous or 



1923.] PUBLIC DOCUMENT — No. 12. 33 

deleterious foods, drugs, medicines, and liquors, and for regulating 
traffic therein and for other purposes," or now or hereafter adopted 
by the United States department of agriculture under any other 
federal law. 

In addition, G. L., c. 94, § 193, provides that — 

. . . Under the authority given by section one hundred and ninety- 
two the department of public health shall adopt rules and regulations 
which shall be observed by the said department and by local boards 
of health in ascertaining whether there is such a guaranty which may 
be relied upon by the dealer. 

Violation of such rules, regulations and standards is pun- 
ishable as provided in G. L., c. 94, § 190. The collection of 
samples under said sections 186 to 195, inclusive, and section 
304 may be made either *' by authorized agents of the depart- 
ment of public health or of boards of health of towns" (see 
G. L., c. 94, § 188). The examination of such samples 
"shall be made under the direction and supervision of the 
department or board taking such samples" (G, L., c. 94, 
§ 189). So, also, G. L., c. 94, § 194, imposes a duty upon the 
Department of Public Health or local board "which took 
the sample" to present the facts, warn the offender, warn 
dealers, etc., as therein provided. 

It is thus plainly evident that the Massachusetts Depart- 
ment of Public Health has other duties to perform in addi- 
tion to making regulations as provided in the act under con- 
sideration. Such additional duties relate to adulteration and 
misbranding of food and drugs under G. L., c. 94, §§ 186-196. 

4. St. 1921, c. 303, § WE, provides the penalty for viola- 
tion of any provision of sections lOA to lOD, inclusive. 
This plainly gives the Massachusetts Department of Public 
Health the right of enforcement of its rules and regulations 
made under authority of said act, and to institute prosecu- 
tions for violations thereof. 

5. G. L., c. Ill, §§ 2-25, inclusive, outline the duties and 
powers of the Department of Public Health, while §§ 26-32, 
inclusive, outline the duties of city and town boards of health. 
The duties thus respectively outlined are separate and dis- 
tinct, and there is no intimation in the statutes, under author- 
ity of which these departments are created, of any right or 
power possessed by the Department of Public Health "to 



34 ATTORNEY GENERAL'S REPORT. [Jan. 

order local boards of health to enforce any of the provisions 
of the act, should such boards be negligent in such duties." 
See Sawyer v. State Board of Health, 125 Mass. 182, 192. 

In an opinion of the Attorney General, dated Feb. 7, 1917 
(V Op. Atty. Gen. 12), appears the following statement: — 

To a large extent the powers of local boards of health are conferred 
by general statutes of the Commonwealth, and the duties of such 
boards of health are therein prescribed. When acting under such 
powers and performing such duties, the members of the board of health 
act as public officers, that is, as agents of the State and not of the city. 
Attorney General v. Stratton, 914 Mass. 51; Hathaway v. Everett, 205 
Mass. 246; Haley v. Boston, 191 Mass. 291. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Domicil — Settlement — Reimhursement of Cities and Towns 
under the Relief Laws — Soldier — Philippine Insur- 
rection. 

A settlement is defeated under the provisions of G. L., c. 116, § 5, by an 
absence of five consecutive years, during which a person resides and 
intends to make his domicil away from his former place of settlement, 
although during said period such person makes visits to relatives or 
friends in his former place of settlement, and during a portion thereof 
is employed in the place of his former settlement without living there. 

A soldier who served in the Philippine insurrection is not to be regarded 
as having been engaged in a war against a foreign power, within the 
meaning of G. L., c. 116, § 1, par. 5. 

Feb. 28, 1922. 

Mr. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You request my opinion upon the following 
questions, which affect claims of cities and towns for reim- 
bursement under the relief laws : — 

1. Is a settlement defeated under the pro\dsions of G. L. c. 116, § 5, 
by an absence of five consecutive years, during which time a person 
resides and intends to make his domicil away from his former place 
of settlement, if (a) during the said five-j^ear period the person in 
question makes visits to relatives or friends in his former place of 
settlement, and (6) during a portion of the said five-year period the 
person in question is employed in the place of his former settlement 
without living there. In both kinds of cases the persons in question 



1923.] PUBLIC DOCUMENT — No. 12. 35 

received no public support in the town where they had formerly been 
settled. 

2. Does a person who enlisted or was mustered into the military or 
naval service of the United States as part of the quota of a town in the 
Commonw^ealth, who served not less than one year in the Philippine 
insurrection, gain a settlement under the provisions of G. L., c. 116, § 1, 
par. 5? 

1 (a). G. L., c. 116, § 5, provides as follows: — 

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 consecutive 
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 institution, 
within the commonwealth, or in any manner under its care and direc- 
tion or that of an officer thereof, or of a soldiers' or sailors' home 
whether within or without the commonwealth, shall not be counted in 
computing the time either for acquiring or for losing a settlement, 
except as provided in section tw^o. 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. 

Your inquiry largely involves questions of fact. 

What constitutes domicil is mainly a question of fact, and 
the element of intention enters into it. Oliverieri v. Atkinson^ 
168 Mass. 28. Mere intention, without proof of other facts 
with which such intention can be connected, is not enough. 
Holmes v. Greene, 7 Gray, 299. "So to acquire a new domi- 
cil it is not necessary for a person to reside in a place with 
the purpose of making it his permanent home and residence. 
It is enough if he resides there with the intention to remain 
for an indefinite period of time, without any fixed or certain 
purpose to return to his former place of abode." Palmer v. 
Hampden, 182 Mass. 511; Wliitney v. Sherborn, 12 Allen, 111; 
Wilbraham v. Ludloiv, 99 Mass. 587. "Absence, within the 
meaning of the statute relating to the laws of settlement of 
paupers, in my opinion, must be of such a character and 
with such intent as to constitute a change of domicil." V 
Op. Atty. Gen. 380. 



36 ATTORNEY GENERAL'S REPORT. [Jan. 

It is therefore my opinion that question 1 (a) should be 
answered in the affirmative. 

1 (6). While there is some authority for the proposition 
that under the law relating to paupers domicil and residence 
are identical, and that a pauper should be regarded as having 
a home wherever he finds work {Needham v. City of Fitch- 
burg, 237 Mass. 354; Palmer v. Hampden, 182 Mass. 511), 
yet, in the case under consideration, you state that "the 
person in question is employed in the place of his former 
settlement without living there." Consequently, the same 
conclusion is to be reached as in my answer to question 1 (a), 
supra. 

2. G. L., c. 116, § 1, par. 5, provides: — 

A person who enlisted and was mustered into the military or naval 
service of the United States, as a part of the quota of a town in the 
commonwealth under any call of the president of the United States 
during the war of the rebellion or any war between the United States 
and any foreign power, or who was assigned as a part of the quota 
thereof after having enlisted and been mustered into said service, 
and his wife or widow and minor children, shall be deemed thereby to 
have acquired a settlement in such town, provided that he served for 
not less than one year, or died or became disabled from wounds or 
disease received or contracted while engaged in such service, or while 
a prisoner of the enemy; and any person who would otherwise be 
entitled to a settlement under this clause, but who was not a part of 
the quota of any town, shall, if he served as a part of the quota of the 
commonwealth, be deemed to have acquired a settlement, for himself, 
his wife or widow and minor children, in the place where he actually 
resided at the time of his enlistment. Any person who was inducted 
into the militarj^ or naval forces of the United States under the federal 
selective service act, or who enlisted in said forces in time of war 
between the United States and any foreign power, whether he served 
as a part of the quota of the commonwealth or not, and his wife or 
widow and minor children shall, subject to the same proviso, be deemed 
to have acquired a settlement in the place where he actually resided 
in this commonwealth at the time of his induction or enlistment. But 
these provisions shall not apply to any person who enlisted and re- 
ceived a bounty for such enlistment in more than one place unless the 
second enlistment was made after an honorable discharge from the 
first term of service, nor to any person who has been proved guilty 
of wilful desertion, or who left the service otherwise than by reason of 
disability or an honorable discharge. 



1923.] PUBLIC DOCUMENT — No. 12. 37 

This statute has recently been interpreted in an opinion 
rendered by this department to Mr. Richard R. Flynn, Com- 
missioner of State Aid and Pensions, dated Feb. 9, 1922, 
wherein it is decided that "a soldier who served in the Philip- 
pine insurrection is not to be regarded as having been engaged 
in a war against a foreign power." I therefore answer your 
second question in the negative. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Laiv — Impairmejit of Contract — Change of 

Remedy. 

The Legislature can impose conditions on which a particular use of property 
wiU be authorized. 

Where an obligation or Hability exists, the Legislature can change the 
remedy by which it is to be enforced. 

St. 1921, c. 386, § 5, providing for compensation for diminution of value 
of property suffered by reason of the use of a tract of land taken by 
eminent domain by the Boston Elevated Railway Company, to be 
determined by the court without a jury, may be amended by sub- 
stituting the word "with" for the word "without," since a valid 
obligation was thereby imposed, and the proposed amendment merely 
changes the remedy for its enforcement. 

March 1, 1922. 

Hon. B. LoRiNG Young, Speaker of the House of Representatives. 

Dear Sir: — As chairman of the House committee on 
rules, you have transmitted to me a petition relative to the 
taking of certain interests in land in the city of Boston by 
the Boston Elevated Railway Company, with its accom- 
panying bill, and have asked my opinion whether this bill, 
if enacted into law, would be constitutional. The bill is as 
follows: — 

An Act relative to the Taking of Certain Interests in Land 

IN THE City of Boston by the Boston Elevated Railway 

Company. 

Section 1. Section five of chapter three hundred and eighty-six 

of the Acts of nineteen hundred and twenty-one is hereby amended by 

striking out, in the twenty-fifth hne thereof, the word "without" 

and substituting therefor the word : — with, — so that said sentence 

in the twenty-fourth and twenty-fifth hues wdll read: — Such petitions 

shall be heard by the court mth a jury. 



38 ATTORNEY GENERAL'S REPORT. [Jan. 

St. 1921, c. 386, section 5 of which the bill proposes to 
amend, is entitled "An Act authorizing the Boston Elevated 
Railway Company to take certain interests in land in the 
city of Boston." 

By section 1 the Boston Elevated Railway Company is 
authorized and empowered to take by eminent domain for 
railway purposes certain rights and interests, therein specified, 
in and to a certain parcel of land in the city of Boston on 
Hyde Park Avenue and Walk Hill Street, containing about 
4,404 square feet, said rights and interests being an easement 
to locate, construct, maintain and operate an elevated railway, 
and the right to construct, maintain and operate surface car 
tracks, sewer and drain connections and retaining walls in, 
upon and across the premises described. 

Sections 3 and 5 of said act are as follows : — 

Section 3. If said compam^ and said cit}^, or any person having 
any right or interest in said property which is injured by such taking, 
are unable to agree as to the damages sustained by the citj^ or any 
such person. on account of such taking, such damages may be deter- 
mined by a jury in the superior court for the county of Suffolk, on the 
petition therefor of said city or of said person filed in the clerk's office 
of said court within one year after such taking, and judgment shall be 
entered upon the determination of such jury, ^^^th interest from the 
date of taking, and costs shall be taxed and execution issued in favor 
of the prevailing party as in civil cases. 

Section o. The owners, lessees, mortgagees and other persons 
having an estate in lands al^utting on Walk Hill street or Hyde Park 
avenue opposite a tract of land bounded by Washington street. Walk 
Hill street, Hyde Park Avenue, Toll Gate way and land of the Old 
Colony Railroad Company which the Boston Elevated Railway 
Company has heretofore acquired or may hereafter acquire, shall be 
entitled to reasonable compensation from the Boston Elevated Rail- 
way Company for any diminution in the fair market value of their 
said property suffered by them by reason of the use of said tract of 
land for an elevated railway, terminal, repair shop or other railwaj^ 
purposes, and the construction of an elevated railway connecting said 
terminal \\ith the elevated railway system of the Boston Elevated 
Railway Companj^ under plans heretofore approved b}^ the department 
of public utihties which said company is hereby authorized to construct. 
Any such person may at any time within three j^ars after the begin- 
ning of use of any part of said land for any of said purposes, file in the 
clerk's office of the superior court for the count}' of Suffolk, a petition 
setting forth his claim against the corporation. He shall give said 



1923.] PUBLIC DOCUMENT - No. 12. 39 

corporation fourteen daj^s' notice of the filing of such petition and an 
answer thereto shall be filed by the corporation within thirty days 
from the return day of such notice. Such petition shall be heard by 
the court "^^ithout a jury. Judgment shall be entered upon the finding 
together mth interest from the date of the filing of the petition and 
execution shall issue as in other civil cases. The provisions of chapter 
sevent3'-nine of the General Laws relative to cases where damages 
are claimed to estates in which two or more persons have different, 
separate or several interests shall apply to all such proceedings. Such 
taking shall constitute a covenant and agreement by the company 
with said owners, lessees, mortgagees and other persons that they 
shall be entitled to recover such compensation in the manner herein- 
above provided. 

You do not state w^hat action, if any, has been taken by 
the Boston Elevated Railway Company under this act; but 
I understand that the taking has been made and that con- 
struction of a terminal on the tract of land described in 
section 5 has been begun. 

There can be no doubt that, in this State, where land or an 
easement in land is taken by eminent domain, any interference 
with light, air and prospect caused by such taking and result- 
ing in damage to the property interfered with is a proper 
element of damage, for wdiich compensation may be awarded. 
McKeon v. New England R.R. Co., 199 Mass. 292, 295; 
Opinion of the Justices, 208 Mass. 603, 605; Story v. New 
York El. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. Ry. 
Co., 104 N. Y. 268. 

I assume that where a taking by eminent domain is author- 
ized by statute, with a provision fixing the method by which 
the damages of those entitled thereto shall be determined, 
the Legislature may subsequently, even after the taking has 
been made, change that method by an amendment. See 
Danforth v. Groton Water Co., 178 Mass. 472; 20 C. J. 878. 

But in St. 1921, c. 386, it is section 3 and not section 5 
which provides for the determination of all damages caused 
by the taking. The right to light, air and prospect is a 
right in the property taken, interference with w^hich will 
entitle the owmer of abutting land to compensation under 
section 3. McKeon v. New England R.R. Co., supra; Opinion 
of the Justices, supra. Section 5 gives a further right to 
persons not entitled to compensation under section 3. The 
right given by section 5 is not to compensation for damages 
caused by the taking. It is a right given to all those having 



40 ATTORNEY GENERAL'S REPORT. [Jan. 

an estate in lands abutting on the tract of land described in 
section 5, of which, I am informed, the premises taken are 
a small part, to recover reasonable compensation ''for any 
diminution in the fair market value of their said property 
suffered by them by reason of the use of said tract of land 
for an elevated railway, terminal, repair shop or other rail- 
way purposes, and the construction of an elevated railway 
connecting said terminal with the elevated railway system 
of the Boston Elevated Railway Company." An obligation 
to pay this compensation, to be recovered in the manner pro- 
vided, became valid and binding on the company, when the 
taking was made, by virtue of the provision of the last 
clause in section 5, that "such taking shall constitute a cove- 
nant and agreement by the company with said owners, 
lessees, mortgagees and other persons that they shall be 
entitled to recover such compensation in the manner herein- 
above provided." The proposed amendment changes the 
manner in which compensation is to be recovered. Hence 
the company cannot be bound by its agreement to pay com- 
pensation determined as provided by the amendment. 

But there is a further question to be considered, whether, 
aside from the operation of the last clause of section 5, the 
obligation created by section 5 was within the constitutional 
power of the General Court to create. The Legislature 
cannot create an obligation of one person to another without 
his consent. Hampshire County v. FranMin Cou7ity, 16 Mass. 
76; Medford v. Learned, 16 Mass. 215; Camp v. Rogers, 
44 Conn. 291; New York & Oswego Midland R.R. Co. v. 
Van Horn, 57 N. Y. 473. But it can impose conditions on 
which a particular use of property will be authorized. Com- 
monicealth v. Parks, 155 Mass. 531; Kilgour v. Gratto, 224 
Mass. 78; Transportation Co. v. Chicago, 99 U. S. 635, 640. 
The obligation imposed by section 5 not only was a condi- 
tion sanctioned by this principle, but was a condition of the 
taking, which the company could have declined. Clearly, 
therefore, the obligation was valid. 

Where an obligation or liability exists, the Legislature can 
change the remedy by which it is to be enforced. Co7n- 
monwealth v. Cochituate Bank, 3 Allen, 42; National Surety 
Co. V. Architectural Decorating Co., 226 U. S. 276; Henley v. 
Myers, 215 U. S. 373. The proposed amendment is a mere 
change of remedy. The General Court has not agreed that 
the amount of compensation is to be determined in the 



1923.] PUBLIC DOCUMENT - No. 12. 41 

manner provided by section 5. It is within its power to 
change the method of determination. I am therefore of 
opinion that the bill, if enacted into law, would be constitu- 
tional. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Narcotic Drugs — Confiscation — Disjjosition. 

Under G. L., c. 94, § 215, the Department of Public Health is vested with 
discretion relative to the disposition of the articles or drugs enumerated, 
and they may be destroyed or disposed of in any way not prohibited 
by law. Said department may deliver such articles or drugs to the 
United States Department of Justice, to be used in evidence, in ex- 
change for such form of receipt and upon such conditions as to cus- 
tody, use and return as the Commissioner of Public Health shall 
deem advisable. 

March 2, 1922. 

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

Dear Sir: — You state that certain narcotic drugs were 
seized by the Boston police department, samples were exam- 
ined by your department as provided by statute, and certain 
persons involved in the illegal possession of said drugs have 
been convicted; whereupon the drugs were confiscated by 
the court and were delivered to your department on Jan. 27, 
1922, in accordance with an order from the Municipal Court 
of the Roxbury District of the city of Boston, dated Dec. 24, 
1921. You also state that you have received a written 
request from the United States Attorney for the District of 
Massachusetts, requesting that said drugs be turned over to 
Erwin C. Ruth, narcotic inspector in charge. Room 452, 
Little Building, Boston, Mass., as they are alleged to con- 
stitute very important evidence in certain investigations 
which are being made by that office. You now request my 
opinion as to your right to surrender said articles to Dr. 
Ruth for said purpose. 

G. L., c. 94, § 215, provides: — 

If after such notice as the court or trial justice orders it appears 
that any drug seized under the preceding section was, at the time of 
the making of the complaint, unlawfully in the possession of the per- 
son alleged therein, the court or trial justice shall order that such 
article or drug so seized be forfeited to the commonwealth and shall 
order such article or drug sent to the department of public health. 



42 ATTORNEY GENERAL'S REPORT. [Jan. 

Possession of such drug shall be prima facie evidence that such pos- 
session was in ^dolation of law. Said department may destro}^ such 
article or drug or cause it to be destroyed or to be disposed of in any 
way not prohibited by law, and, after pajdng the cost of the trans- 
portation and disposition of the same, it shall pay over the net pro- 
ceeds to the commonwealth. Section eight of chapter two hundred 
and seventy-six shall apply to all judgments rendered and orders 
made under this and the preceding section. 

It appears from this statute that considerable discretion 
is vested in the Department of Public Health relative to the 
disposition of such articles or drugs. It is clear that the 
drugs in question are now under the control of the Depart- 
ment of Public Health, and may be destroyed or disposed of 
in any way not prohibited by law. I am aware of no legal 
prohibition which would prevent your delivering them for 
the purpose designated, in exchange for such form of receipt 
and upon such conditions as to custody, use and return as 
in your discretion shall be deemed most advisable. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Law — ''Anti-aid'' Amendment — Payment to 
privately controlled Hospital for Deaf, Dumb or Blind of 
Reasonable Comjjensation for Support rendered to Such 
Persons. 

Mass. Const. Amend. XLVI, § 2, forbids the use of pubhc credit, pubHc 
property or pubHc funds ''for the purpose of founding, maintaining 
or aiding" any privately controlled institution as defined in that 
section. 

A bill which authorizes payment out of pubHc funds to privately controlled 
hospitals or infirmaries for the treatment of the eye and ear, of not 
more than reasonable compensation for care rendered to persons 
suffering from diseases of the eye or ear, who are in whole or in part 
unable to care for themselves, to the extent that such persons are 
unable to care for themselves, is within the exception made by Mass. 
Const. Amend. XLVI, § 3, and would not be unconstitutional. 

Maech 13, 1922. 
Committee on Public Health, House of Representatives. 

Gentlemen: — The committee has under consideration 
Senate Bill No. 293, and requests that I advise it whether or 
not such proposed legislation would be constitutional. Said 
bill reads as follows : — 



1923.1 PUBLIC DOCUMENT — No. 12. 43 



An Act for the Relief of Certain Persons threatened with 
Blindness or Deafness. 
Chapter one hundred and twenty-one of the General Laws is hereby 
amended by adding at the end thereof the following new section : — 
Section Jf2. The department may also, under such regulations as it 
may from time to time establish, for the purpose of preventing blind- 
ness or deafness or for conserving sight or hearing, authorize persons 
suffering from diseases of the ej^e or ear to go for care or support during 
treatment to such hospital or infirmaries for the treatment of the eye 
or ear as may be approved bj^ the commissioner of public health, and 
the ordinary and reasonable compensation for such care or support 
actually rendered by said infirmary or other hospitals or infirmaries to 
such persons as may be in whole or in part unable to support or care 
for themselves shall be paid by the commonwealth. In so far as such 
persons, or the parents or guardians of any children among them, are 
able in whole or in part to provide for care or support received they 
shall, to the extent of their ability, reimburse the commonwealth 
therefor. 

The answer to your question depends upon Mass. Const. 
Amend. XLVI. The second section of that amendment 
forbids, among other things, a grant of public money for the 
purpose of founding, maintaining or aiding "any . . . infir- 
mary, hospital, institution, or educational, charitable or reli- 
gious 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. ..." Under this section the question 
whether an institution may receive State aid depends upon 
the character of the institution. Opinion of the iVttorney 
General to the committee on bills in the third reading, April 
1, 1921 (Attorney General's Report, 1921, p. 111). As the 
proposed bill is designed to provide aid to persons suffering 
from diseases of the eye and ear, rather than aid to particular 
institutions, it is not obnoxious to the prohibitions of the 
second section of the amendment. 

Section 3 of the amendment provides: — 

Nothing herein contained shall be construed to prevent the com- 
monwealth, or any political division thereof, from paying to privately 
controlled hospitals, infirmaries, or institutions for the deaf, dumb or 
bhnd not more than the ordinary and reasonable compensation for 
care or support actually rendered or furnished by such hospitals, 
infirmaries or institutions to such persons as may be in whole or in 
part unable to support or care for themselves. 



44 ATTORNEY GENERAL'S REPORT. [Jan. 

This section introduces an exception to the broad prohibi- 
tions contained in section 2. Although the Commonwealth 
cannot directly aid a privately controlled hospital, infirmary 
or institution for the deaf, dumb or blind, it may send deaf, 
dumb or blind persons to a privately controlled hospital, 
infirmary or institution for treatment, and pay not more 
than reasonable compensation for the service rendered by 
such hospital, infirmary or institution, provided that the 
persons so treated are in whole or in part unable to support 
or care for themselves. 

In this aspect of the matter the test is whether the person 
aided comes within the provisions of section 3, while under 
section 2 the nature of the institution determines whether 
State aid may be directly afforded to it. For the purpose 
of this bill it is not material to determine whether the words 
"for the deaf, dumb or blind" qualify the words "hospitals, 
infirmaries, or institutions," or only the word "institutions." 

The present bill appears to have been drawn with the 
third section of the amendment in view. It employs the 
same language in defining the class who may receive aid, 
namely, "such persons as may be in whole or in part unable 
to support or care for themselves." As it further provides 
that in so far as such persons are able in whole or in part 
to pay for the care or support received, they shall, to the 
extent of their ability, reimburse the Commonwealth, it 
avoids any constitutional question which might arise from 
an expenditure of public funds for the benefit of persons 
able to care for themselves. I need not, therefore, consider 
whether an expenditure of public funds to care for a person 
in part able to care for himself would encounter constitutional 
objection upon the ground that such expenditure was not 
for a public purpose. Under these circumstances I perceive 
no constitutional defect in the bill. 
Yours very truly, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 45 



Taxation — Distribution of National Bank Stock Tax — Place 
of Assessment of Personal Property of Deceased Persons. 

It is a general principle that taxes on personal property of deceased per- 
sons should be assessed in the place where the deceased last dwelt. 

Under G. L., c. 63, § 5, distribution of a tax assessed under G. L., c. 63, 
§ 1, to the executors of a deceased person should be credited to the 
town where he last dwelt. 

March 14, 1922. 

Hon. James Jackson, Chairman, Board of Appeal. 

Dear Sir: — You ask my opinion as to how the Board of 
Appeal should decide the matter of the appeal of the town of 
Orleans from the determination of the Commissioner of 
Corporations and Taxation regarding the distribution of the 
national bank stock tax, as provided by G. L., c. 63, §§ 1-10, 
inclusive. You state that the facts appear not to be disputed, 
but that there appears to be a question of law involved 
which the Board does not feel qualified to answer. 

From the information furnished me by the Commissioner 
it appears that a resident of the town of Orleans died on 
June 18, 1917, the owner of shares of stock in the First 
National Bank of Boston. During his life the tax on these 
shares, imposed by the statutes providing for taxation of 
bank shares (St. 1909, c. 490, pt. Ill, § 11; G. L., c. 63, § 1), 
and assessed to the owner in, and collected by, the city of 
Boston, had been credited to Orleans under statutory pro- 
visions (St. 1909, c. 490, pt. Ill, § 15; G. L., c. 63, § 5). 
For the two years next succeeding the death of the decedent, 
viz., 1918 and 1919, the tax on those shares held by and in 
the name of his executors was similarly credited. At some 
time certain of the shares were transferred by the executors 
to trustees under the will, and no question arises as to the 
tax on those shares. In 1920 the tax on the balance of the 
shares was credited to Beverly and Boston as the domicils of 
the beneficiaries under the decedent's will. The town of 
Orleans appealed from the decision of the Commissioner in 
so crediting the tax, and the Board of Appeal decided the 
appeal in favor of Orleans. 

Certain shares of the stock of the First National Bank 
formerly owned by the decedent are now in the hands of his 
executors, and stand in their names. For the year 1921 the 
Commissioner has credited half the amount of the tax assessed 



46 ATTORNEY GENERAL'S REPORT. [Jan. 

upon those shares to Beverly, that being the city where one 
of the two executors was an inhabitant on April 1, 1921. As 
to the other half of the tax no credit was given, because the 
other executor is the Old Colony Trust Company, and the 
statutory provision for credit does not apply. The town of 
Orleans has appealed from such determination to the Board 
of Appeal, claiming that a credit for the total amount of said 
tax should be given to that town. 

G. L., c. 63, § 1, provides that "all shares of stock in banks, 
whether of issue or not, existing by authority of the United 
States ... and located in the commonwealth, shall be 
assessed to the owner thereof in the town where such bank 
is located, and not elsewhere, in the assessment of state, 
county, city and town taxes, whether such owner is a resi- 
dent of said town or not. ..." Section 5 of said chapter is 
as follows : — 

Said commissioner shall thereupon determine the amount of the 
tax assessed upon shares in each of said banks which would not be 
liable to taxation in said town according to chapter fifty-nine; and 
such amount shall be a charge against said town. He shall, in like 
manner, determine the amount of tax so assessed upon shares which 
would be so liable to taxation in each town other than that where 
the bank is located; and such amount shall be a credit to such town. 
He shall forthwith give written notice by mail or at their office to the 
assessors of each town thereby affected of the aggregate amount so 
charged against and credited to it; and they may %\4thin ten days 
after notice of such determination appeal therefrom to the board of 
appeal from decisions of the commissioner. 

In brief, these sections provide for the assessment of 
taxes on shares of stock in national banks at the places where 
the banks are located, and the distribution of taxes so assessed 
among the towns which would have had the benefit if the 
shares had been taxable as other personal property. The 
distribution of the present tax is therefore determined by 
ascertaining where the shares in question would have been 
assessed had they been taxed in the same manner as other 
personal property. 

G. L., c. 59, § 18, provides that — 

All taxable personal estate within or without the commonwealth 
shall be assessed to the owner in the town where he is an inhabitant on 
April first, except as provided in chapter sixty-three and in the following 
clauses of this section : . . . 



1923.] PUBLIC DOCUMENT — No. 12. 47 

Clause 3d of said section provides as follows: — • 

Personal property of deceased persons, before the appointment of 
an executor or administrator, shall be assessed in general terms to the 
estate of the deceased, and the executor or administrator subsequently 
appointed shall be liable for the tax so assessed as though assessed to 
him. 

This clause is in the form of an amendment made by Gen. 
St. 1918, c. 129. Prior to that amendment the clause was as 
it appears in St. 1909, c. 490, pt. I, § 23, cl. 7th, as follows: — 

Personal property of deceased persons shall be assessed in the city 
or town in which the deceased last dwelt. Before the appointment of 
an executor or administrator it shall be assessed in general terms to 
the estate of the deceased, and the executor or administrator sub- 
sequently appointed shall be liable for the tax so assessed as though 
assessed to him. After such appointment it shall be assessed to such 
executor or administrator for three years or until it has been dis- 
tributed and notice of such distribution has been given to the assessors 
stating the name and residence of the several parties interested in the 
estate who are inhabitants of the commonwealth and the amount 
paid to each. After three years from the date of such appointment 
it shall be assessed according to the provisions of clause Fifth of this 
section. 

Clause 5th provided for assessment of property held in trust 
by an executor, administrator or trustee, to such person, in 
the city or town where the beneficiary resided. 

These provisions contained clear directions which would 
determine the duty of the Commissioner under the present 
circumstances. The tax would be assessable to the executors 
in the city or town in which the deceased last dwelt until 
the end of three years from their appointment, or until it 
had been distributed and notice given, and after that time 
would be assessable to them in the places of residence of the 
beneficiaries. 

It seems to be agreed that the reason for the change made 
by the act of 1918, in the clause last above quoted, was be- 
cause it was thought that the provisions which were eliminated 
had been rendered unnecessary by the income tax law, which 
altered the mode of taxation of intangible personal property. 
It was thought that a consistent system had been established 
for the taxation of tangible personal property at its situs, 



48 ATTORNEY GENERAL'S REPORT. [Jan. 

and intangible personal property merely through the income 
tax. The application of these provisions to the distribution 
of the tax on national bank shares was overlooked. 

The question which I have to determine is the proper 
method of crediting the tax collected on shares of stock in 
national banks in the estate of a deceased person and in the 
hands of that person's executor or administrator. It must 
be conceded that the question is a difficult one and cannot 
be answered with entire certainty. 

Some argument is made by the Commissioner that the 
executors here should be treated as trustees, but the cases 
are clear that until the executor has made an actual transfer 
to the trustee, even where the executor and the trustee are 
the same person, and such transfer is shown by his account 
and approved by decree of court, the property of a deceased 
person must be regarded as remaining in the hands of his 
executor. Hardy v. Yarmouth, 6 Allen, 277; Williams v. 
Acton, 219 Mass. 520, 524. 

All the personal property of a testator vests in his executor 
by the probate of the will, but the ownership of the executor 
is a qualified one. He is said to hold title to his testator's 
goods in autre droit, and not in his own right. Weeks v. 
Gihhs, 9 Mass. 74, 75, 76; Hutchins v. State Bank, 12 Met. 
421, 425; Lathrop v. Merrill, 207 Mass. 6, 10. 

Statutory provisions in our Commonwealth for assessing 
personal estates of deceased persons first appear in the 
Revised Statutes (R. S., c. 7, § 10, cl. 7th), which provided 
as follows : — 

The personal estate of deceased persons, which shall be in the hands 
of their executors or administrators and not distributed, shall be 
assessed to the executors and administrators, in the town where the 
deceased person last dwelt, until they shall give notice to the assessors, 
that the estate has been distributed and paid over to the parties 
interested therein. 

Prior to the enactment of the Revised Statutes the court 
had held such property to be assessable, not upon the deceased 
person, but upon his estate in the hands of his representa- 
tives. Cook V. Leland, 5 Pick. 236. 

With respect to R. S., c. 7, § 10, cl. 7th, the commissioners 
on the Revised Statutes said in their report: — 



1923.] PUBLIC DOCUMENT — No. 12. 49 

After the decease of a person, all taxes must be assessed to his heirs, 
executors, or administrators, or whomever may be in possession of it, 
Pick. Rep. 236 {Cook v. Leland) ; and the provision of this section is 
intended as a practical rule for assessors, who, whatever diligence and 
care they may exercise, often find that they have assessed property to 
executors or administrators after it has gone from their hands and 
been distributed among the heirs and legatees. It is respectfully 
suggested that some provision is necessary on this subject, to point 
out the respective duties of the assessors and the representatives of 
deceased persons. 

In Vaughan v. Street Commissioners, 154 Mass. 143, 145, 
the court, after referring to this note, said: — 

It is evident that the statute thus passed provided for two things: 
the place where and the person to whom the personal estate of a de- 
ceased person should be assessed. 

The amendment made by Gen. St. 1918, c. 129, has left 
the law as it was before the enactment of R. S. c. 7, § 10, cl. 
7th. There is no statute now covering the subject of that 
provision. 

In the case of Smith v. Northampton Bank, 4 Cush. 1, 12, 
Chief Justice Shaw says as follows: — 

It may be well admitted, that the liability of property to taxation 
in this commonwealth depends upon the provisions of statutes; but 
the statutes upon this subject, like all others, must be construed with 
a reference to the reasons and principles of the common law, and with 
a just regard to the subject matter to which they apply. 

While the decisions in Massachusetts have not established 
any common law principle as to the place where the personal 
property of a deceased person in the hands of an executor or 
administrator should be assessed, there are decisions in other 
States, where the subject is not covered by statute, which 
hold, in accordance with the rule defined by the Revised 
Statutes, that taxes on such property should be assessed in 
the place where the deceased last dwelt. They rest on the 
principle that the situs of personal property, for taxation 
purposes, does not change upon the death of the owner. 
San Francisco v. Lux, 64 Cal. 481; Cornivall v. Todd, 38 
Conn. 443; Millsaps v. City of Jackson, 78 Miss. 537; Stephens 
V. Mayor of Booneville, 34 Mo. 323; City of Staunton v. 



50 ATTORNEY GENERAL'S REPORT. [Jan. 

Stovfs Executor, 86 Va. 321; Rixey's Executors v. Common- 
wealth, 125 Va. 337; CommomveaJih v. Peebles, 134 Ky. 121; 
Alexander's Executor v. City of Versailles, 152 Ky. 357; 
State V. Beardsley, 77 Fla. 803; City of Blakely v. Hilto7i, 
150 Ga. 27; Burroughs on Taxation, § 98; Desty on Taxa- 
tion, vol. I, p. 333. 

The case of Dallinger v. Rapello, 14 Fed. 32, should be 
mentioned. It holds that personal property of a deceased 
inhabitant of Massachusetts is not taxable after the appoint- 
ment of an executor and before distribution, when the property 
is not within the Commonwealth, and neither the executor 
nor any person having an interest in or right to receive the 
property has a domicil or residence there. This case seems 
not to be inconsistent with the other cases cited. 

In view of the fact that an executor or administrator is 
not an absolute but a qualified owner of the decedent's 
estate, that G. L., c. 59, § 18, cl. 3d, provides for the assess- 
ment of personal property of deceased persons before the 
appointment of an executor or administrator to the estate, 
apparently assuming that such assessment shall be at the 
place where the deceased last dwelt, and that the omission 
of the following provisions in the clause as it read before the 
amendment of 1918 was, so far as it affects the crediting of 
the tax from national bank shares, admittedly due to an 
oversight and not to an intention to change the existing 
rule; and in view of what seems to be the general principle 
that the personal property of deceased persons in the process 
of administration, while it should be assessed to their per- 
sonal representatives, should be so assessed at the place where 
the deceased last dwelt, on the theory or fiction that the situs 
of the property is not changed by the death — it is my opinion 
that that procedure should be followed in the present instance, 
and that the town of Orleans should be credited with the 
tax in question. 

Very truly yours, 

J. Weston Allex, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 51 



District Attorneys — Members of the Bar — Constitutional Lau\ 

An act requiring that district attorneys shall be members of the bar is 
constitutional. 

A district attorney is not an officer created by or provided for in the Con- 
stitution. 

The Legislature may constitutionally require that such officers shall 
possess certain qualifications, provided that the qualifications re- 
quired bear a reasonable relation to the duties of the office and may 
be acquired by any person. 

March 14, 1922. 

Joint Committee on the Judiciary. 

Gentlemen: — You have requested my opinion as to the 
constitutionality of House Bill No. 1034, entitled "An Act 
providing that district attorneys shall be members of the 
bar," which reads as follows: — 

Section twelve of chapter twelve of the General Laws is hereby 
amended by inserting after the word ''therein," in the second line, the 
words : — and a member of the bar of the commonwealth, — so as to 
read as follows: — Section 12. There shall be a district attornej^ for 
each district set forth in the following section, who shall be a resident 
therein and a member of the bar of the commonwealth and shall be 
elected as provided by section one hundred and fiftj^-four of chapter 
fifty-four. He shall serve for four years beginning with the first 
Wednesday of January after his election and until his successor is 
qualified. 

In Attorney General v. Tufts, 239 Mass. 458, the Supreme 
Judicial Court said: — 

The district attorney is not an officer created by or provided for in 
the Constitution. . . . These provisions (Articles of Amendment VIII, 
XIX) merely recognize an existing office. They do not secure its 
tenure nor confer any rights in the office superior to the control of the 
Legislature. The Constitution ordains how the officer shall be elected 
and a single act of one so elected which shall vacate the office. It 
does nothing more. It is within the constitutional power of the 
Legislature by general law to change the term of office or abolish the 
office itself and transfer the powers and duties to another. 

See also Attorney General v. Pelletier, 240 Mass. 264. 

A district attorney not being an officer created by or pro- 
vided for in the Constitution, the Legislature may constitu- 
tionally require that such an officer shall possess certain 
qualifications, provided that the qualifications required bear 
such a relation to the duties imposed that they tend to 



52 ATTORNEY GENERAL'S REPORT. [Jan. 

secure that kind and degree of knowledge, experience and 
impartiality which are requisite for the satisfactory perform- 
ance of the duties, and provided further, that it is open to 
any person to acquire the qualifications required. Broivii v. 
Russell, 166 Mass. 14, 16, 17; Taft v. Adains, 3 Gray, 126, 
130; Graham v. Roberts, 200 Mass. 152, 156; Lee v. Lyjin, 
223 Mass. 109, 112; Attorney General v. Tufts, 239 Mass. 
458; Attorney Gerieral v. Pelletier, supra. 

In Attorney General v. Tufts, supra, the court said: — 

Where an office is created by law and one not contemplated nor 
its tenure declared by the Constitution but created by law solely for 
public benefit, it may be regulated, limited, enlarged or terminated as 
the public exigency or policy may require. 

In Graham v. Roberts, 200 Mass. 152, the court said (page 
156): — 

It is not unreasonable to require that only persons believed to be of 
good moral character and qualified to perform the duties of the office 
shall be accepted as candidates whose names are to go upon the official 
ballot. 

The proposed bill requires that district attorneys shall be 
members of the bar. A knowledge of law is essential to the 
satisfactory performance of the duties of a district attorney. 
The qualification required may be acquired by any person. 
It is therefore a reasonable requirement and one which the 
Legislature may impose. Accordingly, I am of opinion that 
House Bill No. 1034, providing that district attorneys shall 
be members of the bar, if enacted, would be constitutional. 
Very truly yours, 

J. Weston Allen, Attorney General. 



District Courts — Double Trials — Statute. 

If a criminal case has been tried upon the merits in a district court or 
before a trial justice, G. L., c. 263, § 8A, prohibits a retrial of said 
case in said court or before said justice, even though the case is dis- 
posed of upon appeal otherwise than upon the merits. 

Maech 14, 1922. 
His Excellency Channing H. Cox, Governor of the Commonwealth. 

Sir: — You have submitted for my consideration Senate 
Bill No. 327, entitled "An Act to prevent double trials in 
district courts and before trial justices," which provides: — 



1923.J PUBLIC DOCUMENT — No. 12. 53 

Chapter two hundred and sixty-three of the General Laws is hereby 
amended by inserting after section eight the following new section : — 
Section 8 A. A person shall not be held to answer in a district court 
or before a trial justice to a second complaint for an offense for which 
he has already been tried upon the facts and merits in said court or 
before such justice. 

The bill does not appear to be objectionable upon constitu- 
tional grounds, but there are certain other legal aspects of the 
bill which may require your consideration, bearing upon the 
practical effect which this measure, if it becomes law, might 
have upon the administration of criminal justice in the dis- 
trict courts. 

Ordinarily, an acquittal by the district court disposes of the 
crime charged in the complaint. In most cases such acquittal 
could be pleaded in bar at a subsequent trial either before 
the district court or before the Superior Court. The bill is 
therefore unnecessary as a protection to the innocent. 

If a person is found guilty in the district court, he has an 
unlimited and absolute right of appeal. Such appeal vacates 
the judgment of guilt and removes the case to the Superior 
Court for a new trial upon the merits. If upon that trial 
the defendant is either acquitted or found guilty, that judg- 
ment, when it becomes final, is an absolute bar to further 
prosecution for the same offence. It therefore appears that 
the act is unnecessary if the case is disposed of by final 
judgment in the Superior Court. 

If, on the other hand, the appeal is disposed of w^ithout 
trial, by the entry of a nolle prosequi or otherwise, the present 
bill would preclude a retrial in the district court upon the 
same complaint, although such entry of nolle prosequi was 
made by mistake or even in bad faith. In other words, 
this bill would give immunity from further prosecution in 
the district court to one convicted in the district court, 
whose conviction has been vacated by an appeal, and who then 
has procured a disposition of his case otherwise than by trial. 

With respect to the form of the proposed bill, I suggest 
that the phrase "for which he has already been tried upon the 
facts and merits in said court or before such justice," would 
be improved as to form if the words "the facts" w^ere omitted 
therefrom. A trial upon the merits necessarily involves a 
trial upon the facts. 

Yours very truly, 

J. Weston Allen, Attorney Generol. 



54 ATTORNEY GENERAL'S REPORT. [Jan. 



Drainage Law — Meaning of the Words ''the Deter mi?iation 
of the Board thereon." 

The words "the determination of the board thereon," in G. h., c. 252, 
§ 7, refer to the action of the Drainage Board pursuant to the pro- 
visions of G. L., c. 252, § 5. 

The Attorney General cannot be required to discharge his duty to advise 
a department within any fixed time. 

March 15, 1922. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You ask me to give you an explanation of 
the words "the determination of the board thereon" as used 
in G. L., c. 252, § 7, line 5. These words seem to me to 
contain no ambiguity of meaning. Section 7 authorizes 
the commissioners, after the certificate of organization of 
the drainage district has been issued by the Secretary of the 
Commonwealth, to petition the county commissioners of the 
county where the greater part of the land lies, "annexing a 
certified copy of the petition under section five and of the 
determination of the board thereon." Section 5 provides 
for the filing of a petition with the Board by the proprietors 
of the land, setting forth their desire to form a drainage dis- 
trict for the improvement of low land, and continues as 
follows : — 

Upon the receipt of said petition the board shall proceed, at the 
expense of the commonwealth, to make such survey's of the land 
proposed to be drained as it shall deem necessary, and shall further 
ascertain by such surveys or other investigations the need of any drain- 
age required for the benefit of the public health, agricultural and 
other uses to which the land can be put after drainage, and its value 
for such uses after drainage, and in general the advisability of under- 
taking the proposed drainage or maintenance, and shall make recom- 
mendations in relation thereto, including a statement of what portion, 
if any, of the expense should be borne b}^ the commonwealth on 
account of the cost of that part of the improvement relating to the 
public health; and if the board approves of the undertaking, it shall 
issue a certificate appointing three, five or seven district drainage 
commissioners. 

The w^ords "the determination of the board thereon," 
appearing in section 7, refer to the action of the Board as 
shown by its minutes, indicating their ascertainment of the 
need of any drainage required, of the value of the land after 



1923.] PUBLIC DOCUMENT — No. 12. 55 

drainage, and, in general, the advisability of the undertaking 
and the recommendations of the Board in relation thereto. 

In submitting your inquiry you requested an opinion " if 
possible by Tuesday afternoon, March 14." Requests for 
opinions from the Governor and from the General Court, by 
established custom, are given precedence in the work of the 
department. Tlie Attorney General cannot be required to 
discharge his duty to advise a department of the government 
within any fixed time. As to what is a due performance of 
his duty, he must be the judge. II. Op. Atty. Gen. 125, 
405; III. Op. Atty. Gen. 424, 471. 
Very truly yours, 

J. Weston Allen, Aitonicy General. 



Volunteer Militia — Armory — Cities and Towns — Grounds 
for Parade, Drill and Small Arms Practice. 

Under our statutes the quartering of troops and their training are distinct 

functions. 
A city or town is not relieved from its obligation to furnish suitable grounds 

for parade, drill and small arms practice merely because an armory 

of the first or second class has been furnished b^^ the Commonwealth 

in the city or town in question. 

March 16, 1922. 
Brig. Gen. Jesse F. Stevens, Adjutant General. 

Dear Sir: — You have asked my opinion as to whether 
the requirement placed on cities and towns, under G. L., c. 
33, § 42, ceases when an armory of the first or second class 
is furnished by the Commonwealth in the city or town in 
question but no grounds for parade, drill or small arms prac- 
tice are furnished. 

Section 42 provides: — 

The aldermen or the selectmen shall provide and maintain for each 
command of the volunteer militia or detachment thereof permanently 
stationed wdthin the limits of their respective towns suitable grounds 
for parade, drill and small arms practice, unless vsuch groujjds have 
been furnished for such command by the commonwealth. Any town 
failing to comply with this provision shall forfeit to the common- 
wealth a sum not exceeding five thousand dollars for each year during 
which such failure continues, to be recovered upon an information in 
equity brought in the supreme judicial court by the attorney general 
at the relation of the adjutant general. Any amount so forfeited 
shall be credited to the appropriation for small arms practice for the 



56 ATTORNEY GENERAL'S REPORT. [Jan. 

fiscal j'ear in which the forfeiture occurs. When two or more commands 
of the volunteer miUtia are permanently stationed in the same town, 
the aldermen or the selectmen may, if practicable, provide for such 
commands suitable grounds for parade, drill and small arms practice, 
to be used by them in common. Land for drill and parade grounds 
and for ranges for small arms practice may be acquired by purchase or 
lease, or under chapter seventj'-nine. Towns where headquarters, 
commands or detachments of the volunteer militia are permanently 
stationed may raise money by taxation or otherwise for the acquisition 
of land for drill and parade grounds or ranges for small arms practice 
or for complying with sections thirty-nine and forty-three. 

The above section is included in that group of sections of 
the law on the volunteer militia w^hich relate to the furnishing 
of accommodations for, and the training of, the militia. 

A review of our statutes relating to these matters shows 
that the housing and the training of troops have always been 
regarded as distinct functions; that is, it has never been pro- 
vided that a city or town shall furnish, for example, an 
armory with a target range, but there have been provisions 
with respect to the furnishing of armories or quarters, and 
subsequent provisions with respect to the facilities for the 
training of the troops. In this connection it seems to me 
that the last two sentences of the foregoing section are 
particularly relevant in establishing the proposition that 
quarters and parade grounds or target ranges are distinct 
matters. It is sections 39 and 43 which make mandatory 
upon cities and towns the furnishing of armories or quarters 
unless the same have been furnished by the Commonwealth. 
The same distinction appears in section 45, which recites 
how land may be acquired by the Armory Commissioners 
for armories, and how it may be acquired for parade and 
drill grounds and ranges. So, too, in section 46, w^here it is 
provided how the Armory Commissioners may acquire title 
to armories already built or furnished by the cities and towms, 
and how it may acquire title to drill and parade grounds or 
target ranges. There is nothing in the statutes w^hich com- 
pels the Commonwealth to furnish parade and drill grounds 
to any city or town where a unit may be stationed, or where 
there may be an armory, or when an armory is completed, 
but the obligation is mandatory on each city or town to 
"provide for each command of the volunteer militia, or 
detachment thereof, not provided with an armory of the first 
class, and permanently stationed within the limits of their 



1923.] PUBLIC DOCUMENT — No. 12. 57 

respective towns, an armory ..." (§ 39), and to "provide 
and maintain for each command of the volunteer militia or 
detachment thereof permanently stationed within the limits 
of their respective towns suitable grounds for parade, drill 
and small arms practice, unless such grounds have been 
furnished for such command by the commonwealth" (§ 42). 
The policy of the act seems to be to make the local accom- 
modation of the militia a local charge. See I Op. Atty. Gen. 
63. The act clearly seems to recognize the differentiation 
between quartering and training troops. 

I am consequently of the opinion that a city or town is 
not relieved from its obligation to furnish parade and drill 
grounds or ranges for target practice merely because and if an 
armory of the first or second class has been furnished in the 
city or town in question. I believe that section 49 should 
properly be interpreted as meaning that if any armory of the 
first or second class is furnished by the Commonwealth the 
obligation of a town, under sections 39 and 40, to furnish 
quarters ceases; and that if the Commonwealth furnishes 
parade and drill grounds or ranges for target practice, the 
obligation of such city or town shall cease, under sec- 
tion 42. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Fish and Game — Taking Pickerel "from the Waters of the 
Commonwealth" — Decisio7i of District Court — Effect. 

The term "waters of the commonwealth," as used in G. L., c. 130, § 59, 
applies to all waters within the jurisdiction of the Commonwealth, 
and is not confined to waters owned by the Commonwealth, 

While it is not the function of the Attorney General to review a decision 
of the district court, and such decision will be accorded due con- 
sideration and respect, it does not conclude him in advising State 
officers in regard to their official duties. 

March 20, 1922. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You request my opinion as to whether or 
not the term "waters of the commonwealth," as used in 
G. L., c. 130, § 59, applies to all waters or merely to State- 
owned waters in the Commonwealth. 

Section 59 provides as follows : — 



58 ATTORNEY GENERAL'S REPORT. [Jan. 

Whoever takes from the waters of the commonwealth a pickerel 
less than ten inches in length, or sells or offers for sale, or has in pos- 
session any such pickerel, shall be punished bj^ a fine of one dollar for 
each pickerel so taken, held in possession, sold or offered for sale; 
and in prosecutions under this section the possession of pickerel less 
than ten inches in length shall be prima facie evidence of such unlaw- 
ful taking. 

G. L., c. 130, defines the powers and duties of the Division 
of Fisheries and Game and regulates various fisheries. The 
power to regulate fisheries is of broad scope, resting, as it 
does, upon the constitutional grant of authority to enact 
"all manner of w^holesome and reasonable orders, laws, 
statutes and ordinances." Commonwealth v. Fecney, 221 
Mass. 323, 325. Such authority may be invoked not only to 
preserve the public health {Commonwealth v. Feeney, supra), 
but also to preserve the natural resources of the Common- 
wealth from undue depletion. Plumley v. Massachusetts, 155 
U. S. 461; Gccr v. Connecticut, 161 U. S. 519; Silz v. Hester- 
berg, 211 U. S. 31; Patsone v. Pennsylvania, 232 U. S. 138; 
see also Walls v. Midland Carbon Co., 254 U. S. 300. It is 
by no means confined to natural resources owned by the 
Commonwealth in its proprietary capacity as distinguished 
from resources held upon a quasi trust for the benefit of all 
the citizens. Ohio Oil Co. v. Indiana, 111 U. S. 190; Lindsley 
V. National Carbonic Gas Co., 220 U. S. 61; Walls v. Mid- 
land Carbon Co., supra. No limitation upon the scope of 
the power requires that the exercise thereof be restrained by 
construction to resources of the former class. 

Examination of sections 58 and 60 of chapter 130 throws 
light upon the meaning of *'the waters of the Common- 
wealth" as used in section 59. Section 58 provides that 
no person shall take pickerel betw^een March 1 and May 1 
in any year, or during said period shall sell, offer or expose 
for sale or have in possession *'a pickerel taken in this com- 
monw^ealth." Section 60 authorizes any town to forbid, under 
penalty, the taking of pickerel "in any river, stream or pond 
therein" in any other manner than by angling. In both 
these sections the prohibition is not confined to waters owned 
by the Commonwealth. The limitation is geographical. 
Section 58 applies throughout the Commonwealth. Section 
60 applies to any river, stream or pond wdthin the town 
which adopts the by-law against angling. Under these cir- 
cumstances, in my opinion, the words " waters of the com- 



1923.] PUBLIC DOCUMENT — No. 12. 59 

monwealth," as used in section 59, mean waters within the 
Commonwealth and not waters belonging to the Common- 
wealth. 

In reaching this conclusion, I have given due consideration 
to the ruling of the district court to which you call my 
attention. It is not the function of the Attorney General to 
review decisions of the district courts. In advising a State 
official as to the performance of his official duties, rulings of 
the inferior courts of the Commonwealth have persuasive 
value and are entitled to consideration and respect. But as 
a binding and authoritative ruling upon questions of State 
law can be rendered by the Supreme Judicial Court alone, 
the ruling of an inferior court cannot be held to be con- 
clusive except in the case and upon the parties before it. 
It cannot, as matter of law, conclude the Attorney General 
in advising you as to your duties under this act. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Commissioner of Correction — Special State Police Officer — 

Warra7its. 

A special State police officer appointed under the provisions of G. L., 
c. 127, § 127, has authority to serve only the warrants and orders of 
removal or transfer of prisoners issued by the Commissioner of Cor- 
rection. 

March 21, 1922. 

Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir : — You request my opinion as to w hether or 
not a special State police officer appointed under the pro- 
visions of G. L., c. 127, § 127, may serve a warrant issued by 
an authority other than the Commissioner of Correction. 

Said section 127 reads as follows: — 

The governor, upon the written recommendation of the commis- 
sioner, may appoint any agent or emploj^ee of the department of cor- 
rection or any emplo^Te of any penal institution a special state po- 
lice officer for a term of three years, unless sooner removed. Officers 
so appointed may serve warrants and orders of removal or transfer of 
prisoners issued by the commissioner, and maj^ perform police duty 
about the premises of penal institutions. 

The statutory provisions as to the powers of the State police 
are found in G. L., c. 147, § 2, and the general provisions 



60 ATTORNEY GENERAL'S REPORT. [Jan. 

relative to the service of criminal warrants are found in G. L., 
c. 276, § 23. Both of these statutes are general. 

G. L., c. 127, § 127, however, is a special statute. Sec- 
tions 97 to 127, inclusive, of that chapter have to do with the 
removal of prisoners from and to the institutions therein 
designated by the Commissioner of Correction. This legis- 
lation was first enacted in 1899. The bill which resulted in 
chapter 243 of the acts of that year, authorizing the appoint- 
ment of special officers for the removal and transfer of 
prisoners, was reported in pursuance of a recommendation in 
the annual report of the Board of Commissioners of Prisons 
covering the year ending Sept. 30, 1898. In that report the 
commissioners stated as follows concerning the removal of 
prisoners : — 

The statutes authorize the commissioners to transfer prisoners from 
one prison to another; they also require the Board to secure and re- 
turn to prison such prisoners as have violated the terms of their per- 
mit of release. An appropriation is annually made by the Legislature 
to cover the expense of this work. After the issuing of the proper 
papers b}^ the secretary, the duty of removing the prisoner is delegated 
to either the local police or a member of the State force. The amount 
of this work has increased to such an extent that it is frequently incon- 
venient to secure the services of the police in order prompth^ to perform 
the work. It is believed that the duty of removals of prisoners by 
order of the commissioners should be performed by the agents of this 
office. It is therefore recommended that authority be given the com- 
missioners to appoint one or more of its agents who shall be empowered 
to serve their warrants and orders of removal or transfer of prisoners 
anywhere within the limits of the Commonwealth, 

The provisions of chapter 243 were carried along as follows: 
R. L., c. 225, § 112; Gen. St. 1919, c. 105; G. L., c. 127, 
§ 127. 

In the light of the history of this statute, it is my judg- 
ment that a special State police officer appointed under said 
section 127 has authority to serve only the warrants and 
orders of removal or transfer of prisoners issued by the Com- 
missioner of Correction. 

Yours very truly, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 61 



Public Health — Dangerous Diseases — Support — Overseers of 

the Poor. 

Under G. L., c. Ill, § 6, the Department of Public Health shall define 
what diseases shall be deemed to be dangerous to pubhc health, and, 
under section 32, where a local board of health has acted in the matter, 
it shall retain charge thereof, including whatever support may be 
necessary, to the exclusion of the overseers of the poor. 

Maech 23, 1922. 
Eugene R. Kelley, ]M.D., Commissioner of Public Health. 

Dear Sir: — You request my opinion as to whether all 
cases involving a disease which the Department of Public 
Health has declared to be dangerous to the public health 
are now to be supported by the local board of health, where 
support may be needed, to the exclusion of the overseers of 
the poor. 

G. L., c. Ill, § 6, provides that the Department of Public 
Health shall define what diseases shall be deemed to be 
dangerous to the public health. 

Section 112 of said chapter provides as follows: — 

If the board of health of a town has had notice of a case of 2cn.y dis- 
ease declared bj^ the department dangerous to the public health therein, 
it shall within twenty-four hours thereafter give notice thereof to the 
department, stating the name and the location of the patient so afflicted, 
and upon request the department shall forthwith certify any such 
reports to the department of public welfare. 

Section 32 of said chapter provides: — 

A board of health shall retain charge, to the exclusion of the over- 
seers of the poor, of any case arising under this chapter in which it 
has acted. 

Section 116 of said chapter provides as follows: — 

Reasonable expenses incurred by boards of health or by the com- 
monwealth in making the provision required b}^ law for persons infected 
with smallpox or other disease dangerous to the public health shall be 
paid by such person or his parents, if he or they be able to pay, other- 
wise by the town where he has a legal settlement, upon the approval 
of the bill by the board of health of such town or by the department of 
pubhc welfare. Such settlement shall be determined by the overseers 
of the poor, and by the department of public w^elfare in cases cared 
for by the commonwealth. If the person has no settlement, such 
expense shall be paid by the commonwealth, upon the approval of 



62 ATTORNEY GENERAL'S REPORT. [Jan. 

bills therefor by the department of public welfare. In all cases of 
persons having settlements, a written notice, sent within the time 
required in the case of aid given to paupers, shall be sent b}^ the board 
of health of the town where the person is sick to the board of health 
of the town where such person has a settlement, who shall forthwith 
transmit a cop3^ thereof to the overseers of the poor of the place of 
settlement. If the person has no settlement, such notice shall be 
given to the department as provided in section one hundred and 
twelve; and also, in any case liable to be maintained by the common- 
wealth when public aid has been rendered to such sick person, a written 
notice shall be sent to the department of public welfare, containing 
such information as will show that the person named therein is a 
proper charge to the commonwealth, and reimbursement shall be 
made for reasonable expenses incurred within five daj's next before 
such notice is mailed, and thereafter until such sick person is removed 
under section twelve of chapter one hundred and twenty-one, or 
is able to be so removed without endangering his or the public health. 

I am consequently of the opinion that in any case involving 
a disease which your department has declared to be danger- 
ous to the public health, and which, accordingly, is to be 
reported under section 112, supra, and a local board of health 
has acted in the matter, such local board of health shall retain 
charge thereof, including whatever support may be necessary, 
to the exclusion of the overseers of the poor. 
Yours very truly, 

J. Westox Allex, Attorney General. 



Constitutio7ial Law — Referendum Petition — Law subject to 
Refe rendu m Petit ion . 

Under Mass. Const. Amend. XLVIII, The Referendum, pt. Ill, § 2, a 
law, "the operation of which is restricted to a particular town, city or 
other political subdivision or to particular districts or localities of the 
commonwealth," is not subject to a referendum petition. 

St. 1922, c. 161, which regulates the granting of licenses to take lobsters 
from the waters of the Commonwealth within three miles of the 
shore of the nine seacoast counties of the Commonwealth is subject 
to a referendum petition, since it is a general regulation of the lobster 
fishery of the Commonwealth, even though the nine counties to which 
a general law could physically apply are expressly enumerated. 

March 24, 1922. 
Hon. F. W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You inquire whether St. 1922, c. 161, is ex- 
cluded by section 2 of part III of Mass. Const. Amend. 



1923.] PUBLIC DOCUMENT — No. 12. G3 

XLVIII, The Referendum, from the operation of the refer- 
endum provisions. Said section 2 is as follows: — 

No law that relates to religion, religious practices or religious insti- 
tutions; or to the appointment, qualification, tenure, removal or 
compensation of judges; or to the powers, creation or abolition of 
courts; or the operation of which is restricted to a particular town, 
city or other political division or to particular districts or localities 
of the commonwealth; or that appropriates money for the current 
or ordinary expenses of the commonwealth or for any of its depart- 
ments, boards, commissions or institutions shall be the subject of a 
referendum petition. 

St. 1922, c. 161, amends G. L., c. 130, § 104, in a manner 
not material to your inquiry. G. L., c. 130, § 104, provides 
in part : — 

The clerk of any town in Essex, Middlesex, Suffolk, Norfolk, Plym- 
outh, Barnstable, Bristol, Dukes or Nantucket county, situated on 
the shores of the commonwealth, shall grant licenses in the form 
prescribed and upon a blank furnished by the director, to catch or 
take lobsters from the waters of the commonwealth within three miles 
of the shores of the county where the town lies. Except as hereinafter 
provided, such licenses shall be granted only to individuals who are 
citizens of the commonwealth and who have resided therein for at 
least one year next preceding the date of the same. . . . 

The further provisions define how and to whom licenses may 
be granted, impose certain duties on the town clerk granting 
the license, and require certain acts by the licensees. 

If this act had provided that "the clerk of any town shall 
grant licenses ... to catch and take lobsters from the 
waters of the commonwealth within three miles of the shores 
of the county where the town lies," there can be no question 
that the law would be a general law. In all probability no 
licenses would be granted in the inland counties, since there 
would be no waters upon which such licensees could operate, 
but this physical situation would not in any way affect the 
general character of that law. The present act is plainly 
intended as a general regulation of the lobster fishery of the 
Commonwealth. The counties enumerated are the only ones 
which possess seashore. Such enumeration does not, from the 
practical standpoint, limit the operation of the law, since, in 
any event, the license is confined to the waters of the Com- 
monwealth within three miles of the shores of the count v 



64 ATTORNEY GENERAL'S REPORT. [Jan. 

where the town lies. I am therefore of opinion that the 
present law is a general law, the operation of which is not 
"restricted to ... a particular town, city or other political 
subdivision or to particular districts or localities of the com- 
monwealth," within the meaning of Mass. Const. Amend. 
XLVIII. A law, general in its terms, may be restricted in 
its operation to a few counties or even a single county for 
the reason that it is not applicable elsewhere. Statutes 
relating to alewife fisheries and salmon and trout fishing 
obviously are local in their application, although included 
among the general laws. For the reasons stated, I am of the 
opinion that the statute about which you inquire is not 
excluded from the referendum. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Domicil — Settlement — Married Woman. 

Under G. L., c. 116, § 1, where a woman born in Boston, having a settle- 
ment there derived from her parents, married a man who never had a 
legal settlement in any city or town in the Commonwealth, and her 
parents left Boston in 1911 and acquired a settlement elsewhere, the 
legal settlement of such woman after the death of her husband con- 
tinues to be in Boston. 

March 25, 1922. 

Mr. Richard K. Conant, Commissioner of Public Welfare. 
Dear Sir: — You request my opinion as follows: — 

The question is as to the place of settlement of a woman who was 
born in Boston April 4, 1896, and married July 18, 1914. At the 
date of marriage she had a settlement in Boston derived from her 
parents. The husband died Jan. 8, 1919, and never had a legal settle- 
ment in any city or town in the Commonwealth. Her parents left 
Boston in 1911 and acquired a settlement in Hanson b}^ residence from 
1911 to 1916. What was her legal settlement after the death of her 
husband? 

G. L., c. 116, § 1, provides, in part, as follow^s: — 

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 
wdthin the commonwealth for five consecutive years shall thereby 
acquire a settlement in such town. 



1923.] PUBLIC DOCUMENT — Xo. 12. 65 

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. 



In the case of Treasurer and Receiver-General v. City of 
Boston, 229 Mass. S3, it is stated: — 

A woman who has a legal settlement in the Commonwealth, at the 
time of her marriage to a man who is \\athout a settlement here does 
not lose her settlement; . . . The statute should not be so construed 
as to deprive the wife of a settlement once acquired, in the absence of 
language clearly manifesting such an intention; and it is not to be 
extended by implication or judicial construction to include persons 
whom the Legislature has not seen fit to embrace within its scope. 

Accordingly, it is my opinion that under the facts stated 
the place of settlement of the woman above referred to 
continued to be in Boston after the death of her husband, 
that being her settlement at the date of her marriage and 
her husband never having had a legal settlement in any city 
or town in the Commonwealth. 

Very truly yours, 

J. Weston Allex, Attorney General. 



Attorney General — Duty to advise. 

As the Attorney General is an executive, not a judicial, officer, who cannot 
exercise judicial power, he will not give an advisory opinion upon a 
justiciable controversy pending between third parties. 

March 27, 1922. 

Charles M. Davenport, Esq., Chairman, Commission on Probation. 

Dear Sir: — Your inquiry concerning a controversy be- 
tween certain probation officers and the county treasurer of 
Middlesex County does not, so far as I can perceive, involve 
any question of the duties imposed by law upon the commission. 
Under these circumstances, the question arises whether I 
can properly advise you in answ^er to your inquiry. 

The Attorney General is an executive, not a judicial, 
officer. He cannot exercise the judicial power; that is, the 
power to hear and determine controversies or causes. The 
Supreme Judicial Court takes the same view of the duty to 



66 ATTORNEY GENERAL'S REPORT. [Jan. 

advise the Governor and Council or either branch of the 
Legislature, imposed upon it by Mass. Const., pt. 2d, c. Ill, 
art. 11. It will not exert this advisory power in order to 
decide controversies which should be determined by the 
exercise of the judicial power in a cause arising between 
party and party. In Opinion of the Justices, 122 Mass. 600, 
that court declined to advise the House of Representatives 
whether a certain judicial officer had vacated his office by 
accepting a seat in the House of Representatives, upon the 
ground that the inquiry presented a judicial question which 
could not be definitely or justly decided without trial and 
argument. 

Your inquiry presents a judicial question which can readily 
be determined in a suit by the officers in question to recover 
the salary alleged to be due. Under these circumstances, 
I am constrained to advise you that I ought not to forecast 
the outcome of legal proceedings by an answer to your 
inquiry. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Law — Police Power — Garage — School, Hospi- 
tal or Church — Property Rights. 

The Legislature, in the exercise of the police power, may regulate and 
limit rights of property in the interest of public health, public morals 
and public safety. 

A statute providing that no permit shall be issued for the erection, mainte- 
nance or use of a building as a garage for more than two cars on the 
same street as, and within 500 feet of, a school, hospital or church, 
is not an unreasonable exercise of the police power. 

March 27, 1922. 
Hon. Frank G. Allen, President of the Senate. 

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

Ordered, That the Senate request the opinion of the Attorney General 
as to the constitutionality of House Bill No. 1358, entitled "An Act 
relative to garages in the city of Boston. " 

House Bill No. 1358 reads as follows: — 



1923.] PUBLIC DOCUMENT — No. 12. 67 

Section 1. Section three of chapter five hundred and seventy- 
seven of the acts of nineteen hundred and thirteen, as amended by 
section two of chapter one hundred and nineteen of the acts of nineteen 
hundred and fourteen, is hereby further amended bj^ adding at the 
end thereof the following: — ; provided, that no application shall be 
granted and no permit issued for the erection, maintenance or use of 
any structure or building as a garage for more than two cars on the 
same street as, and within five hundred feet of, any building occupied 
in whole or in part as a public or private school for more than fifty 
pupils, or as a public or private hospital having more than twenty-five 
beds, or as a church, — so as to read as follows: — Section 3. 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 character of 
the neighborhood in which is situated the land or building referred to 
in the application, shall determine whether or not the application shall 
be granted and a permit issued; provided, that no application shall 
be granted and no permit issued for the erection, maintenance or use 
of any structure or building as a garage for more than two cars on 
the same street as, and within five hundred feet of, any building occu- 
pied in whole or in part as a public or private school for more than fifty 
pupils, or as a public or private hospital having more than twenty-five 
beds, or as a church. 

Section 2. The provisions of this act shall not apply to a building 
maintained as a garage for the storage, keeping or care of automobiles 
at the time of the passage of this act, but any enlargement or altera- 
tion of, or addition to, any such building shall be subject to the pro- 
visions of this act. 

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

The order of the Senate is not directed to any particular 
feature of the bill, and I have confined my attention to 
those questions which I conceive might be raised. The 
principal question may be subdivided as follows: — First, can 
the Legislature, in the exercise of the police power, regulate 
the erection and maintenance of garages; second, can it 
prohibit the erection, maintenance or use of any structure or 
building as a garage for more than two cars on the same 
street as, and within 500 feet of, any building occupied in 
whole or in part as a public or private school for more than 
fifty pupils, or as a public or private hospital having more 
than twenty-five beds, or as a church. 

As to the first question, in my opinion it is well settled that 
the Legislature can regulate the erection and maintenance of 



68 ATTORNEY GENERAL'S REPORT. [Jan. 

garages. This is a valid exercise of the police power. In 
the exercise of this power the Legislature may regulate and 
limit rights of property ir the interest of public health, public 
morals and public safety. Welch v. Swasey, 193 Mass. 364. 
In Storer v. Downey, 215 Mass. 273, the Supreme Judicial 
Court used the following language concerning the regulation 
of garages : — 

Oil and gasoline, almost inevitably stored and used in them, are 
so highly inflammable and explosive that thej^ may increase the dan- 
ger of fire, no matter how carefully the building be constructed nor 
how non-combustible its materials. Although lawful and necessary 
buildings, they are of such character that regulation of the place of 
their erection and use is well within settled principles as to the police 
power. 

The second question, summarized, is whether or not the 
Legislature may prohibit the erection, maintenance and use 
of a garage for more than two cars within a specified distance 
of a public or private school, or a public or private hospital, 
or a church. Similar statutes and municipal ordinances have 
been attacked in the courts on constitutional grounds in 
several instances. In the case of Re Mcintosh, 211 N. Y. 
265, it was held that no constitutional property rights were 
interfered with, even with respect to existing plants, by for- 
bidding the issuance of any garage permit allowing the 
storage of volatile, inflammable oil for a building within a 
prescribed distance of any school, place of public amusement, 
tenement house or hotel. The regulation was challenged as 
being in violation of the applicant's constitutional rights 
because it deprived him of his property without due process 
of law and denied to him the equal protection of the law. 
In that case it was held that the object sought was the preser- 
vation of the public safety and the welfare of the community, 
and that the regulation was not an arbitrary interference 
with the rights of the individual, but was a fair, reasonable 
and appropriate exercise of the police power. In the case 
of People V. Ericson, 263 111. 368, it was held that forbidding 
the location of a public garage within 200 feet of a church 
was not unreasonable. 

In my opinion, the Legislature is clearly empowered to 
deal with a subject which may endanger the safety of persons 
and property, and the provision that no permit shall be 
issued for the erection, maintenance or use of a building as 



1923.] PUBLIC DOCUMENT — No. 12. 69 

a garage for more than two cars on the same street as, and 
within 500 feet of, a public or private school for more than 
fifty pupils, or a public or private hospital having more than 
twenty-five beds, or a church, is not, in my judgment, an 
unreasonable exercise of the police powder. 

Accordingly, I advise you that, in my opinion, said House 
Bill No. 1358 would be constitutional if enacted. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Workmen's Compensation — State Employees — Metropolitan 
District Commission — Appropriation. 

Compensation for injuries received by laborers, workmen and mechanics 
employed under the provisions of St. 1922, c. 13, should be paid from 
the appropriation under that act. 

March 29, 1922. 

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

Sir: — You request my opinion as to whether compensation 
for injuries received by men employed under the provisions 
of St. 1922, c. 13, should be paid from the appropriation 
under that act. 

The act creates a special commission for the purpose of 
clearing the forests of the metropolitan parks of fallen trees 
and broken limbs and branches, provides that the work shall 
be done under the immediate supervision of the Metropolitan 
District Commission, and appropriates $50,000 to provide for 
the expenditures, half of w^hich shall be paid from the Metro- 
politan Parks Maintenance Fund, and be assessed upon the 
cities and towns of the metropolitan parks district. 

Under the act the work can be done only in the metro- 
politan parks and under the immediate supervision of the 
Metropolitan District Commission. It is similar to some of 
the work now being carried on by the Metropolitan Dis- 
trict Commission, and but for this act would in all probability 
have been performed by that commission in so far as its 
regular appropriation permitted. 

G. L., c. 152, § 69, provides that compensation shall be 
paid by the Commonwealth to laborers, workmen and me- 
chanics employed by it who receive injuries arising out of and 
in the course of their employment. It is the established 
practice that compensation for injuries received by laborers, 



70 ATTORNEY GENERAL'S REPORT. [Jan. 

workmen and mechanics employed by the Metropolitan Dis- 
trict Commission be paid out of the regular appropriation 
of that commission, because half of its expenditures is assessed 
upon the cities and towns comprising the metropolitan dis- 
trict. The work performed under St. 1922, c. 13, is in all 
respects similar, and half of the expenditures is similarly 
assessed upon the cities and towns of the metropolitan parks 
district. Uniformity of practice would seem to require, in 
the absence of other compelling circumstances, that com- 
pensation should be paid in the same manner. 

I am therefore of the opinion that compensation for in- 
juries received by laborers, workmen and mechanics employed 
under St. 1922, c. 13, should be paid from the appropriation 
under that act. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Warehouseman — Bond — Release by Governor and Council. 

As the bond given by a warehouseman, under G. L., c. 105, § 3, is held in 
trust to secure the public, the Governor and Council should not 
undertake to determine and advise the warehouseman and his surety 
as to the effect upon the bond of the retirement of the warehouseman 
from business. 

March 30, 1922. 

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

Sir: — You ask my opinion upon the following state of 
facts: A public warehouseman gives bond according to law. 
He later ceases to do business, surrenders his license and 
makes proper publication of that fact. You inquire whether 
the Governor, by and with the consent of the Council, may 
properly advise the surety upon said bond that his liability 
thereunder is confined to defaults occurring prior to the time 
when the warehouseman completes his retirement from the 
business. 

The bond in question is given to secure faithful performance 
of his duties by the warehouseman. G. L., c. 105, § 1. 
Whoever is injured by failure of the warehouseman to per- 
form his duties or by his violation of any provision of chapter 
105 may bring action upon the bond in the name of the Com- 
monwealth, but for his own benefit. G. L., c. 105, § 3. 
The bond is, therefore, held in trust to protect the public 



1923.] PUBLIC DOCUMENT — No. 12. 71 

from the defaults of the warehouseman. LiabiHty thereon 
is in most cases a mixed question of law and fact. 

If, under the circumstances of the particular case, sur- 
render of the license and due publication thereof are, as 
matter of law, a good defence to future liability, both ware- 
houseman and surety have the benefit of it, irrespective of any 
further action by the Governor and Council. If, under the 
particular circumstances of the case, such defence does not 
exist as matter of law, neither warehouseman nor surety 
ought to be relieved from liability upon the bond. In view 
of the fact that public warehousemen are required to issue 
receipts (G. L., c. 103, §§ 8, 9), retirement from business 
and surrender of the license do not preclude subsequent 
accrual of liability for default upon a receipt outstanding at 
the time of such retirement. Under these circumstances, 
I am of opinion that the Governor and Council should not 
determine for the benefit of the warehouseman and surety 
what effect retirement, under the circumstances of the par- 
ticular case, has upon an outstanding bond. The question 
is one for the judicial rather than the executive branch. Bill 
of Rights, art. XXX. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Statutes — Amendment — Amendment of Act by a Resolve. 

The General Court has power to ratify corrections made in the General 

Laws by the committee which printed the same. 
While the question whether an act can be amended by a resolve appears 

to be open in this Commonwealth, such amendment should, as matter 

of form, at least, be made by an act. 
To avoid question, corrections made by the committee on printing the 

General Laws should be ratified by an act rather than by a resolve. 

April 1, 1922. 

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

Sir: — You have submitted for my consideration House 
Resolve No. 703, entitled ''Resolve ratifying certain correc- 
tions in the General Laws." There can be no question that 
the General Court has power to correct the General Laws and 
also to ratify any corrections made by the committee on 
printing the same, pursuant to Res. 1921, c. 54. There is, 
however, serious question whether such ratification should 



72 ATTORNEY GENERAL'S REPORT. [Jan. 

not be made by an act rather than by a resolve. It may be 
assumed that a distinction exists between acts and resolves, 
and that an act ought, as a matter of form, at least, to be 
amended by an act. The question whether an act can be 
amended by a resolve appears to be open in this Common- 
wealth. If any of these "corrections" change the meaning 
of the law corrected, even by eliminating an obvious error, 
a resolve might be held insufficient to render the correction 
effective. This question would be eliminated if an act of 
like tenor were substituted for the present resolve. If this 
should be done, I further suggest that such act expressly 
include the corrections "ratified" by Res. 1921, c. 55. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Law — Theatres — Regulation of Price charged 
for Admission — Regulation by Condition inserted in the 
License. 

As a theatre is not a business affected with a public use, a statute fixing the 
rates of admission to be charged, or forbidding an increased price 
upon Saturdays or holidays, would not be constitutional. 

As a statute directly forbidding theatres to charge an increased admission 
upon Saturdays or holidays would not be constitutional, a statute 
which requires that condition to be inserted in the theatre license is 
equally unconstitutional. 

April 4, 1922. 

Hon. Frank G. Allen, President of the Senate. 

Deak Sir: — I have the honor to acknowledge the following 
order adopted by the Senate: — 

Ordered, That the Senate request the opinion of the Attorney General 
as to the constitutionality, if enacted into law, of Senate Bill No. 159, 
entitled "An Act to prevent discriminatory admission charges by 
theatres and places of pubhc amusement." 

Senate Bill No. 159 reads as follows: — 

Chapter one hundred and forty of the General Laws is herebj^ 
amended by inserting after section one hundred and eighty-one the 
following new section: — Section 181 A. Licenses granted under the 
preceding section shall be expressed to be subject to the condition that 
prices for admission shall be uniform throughout the week, and that 
the price for admission on a Saturday" or a holiday shall not exceed that 
charged for the same performance on any other da3\ The hcensing 



1923.] PUBLIC DOCUMENT — No. 12. 73 

authority shall revoke the license of anj^ licensee for \dolation of the 
foregoing condition. Said violation shall also be punished by a fine 
of not more than five hundred dollars. 

This bill does not directly fix the prices to be charged for 
theatre tickets, nor directly forbid an increase of price on 
Saturdays or holidays. Instead, it provides that there shall 
be inserted in the license a condition that the price charged 
on a Saturday or a holiday shall not exceed the price charged 
for the same performance on any other day, and violation 
of this condition requires revocation of the license. Two 
questions are presented: Can the Legislature directly regulate 
the price of theatre tickets to the extent above indicated? 
If such direct regulation is not within the scope of legislative 
power, can the result be lawfully achieved through the exer- 
cise of the licensing power? 

1. A theatre is not a public enterprise affected with a 
public use, but is, on the contrary, a private business. People 
v. Flynn, 189 N. Y. 180; CoUister v. Haymmi, 183 N. Y. 
250; People v. Steele, 231 111. 340; Chicago v. Powers, 231 
III. 560; Ex parte Quarg, 149 Cal. 79; III Op. Atty. Gen. 
491; IV Op. Atty. Gen. 519. Ordinarily the Legislature has 
no power to regulate the price to be charged by a private 
business. V Op. Atty. Gen. 484. On the other hand, an 
unusual emergency — such as the shortage of houses — may 
so affect the health and welfare of the people that an un- 
usual measure of regulation, appropriate to the emergency, 
may be proper during the continuance of such emergency. 
Marcus Browji Holdirig Co., Inc., v. Feldinan, 256 U. S. 170; 
Edgar A. Levy Leasing Co., Inc., v. Siegel, 258 \J. S. 242. 
The present act discloses no emergency which in any con- 
stitutional sense so affects the health, safety, morals or, in 
a limited sense, the welfare of the people as to justify special 
regulation of the character proposed in this bill. I am unable 
to perceive any reasonable ground upon which the sale of 
theatre tickets can create an emergency of the kind held 
sufficient to sustain the extraordinary rent regulations upheld 
in Marcus Brown Holding Co., Inc., v. Feldman, supra. The 
subject-matter excludes it from the grounds which sustain 
a regulation of the sale of goods reasonably adapted to check 
monopolies. Commonwealth v. Strauss, 191 Mass. 545; Fed- 
eral Trade Commission v. Beech-Nut Packing Co., 257 U. S. 
441. In my opinion, the sale of theatre tickets is governed 



74 ATTORNEY GENERAL'S REPORT. [Jan. 

by the ordinary rule that in a private business the price to be 
charged must be fixed by agreement of the parties themselves. 
Ill Op. Atty. Gen. 491; IV Op. Atty. Gen. 519; V. Op. Atty. 
Gen. 484. I am constrained to advise you that a direct regula- 
tion of the kind provided in this bill would be unconstitutional. 
2. It may be assumed that theatres are subject to a reason- 
able measure of regulation under the police power. It is not 
beyond the scope of that power to require a license, upon 
appropriate conditions, reasonably adapted to secure the 
health, safety, morals and, in a limited sense, the general 
welfare of the people. Mutual Film Corpn. v. Industrial Com- 
mission of Ohio, 236 U. S. 230; B razee v. Michigan, 241 
U. S. 340. But the power to license cannot be invoked in 
order to impose by indirection restrictions or regulations 
which would be unconstitutional if directly imposed. Such 
use of the licensing power could be made as efficient as direct 
regulation to deprive the citizen of those rights of liberty and 
property guaranteed to him both by the Constitution of 
Massachusetts and by the Fourteenth Amendment. Wyeth 
V. Cambridge Board of Health, 200 Mass. 474; IV Op. Atty. 
Gen. 207. The present bill cannot be distinguished in prin- 
ciple from a bill proposed in 1914, which made it a condition 
of the theatre license that the licensee should not sell theatre 
tickets to any other person with intent or knowledge that 
such tickets should be resold at an advanced price. In 
advising that such an act would be unconstitutional, the then 
Attorney General said (IV Op. Atty. Gen. 207) : — 

The Legislature has certain powers of regulation and has not certain 
other powers of regulation, and the distinction between these two 
sorts of powers remains the same, regardless of the manner in which 
the Legislature seeks to enforce them. Direct statutory prohibition or 
indirect prohibition by means of conditions in licenses is merely a 
method of enforcement, and does not go to the root of the question of 
legislative power. 

With this opinion I agree. 

I am therefore constrained to advise you that the present 
bill, if enacted, would infringe upon the right of property and 
of liberty of contract guaranteed by the Constitution of this 
Commonwealth and by the Fourteenth Amendment. See 
Wyeth V. Cambridge Board of Health, 200 Mass. 474. 
Yours very truly, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 75 



Constitutional Law — "Anti-aid" Amendment — Appropriation 
of Public Money to a Private Academy to pay for High 
School Instruction — Exemption of Town from Statutory 
Duty to maintain a High School. 

The Department of Education has no power, under G. L., c. 71, § 4, to 
exempt a town from the statutory duty to maintain a high school, 
because such town, in violation of Mass. Const. Amend. XLVI, § 2, 
is appropriating money to pay for high school instruction to chil- 
dren resident in such town at a private academy located therein. 

April 6, 1922. 
Dr. Payson Smith, Commissioner of Education. 

Deak Sir: — You ask my opinion upon the following state 
of facts: Prior to the adoption of Mass. Const. Amend. XLVI, 
commonly known as the "anti-aid" amendment, the Depart- 
ment of Education, acting under authority of laws since re- 
enacted in G. L., c. 71, § 4, exempted certain towns containing 
over five hundred families from maintaining high schools. It 
appears that three of these towns are appropriating money to 
private academies located therein to pay for high school 
instruction to children resident in those towns. In this way 
a large number of such children are obtaining their high 
school education from these academies at an expense to the 
town less than the town would pay for maintaining a high 
school of its own. You inquire whether the Department of 
Education should withdraw or deny the aforesaid exemption 
provided for by G. L., c. 71, § 4, if it is established that the 
town is providing or intends to provide high school facilities 
in a private academy at public expense in the manner above 
described. 

G. L., c. 71, § 4, provides, in part: — 

Every tow^n containing, according to the latest census, state or 
national, five hundred families or householders, shall, unless specifi- 
cally exempted by the department and under conditions defined by it, 
maintain a high school, adequately equipped, which shall be kept by a 
principal and such assistants as may be needed, of competent abihty 
and good morals, who shall give instruction in such subjects as the 
school committee considers expedient. . . . 

This provision does not define the conditions under or upon 
which the Department of Education may exempt a town 
containing over five hundred families from maintaining a high 
school. The authority to exempt is given without qualifica- 



76 ATTORNEY GENERAL'S REPORT. [Jan. 

tion. It is coupled with a further power to affix conditions to 
the exemption, to be performed by the town. The words 
"and under conditions to be defined by it" manifestly refer 
to conditions imposed by the department upon the town 
rather than to a definition by the department of the rules 
which should govern its own action in granting or withholding 
the exemption. The statute does not define what these con- 
ditions shall be. But neither authority is wholly without 
limits. Both must be exerted in accordance with a sound 
discretion and with due regard for the rules of law. 

The duty imposed by law upon cities and towns to main- 
tain public schools is of stringent character. Commonwealth 
V. Dedham, 16 Mass. 141; Commonwealth v. Connecticut 
Valley St. Ry. Co., 196 Mass. 309, 311. It includes the duty 
to provide high schools when the law so requires. G. L., c. 
71, § 4; Jenkins v. Andover, 103 Mass. 94, 98. It must be 
discharged in the mode prescribed by law. Commonwealth 
V. Dedham, 16 Mass. 141. Even under Mass. Const. Amend. 
XVIII (now superseded by Mass. Const. Amend. XLVI) the 
Legislature had no power to authorize a town to discharge 
this duty by appropriation of public money to aid in main- 
taining a free school in the nature of a high school, which 
had been founded by a private benefactor, and which, under 
the terms of his will, was not under public superintendence 
and control. Jenkins v. Andover, 103 Mass. 94. Nor could 
the constitutional prohibition be evaded by payment of the 
money for tuition of such children, resident in the town, as 
might attend the school. I Op. Atty. Gen. 319. The same 
principles apply to the broader provisions of article XLVI 
of the Amendments. Under that amendment a town cannot 
constitutionally appropriate money either to pay for the 
tuition of town pupils at a privately controlled academy or to 
reimburse the parents for tuition paid to such academy by 
them. V Op. Atty. Gen. 204; V Op. Atty. Gen. 711. The 
exception made by section 3 of the latter amendment, in 
respect to institutions for the deaf, dumb and blind, does not 
apply to ordinary academies for normal pupils. V Op. Atty. 
Gen. 711. I am therefore of opinion that a plan to educate 
town pupils at public expense at an academy which is not 
"under the order and superintendence of the authorities of the 
town or city in which the money is expended" would be 
insufficient, as matter of law, to warrant you in granting or 
continuing the exemption authorized by G. L., c. 71, § 4. 



1923.] PUBLIC DOCUMENT — No. 12. 77 

It does not follow, however, that the execution of such a 
plan in the past or the tender of such a plan in the present 
would, as matter of law, require you to withhold or cancel 
the exemption. It may be that the required high school 
instruction can be furnished in some manner permitted by 
law without building and maintaining a high school. See 
Dickey v. Putnam Free School, 197 Mass. 468. The question 
whether the plan submitted by the town is one which would 
warrant your department in granting the exemption, either 
absolutely or upon terms, is to be determined by your depart- 
ment in the exercise of a sound discretion and subject to the 
rules of law. It is not for this department to determine how 
that discretion shall be exercised by your department within 
the limits permitted by law. I am, however, constrained to 
advise you that even a saving of expense to the town would 
not authorize the granting or continuance of the exemption 
if such exemption involves an expenditure of public money in 
a manner forbidden either by statute or by the Constitution. 
Yours very truly, 

J. Weston Allen, Attorney General. 



State Highway — County Commissioners — Taking by Eminent 
Domain — Entry within Two Years. 

Under G. L., c. 82, § 11, county commissioners are authorized to take land 
by eminent domain for the purpose of relocating a State highway. 

Where an order of taking for highway purposes has been adopted, in ac- 
cordance with the provisions of G. L., c. 79, § 3, entry must be made 
or possession taken within two years from the date of the order. 

April 11, 1922. 
Hon. John N. Cole, Commissioner of Public Works. 

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

In connection with the reconstruction of a State highway 
in Leicester it is necessary to make certain takings outside 
of the existing State highway in order to widen and straighten 
the same. The town of Leicester, at a town meeting, voted 
not to agree to indemnify the Commonwealth against any 
land damage, and, consequently, the county commissioners 
have been asked to make the necessary takings of land for 
the widening of the highway and to assess the land damage 
as they might see fit. One of the county commissioners has 



78 ATTORNEY GENERAL'S REPORT. [Jan. 

stated that inasmuch as this is a State highway, and not a 
county way, he did not consider that the county had a right 
to make takings for the purpose of widening a State highway. 
You inquire as to whether or not the county commissioners 
can take action as outhned above. 

On Jan. 6, 1920, the then Attorney General stated in an 
opinion: — 

Upon oral inquiry from your department I find that when it is 
desired to relocate a State highway it has been a common practice 
to have the relocation made in the first instance by the county com- 
missioners, and then to take over the relocation as a State highway 
under Gen. St. 1917, c. 344, pt. I, §§ 5 and 6 (now G. L., c. 81, §§ 4 
and 5). 

I am of the opinion that county commissioners may make 
a taking, as requested by your department, under the author- 
ity given them by G. L., c. 82, § 11, which reads as follows: — 

If application is made to the commissioners by a town, or by five 
inhabitants thereof, to relocate or order specific repairs on a way 
within such town, whether it was laid out by authority of the town or 
otherwise, they may, either for the purpose of establishing the boun- 
dary lines of such way or of making alterations in the course or width 
thereof, or of making specific repairs thereon, relocate it in the manner 
prescribed for lading out highwaj^s in sections two to nine, inclusive. 
The expense shall be assessed upon the petitioners or upon the county 
or town, or upon the land benefited by the improvement under chapter 
eighty, as the commissioners may order. The commissioners may, 
without petition, after giving notice as provided in section three, 
relocate any public way for the purpose of establishing its boundaries, 
or of making specific repairs thereon, in which case no part of the 
expense shall be assessed upon the town. 

You will note that this section applies to a way within a 
town, whether it was laid out by authority of the town or 
otherwise, and that the county commissioners may, for the 
purpose of making alterations in the width thereof, relocate 
it in the manner prescribed by G. L., c. 82, §§ 2-9, inclusive, 
for laying out highways. 

It is important that your attention be called, also, to 
the provision found in G. L., c. 79, § 3, that, if an entry is 
not made or possession taken within two years of the date 
of the order of taking, the taking shall be void. As to this 
point, referring again to the opinion of Jan. 6, 1920, it was 
stated: — 



1923.] PUBLIC DOCUMENT — No. 12. 79 

If it is desired to place liability for land and grade damages upon 
the count j^, city or town, as the case may be, possession should be 
taken for the purpose of construction of the relocation by the county 
commissioners before the two-year period expires. In my opinion, 
an entry and doing of some construction work would be sufficient for 
this purpose. It would not, in my opinion, be necessary to complete 
construction immediately, or even within any stated period. But 
under a county, city or town location, construction should be com- 
pleted within a reasonable time under all the circumstances. 

I also call your attention to an opinion rendered to you 
under date of May 10, 1920, the conclusion of which reads 
as follows : — 

The Commonwealth will be doubly protected if the actual entry 
and some construction work is done in the first instance by the county, 
city or town and then have the Commonwealth take over the reloca- 
tion and secure a stipulation or indemnification from the county, 
city or town, as the case may be. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Law — Public Schools — Superintendency Union 
— Withdrawal — Effect of Dissolution. 

Under G. L., c. 71, § 63, where the joint committee of a superintendency 
union has entered into a contract with a superintendent for a term of 
three years, which contract will not expire until June, 1924, the con- 
tract comes within the protection afforded by U. S. Const., art. I, § 10. 
Accordingly, in the event of the withdrawal of one of the towns from 
the superintendency union, the constituent towns will not be reheved 
of their financial obhgations under the contract, provided the superin- 
tendent fulfils his part thereof and has not been previously removed 
in accordance with said section 63. 

April 11, 1922. 

Dr. Payson Smith, Cominissioner of Education. 

Dear Sir: — You request my opinion on the foUow^ing 
question: — 

The joint committee of a superintendency union consisting of the 
towns of Lee, Otis, Monterey and Tyringham elected a superintendent 
of schools in June, 1921, for a term of three years, in accordance with 
the provisions of G. L., c. 71, § 63. The school committee of Lee is 
now desirous that Lee should withdraw from the union, and has peti- 
tioned the department to take such steps as may be necessary to 



80 ATTORNEY GENERAL'S REPORT. [Jan. 

effect a dissolution of said union. The question arises as to whether 
such dissolution would relieve the constituent towns of their financial 
obligations to the superintendent of schools for the remainder of his 
three-year term. 

G. L., c. 71, § 61, provides as follows: — 

The school committees of two or more towns, each having a valua- 
tion less than two million five hundred thousand dollars, and having an 
aggregate maximum of fifty, and an aggregate minimum of twenty- 
five, schools, and the committees of four or more such towns, having 
said maximum but irrespective of said minimum, shall form a union 
for emplojdng a superintendent of schools. A town whose valuation 
exceeds said amount, may participate in such a union but otherwise 
subject to this section. Such a union shall not be dissolved except by 
vote of the school committees representing a majority of the partici- 
pating towns with the consent of the department, nor by reason of any 
change in valuation or the number of schools. 

The authority of a superintendency union to contract with 
a superintendent of schools for a three-year term is contained 
in G. L., c. 71, § 63, as follows: — 

The school committees of such towns shall, for the purposes of the 
union, be a joint committee and shall be the agent of each participating 
town, provided that any school committee of more than three members 
shall be represented therein by its chairman and two of its members 
chosen by it. The joint committee shall annually, in April, meet at a 
day and place agreed upon by the chairmen of the constituent com- 
mittees, and shall organize by choosing a chairman and a secretary. 
It shall employ for a three year term, a superintendent of schools, 
determine the relative amount of service to be rendered by him in each 
town, fix his salary, which shall not be reduced during his term, appor- 
tion the payment thereof in accordance with section sixty-five among 
the several towns and certify the respective shares to the several town 
treasurers. He may be removed, with the consent of the department, 
by a two thirds vote of the full membership of the joint committee. 

Under the authority vested by the above statute, the joint 
committee of the superintendency union has entered into a 
contract with the superintendent in question for a term of 
three years, which contract will not expire until June, 1924. 
It is therefore my opinion that said contract comes within the 
protection afforded by U. S. Const., art. I, § 10, whereby it 
is provided that no State shall pass any law impairing the 
obligation of contracts. It accordingly follows that in the 



1923.] PUBLIC DOCUMENT - No. 12. 81 

event of a withdrawal of the town of Lee from the superin- 
tendency union the constituent towns will not be relieved of 
their financial obligations to the superintendent of schools for 
the remainder of his three-year term, provided that he con- 
tinues willing, able and fit to perform the duties of his position, 
and also provided that he has not previously been removed in 
accordance with the right reserved and contained in the statute 
under which his position is created, to wit, section 63, supra. 
See Hall v. Wisconsin, 103 U. S. 5; V Op. Atty. Gen. 422. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Savings Banks — Definition — Powers and Duties — Li;fe In- 
surance Business. 

A savings bank is an institution for receiving the moneys of depositors in 
moderate amounts, and investing them for the use and benefit of 
depositors. 

The powers and duties of a savings bank are strictly defined and regulated 
by statute, and do not include those pertaining to a general banking 
business. 

A contract by which a savings bank is to act as agent for a depositor in 
holding a life insurance policy and receiving and transmitting pre- 
miums thereon, and is to make payments to the depositor and others 
of amounts called for by the policy, requires the doing of a life insur- 
ance rather than a savings bank business, and is unauthorized. 

April 11, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You state that there have been presented to 
you three plans providing for a combination of savings ac- 
counts and life insurance, with requests for rulings whether 
contracts made under the conditions imposed by those plans 
would be in violation of law. You ask my opinion whether a 
savings bank or a trust company in its savings department 
may contract to receive deposits, pay life insurance premiums 
from such deposits, and act generally as provided for in any or 
all of the plans submitted. 

The question arises at the outset whether the persons who 
seek an opinion on the legality of the plans which they have 
submitted are entitled to such opinion, whether it is my 
duty to give advice on that subject, and whether, if given, 
it would be of any binding effect. I have come to the con- 
clusion, although not without hesitation, that these requests 



82 ATTOENEY GENERAL'S REPORT. [Jan. 

may be treated as requests for approval of proposed services 
to be performed by a savings bank under G. L., c. 178, § 13, 
and therefore proceed to consider the question which you ask. 

A savings bank is an institution for receiving the moneys 
of depositors in small or moderate amounts, and investing 
them for the use and benefit of the depositors. Lewis v. 
Lynn Ifistitution for Savings, 148 Mass. 235, 243; Common- 
wealth V. Reading Savings Bank, 133 Mass. 16, 19. Its 
powers and duties are strictly defined and regulated by stat- 
ute. It has no authority to do a general banking business. 
Bradlee v. Warren Savings Bank, 127 Mass. 107. It is not 
authorized to establish a safe deposit department or to make 
a business of receiving securities for safe keeping, except to 
the extent and under the conditions prescribed by G. L., 
c. 168, § 33. V Op. Atty. Gen. 661. 

The General Court has made specific statutory provision 
authorizing savings banks, with the written permission of 
and under regulations approved by the Commissioner of 
Banks, to receive and hold for their depositors any securities 
issued by the United States (G. L., c. 168, § 33); to contract 
for the deposit, at intervals w^ithin any period of twelve 
months, of sums of money in the aggregate not in excess of 
the statutory limit on deposits in savings banks (G. L., c. 167, 
§ 16); and, with the approval of the Commissioner of Banks 
and the Commissioner of Insurance, to act as agents for 
savings and insurance banks (G. L., c. 178, § 13). Said 
three sections are as follows: 

G. L., c. 168, § 33: — 

Savings banks may, with the written permission of and under regu- 
lations approved by the commissioner, receive and hold for their 
depositors any securities issued by the United States. 

G. L., c. 167, § 16: — 

Savings banks and trust companies in their savings departments 
may contract, on terms to be agreed upon, for the deposit at intervals 
within any period of twelve months, of sums of money in the aggregate 
not in excess of the statutorj^ limit on deposits in savings banks, and 
for the payment of interest on the same at a rate not more than one 
per cent less than the rate of their last regular dividend on savings 
deposits. A sum thus accumulated, if left in such a depository as a 
regular savings deposit within fifteen days after the date on which 
money ordinarily begins to draw interest, may, if the depository so 
provides, draw interest from such prior date. 



1923.] PUBLIC DOCUMENT — No. 12. 83 

G. L., c. 178, § 13: — 

Savings and insurance banks shall not employ solicitors of insurance, 
and shall not employ persons to make house to house collections of 
premiums; but the trustees may establish such agencies and means for 
the receipt of appUcations for insurance and of deposits and of premium 
and annuity payments, at such convenient places and times, of such 
nature and upon such terms as the commissioner of banks and the com- 
missioner of insurance may approve. The trustees may also, with 
like approval, appoint any savings bank or savings and insurance bank 
its agent to make, so far as thereunto authorized, payments due on 
policies of insurance and on contracts for annuities, and to perform 
other services for the insurance department. All savings banks and 
all savings and insurance banks may, with like approval, act as such 
agents. The business of the insurance department maj^, in the dis- 
cretion of the trustees, be carried on either in the same building with 
that of the savings department or in a different building. 

These provisions authorizing savings banks to do acts 
outside the ordinary business of a savings bank must be 
construed to define the limits of their powers in respect to 
the subjects to which the provisions relate. 

By the first of the three plans which you have submitted 
to me it is proposed that a savings bank shall enter into a 
contract, evidenced by a certificate, with each depositor 
desiring to secure the benefits of the plan, by which the 
depositor agrees to open a savings account with the deposi- 
tory upon signing the certificate, to deposit $7.40 monthly 
for a period of ten years, to take out a policy of insurance on 
his life in the sum of $1,000, written by a savings and insur- 
ance bank, and to deliver the policy to the depository; and 
the depository agrees, so long as the depositor makes the 
deposits, to pay the premiums and charge them to his ac- 
count, and, in ten years from date, if the depositor has made 
his monthly deposits, upon surrender of the certificate and 
pass book, to pay the depositor the balance standing to his 
credit and, at his option, either (A) to pay him the cash 
surrender value of his policy or (B) to deliver the policy to 
him, and, in the event of the death of the depositor, to pay 
the balance in his account to the person entitled to receive 
it, and, if the premiums are fully paid, to pay to the bene- 
ficiary under the policy $1,000. There are further provisions 
authorizing the depository to hold the policy and in the 
event of his death to deliver it to the beneficiary, to receive 
from the insuring bank all dividends payable under the policy. 



84 ATTORNEY GENERAL'S REPORT. [Jan. 

to pay the premiums in his behalf, and at the expiration of 
ten years, if he elects to take option (A), to surrender the 
policy and receive its cash surrender value for his account; 
and other provisions in case the depositor is in default or 
desires to withdraw the whole or a part of his account. By 
the certificate the savings bank certifies that the depositor 
'*is insured and is a depositor under its ten-year savings- 
insurance plan," and that the bank is holding the policy 
subject to the terms of the agreement, and has delivered the 
pass book to the depositor. 

These provisions of the proposed contract manifestly pur- 
port to require the savings bank to engage in a business 
which is not the business of a savings bank and which is not 
authorized by any of the statutes which I have referred to. 
The contract is a contract for the deposit at intervals of sums 
of money, not within a period of twelve months as authorized 
by G. L., c. 167, § 16, but for a period of ten years. The 
bank agrees to hold for the depositor a security which is not 
of the kind authorized by G. L., c. 168, § 33. In so far as 
it acts as an agent the bank is to act as the agent of the 
depositor and not the agent of the savings and insurance 
bank, as permitted by G. L., c. 178, § 13. And beyond that 
the bank agrees to pay to the depositor, at the end of the ten- 
year period, at his option, the cash surrender value of the policy, 
and in the event of his death to pay the beneficiary under 
the policy $1,000, thereby lending its own credit to the 
transaction, and to that extent itself engaging in the business 
of life insurance. There can be no legal justification for a 
scheme which assumes to permit and require savings banks 
to act as agents for depositors in transmitting insurance 
premiums for depositors, and to make payments to depositors 
and others of amounts called for by insurance policies. Such 
a business has nothing in common with a savings bank 
business. 

It will not be necessary to describe in detail the other two 
plans submitted, since an examination shows that they are 
open to most, if not all, of the objections which I have 
stated. 

I must advise you, therefore, that savings banks and trust 
companies in their savings departments cannot lawfully do 
business as outlined in the plans submitted. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 85 



Legacy and Succession Tax — Stock of Voluntary Association 
owned by Non-resident. 

Under St. 1920, c. 396, stock of a voluntary association owned by a non- 
resident is not subject to a succession tax on his death, where the prop- 
erty of the association consists wholly of stocks of foreign corpora- 
tions, and neither the trustees nor any office for the transfer of shares 
is within the jurisdiction, since complete succession may be accom- 
plished without invoking the aid of our laws, and there is nothing to 
which the taxing power can be apphed. 

But if at the time of the decedent's death the voluntary association owned 
property in the Commonwealth, his interest through the voluntary 
association in that property is subject to the tax. 

The mere fact that a voluntary association is stated to be organized under 
the laws of Massachusetts does not give jurisdiction to tax its shares, 
where neither shareholders, trustees nor property of the association 
is within the State. 

April 12, 1922. 

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

Deae Sir: — You request my opinion whether stock of 
The Mackay Companies owned by a non-resident of Massa- 
chusetts who died since the enactment of St. 1920, c. 396, is 
subject to a succession tax in this Commonwealth. You 
state that it appears by Poor's Manual of Public Utilities 
for 1921 that The Mackay Companies is "a voluntary asso- 
ciation organized under Massachusetts laws by an agreement 
and declaration of trust executed and carried out on Decem- 
ber 19, 1903;" and that Poor's Manual also contains the 
information that The Mackay Companies owns the entire 
$25,000,000 capital stock of the Commercial Cable Company, 
and the whole or a portion of the capital stock of a number 
of telegraph and cable companies in the United States, 
Canada and Europe, including the land line system known 
as the Postal Telegraph-Cable Company; that there are 
twelve trustees, of whom ten are residents of New York, one 
of London, Eng., and one of Toronto, Can.; and that the 
company has an office in New York and an office in Boston. 

By a subsequent communication you state further that you 
are informed that The Mackay Companies maintains an 
office in Boston, at which there is an agent of the company 
upon whom process may be served, and that the annual 
meeting of the company is held in Boston; that none of the 
officers of the company have an office in Boston, and, except 
as previously stated, none of the business of the company is 



86 ATTORNEY GENERAL'S REPORT. [Jan. 

transacted here; that the stock is not transferable in Massa- 
chusetts, and none of the trustees are residents of this Com- 
monwealth; that the subsidiary companies, the stock in 
which is owned by The Mackay Companies, have offices in 
Massachusetts at which the regular business of sending and 
receiving telegrams, etc., is carried on. I am further informed 
by counsel for The Mackay Companies that it has no office 
here for which it pays rent; that one of the officials of the 
subsidiary companies doing business here is an officer of The 
Mackay Companies, but that, so far as 'he can learn, no 
business of that organization is transacted here. He also 
states that at one time The Mackay Companies owned stock 
in subsidiary companies which were Massachusetts corpora- 
tions; that recently that stock has been transferred to other 
of its subsidiary companies; but that he does not know 
whether that stock was transferred before or after the de- 
cease of the non-resident referred to. 

By St. 1920, c. 396, § 1, "all property within the juris- 
diction of the commonwealth, corporeal or incorporeal, and 
any interest therein, whether belonging to the inhabitants 
of the commonwealth or not, which shall pass by law, or by 
the laws regulating intestate succession," is made subject to 
a legacy and succession tax. Such a tax is an excise tax 
imposed upon the privilege of passing title to property. It 
can lawfully be applied only when some necessary incident 
of the transfer of title depends for its efficacy upon the law 
of the State levying the tax. " Where the property is not 
physically within the jurisdiction of the taxing power, and 
its complete succession may be accomplished without invoking 
any privilege or sanction conferred by its law, then there is 
nothing to which taxation can attach." Walker v. Treasurer 
and Receiver-General, 221 Mass. 600, 602. See also Kinney 
V. Treasurer and Receioer-Gsneral, 207 Mass. 368, 369; Pea- 
body v. Treasurer and Receiver-General, 215 Mass. 129, 130; 
Welch V. Treasurer and Receiver-General, 223 Mass. 87, 92. 

Where property is held by a voluntary association organized 
under a declaration of trust, the beneficial interest in which 
is represented by certificates of shares, the organization may 
be in law either a partnership or a strict trust, depending 
upon the construction of the instrument by which it was 
created. Williams v. Milton, 215 Mass. 1; Frost v. Thompson, 
219 Mass. 360, 365. If the organization is a partnership, the 
shares may be taxable to the owners in the places of their 



1923.] PUBLIC DOCUMENT ~ No. 12. 87 

residence, or they may be taxable at the situs of the property 
owned by the organization. Daiia v. Treasurer and Receidor- 
General, 227 Mass. 562; Priestley v. Treasurer and Receiver- 
General, 230 Mass. 452. If the organization is a trust, they 
may also be taxable at the place of residence of the trustees. 
Kennedy v. Hodges, 215 Mass. 112; Peahody v. Treasurer 
and Receiver-General, 215 Mass. 129; Welch v. Boston, 221 
Mass. 155; Dana v. Treasurer and Receiver-General, supra; 
cf. Clark v. Treasurer and Receiver-General, 218 Mass. 292. 
It may be, also, that such shares would be taxable in any 
place where the trustees had an office for the transaction of 
the business of the trust, especially if the office were one at 
which shares could be transferred, since that would give the 
State power to direct the succession. Cf. Blackstone v. Miller, 
188 U. S. 189; Buck v. Beach, 206 U. S. 392; Wheelir v. 
New York, 233 U. S. 434. 

If at the time of the decedent's death The Mackay Com- 
panies owned stock in Massachusetts corporations, it is my 
opinion that his interest through The Mackay Companies in 
that stock was subject to a legacy and succession tax. 

But where the property of an association consists wholly 
of stocks of foreign corporations, and neither the trustees nor 
the certificate holders nor any office for the transfer of shares 
is within the jurisdiction of the State, and where, accordingly, 
complete succession may be accomplished without invoking the 
aid of the laws of that State, there is nothing to which the 
taxing power can be applied. Assuming that the facts are as 
stated, that The Mackay Companies has no real office in 
Boston where business is transacted and where certificates 
may be transferred, it is my opinion that no jurisdiction to 
tax is conferred by the existence of any power over the 
trustees. The mere fact that this trust is stated to be or- 
ganized under the laws of Massachusetts does not mean that 
the Commonwealth has acquired any control over the organi- 
zation as a separate entity or that the organization receives 
any benefit from its laws. The organization derives no power 
from statutory enactment. Eliot v. Freeman, 220 U. S. 178; 
cf. G. L., c. 182. 

It is true that in Kennedy v. Hodges, supra, and in Peahody 
v. Treasurer and Receiver-General, supra, the court, in holding 
that shares in certain real estate trusts where the trustees 
were resident in the Commonwealth were taxable here, al- 
though owned by non-residents, said, in substance, that 



88 ATTORNEY GENERAL'S REPORT. [Jan. 

shares in such organizations were, in respect to those cases, 
indistinguishable in principle from shares of stock in domestic 
corporations; but, in my judgment, the court relied largely 
on the fact that the trustees and the office for the transfer of 
shares were within the jurisdiction, and the dictum should be 
confined to the circumstances of those cases. It cannot be 
that the mere fact that a group of people make an agreement 
relating to the management of property, providing for a 
representation of interests therein by shares, and state in 
their agreement that it is made under the laws of Massachu- 
setts, gives jurisdiction to this State to tax those shares, 
where neither the property, the owners or managers of the 
property nor the shareholders are within this jurisdiction. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Law — Elections — Municipal Primaries — Free- 
dom of Elections. 

G. L., c. 43, § 44G (added by St. 1922, c. 282, § 1), is not in conflict with 
the Bill of Rights, art. IX. 

April 12, 1922. 

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

SiK: — You have submitted for my consideration Senate 
Bill No. 334, entitled: "An Act providing for the nomination 
at preliminary elections of candidates for elective municipal 
office in cities governed under a standard form of city char- 
ter. " Section 1 of the proposed bill amends G. L., c. 43, by 
inserting therein, after section 44, seven new sections pro- 
viding for preliminary elections or primaries, designed to 
select candidates for the various city offices which are to be 
filled by popular election. Section 44G provides: — 

If at the expiration of the time for filing statements of candidates to 
be voted for at any preliminary election not more than twice as many 
such statements have been filed with the city clerk for an office as are 
to be elected to such office, the candidates whose statements have thus 
been filed shall be deemed to have been nominated to said office, and 
their names shall be voted on for such office at the succeeding regular 
or special election, as the case may be, and the city clerk shall not 
print said names upon the ballot to be used at said preliminary elec- 
tion and no other nomination to said office shall be made. If in con- 
sequence it shall appear that no names are to be printed upon the 



1923.] PUBLIC DOCUMENT — No. 12. 89 

official ballot to be used at any preliminary election in any ward or 
wards of the city, no preliminary election shall be held in any such 
ward or wards. 

You inquire whether said section 44G is in conflict with 
article IX of the Bill of Rights, which provides: — 

All elections ought to be free; and all the inhabitants of this com- 
monwealth, having such qualifications as they shall establish by their 
frame of government, have an equal right to elect officers, and to be 
•elected, for public employments. 

The precise point appears to have been determined in 
Graham v. Roberts, 200 Mass. 152, where the court said, at 
pages 155-157: — 

The petitioners contend that the rights of inhabitants of Haverhill 
:are not equal to the rights of other inhabitants of the Commonwealth 
in the following particulars, namely: — 

1. Restricting printed names on the ballot to the two highest candi- 
dates for an office in a preHminary election for nomination. 

The first five of these particulars are merely regulations of the meth- 
ods of voting. First, for the final election, an official ballot is pre- 
scribed. Then a preliminary election for nomination is provided, to 
determine what names shall appear on the final official ballot. General 
provisions for a similar object are found in our law for voting by the 
Australian ballot, the constitutionahty of which has been affirmed. 
Cole V. Tucker, 164 Mass. 486. 

The regulation that only the names of the two candidates chosen 
at the prehminary election shall appear on the final official ballot is 
simply a regulation for the election, which the Legislature and the 
people may adopt, and the same is true of the prohibition of the use 
•of the names of candidates nominated by nomination papers, or by a 
caucus of a political party. 

There is no constitutional restriction upon the power of the General 
Court to fix the qualifications of city officers. Opinion of the Justices, 
138 Mass. 601, 603; Larcom v. Olin, 160 Mass. 102, 108; Common- 
wealth V. Plaisted, 148 Mass. 375, 386; Opinion of the Justices, 165 
Mass. 599, 601. There is a space for writing in names not printed on 
the ballot. This secures the right of every one to vote as he pleases, 
and the requirements limiting the names that are to be printed on the 
ballot are within the power of the Legislature. That was settled in 
regard to the Australian ballot in Cole v. Tucker, 164 Mass. 486, and 



90 ATTORNEY GENERAL'S REPORT. [Jan. 

Miner v. OUn, 159 Mass. 487. See also Eckerson v. Des Moines, 115 
N. W. Rep. 177; In re Pfahler, 150 Cal. 71; Brow7i v. Galveston, 97 
Texas, 1. 

It is covered in principle by Cole v. Tucker, 164 Mass. 486, 
which upheld the constitutionality of the Australian ballot. 
I am therefore of opinion that section 44G is not uncon- 
stitutional. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Fire — Fire Prevention — Removal of Slash after cutting 

Timber. 

Under G. L., c. 48, § 16, both the owner of lands, as therein defined, and 
the owner of standing timber thereon, who cuts or permits the cutting 
of brush, wood or timber, under the circumstances therein defined, 
may be hable to the penalty prescribed by section 20 if he fails to 
dispose of the slash in the manner prescribed in said section 16. 

The purchaser of timberland after the timber has been cut but before 
the slash is disposed of, who fails to dispose of such slash in the manner 
prescribed by G. L., c. 48, § 16, is not liable to the penalty prescribed 
by section 20, since he has neither cut such timber nor permitted the 
cutting of such timber. 

April 12, 1922. 
Hon. William A. L. Bazeley, State Forester. 

Deae Sir: — G. L., c. 48, § 16, provides: — 

Every owner, lessee, tenant or occupant of lands or of any rights or 
interests therein, except electric, telephone and telegraph companies, 
who cuts or permits the cutting of brush, wood or timber on lands 
which border upon woodland, or upon a highway or railroad location, 
shall dispose of the slash caused by such cutting in such a manner that 
the same will not remain on the ground -^dthin forty feet of any wood- 
land, highway or railroad location. 

Section 20 provides : — 

Violation of any provision of sections sixteen to eighteen, inclusive, 
shall be punished by a fine of not less than twenty nor more than one 
hundred dollars. 

The owner of a tract of timber sells the standing timber 
thereon, to be removed. You inquire whether the owner of 
the land or the purchaser of the timber shall comply with the 



1923.] PUBLIC DOCUMENT — No. 12. 91 

provisions of section 16 relative to the disposal of slash. You 
further inquire where the responsibility would rest if, after 
the timber has been removed and before the slash has been 
disposed of, the owner of the land shall sell the land to a 
third party. 

1. Section 16 imposes the duty to dispose of the slash upon 
every person who satisfies both conditions of that section, to 
wit: (1) he must be the owner of lands or of some right or 
interest therein or an occupant thereof; (2) he must cut or 
permit the cutting of brush, wood or timber under the con- 
ditions defined in that section. It is plain that more than 
one person may fulfill the conditions prescribed by the statute 
at one and the same time and with respect to the same timber 
and slash, yet the statute does not designate which of these 
several persons shall be first subject to the penalty. I am 
unable to beheve that the Legislature intended that the order 
in which the several parties are named in the section deter- 
mines the order in which they should be prosecuted, assuming 
all to be guilty. Answering your first inquiry, therefore, it 
would seem that both the owner of the land and the purchaser 
of the timber may be found liable under this section. The 
owner of the land may be liable if he cuts or permits the 
cutting of brush, wood or timber, as in this section provided. 
Since standing timber is a right or interest in land, the pur- 
chaser of the timber, if he cuts it or permits it to be cut, may 
be liable also. It follows that the answer to your first in- 
quiry must be either or both. 

2. Like considerations determine the answer to your 
second question. The purchaser of the land after the timber 
has been removed but before the slash is disposed of does 
not satisfy the second condition imposed by section 16. He 
has neither cut nor permitted the cutting of brush, wood or 
timber, as therein defined. It follows that he cannot be 
prosecuted under this section. 

Yours very truly, 

J. Weston Allen, Attorney General. 



92 ATTORNEY GENERAL'S REPORT. [Jan. 



Department of Public Health — Rules and Regulations — Dele- 
gation of Legislative Power — Protection of Water Supply — 
Great Ponds. 

Under the delegation of legislative power conferred by G. L., c. Ill, § 160, 
the Department of Public Health may make rules and regulations 
to prevent the pollution and secure the sanitary protection of all 
waters in this Commonwealth used as sources of water supply. 

April 13, 1922. 
Dr. Eugene R. Kelley, Commissioner oj Public Health. 

Dear Sir: — You have requested my opinion upon a 
question of law in the following situation: — 

The city of Fall River takes water from North Watuppa 
Pond, the flowage rights in which are in the Watuppa Reser- 
voir Company, but the city of Fall River has the unlimited 
use of the water for domestic purposes and owns most of the 
land around the pond. The city is negotiating for the full 
control of the flowage rights. A plan to prevent the pollution 
of this pond has been adopted by the city and approved by 
the State Department of Public Health, which provides for 
two intercepting drains, one on the easterly and the other on 
the westerly shore of the pond, to intercept and divert 
polluted waters from the north pond into the south pond. 
The intercepting drain on the westerly shore has been built, 
but on the easterly shore the construction work was held up 
by the war. 

Certain persons are now proposing to erect ice houses on 
the easterly shore of the pond on the portion of that shore 
which would be cut off from North Watuppa Pond and 
diverted to South Watuppa Pond as soon as the intercepting 
drain is built. A chain of ice houses already exists on the 
pond, which will doubtless be taken by the city when arrange- 
ments therefor can be made. 

Your question is as to whether or not the Department of 
Public Health, under the above circumstances, can make 
rules and regulations for the sanitary protection of North 
Watuppa Pond and, to that end, prohibit ice cutting thereon 
under the provisions of G. L., c. Ill, § 160. 

G. L., c. Ill, § 160, reads as follows: — 

The department may cause examination of such waters to be made 
to ascertain their puritj^ and fitness for domestic use, or the possibility 
of their impairing the interests of the public or of persons lawfully 



1923.] PUBLIC DOCmiENT — No. 12. 93 

using them or of imperilling the pubhc health. It maj^ make rules 
and regulations to prevent the pollution and to secure the sanitary- 
protection of all such waters used as sources of water supply. It may 
delegate the granting and withholding of any permit required b}^ such 
rules or regulations to state departments, boards and commissions and 
to selectmen in towns, and to boards of health, water boards and 
water commissioners in cities and towns, to be exercised by such 
selectmen, departments, boards and commissions, subject to such recom- 
mendation and direction as shall be given from time to time by the 
department; and upon complaint of any person interested, the de- 
partment shall investigate the granting or withholding of any such 
permit, and make such orders relative thereto as it may deem necessary 
for the protection of the public health. Whoever violates any such 
orders, rules or regulations shall be punished bj^ a fine of not more 
than five hundred dollars, to the use of the commonwealth, or by 
imprisonment for not more than one year, or both. 

The essential facts in determining your question are two: 
first, North Watuppa Pond is a great pond, situated near the 
city of Fall River, about four miles long and from three- 
fourths of a mile to a mile and a quarter wide {Watuppa 
Reservoir Co. v. Fall River, 147 Mass. 549); second, the said 
pond is used by the city of Fall River as a source of water 
supply. 

It is w^ell settled that the control of great ponds in the 
public interest is in the Legislature, which represents the 
public. It may regulate and change these public rights or 
take them away altogether, to serve some paramount public 
interest. Hittinger v. Eames, 121 Mass. 539, 546; Paine v. 
Woods, 108 Mass. 160, 169; Commonwealth v. Vincent, 108 
Mass. 441, 447; Commonwealth v. Tiffariy, 119 Mass. 300; 
Gage v. Steinkrauss, 131 Mass. 222; Watuppa Reservoir Co. 
V. Fall River, 147 Mass. 548, 557, 564, 567; Rockport v. 
Webster, 174 Mass. 385, 392; Sprague v. Minon, 195 Mass. 
581, 583. 

It is within the power of the Legislature to deprive the 
general public of the right to go upon a great pond with 
boats or otherwise, on the ground that a safe and advanta- 
geous use of the water for drinking, and for other domestic 
purposes, would be best promoted by terminating this former 
public right and putting the propert}^ in the control of a 
public board. It could give to this public board, as its 
representative, power to exclude all persons from the waters 
of the great pond. This power naturally and properly might 
include the right to permit persons to go upon them under 



94 ATTORNEY GENERAL'S REPORT. [Jan. 

reasonable regulations. Sprague v. Minon, 195 Mass. 581, 
583; Brodhine v. Revere, 182 Mass. 598, 601; Sprague v. 
Dorr, 185 Mass. 10; Commonwealth v. Sisson, 189 Mass. 247; 
Commonwealth v. Plaisted, 148 Mass. 375. Such legislation 
might be enacted under the sovereign power of this Common- 
wealth to control and regulate our public rights, as there 
are no private rights of property in the great ponds. Sprague 
V. Minon, 195 Mass. 581. 

The Legislature, if it sees fit, may make rules and regula- 
tions, and the delegation of its right to make rules and 
regulations is within its power. Commonwealth v. Hyde, 230 
Mass. 6; Commomvealth v. Sisson, 189 Mass. 247; Common- 
wealth V. Kingsbury, 199 Mass. 542. 

In the Hyde case, supra, a regulation of the State Board 
of Health forbade fishing in Crystal Lake in Haverhill. Con- 
cerning this regulation the court stated that — 

The regulation passed by the State Board of Health, in pursu- 
ance of the statutorj^ authority, prohibiting fishing upon a body of 
water used as a source of water supply for a municipaUt}', cannot be 
pronounced unreasonable. It requires no discussion to demonstrate 
that the preservation of the purity of the water supply for the domestic 
uses of the people is within the pohce power. The absolute prohibi- 
tion of fishing upon such a source of supply could not be said to be 
unreasonable under the circumstances here disclosed. It is not 
irrational for a public board to deem it hkely or possible that sources 
of contamination and germs of disease might have a causal connection 
■v\ith the presence of fishermen upon the ice or waters of a supply of 
drinking water. Nelson v. State Board of Health, 186 Mass. 330; 
Sprague v. Minon, 195 Mass. 581. 

You will note that the practical result of this power might 
lead to the forbidding of an ice-cutting business that had 
been conducted on the pond for some years, and that no 
compensation would be due to the owners because of the 
enforcement of a health rule and regulation. This may seem 
a drastic right, but it is no more drastic than the practical 
results in several cases which have been decided by our 
Supreme Judicial Court. For instance, in the case of Nelson 
v. State Board of Health, 186 Mass. 330, the petitioner claimed 
that his land had been used as a farm for over one hundred 
years, and he had maintained a privy on the shore for some 
thirty years, but it was held that the State Board of Health 
had the power to pass a general regulation forbidding, among 



1923.] PUBLIC DOCUMENT — No. 12. 95 

other things, privies within a specified distance from the 
shore of the pond, and the right to maintain the same ceased, 
although the order was made without a hearing, and the ac- 
tion of the Board was final. In the case of Commoiiuwalth 
V. Sisson, 189 Mass. 247, a riparian owner had maintained a 
sawmill on the bank of a stream for thirty years, but, never- 
theless, the court decided that he held his property subject 
to the right of the Legislature to prohibit or regulate the 
discharge of sawdust into the stream, for the protection of 
edible fish; that the defendants were not entitled to a hearing; 
that the action of the Board was final; and that no compensa- 
tion was due to the owners. The theory is that the deter- 
mination of the facts is legislative in case the Legislature 
decides to make a thing a nuisance per se. The court points 
out that the delegation of such legislative powers to a board 
is going a great way. But the remedy is by application to 
the Legislature, ii a remedy should be given. In the opinion 
of the court it is within the constitutional power of the 
Legislature, and the court can give no remedy. 

Accordingly, in consideration of the statutory authority, 
to w^it, G. L., c. Ill, § 160, and the decisions of our Supreme 
Judicial Court, in my judgment, your department has the 
power to make rules and regulations to prevent the pollution 
and secure the sanitary protection of the waters of North 
Watuppa Pond at Fall River. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Sergeant-at-Arms — Authority to arrest Disorderly Persons in 
the Chambers of the General Court — Superintendent of 
Buildings. 

The sergeant-at-arms is charged with the duty of maintaining order in the 
chambers of the General Court, and he is authorized to make arrests, 
if necessary, in the performance of this duty. 

The Superintendent of Buildiags has authority to make arrests for criminal 
offences committed in any part of the State House or its appurte- 
nances. 

April 13, 1922. 
Charles O. Holt, Esq., Sergeant-at-Arms. 

Dear Sir: — You have requested my opinion as to what 
your authority is and how far you can go in case of disorder 
among the spectators in the chambers of the General Court, 



96 ATTORNEY GENERAL'S REPORT. [Jan. 

or in case of an interruption of the business of either branch 
or of the committees thereof, or in case of any disturbance by 
a member of the General Court. You also ask as to whether 
or not the General Laws give you and your doorkeepers and 
messengers sufficient authority to quell disturbance if the 
occasion should arise, and to lay hands on a person to remove 
him from a chamber or a committee room if the necessity 
requires, and also to make an arrest if necessary. 
G. L., c. 3, § 17, reads as follows: — 

The sergeant-at-arms shall serve such processes and execute such 
orders as may be enjoined upon him by the general court or by either 
branch thereof, attend the members or clerks of either branch when 
they are charged with a message from one branch to the other or to 
the governor and council, maintain order among the spectators ad- 
mitted into the chambers in which the respective branches hold their 
sessions, prevent the interruption of either branch or of the committees 
thereof, and shall have the control of, and superintendence over, his 
subordinate officers, taking care that they promptly perform their 
duties. 

Considering, first, the question as to whether or not you 
have the power to make an arrest in the performance of 
your duties, I would state that the general powers to make 
arrests for criminal offences committed in any part of the 
State House, or the grounds thereof, have been given to 
the Superintendent of Buildings by G. L., c. 8, § 12, which 
reads as follows : — 

The superintendent shall take proper care to prevent any trespass 
on, or injury to, the state house or its appurtenances, or any other 
building or part thereof in Boston owned by or leased to the common- 
wealth for public offices; and if any such trespass or injury is com- 
mitted, he shall cause the offender to be prosecuted therefor. For 
any criminal offence committed in any part of the state house or the 
grounds appurtenant thereto, or in any other building in Boston 
owned by or leased to the commonwealth, the superintendent and 
his watchmen shall have the same power to make arrests as the police 
officers of Boston. 

These general powers to make arrests at the State House 
were formerly given to the sergeant-at-arms. See R. L,, 
c. 10, § 8. Consequently, in my judgment, the sergeant-at- 
arms and his subordinate officers do not now have the power 
to make arrests that they had before this power was trans- 



1923.] PUBLIC DOCUMENT — No. 12. 97 

ferred to the Superintendent of Buildings and his officers by 
Gen. St. 1919, c. 350, § 17. 

You will note, however, that, by Mass. Const., pt. 2d, c. I, 
§ III, art. X, it is provided that the House of Representatives 
"shall have authority to punish by imprisonment every per- 
son, not a member, who shall be guilty of disrespect to the 
house, by any disorderly or contemptuous behavior in its 
presence"; or who threatens or assaults members; or assaults 
or arrests witnesses, etc., ordered to attend the house; or 
rescues any person arrested by it. By article XI it is pro- 
vided: — 

The senate shall have the same powers in the hke cases; . . . pro- 
vided, that no imprisonment on the warrant or order of the . . . 
senate, or house of representatives, for either of the above described 
offences, be for a term exceeding thirty daj's. 

Under this constitutional provision it has been held that 
the sergeant-at-arms may lawfully detain in the county 
jail, with the permission of the sheriff, a prisoner committed 
by authority of the House of Representatives. See Burnham 
v. Morrissey, 14 Gray, 226. Accordingly, you would have the 
power to arrest and detain a person upon a process enjoined 
upon you by the General Court, or either branch thereof, 
under authority of the constitutional provision referred to. 

Considering, second, the question of your authority, as 
sergeant-at-arms, and that of your subordinates to quell 
disturbances in the chambers of the General Court, and in 
the committee rooms thereof, you will observe that, by G. L., 
c. 3, § 17, it is provided that you shall "maintain order 
among the spectators admitted into the chambers in which 
the respective branches hold their sessions, prevent the inter- 
ruption of either branch or of the committees thereof, ..." 
This duty to maintain order and to prevent the interruption 
of the Legislature is obligatory upon you, and, in my judg- 
ment, you, as sergeant-at-arms, and your subordinates are 
justified in using such force as is reasonably necessary to 
secure and maintain the order contemplated by the Legisla- 
ture. In other words, within reasonable limits the amount 
of force and the means employed are necessarily left to the 
sound discretion of the sergeant-at-arms. 
Yours very truly, 

J. Weston Allen, Attorney General. 



98 ATTORNEY GENERAL'S REPORT. [Jan. 



State Police Officers — Additional Appoiiitments — Date of Com- 
mencement of Service — Pensions — State Retirement Asso- 
ciation. 

The provisions of G. L., c. 32, § 68, as amended by St. 1921, c. 487, § 1, 
relative to retirement for disability, are not applicable to the addi- 
tional officers appointed to the Division of State Police under G. L., 
c. 22, § 9A. 

The provisions of law relative to the State Retirement Association are 
applicable to the additional officers appointed under G. L., c. 22, § 9A. 

April 14, 1922. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You have requested my opinion upon the 
following questions of law: — 

1. Do the provisions of G. L., c. 32, § 68, apply to the additional 
officers appointed to the State police under G. L., c. 22, § 9A? 

G. L., c. 32, § 68, was amended by St. 1921, c. 487, § 1, 
and reads, so far as is pertinent to your question, as follows: — 

Any officer or inspector of the department of public safety, who 
began continuous service prior to July first, nineteen hundred and 
twenty-one, if in the judgment of the commissioner of public safety 
he is disabled for useful service in the department and a phj^sician 
designated by said commissioner certifies that he is permanently 
incapacitated, either physically or mentally, for the further perfor- 
mance of his duty in the department, by injuries sustained through no 
fault of his own in the actual performance of his duty, or any such 
officer or inspector of said department who has performed continuous 
faithful service for the commonwealth for not less than twenty y6ars, 
if in the judgment of said commissioner he is incapacitated for further 
service as a member of the department, shall, if he so requests, be 
retired, and shall annuall}- receive a pension from the com.monwealth 
equal to one half the compensation received by him at the time of 
his retirement. . . . 

Said section 9A, referred to by you, was enacted May 27, 
1921. See St. 1921, c. 461. No emergency clause having 
been placed in the act, it did not take effect for ninety days 
after enactment. Consequently, none of the State police 
officers in question could have begun continuous service 
prior to July 1, 1921. Accordingly, said section 68 does not 
apply to the said additional State police officers. 



1923.] PUBLIC DOCUMENT — No. 12. 99 

2. "Wliether or not the provision? relative to the State Employees' 
Retirement Association apply to the additional officers appointed 
under said section 9A. 

By an order passed by the Senate and House on June 4, 
1920, a joint special committee on pensions was established 
to study the entire question of pensions and retirement 
allowances provided under existing laws for officials and 
employees of the Commonwealth and of the counties, cities and 
towns. That committee transmitted a report to the Legisla- 
ture in Januar}^ 1921. In this report it was stated that — 

We believe that all future pension laws should be based on the 
contributory plan, and that future appointees in the services for 
which non-contributorj^ pensions are now provided should be brought 
into the contributory system. 

The committee recommended certain legislation relative 
to the State police, and drafted a bill, by section 1 of which 
it was provided that "the present non-contributory pensions 
for state police shall be limited to those appointed before 
July first, nineteen hundred and twenty-one. Those ap- 
pointed after July first, nineteen hundred and twent^'-one 
will thereby automatically come under the state system." 
Pursuant to this recommendation, St. 1921, c. 487, was 
enacted. As stated above, the additional State police officers 
appointed under said section 9A began continuous service 
after July 1, 1921, and, consequently, the provisions relative 
to the State Employees' Retirement Association are applicable 
to them. 

I might point out, in addition, that, even before G. L., 
c. 32, § 68, was amended. State police officers were not 
prohibited from becoming members of the Retirement Asso- 
ciation. This was for the reason that their right to the 
pension conferred by said section 68 was not absolute and 
did not necessarily become absolute even upon completion 
of the term of service prescribed. There were certain condi- 
tions that might never be fulfilled. Thus, while an officer 
might have become entitled to a non-contributory pension 
if all the conditions were fulfilled, it could not be said that 
he "either is or will be entitled" thereto, within the meaning 
of G. L., c. 32, § 2, cl. (3) [St. 1911, c. 532, § 3, par. (3)]. 
See V Op. Atty. Gen. 634. 

Yours very truly, 

J. Weston Allen, Attorney General. 



100 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitutional Laic — Taxation — Due Process of Law — Ap- 
propriation of Public Money for Private Purpose — Pay- 
ment of Unearned Salary to Dependents of Deceased 
Officer or Employee of a City or Toton. 

An appropriation of public money to a private purpose takes the property 
of the taxpayer without due process of law, in violation both of the 
State Constitution and of the Fourteenth Amendment. 

In the absence of any showing that a public purpose is thereby accom- 
plished, the Legislature has no power to authorize cities and towns 
to pay to the widow or dependents of a deceased officer or employee 
the salary which such person would have received during a stated 
period after his decease. 

April 17, 1922. 

Hon. Frank G. Allen, President of the Senate. 

Dear Sir: — I have considered the question presented by 
the following order: — 

Ordered, That the Senate request the opinion of the Attornej^ General 
as to the constitutional right of the General Court to authorize cities 
and towns to pa}^ to the widow or dependents of a deceased officer or 
emploj^ee thereof sums of money equivalent to the salary or compen- 
sation which would have been paA^able to such deceased officer or em- 
ployee for a stated period following his decease. 

I note that no bill accompanies this request. No concrete 
question is before me. I am therefore necessarily confined to 
a statement of the constitutional principle applicable to your 
inquiry. 

Most of the public revenue is raised by taxation. Taxes 
cannot constitutionally be raised or spent for a purpose not 
public. Bill of Rights, art. X; Mass. Const., pt. 2d, c. I, 
§ I, art. IV; pt. 2d, c. II, § I, art. XI; Freeland v. Hastings y 
10 Allen, 570; Loiccll v. Boston, 111 Mass. 454; Mead v. 
Acton, 139 Mass. 341; Kingman v. Brockton, 153 Mass. 255; 
Opinion of the Justices, 186 Mass. 603; Opinion of the Jus- 
tices, 211 Mass. 608; Opinion of the Justices, 211 Mass. 624; 
Boston V. Treasurer and Receiver-General, 237 Mass. 403. To 
tax or to expend taxes for a purpose not public takes the 
property of the taxpayer without due process of law, within 
the meaning of the Fourteenth Amendment. Loan Associa- 
tion v. Topeka, 20 AVall. 655; Parkersburg v. Brown, 106 U. S. 
487; Cole v. LaGrange, 113 U. S. 1. Even public money not 
derived from taxation cannot be expended for a private 
purpose. Opinion of the Justices, 211 Mass. 624. The 



1923.] PUBLIC DOCOIEXT — No. 12. 101 

reason for and justice of this rule is plain. Taxes are raised 
according to law, and, by compulsion of law, for purposes 
authorized by law. The Constitution limits both the power 
to tax and the power to expend. To take property from the 
citizen by force in a manner or for a purpose not authorized 
by the Constitution of the Commonwealth denies to him that 
protection from lawless force which is one of the fundamental 
purposes of government. 

The precise question is whether a payment authorized under 
the circumstances disclosed in the order would be an appro- 
priation for a private purpose. If that be the case, the 
Legislature cannot authorize such payment by cities and 
towns. Mead v. Acton, 139 Mass. 341; Kingman v. Brockton^ 
153 Mass. 255. In Whittaker v. Salem, 216 Mass. 483, the 
principal of a school, who had worked especially hard, devoted 
his entire vacation to installing furnishings in a new school 
building, and had become ill from overwork, was reappointed 
principal for another year and granted leave of absence for 
that year upon half pay. In holding that the grant of half 
pay for work not performed was beyond the power of the 
school committee, the court said, by Rugg, C.J. : — 

But they must keep 'v\ithin the broad principles which govern all 
public boards of officers. They are charged with the expenditure of 
mone^^s raised by taxation. They can vote it only for public uses. 
They have no right to devote it to private purposes. However meri- 
torious the project uisiy appear to be either in its practical or ethical or 
sentimental aspects, if it is in essence a gift to an individual rather than 
a furthering of the public interest, money raised b3' taxation cannot be 
appropriated for it. These principles often have been declared respec- 
ting a great variety of subjects and cannot be doubted. Loiuell v. 
Boston, 111 Mass. 454; Mead v. Acton, 139 Mass. 341; Opinion of 
the Justices, 204 Mass. 607; Opinion of the Justices, 211 Mass. 624. 

In my opinion, the facts stated in the order are even less 
favorable to the widow and dependents than the facts of the 
Whittaker case. If the grant to Whittaker could not be 
sustained, I am unable to perceive any ground upon which 
payment of unearned salary to the widow or dependents, 
under the circumstances stated in the order, can be held to be 
for a public purpose. I am therefore constrained to advise 
you that an act authorizing cities and towns to make such 
payment would, in my opinion, be unconstitutional. 
Yours very trul}', 

J. Weston Allen, Attorney General. 



102 ATTORNEY GENERAL'S REPORT. [Jan. 



Civil Service — Fire Department — Appointvient and Removal — 

Plymouth. 

Acceptance of G. L., c. 31, § 48, applying the civil service classification 
to the permanent members of the Plymouth fire department, does 
not conflict with Spec. St. 1916, c. 84, § 1, authorizing said town to 
establish a fire department to be under the control and direction of 
one fire commissioner appointed by the selectmen. 

April 18, 1922. 

Payson Dana, Esq., Commissioner of Civil Service and Registration. 

Dear Sir: — You request my opinion upon the question 
as to whether or not acceptance of the civil service law by 
the town of Plymouth conflicts with Spec. St. 1916, c. 84. 

Spec. St. 1916, c. 84, § 1, reads as follows: — 

The town of Plymouth is hereby authorized to establish a fire 
department, to be under the control and direction of one fire com- 
missioner, who shall be appointed by the selectmen for a term of three 
years. He shall signify his acceptance in writing and shall receive no 
salary. He shall serve until his successor is appointed and may be 
removed for cause b}^ the selectmen at any time after a hearing. The 
fire commissioner shall have charge of extinguishing fires in said tow^n 
and the protection of life and property in case of fire, and he shall 
purchase and keep in repair all apparatus used by the fire depart- 
ment. He shall have and exercise all the powers and discharge all 
the duties conferred or imposed by statute upon boards of engineers 
for towns, and he shall appoint a chief of department and such other 
officers and firemen as he may think necessary, and may remove the 
same at any time. He shall have full and absolute authority in the 
administration of the department, shall make all rules and regulations 
for its control, shall report to the selectmen from time to time as they 
may require, and shall annually report to the town the condition of 
the department, ^dth his recommendations relative thereto. In the 
expenditure of monej^ the fire commissioner shall be subject to such 
limitations as the town vaay prescribe. 

It appears that at a town meeting held on March 4, 1922, 
the town of Plymouth voted to accept G. L., c. 31, § 48, 
applying the civil service classification to the permanent 
members of the Plymouth fire department. This section 
reads as follows : — 

A town which has not accepted this chapter or the corresponding 
provisions of earlier laws may accept this section as to its regular or 
permanent poHce and fire forces, or as to either of them. Acceptance 



1923.] PUBLIC DOCUMENT — No. 12. 103 

as to the fire force shall include regular members, and may include 
call members, and a town which has accepted this section or the 
corresponding provisions of earlier laws as to regular firemen may 
afterward accept it as to call firemen. In a town which accepts this 
section by vote of the town at a town meeting, or has accepted corre- 
sponding provisions of earlier laws, as to any or all of said forces, the 
members of the forces to which the acceptance relates shall be subject 
to this chapter and the rules made hereunder, and shall hold office 
until their death, resignation or removal; but members in office at the 
time of such acceptance shall continue in office without examination 
or reappointment. 

G. L., c. 31, § 50, provides: — 

Nothing in this chapter shall repeal, amend or affect any special 
provision of law relative to any city or town, or extend to any city or 
town any provision of law to which it is not now subject. 

It is my opinion that the provisions of Spec. St. 1916, 
c. 84, relating to appointment and removal of a fire commis- 
sioner, chief of the department and such officers and firemen 
as may be thought necessary, are not so inconsistent with the 
civil service law or so unworkable as to involve either a 
surrender of powers granted to the town or an abatement or 
modification of any essential provision of said special act of 
1916. In the matter of appointments of permanent members 
of the fire force, authority is limited only in that the selec- 
tion of the appointees must be made from a list of competent 
persons duly certified by the Civil Service Commission, while 
in the matter of removals, under the Civil Service Rules 
formal charges must be preferred and an opportunity given 
for a public hearing. Tucker v. Boston, 223 Mass. 478. 
"To say that any city was to be exempted from the pro- 
visions of either the whole or any particular part of this 
legislation (civil service law) would be to frustrate the mani- 
fest intent of the Legislature." See Logan v. Mayor and 
Aldermen of Lawrence, 201 Mass. 506, 511. 

Accordingly, I am of the opinion that G. L., c. 31, § 50, 
does not exempt the Plymouth fire department from the 
application of the civil service law. 
Very truly yours, 

J. Weston Allen, Attorney General. 



104 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitutional Lata — Taxation — Due Process of Law — Ap- 
propriation of Public Money for Pricate Purpose — Au- 
thority of Town to reimburse the Victims of a Powder 
Explosion. 

An appropriation of public money for a private purpose takes the property 
of the taxpayer without due process of law, in violation of both the 
State Constitution and the Fourteenth Amendment. 

The General Court cannot authorize a city or town to expend public money 
for a private purpose. 

An incidental advantage to the public will not sustain a gift of public 
money for a purpose primarily private. 

The General Court cannot constitutionally authorize a town to reimburse 
the victims of an explosion of a fireworks factory not caused by any 
act or default of the town. 

Since article XXX of the Bill of Rights forbids the General Court to 
exercise judicial power, a recital in the bill that a fireworks factory 
was "illegally hcensed by said town" is an expression of legislative 
opinion and not a determination that such was the case. 

A bill authorizing a town to reimburse the victims of an explosion of a 
fireworks factory, "in consideration of the fact that said factory was 
illegally licensed by said town," would be unconstitutional in that it 
neither primarily promotes a pubHc purpose nor discharges any moral 
but unenforceable obhgation of the town, since the responsibility for 
the explosion (if any) rests upon those who caused it and not upon the 
town. 

April 20, 1922. 

Senate Committee on Bills in the Third Reading. 

Gentlemen: — You have submitted for my consideration 
House Bill No. 1523, entitled "An Act authorizing the town 
of Randolph to pay certain claims for damages arising from 
an accident caused by an explosion at a fireworks factory 
located in said town." The material portion of this bill is 
as follows : — 

Section 1. The town of Randolph may pay to the following 
named persons, to reimburse them for damages sustained as a result of 
an explosion occurring at a fireworks factory located in said town on 
April fifteenth, nineteen hundred and twenty-one, in consideration of 
the fact that said factory was illegally licensed by said town, the fol- 
lowing sums of money: . . . 

Then follo\vs an enumeration of the sums to be paid to vari- 
ous designated persons. The words *'in consideration of the 
fact that said factory was illegally licensed by said town" 
were inserted by amendment in the Senate. You inquire 
whether the bill, thus amended, would be constitutional. 



1923.] PUBLIC DOCUMENT — No. 12. 105 

Public money cannot be spent for any purpose for which 
it would be unconstitutional to levy a tax. Taxes are levied 
in order to raise money for public purposes. They are col- 
lected by force, if need be. The Legislature cannot appro- 
priate, or authorize cities and towns to expend, public money 
for a private purpose. To do so would take the property of 
the taxpayer in violation of the rights guaranteed to him not 
only by the Constitution of this Commonwealth but also by 
the Fourteenth Amendment. Freeland v. Hastings, 10 Allen, 
570; Lowell v. Boston, 111 Mass. 454; Mead v. Acto7i, 139 
Mass. 341; Kingman v. Brockton, 153 Mass. 255; Opinion 
of the Justices, 186 Mass. 603; Opinion of the Justices, 211 
Mass. 608; Opiniori of the Justices, 211 Mass. 624; Boston 
V. Treasurer and Reeeiver-General, 237 Mass. 403; Loan 
Association v. Topeka, 20 Wall. 655; Parkershurg v. Brown, 
106 U. S. 487; Cole v. LaGrangc, 113 U. S. 1; Opinion, 
Attorney General to the President of the Senate, April 17, 
1922. 

The test which distinguishes a public from a private use 
is whether the expenditure primarily promotes 'a public 
rather than a private purpose. No matter how strong the 
appeal to sentiment or generosity may be, money cannot 
constitutionally be taken by taxation in order to make a 
gift to individuals. The principle is declared in no uncer- 
tain words by Chief Justice Rugg in Whittaker v. Salem, 
216 Mass. 483, 485, where, in holding that a school committee 
had no power to give a school teacher, ill from overwork, 
a year's leave of absence upon half pay, he said: — 

But they must keep within the broad principles which govern all 
public boards of officers. They are charged with the expenditure of 
moneys raised by taxation. They can vote it only for pubHc uses. 
They have no right to devote it to private purposes. However meri- 
torious the project may appear to be either in its practical or ethical 
or sentimental aspects, if it is in essence a gift to an indi\'idual rather 
than a furthering of the public interest, money raised by taxation 
cannot be appropriated for it. These principles often have been 
declared respecting a great variety of subjects and cannot be doubted. 
Lowell V. Boston, 111 Mass. 454; Mead v. Acton, 139 Mass. 341; 
Opinion of the Justices, 204 Mass. 607; Opinion of the Justices, 211 
Mass. 624. 

The bill in its original form would seem to be within 
Lowell V. Boston, 111 Mass. 454. In that case the court, in 



106 ATTORNEY GENERAL'S REPORT. [Jan. 

holding unconstitutional an act authorizing a loan of public 
money upon mortgage to private individuals to aid them in 
rebuilding after the great fire of 1872, said, by Wells, J. (page 
460) : — 

The power to levy taxes is founded on the right, duty and respon- 
sibility to maintain and administer all the governmental functions of 
the State, and to provide for the public welfare. To justify any 
exercise of the power requires that the expenditure which it is intended 
to meet shall be for some public service, or some object which concerns 
the public welfare. The promotion of the interests of individuals, 
either in respect of property or business, although it may result inci- 
dentally in the advancement of the public welfare, is, in its essential 
character, a private and not a public object. However certain and 
great the resulting good to the general public, it does not, by reason 
of its comparative importance, cease to be incidental. The incidental 
advantage to the public, or to the State, which results from the pro- 
motion of private interests, and the prosperity of private enterprises 
or business, does not justify their aid by the use of pubhc money 
raised by taxation, or for which taxation may become necessary. It 
is the essential character of the direct object of the expenditure which 
must determine its validitj', as justifying a tax, and not the magni- 
tude of the interests to be affected, nor the degree to which the general 
advantage of the community, and thus the public welfare, may be 
ultimately benefited by their promotion. 

If it was beyond the power of the Legislature to authorize a 
loan of public money to fire victims, to aid them to rebuild, 
a gift of public money to reimburse those injured by an ex- 
plosion can scarcely be sustained. 

It remains to consider w^hether the Senate amendment has 
so changed the original bill as to make it constitutional. The 
amendment provides that the proposed payments are author- 
ized "in consideration of the fact that said factory was il- 
legally licensed by the tow^n. " I assume that the license 
referred to was the license required by G. L., c. 148, § 13, 
which provides: — 

No building shall be used for the manufacture of fireworks or fire- 
crackers without a license from the aldermen or selectmen and a 
permit from the marshal. 

The inquiry w^hether a license was "illegally" issued by 
the selectmen under this section raises a judicial question. 
The judicial power, that is, the power to hear and determine 
judicial questions, is not vested in the Legislature but in the 



1923.] PUBLIC DOCUMENT — No. 12. 107 

judicial branch. Indeed, article XXX of the Bill of Rights 
provides, in part: — 

In the government of this commonwealth, the legislative depart- 
ment shall never exercise the executive and judicial powers, or either 
of them : . . . 

In view of this express prohibition, I am of opinion that 
the Legislature cannot finally determine, either as against 
the town or in favor of the claimants, whether this license 
was "illegally" issued. Denny v. Mattoon, 2 Allen, 361, 378; 
Opinion of the Justices, 237 Mass. 619, 623. If so, the Senate 
amendment must be regarded as a statement of opinion as 
to the conclusion of law to be drawn from facts not stated, 
rather than as an effective determination that the tow^n has 
failed in any duty to the claimants. 

I am not unmindful that there are authorities wdiich hold 
that the legislative branch may authorize the payment of a 
just but unenforceable obligation. United States v. Realty Co., 
163 U. S. 427. In this class falls a statute authorizing repay- 
ment of expenses incurred in reliance upon a subsidy act 
w^hich was repealed before the subsid^^ was earned {United 
States V. Realty Co., snpra); or a tax illegally collected 
{United States v. Jordan, 113 U. S. 418). It is unnecessary to 
determine wdiether the Legislature of this Commonwealth 
possesses so broad a power. In my opinion, the present act 
discloses no such obligation on the part of the town. 

The fireworks factory was either lawful or it was not. If 
lawful, no semblance of responsibility for its continuance 
could rest upon the town. If unlawful, it constituted a 
nuisance, the liability for W'hich rested upon those who main- 
tained it rather than upon the town. OuUghan v. Butler, 
189 Mass. 287; Mocckcl v. Cross & Co., 190 Mass. 280. Even 
assuming that the town might have maintained a bill in 
equity to abate the factory as a public nuisance {SomermUe 
v. Walker, 168 Mass. 388), or that the Commonwealth might 
have proceeded by indictment {Commonwealth v. Packard, 185 
Mass. 64), any person as to whom the factory constituted a 
private nuisance could also have had relief in equity. Wright 
V. Lyons, 224 Mass. 167. Lender these circumstances, a con- 
tention that the citizens of the town can constitutionally be 
taxed in order to make good damage caused by the supposed 
w^'ongful acts of third parties presents a claim far weaker than 



108 ATTORNEY GENERAL'S REPORT. [Jan. 

that overthrown in Whittaker v. Salem, 216 Mass. 483. On no 
theory can those who maintained the factory be relieved at 
public expense from liability to the claimants. Woodward v. 
Central Vermont Ry. Co., 180 Mass. 599. Even if those who 
maintained the factory are financially unable to respond in 
damages, no just claim arises against the town. As matter 
of law, the town cannot be found to have caused the injury. 
Horan v. Watertown, 217 Mass. 185. 

I am not unmindful that, when a statute is assailed in 
court, the court will make all rational presumptions in favor 
of constitutionality. Perkins v. Westwood, 226 Mass. 268, 
271. What are rational presumptions necessarily depends 
upon the apparent purpose of the bill. Lowell v. Boston, 
111 Mass. 454; Opinion of the Justices, 186 Mass. 603; 
Opinion of the Justices, 211 Mass. 608. In other words, the 
court assumes that the Legislature intended to exercise only 
those powers conferred upon it by the Constitution, according 
to the true meaning and construction thereof. But this 
presumption cannot add to those powers or enlarge their 
scope. On the contrary, it adds, if anything can add, to 
the obligation assumed by each legislator under his oath of 
office ''to discharge and perform all the duties incumbent on 
me . . . according to the best of my abilities and under- 
standing, agreeably to the rules and regulations of the con- 
stitution. ..." Mass. Const., pt. 2d, c. VI, art. I. The 
test applicable to the present bill is whether the proposed 
expenditure primarily benefits the public rather than individu- 
als. I assume that you desire me to advise you from the 
viewpoint of legislative duty, unaffected by any presumption, 
subject to which the court might ultimately examine this bill. 
So considering the bill, and giving due effect to the amend- 
ment added by the Honorable Senate, I am constrained to 
the conclusion that the proposed expenditure neither furthers 
a public purpose nor discharges any just but unenforceable 
obligation of the town, and therefore cannot constitutionally 
be authorized. Lowell v. Boston, 111 Mass. 454; Woodivard 
v. Central Vermont Ry. Co., 180 Mass. 599; Whittaker v. Salem, 
216 Mass. 483. 

Yours very truly, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 109 



Constituiional Law — Police Power — Statute forbidding One 
who deals in Refined Petroleum Products to sell or lease 
Distributing Apparatus upon Condition that it be used 
exclusively for his Own Products. 

A statute which forbids a person engaged in producing or selHng refined 
petroleum products to sell or convey distributing apparatus upon 
condition that it be used exclusively for the distribution of his own 
products would be constitutional. 

A statute which forbids a person engaged in producing or selling refined 
petroleum products to lease or loan distributing apparatus upon 
condition that it be used exclusively for the distribution of his own 
products would confhct both with the Constitution of this State and 
with the Fourteenth Amendment. 

As the manufacture and sale of refined petroleum products is a private 
business not affected with a public use, one engaged therein cannot 
constitutionally be compelled to permit distributing apparatus leased 
or loaned by him to a retailer to be used to distribute the products 
of competitors, either with or without compensation. 

Good will is property, within the meaning of those constitutional guaranties 
which forbid the taking of property without due process of law. 

Reasonable agreements for the protection of goodwill are within that 
liberty of contract guaranteed by the Constitution. 

May 1, 1922. 
Hon. Frank G. Allen, President of the Senate. 

Dear Sir: — You inquire whether Senate Bill No. 47, 
entitled " An Act to prevent discrimination in sales or leases 
of apparatus for dispensing refined petroleum products," 
would be unconstitutional if enacted into law. The bill 
amends G. L., c. 93, by inserting a new section, the material 
part of which is as follows : — 

Section Ilj-A. No person, firm, association or corporation engaged 
in the production, refining, sale or distribution of refined petroleum 
products shall insert in or make it a condition or provision of any sale, 
lease, loan or other conveyance or letting of any machinery, apparatus 
or device for retailing, distributing or dispensing such products that 
the same shall be used for the sole and exclusive sale or distribution of 
the products of such person, firm, association or corporation. . . . 

The bill further punishes violation by fine or imprisonment, 
and provides for specific enforcement of the prohibition by 
injunction or other appropriate remedy. 

Mass. Const., pt. 2d, c. I, § I, art. IV, provides, in part: — 

And further, full power and authority are hereby given and granted 
to the said general court, from time to time to make, ordain, and estab- 



no ATTORNEY GENERAL'S REPORT. [Jan. 

lish, all manner of wholesome and reasonable orders, laws, statutes, 
and ordinances, directions and instructions, either with penalties or 
without; so as the same be not repugnant or contrary to this constitu- 
tion, as they shall judge to be for the good and welfare of this common- 
wealth, and for the government and ordering thereof, and of the sub- 
jects of the same, and for the necessary support and defence of the 
government thereof; . . . 

For convenience this power is termed the police power. 
Broadly speaking, it embraces regulations which promote the 
safety, health, morals and, in a limited sense, the public 
welfare. Cominonivealth v. Lihhey, 216 Mass. 356, 358; Com- 
monwealth V. Beaulieu 213 Mass. 138, 141; Opinion of the 
Justices, 208 Mass. 619, 622; Commomvealth v. Strauss, 191 
Mass. 545, 550; Chicago & Alton R.R. v. Tranbarger, 238 
U. S. 67, 69, 77. On the other hand, both the State and 
Federal Constitutions place limits upon the exercise of the 
police power. The Fourteenth Amendment forbids any State 
to "deprive any person of life, liberty or property without 
due process of law," or to deny to any person the equal 
protection of the laws. The State Constitution contains 
provisions (Bill of Rights, arts. I, X, XII, XXIX) which 
guarantee life, liberty and property and the equal protection 
of the laws to the same extent as does the Fourteenth Amend- 
ment. Opinion of the Justices, 220 Mass. 627, 630; Opinion 
of the Justices, 211 Mass. 618; Wyeth v. Cambridge, 200 Mass. 
474, 478; V Op. Atty. Gen. 484. Neither the police power 
nor the limitations thereon are capable of precise and ex- 
haustive definition. The lines are pricked out by gradual 
approach and contact of decisions on opposing sides. Noble 
State Bank v. Haskell, 219 U. S. 104, 112. 

Statutes which prohibit monopolies and contracts in un- 
reasonable restraint of trade are within the police power. 
Commonwealth v. Strauss, 191 Mass. 545; Opinion of the 
Justices, 193 Mass. 608; Opinion of the Justices, 211 Mass. 
620; Mallinckrodt Chemical Works v. Missouri, 238 U. S. 41. 
See also International Harvester Co. v. Missouri, 234 U. S. 
199. We have laws of that character upon our statute books. 
G. L., c. 93, §§ 1, 2, 14. Federal legislation forbidding 
similar practices in interstate commerce has been upheld. 
Standard Oil Co. v. United States, 221 U. S. 1; United Shoe 
Machinery Corp. v. United States, 258 U. S. 451. 



1923.] PUBLIC DOCUMENT — No. 12. Ill 

The line of power may be discerned from three concrete 
examples: A statute forbidding sales of goods, wares and 
merchandise upon condition that the purchaser shall not 
deal in the goods, wares and merchandise of others than the 
seller is valid, especially if it does not forbid exclusive agen- 
cies. Commonwealth v. Strauss, 191 Mass. 545. See also 
Dr. Miles Medical Co. v. Park & So7is Co., 220 U. S. 373; 
Motion Picture Co. v. Universal Film Co., 243 U. S. 502; 
United States v. A. Schrader's Son, Inc., 252 U. S. 85; Federal 
Trade Commission v. Beech-Nut Packing Co., 257 U. S. 441; 
Standard Fashion Co. v. M agrane-H ouston Co., 258 U. S. 346. 
So, also, an act forbidding the sale or lease of any tool, imple- 
ment, appliance or machinery upon condition that the purchaser 
or lessee shall not buy or use tools, implements, appliances, 
machinery, materials or merchandise of others than the seller 
or lessor is not invalid where due provision is made for the 
monopoly conferred by patents, and exclusive agencies are not 
forbidden. Opinion of the Justices, 193 Mass. 608. Again, sec- 
tion 3 of the Clayton Act, which forbids persons engaged in 
interstate commerce to lease machinery, supplies or other com- 
modities, whether patented or unpatented, upon an agreement 
or condition that the lessee shall not use or deal in the machin- 
ery, supplies or commodities of competitors where the effect of 
such lease, agreement or condition may be substantially to 
lessen competition or tend to create a monopoly, has recently 
been held to forbid tying clauses inserted in leases of shoe 
machinery where the effect of those clauses substantially 
lessened competition and tended to create a monopoly in 
shoe machinery and supplies therefor. United Shoe Machinery 
Corp. V. United States, supra. Taking these cases together, 
it seems clear that the police power extends to prohibiting 
either leases or sales upon agreements or conditions which 
unreasonably limit competition or tend to monopoly. 

There are likewise cases which to some extent indicate the 
line of limitation. Both the State Constitution and the 
Fourteenth Amendment forbid taking private property for 
private use even upon payment of full compensation. River- 
bank Improvement Co. v. Chadwick, 228 Mass. 242, 247; 
Salisbury Land & Imp. Co., v. Commonwealth, 215 Mass. 
371; Hairston v. Danville & Western Ry., 208 U. S. 598, 606; 
Madisonville Traction Co. v. St. Bernard Traction Co., 196 
U. S. 239, 251; Missouri Pacific Ry. Co. v. Nebraska, 164 



112 ATTOEXEY GENERAL'S REPORT. [Jan. 

U. S. 403. Still less can private property be taken by law 
from one party and given to another without compensation. 
Woodumrd v. Central Vermont Ry. Co., 180 Mass. 599; King- 
vian V. Brochton, 153 Mass. 255; Whittaker v. Salem, 216 
Mass. 483; Loan Association v. Topeka, 20 Wall. 655; Cole 
V. LaGrange, 113 U. S. 1. Opinion, Attorney General to the 
President of the Senate, April 17, 1922. Although reasonable 
burdens fairly incident to the transaction of its business or 
the discharge of its duties may be placed upon a railroad or 
other business affected with a public use, even a railroad 
cannot be required to furnish to the public special facilities 
not reasonably required for the performance of its public 
duties, such as unnecessary spur tracks (Missouri Pac. Ry. Co. 
V. Nebraska, 217 U. S. 196, Washington v. Fairchild, 224 U. S. 
510); unnecessary track scales (Great Northern R.R. v. Minne- 
sota, 238 U. S. 340); or a site for a grain elevator (Missouri 
Pacific Ry. Co. v. Nebraska, 164 U. S. 403). And while 
reasonable interchange of business between connecting rail- 
roads may be compelled, a statute which in effect compels a 
railroad to furnish car and terminal facilities to a competitor 
cannot be sustained. Louiscille & Nashville R.R. v. Central 
Stock Yards Co., 212 U. S. 132. If even a railroad which is 
affected with a public use cannot be compelled to furnish 
unnecessary facilities to the public or special facilities to a 
competitor, it seems plain that one engaged in private business 
cannot be required to do so. 

The provisions of the proposed bill divide into two classes, 
— those which govern sale or conveyance, and those which 
govern leases or loan. One who sells or who in effect parts 
with final control of personal property may be forbidden to 
attach conditions to its subsequent use. Dr. Miles Medical 
Co. V. Park & Sons Co., 220 U. S. 373; Motion Picture Co. 
v. Universal Film Co., 243 U. S. 502; United States v. A. 
Schrader & So7i, Inc., 252 U. S. 85; Federal Trade Commission 
V. Beech-Nut Packing Co., 257 U. S. 441; but cf. Garst v. 
Hall & Lyon Co., 179 Mass. 588. Devices designed to con- 
ceal the fact that the transaction is in effect a sale, or to re- 
serve a nominal control which does not exist in fact, cannot 
avail to support what are in truth restraints upon use or 
alienation. I am therefore of opinion that the proposed bill 
would not be unconstitutional as applied to sales of the 
apparatus in question. 

The application of the bill to leases or loans of vending 



1923.] PUBLIC DOCUMENT — No. 12. 113 

apparatus presents a different question. Refined petroleum 
products are inflammable. Some are explosive. The bill 
recognizes that special apparatus is required to distribute 
them with safety to the public. The form of such apparatus 
and the safeguards to be taken are to some extent prescribed 
by law. It is common knowledge that special tanks, pumps, 
tank wagons and cans are used; that the refiners identify 
their product by placing their brands or names upon such 
apparatus; and that such brands or names are relied on by 
the public as a guarantee of the genuineness of the product 
within. In this way some manufacturers have won a good- 
will of large commercial value. Moreover, the cost of such 
apparatus is in some instances considerable. The precise 
question, therefore, is whether the Legislature has powder to 
forbid a refiner to lease or loan such vending apparatus upon 
condition that it shall be used exclusively to sell his own 
products. 

The condition which this bill forbids does not restrict the 
retailer either with respect to the refiners with whom he shall 
deal or the products which he shall sell. Even if enforced to 
its full extent, it leaves the retailer free to procure apparatus 
from as many refiners as he chooses, and to sell any products 
which he sees fit. The validity of such a condition under 
the sweeping provisions of the Clayton Act has been passed 
on by the Circuit Court of Appeals of the Second, Sixth and 
Seventh Circuits, and all three courts have upheld it upon 
the ground that it neither substantially lessens competition 
nor tends to monopoly. Standard Oil Co. v. Federal Trade 
Commission, 273 Fed. 478; Canfield Oil Co. v. Federal Trade 
Commission, 274 Fed. 571; Auto Acetylene Light Co. v. 
Prest-0-Lite Co., 276 Fed. 537; Sinclair Refining Co. v. 
Federal Trade Commission, 276 Fed. 686. At most, it forbids 
the retailer to use the vending facilities, and, possibly, the 
goodwill, of one refiner to sell the goods of another, to the 
possible deception of the public. To such a condition cases 
upholding the constitutionality of statutes which forbid leases 
which restrain trade or tend to monopoly cannot, in my 
opinion, apply. 

The manufacture, sale and distribution of refined petroleum 
products is not charged with a public use. It is private 
business. One engaged in private business cannot be re- 
quired by law to furnish selling facilities to another either 
with or without compensation. Such a statute would take 



114 ATTORNEY GENERAL'S REPORT. [Jan. 

private property for private use without due process of law. 
Riverbank Improvemmt Co. v. Chadwick, 228 Mass. 242; 
Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403; Missouri 
Pac. Ry. Co. v. Nebraska, 217 U. S. 196; Great Northern R.R. 
Co. V. Minnesota, 238 U. S. 340; Louisville & Nashville R.R. 
Co. V. Central Stock Yards Co., 212 U. S. 132. In my opinion, 
to forbid a private manufacturer to lease selling apparatus 
upon condition that it shall not be used to sell the goods of 
others not only takes his property in such apparatus without 
due process of law, but also denies that reasonable liberty of 
contract which is guaranteed by both State and Federal 
Constitutions. AUgeyer v. Louisiana, 165 U. S. 578, 589; 
Coppage v. Kansas, 236 U. S. 1, 14; Commonwealth v. Boston 
& Maine R.R., 222 Mass. 206, 208; Opinion of the Justices, 
220 Mass. 627, 630; V Op. Atty. Gen. 484. 

Another aspect of the matter must not be overlooked. 
Frequently the vending apparatus bears a name or brand 
which purports to identify the goods sold therefrom. Cus- 
tomers may prefer one brand to another. Such demand or 
preference is known as goodwill. To a qualified extent it is 
property which may be protected by reasonable agreements. 
Oregon Nav. Co. v. Winsor, 20 Wall. 64; Old Corner Book 
Store V. Upham, 194 Mass. 101. Equity will enjoin A from 
imitating the brand of B, and thereby appropriating B's good- 
will to himself by deceiving the public into buying his goods 
as and for the goods of B. George G. Fox Co. v. Glynn, 191 
Mass. 344. Putting aside the manifest injury to the public, 
it seems plain that a statute which forbids a manufacturer 
to require that his own goods alone shall be sold under his 
name or brand not only appropriates his goodwill to others 
without compensation, but also denies to him liberty to make 
an agreement which reasonably protects his fair name and 
the business reputation of his goods. 

I am therefore constrained to advise you that, as applied 
to leases or loans of any machinery, apparatus or device for 
retailing, distributing or dispensing petroleum products, the 
proposed bill would, in m^^ opinion, be unconstitutional, if 
enacted. 

Yours very truly, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 115 



Departmeiit of Labor and Industries — Appeal from Ruling of 
Director of Standards — Standard Clinical Thermometers. 

A person aggrieved by a ruling of the Director of Standards under G. L., 
c. 98, §§ 9-14, has no right of appeal from such ruling to the Com- 
missioner of Labor and Industries, as the head of the department, 
or to the full board. 

As to whether the Commissioner of Labor and Industries, of his own motion, 
may review the decisions of the Director of Standards, quoere. 

A third party cannot raise a question of conflict of jurisdiction or powers 
between executive and administrative departments, or officers or 
boards thereof, so as to bring a situation within the provisions of 
G. L., c. 30, § 5, where no conflict actually exists between such de- 
partments. 

May 2, 1922. 

E. Leroy Sweetser, Esq., Commissioner of Labor and Industries. 

Dear Sir: — You have requested my opinion upon certain 
questions respecting the powers, duties and responsibilities of 
the Commissioner of Labor and Industries in relation to the 
conduct of the Division of Standards; more specifically, in a 
case where the Director of Standards, acting under that por- 
tion of G. L., c. 98, relating to the examination of clinical 
thermometers, has made a ruling which the manufacturer 
contends is wrong. You ask, first, whether such manufac- 
turer has the right to appeal either to the Commissioner, as 
the head of the department, or to the full board, and second, 
whether the Commissioner, as executive and administrative 
head of the department, has power, upon his own motion, to 
review any decision the Director of Standards has made 
concerning the standard set for the sale of clinical ther- 
mometers in this Commonwealth, or any other matter con- 
cerning the same. 

The powers and duties of the Director of Standards, 
relating to clinical thermometers, are prescribed by G. L., 
c. 98, §§ 9-14. They contain no provision for appeal by 
any person aggrieved, either to the Commissioner or to the 
full board. If the Legislature had intended to provide for 
such appeal it could easily have done so. The express pro- 
visions for appeal in certain other cases (cf. G. L., c. 149, § 9), 
coupled with their omission here, constrain me to the con- 
clusion that no right to appeal to the Commissioner or to 
the full board has been conferred. The question is not 
presented, and I express no opinion, as to whether and to 



116 ATTORNEY GENERAL'S REPORT. [Jan. 

what extent the decision of the Director of Standards is 
subject to judicial review. 

With respect, however, to the second part of your inquiry 
I do not now determine the question as to whether the 
Commissioner has power of his own motion to review the 
acts of the Director of Standards. That necessarily involves 
a conflict of jurisdiction, as to which our statutes specifically 
prescribe the tribunal to determine such questions. 

G. L., c. 30, § 5, provides: — 

In all cases where a question arises between executive or adminis- 
trative departments, or officers or boards thereof, as to their respective 
jurisdictions or powers, or where such departments, or officers or boards 
thereof, issue confficting orders or make confficting rules and regula- 
tions, the governor and council may, on appeal by any such depart- 
ment or by any person affected thereby, determine the question, and 
order any such order, rule or regulation amended or annulled; pro- 
vided, that this section shall not deprive any person of the right to 
pursue any other lawful remedy. The time within which such appeal 
may be taken shall be fixed by the governor and council. 

It is clear from this section that it is intended to apply 
broadly to two situations: first, to a situation where there 
is a conflict between departments, or officers or boards thereof; 
and second, where conflicting rules or regulations have been 
made. So far as is disclosed by the facts upon which your 
present inquiry is based, neither of these situations obtains. 
A determination of that question must necessarily be deferred 
until the time when the question actually arises, and before 
the tribunal authorized to settle the issue. It is quite clear 
that a third person or party cannot raise the question of 
conflict to bring the situation within the provisions of the 
section last cited, where no conflict actually exists. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCmiENT — No. 12. 117 



Consiitidional Law — Sheppard-Towner Maternity and In- 
fancy Act — Extent of General Welfare Clause of Federal 
Constitution — Violation of Rights reserved to States — 
Right of State to bring Suit. 

The purpose and effect of the Federal Constitution was to secure a Federal 
government with limited and enumerated powers, for national pur- 
poses, reserving all other powers to the States and the people. 

The power of local self-government, commonly called the police power, 
was reserved to the States by the Tenth Amendment. 

The so-called "general welfare" clause of the Federal Constitution (art. 
I, § 8) is not a substantive grant of power but a qualification of the 
power "to lay and collect taxes, duties, imposts and excises." 

The act of Congress approved Nov. 23, 1921, entitled "An Act for the 
promotion of the welfare and hygiene of maternity and infancy, and 
for other purposes," commonly known as the Sheppard-Towner Act, 
purporting to establish a system by which States desiring to secure 
the benefits of promised appropriations are required to submit plans 
for carrying out the provisions of the act, to make appropriations to 
match Federal appropriations and to co-operate with Federal authori- 
ties in the administration of the act, is an incursion into the field of 
the local police power reserved to the States by the Tenth Amendment, 
and is unconstitutional. 

The power to declare an act unconstitutional can be exercised only when 
proper parties are before the court, in an actual controversy, involving 
the constitutional question in the determination of the rights of 
litigants. 

It seems probable that the Commonwealth may maintain a suit in equity 
in the Supreme Court of the United States to test the constitutionality 
of the Sheppard-Towner Act, on the ground either that its own rights 
or those of its taxpaying citizens are invaded, the issue being plainly 
justiciable. 

In such case Federal officials charged with the duty of administering the 
act may properly be made defendants, and an injunction may be 
sought against them. 

The passage of an act by the General Court accepting the provisions of the 
Sheppard-Towner Act would place the Commonwealth in a less 
favorable position to contest its validity. 

May 2, 1922. 

To the Honorable Senate and House of Representatives. 

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

1. Is the act of Congress, approved Nov. 23, 1921, entitled "An 
Act for the promotion of the welfare and hygiene of maternity and 
infancy', and for other purposes," within the constitutional powers of 
the Federal government? 

2. Has the Commonwealth of Massachusetts any right, as a sover- 
eign State, to question the constitutionality of said act? 



118 ATTORNEY GENERAL'S REPORT. [Jan. 

3. Would the Commonwealth of Massachusetts, by the acceptance 
of said act, waive its rights as a sovereign State, if such rights exist, 
to contest the constitutionality of said act before the courts of the 
United States? 

4. If, in your opinion, said act is unconstitutional, what procedure 
can the Commonwealth adopt to raise the question of constitution- 
ality? 

It is a matter of considerable delicacy for a State official 
to venture to pass upon the validity of acts of Congress and 
the rights of sovereign States before the Supreme Court of the 
United States, and it is with some hesitation that I under- 
take to comply with your request. It w^ould seem, however, 
that it is within the statutory duty imposed upon me, as 
that duty has been construed by my predecessors in office, to 
give you an opinion upon questions of law, when such opinion 
is requested, in order that you may be informed as to your 
powers and duties with respect to pending matters of legislation. 

I. The act of Congress, approved Nov. 23, 1921, entitled 
" An Act for the promotion of the welfare and hygiene of 
maternity and infancy, and for other purposes," commonly 
known as the Sheppard-Towner Act, authorizes annual appro- 
priations "to be paid to the several States for the purpose of 
co-operating with them in promoting the welfare and hygiene 
of maternity and infancy." It contains provisions substan- 
tially as follows : — 

It authorizes the appropriation, for the purposes of the act, 
of $480,000 for the current year and $240,000 for subsequent 
years, for a period of five years, to be equally apportioned 
among the several States, and an additional sum of $1,000,000 
a year, for a period of five years, to be apportioned $5,000 to 
each State and the balance among the States in proportion to 
their population, with a proviso that no payment out of the 
additional appropriation shall be made in any year to any 
State until an equal sum has been appropriated by such 
State. 

The act creates a "Board of Maternity and Infant Hy- 
giene," w^ith certain supervisory powers. It provides that 
the "Children's Bureau of the Department of Labor" shall 
be charged with the administration of the act, and gives the 
Children's Bureau all necessary powders to co-operate with the 
States in such administration, for which purpose the Chil- 
dren's Bureau may deduct an amount not exceeding 5 per 
cent of the additional appropriations in any year. 



1923.] PUBLIC DOCUMENT — No. 12. 119 

Every State is required, in order to secure the benefits of 
the appropriations authorized, through its Legislature to ac- 
cept the provisions of the act and to designate or authorize 
the creation of a State agency to co-operate with the Chil- 
dren's Bureau. 

Any State desiring to receive the benefits of the act is 
required by its agency to submit to the Children's Bureau 
detailed plans for carrying out the provisions of the act 
within such State, such plans to be subject to the approval 
of the board. 

Within sixty days after any appropriation under the act, 
the Children's Bureau is directed to make the apportion- 
ment provided for, to certify to the Secretary of the Treasury 
the estimated expense of administration, and to certify to the 
Secretary of the Treasury and to the treasurers of the various 
States the amount apportioned to each State. Within the 
same period and from time to time thereafter the Children's 
Bureau is directed to ascertain the amounts appropriated by 
the several States and to certify to the Secretary of the 
Treasury the amount to which each State is entitled by 
reason of such appropriation. 

Each State agency co-operating with the Children's Bureau 
is required to make such reports concerning its operations 
and expenditures as shall be prescribed by the Children's 
Bureau, which may, subject to the supervision of the board, 
withhold the certificate authorizing payment to any State 
whenever it is determined that the agency thereof has not 
properly expended the money paid to it or the moneys re- 
quired to be appropriated by the State for the purposes of 
the act, an appeal being given from such determination to 
the President of the United States. 

Thus, in effect a system is created by which appropriations 
are to be made by the Federal government and the States 
which accept the provisions of the act, and plans are to be 
submitted to Federal boards, the nature of which appears to 
be wholly undetermined except that they must have some 
relation to the *' welfare and hygiene of maternity and in- 
fancy" and are subject to certain restrictions stated in the 
act. Those plans are to be administered by officials, agents 
and representatives of the Children's Bureau in co-operation 
with the different State agencies, and control over the con- 
duct of the State agencies is vested in the Children's Bureau 
and the board by the provision authorizing the withholding 



120 ATTORNEY GENERAL'S REPORT. [Jan. 

of the Federal appropriation in cases where it is determined 
as to any State that Federal or State funds have not been 
properly expended. 

The purpose and effect of the Federal Constitution was to 
secure a Federal government with limited and enumerated 
powers, for national purposes, reserving all other powers to 
the States and the people. M'CuUoch v. Maryland, 4 Wheat. 
316, 405; Ujiited States v. Cruikshank, 92 U. S. 542, 549-551; 
Kansas v. Colorado, 206 U. S. 46, 81. The powers expressly 
granted to Congress, including the power to make all laws 
necessary and proper for carrying the powers enumerated 
into execution, are all stated in section 8 of article I of the 
Constitution. All powers not granted to the United States 
by the Constitution are reserved by the Tenth Amendment 
to the States or the people. United States v. Cruikshank, 
supra. 

The powers given to the Federal government are only 
those which are necessary to the existence and effective 
maintenance of the nation. There is no grant of power to 
Congress to regulate the internal affairs of the States (except- 
ing that given by the Eighteenth Amendment). The police 
power is a necessary part of the sovereign powers of the 
States, and was reserved to them by the Tenth Amendment. 
Each State has the right and duty to provide for the general 
welfare of its people, and in those respects the authorit}^ of 
the State is complete, unqualified and exclusive. New York 
V. Miln, 11 Pet. 102, 139; In re Rahrer, 140 U. S. 545, 554, 
555; Keller v. U7iited States, 213 U. S. 138; Hammer v. 
Dagenhart, 247 U. S. 251, 274-276; The Federalist, No. 45. 

The present act vests in the Federal government certain 
powers relating to maternity and infancy. These matters 
manifestly fall within the scope of the police power. Most 
of the expense will be borne by a small minority of the States, 
while a majority of the States will receive a corresponding 
benefit for which they do not pay. If the United States 
possesses no police power, as the Supreme Court of the United 
States has often held, it would seem that this act is an attempt 
to usurp an authority reserved to the States, and to exercise 
it at the expense of a minority of them, of which this Com- 
monwealth is one. 

It appears from the debates in Congress that the proponents 
of this measure attempt to support it upon the ground that 
it is a provision for the general welfare of the people of the 



1923.] PUBLIC DOCUMENT — No. 12. 121 

United States. The words ''general welfare" occur twice in 
the Constitution, once in the preamble and once in article I, 
section 8. 

The preamble is as follows: — 

We the people of the United States, in order to form a more perfect 
union, estabhsh justice, insure domestic tranquillity, provide for the 
common defence, promote the general welfare, and secure the blessings 
of libert}^ to ourselves and our posterity, do ordain and estabhsh this 
Constitution for the United States of America. 

The preamble, however, contains no grant of power. It 
is a mere statement of the purposes effected by the Consti- 
tution itself. Jacobsofi v. Massachusetts, 197 U. S. 1.1, 22; 
Stor}^ on the Constitution, § 462. 

I pass, therefore, to a consideration of article I, section 8, 
of which the first clause is as follows: — 

The congress shall have power ... to lay and collect taxes, duties, 
imposts and excises, to pay the debts and provide for the common 
defence and general welfare of the United States; but all duties, im- 
posts and excises shall be uniform throughout the United States; . . . 

It is plain that the words "to pay the debts and provide 
for the common defence and general welfare of the United 
States" are not a substantive grant of power, but a quali- 
fication of the first-enumerated power ''to lay and collect 
taxes, duties, imposts and excises." Argument is not needed 
to support this proposition because the authority for it is 
conclusive. 

The history of the adoption of this clause is given in 
George Ticknor Curtis's Constitutional History of the United 
States, vol. I, pp. 518-521, as follows: — 

In the first draft of the Constitution the power to tax was 
stated in what was there article VII, section 1, in the follow- 
ing words (5 Elliot's Debates, p. 378) : — 

The legislature of the United States shall have the- power to lay 
and collect taxes, duties, imposts, and excises. 

It was thought that there should be some restraint on the 
revenue power, with a view to prevent perpetual taxes of 
any kind. The matter was referred to a committee of detail, 
which reported the following addition (Ibid. p. 462) : — 



122 ATTORNEY GENERAL'S REPORT. [Jan. 

For pajanent of the debts and necessary expenses of the United 
States; provided that no law for raising any branch of revenue, except 
what may be specially' appropriated for the paj^ment of interest on 
debts or loans, shall continue in force for more than years. 

This w^as referred to a grand committee, which introduced 
an amendment making the whole clause read as follows {Ihid. 
pp. 506, 507) : — 

The legislature shall have power to lay and collect taxes, duties, 
imposts, and excises, to pay the debts, and provide for the common 
defence and general welfare of the United States. 

This amendment was unanimously adopted. The provision 
for uniformity was added later. 5 Elliot's Debates, p. 543. 
In Loughhoroiigh v. Blahe, 5 Wheat. 317, 318, Chief Justice 
Marshall said: — 

The eighth section of the first article gives to Congress the "power 
to lay and collect taxes, duties, imposts and excises," for the purposes 
thereinafter mentioned. 

Again, in Dobbins v. Commissioners of Erie County, 16 
Pet. 435, 448, 449, the court said: — 

The revenue of the United States is intended by the Constitution 
to pay the debts and provide for the common defence and general 
welfare of the United States; to be expended, in particulars, in carrying 
into effect the laws made to execute all the express powers, "and all 
other powers vested by the Constitution in the government of the 
United States." 

In Ward v. Maryland, 12 AYall. 418, 428, the power to tax 
was referred to as existing " by virtue of an express grant 
for the purpose; among other things, of paying the debts 
and providing for the common defence and general welfare." 

In United States v. Boyer, 85 Fed. 425, it was held that 
the "general welfare clause" did not confer any distinct and 
substantial power on Congress to enact any legislation, but 
constituted a limitation upon the taxing power. 

The text writers also are agreed that the words "to pay 
the debts and provide for the common defence and general 
welfare of the United States" are to be construed as if they 
were preceded by the words "in order," or similar w^ords 
amounting to a declaration of purpose. Story on the Con- 



1923.] PUBLIC DOCUMENT - No. 12. 123 

stitution, §§ 906-911; Miller on the Constitution of the 
United States, pp. 229-231. 

The form of the Constitution lends strong support to this 
construction. The document in the rolls of the Department 
of State shows that in article I, section 8, each of the enu- 
merated powers is numbered, from 1 to 18 inclusive, the first 
being the power "to lay and collect taxes, duties, imposts 
and excises, to pay the debts and provide for the common 
defence and general welfare of the United States; but all 
duties, imposts and excises shall be uniform throughout the 
United States;" and the second the power "to borrow money 
on the credit of the United States;" and that each power is 
separated by a semi-colon. Curtis's Constitutional History 
of the United States, vol. I, pp. 728 note, and 731. 

While it seems to be definitely settled that the words "to 
pay the debts and provide for the common defence and general 
welfare of the United States" are not a substantive grant of 
power, there has been from the time the Constitution was 
adopted a controverted question regarding the interpretation 
of those words and their bearing on the power of Congress to 
appropriate money. Hamilton held that Congress had a 
power to appropriate as broad as the power to tax, and that 
the revenues of the United States could be appropriated for 
any public purpose connected with the general welfare of the 
United States. This doctrine was stated by Hamilton in his 
Report on Manufactures in 1791. It was adopted and 
followed by Story (§§ 975-992), and by President Monroe 
in his message respecting the bill for the repairs of the Cum- 
berland Road, May 4, 1822. On the other hand, Madison 
held that the general welfare clause is merely descriptive of 
and limited by the specific grants of power to Congress con- 
tained in section 8, and that the power to appropriate money 
is also confined to the enumerated powers. Madison ex- 
pressed this view in the Federalist, No. 41, and the statement 
there made must be presumed to have had some effect in 
obtaining the ratification of the Constitution by the States. 
He renewed the same statement in his message vetoing the 
bill for internal improvements, March 3, 1817, and in a 
letter to Speaker Stevenson, dated Nov. 27, 1830. Madison's 
view was supported and emphasized by Jefferson, as stated 
in his Opinion on the Constitutionality of a National Bank, 
Feb. 15, 1791. See Tucker's Constitution of the United 
States, §§ 222-231. 



124 ATTORNEY GENERAL'S REPORT. [Jan. 

The view that the general welfare clause is merely descrip- 
tive of the substantive grants of power which follow it in 
section 8 is supported by the circumstance that provisions 
for the common defence are contained in the grants of power 
to declare war, to raise and support armies, to provide and 
maintain a navy, to make rules for the government and 
regulation of the land and naval forces, to provide for calling 
forth the militia to execute the laws of the Union, suppress 
insurrections and repel invasions, and to provide for organiz- 
ing, arming and disciplining the militia, while the other 
powers granted in that section are clearly provisions for the 
general welfare of the United States. 

The question as to the extent of the general welfare clause 
in its application to appropriations of money was expressly 
reserved by the Supreme Court in United States v. Realty 
Co., 163 U. S. 427, 440, where the court said: — 

It is unnecessary to hold here that Congress has power to appro- 
priate the public money in the treasury to any purpose whatever 
which it may choose to say is in payment of a debt or for purposes of 
the general welfare. A decision of that question may be postponed 
until it arises. 

But the question which I have to determine does not depend 
for its answer upon a solution of the controversy concerning 
the limits of the power of Congress to appropriate money. In 
fact, the Sheppard-Towner Act makes no appropriation of 
money. It merely purports to authorize sums to be appro- 
priated, thereby announcing, it seems, an intention to appro- 
priate at some future time. It does, however, establish a 
system by which States desiring to secure the benefits of 
promised appropriations are required to submit plans for 
carrying out the provisions of the act to designated Federal 
authorities for their approval, to make appropriations to 
match Federal appropriations, and to co-operate with the 
Federal authorities in the administration of the act, subject 
to the supervision of those authorities, who, if they determine 
that either Federal or State funds have not been properly 
expended, may withhold the Federal appropriation. This, in 
my judgment, is not an appropriation bill, but an attempted 
exercise of power over the subject of maternity and infancy, 
and thus an incursion into the field of the local police power, 
reserved to the States by the Tenth Amendment. The 
objections to the act go further, in that the proposed appro- 



1923.J PUBLIC DOCUMENT — No. 12. 125 

priations are not general in their application, but are confined 
to those States which accept the act and appropriate their 
own funds to be used for its purposes. Hamilton, in his 
Report on Manufactures, cited above, although contending for 
the broad power of appropriation, says that " the object to 
which an appropriation of money is to be made must be 
general and not local.'' For this reason the appropriations, 
if made, in my opinion, would not be for the "general wel- 
fare of the United States," even if those words are given the 
broadest signification. Indeed, it is yet to be determined 
that Congress has the power to appropriate to the States, 
according to any method of apportionment, revenues raised 
from the people of the United States for national purposes. 

If the powers attempted to be exercised by the Sheppard- 
Towner Act are outside the powers conferred upon Congress 
by the Constitution and within the field of the powers reserved 
to the States, the act is not made constitutional and valid 
by the circumstance that those powers will only be exercised 
in or with respect to those States whose Legislatures accept 
it; for Congress cannot assume and the State Legislatures 
cannot yield the powers reserved to the States by the Con- 
stitution. They can only be granted to the Federal govern- 
ment by an amendment to the Constitution. On this precise 
subject President Monroe, in his message vetoing the Cum- 
berland Road bill, referred to above, holding that Congress 
had not the power, even with the consent of the States 
affected, to establish turnpikes with gates and tolls as internal 
improvements, said: — 

I am of opinion that Congress do not possess this power; that the 
states, individual!}^, cannot grant it; for, although they may assent to 
the appropriation of money within their limits for such purposes, they 
can grant no power of jurisdiction or sovereignty by special compacts 
with the United States. This power can be granted only by an amend- 
ment to the Constitution, and in the mode prescribed by it. 

In reply to your first question, I am therefore constrained 
to say that I am of opinion that the act referred to is not 
within the constitutional powers of the Federal government. 

II. Your second question, whether the Commonwealth of 
Massachusetts has any right as a sovereign State to question 
the constitutionality of the act, and your fourth question, 
what procedure can be adopted to raise the question of 
constitutionality, will be considered together. 



126 ATTORNEY GENERAL'S REPORT. [Jan. 

It is well established that any person whose rights are 
directly affected by an act of Congress may question its 
constitutionality before the court, and that it is the court's 
duty, in a proper case, where an act of Congress infringes 
upon the provisions of the Constitution, to declare that act 
unconstitutional and void. Vanhoimes Lessee v. Dorrance, 
2 Dall. 304, 308, 309; Marhury v. Madison, 1 Cranch, 137; 
M'Culloch v. Maryland, 4 Wheat. 316, 400, 401. 

But the right to declare an act unconstitutional can be 
exercised only when proper parties are before the court, in 
an actual controversy, involving the constitutional question 
in the determination of the rights of litigants. Liverpool, 
etc., Steamship Co. v. Commissioners of Emigration, 113 U. S. 
33, 39; Muskrat v. United States, 219 U. S. 346, 361; Fair- 
child v. Hughes, 258 U. S. 126. 

The most direct method of testing the constitutionality 
of the Sheppard-Towner Act, if not the only method, is by 
proceedings in equity against those officials of the Federal 
government who are acting or preparing to act to carry its 
provisions into effect. By U. S. Const., art. Ill, § 2, the 
Supreme Court has original jurisdiction of all cases in which 
a State shall be a party. The inquiry, therefore, is, in the 
first instance, whether the Commonwealth may maintain 
such a suit in the Supreme Court as party plaintiff, and 
secondly, whether the suit will lie against Federal officials as 
parties defendant. 

1. There are instances of suits brought by States which 
the Supreme Court has declined to entertain, on the ground 
that they called upon the court to determine questions which 
were political and not judicial. The most noteworthy of 
these cases is Georgia v. Stanton, 6 Wall. 50, where the State 
brought an original bill to restrain the Secretary of War and 
other officers of the government from carrying into effect the 
so-called Reconstruction Acts. The court held that the- 
rights for which protection was sought were rights of sover- 
eignty, that no rights of persons or property were being 
infringed, and that the questions were political; and they 
dismissed the bill for want of jurisdiction. The decision, 
however, seems to go no further than Luther v. Borden, 7 
How. 1, and Pacific States Teleph. & Teleg. Co. v. Oregon, 
223 U. S. 118, holding that it is for Congress and not for the 
court to decide what is the established government in a 



1923.] PUBLIC DOCUMENT — No. 12. 127 

State, and to enforce the constitutional guaranty of a repub- 
lican form of government, the questions involved being 
political and beyond the judicial power. 

On the other hand, the court has from early times enter- 
tained suits to determine which of two States had political 
jurisdiction over disputed territory, since such a controversy 
is clearly justiciable. Rhode Island v. Massachusetts, 12 Pet. 
657, 736-738; Virginia v. West Virginia, 11 Wall. 39. More 
recently, the jurisdiction has in many cases been sustained in 
suits by States to enforce their sovereign rights, and as parens 
'patriae or representatives of their citizens. 

The question whether a State may sue as representative of 
its citizens was presented but not settled in Louisiana v. 
Texas, 176 U. S. 1, 19. But in later decisions this question 
has been answered in the affirmative, and the distinction 
made in Georgia v. Stanton, 6 Wall. 50, between rights of 
property and rights of sovereignty has been disregarded. 
These decisions have made it plain that suits by States will 
lie for the protection both of their own sovereign rights and 
of the personal and property rights and welfare of their 
citizens generally. On these grounds suits have been sus- 
tained to restrain interference with the flow of rivers and 
water supply and pollution of the air. Jurisdiction is ac- 
cepted broadly wherever the controversy is justiciable in its 
nature, in recognition of the fact that the States, in joining 
the Union, relinquished the right they would otherwise have 
had to seek remedies by negotiation or force, that there 
should be some remedy for the settlement of disputes, and 
that one may be found in the constitutional provisions giving 
the Supreme Court jurisdiction of suits by States. Missouri 
V. Illinois & Sanitary District of Chicago, 180 U. S. 208, 241; 
Kansas v. Colorado, 185 U. S. 125; 206 U. S. 46, 83, 84, 99; 
Georgia v. Tennessee Copper Co., 206 U. S. 230, 237; Vir- 
ginia V. West Virginia, 220 U. S. 1, 27; New York v. New 
Jersey, 256 U. S. 296, 301, 302. 

The question whether an act of Congress is in violation 
of the reserved powers of the States, and therefore uncon- 
stitutional, seems clearly to be justiciable, and the Supreme 
Court has so decided in Hammer v. Dagenhart, 247 U. S. 
251. In that case the court held that a United States dis- 
trict attorney should be enjoined from enforcing an act of 
Congress prohibiting the transportation in interstate com- 



128 ATTORNEY GENERAL'S REPORT. [Jan. 

merce of products of child-labor, on the ground that the law 
was an invasion of the local police power reserved to the 
States by the Tenth Amendment. 

Where an act of Congress encroaches upon the rights re- 
served to the States by the Tenth Amendment, any State 
affected thereby must have the right to resort to some tri- 
bunal for the protection of those rights, or be without remedy. 
That the States themselves are entitled to such protection 
by the judicial power, and that it is the duty of the court, 
in a proper case, to hold such an act unconstitutional, and to 
grant relief, has several times been declared. Ableman v. 
Booth, 21 How. 506, 519, 520; Gordon v. United States, 117 
U. S. 697, 700, 701, 705; Matter of Heff, 197 U. S. 488, 505; 
South Carolina v. United States, 199 U. S. 437, 448. 

If, for the reasons stated, the Sheppard-Towner Act is 
unconstitutional as representing an attempt by Congress to 
exceed its constitutional powers and to usurp the rights 
reserved to the States by the Tenth Amendment, it follows 
that the Commonwealth, in a proper case, can raise the 
question of constitutionality by bringing suit in the Supreme 
Court, if and when it is affected by the act. 

The act does not confer upon the Federal agencies created 
or designated by it any authority which operates in Massa- 
chusetts unless and until its Legislature accepts the act and 
makes the required appropriation. If the Legislature pur- 
ports to accept the act, the right of the Commonwealth 
subsequently to complain that the act is unconstitutional, as 
hereafter stated in reply to your third question, will be open 
to serious question. If the act is not accepted and does not 
become operative within the Commonwealth, there would be 
no encroachment upon the police power of Massachusetts if 
the act should be put into effect in other States. 

It does not follow, however, that the Commonwealth is 
not affected if the act is put into effect in other States. The 
grants to such States are to be paid out of the Federal treas- 
ury. That treasury is replenished by internal revenue taxes 
paid by the people of the several States. It has been esti- 
mated that 5.66 per cent of those taxes are paid by the 
citizens of Massachusetts. If Massachusetts can and does 
accept the act it has been estimated that the return to it 
thereunder will be less than half the amount collected from 
its citizens. If Massachusetts does not accept the act, its 
citizens will be taxed in order to carry into effect an uncon- 



1923.] PUBLIC DOCUMENT — No. 12. 129 

stitutional law in other States. Assuming that a Federal 
tax, otherwise lawful, imposed to raise revenues for lawful 
purposes does not become unconstitutional because it taps 
and diminishes a source of revenue available to the States 
(Knowlton v. Moore, 178 U. S. 41; Neiv York Trust Co. v. 
Eisner, 256 U. S. 345), it does not follow that a State whose 
revenues are diminished by Federal taxation imposed in 
order to execute an unconstitutional law is not so affected 
thereby that it cannot attack that expenditure in the Supreme 
Court of the United States. If the State is without remedy 
it is under the dilemma of cpnsenting to be stripped of a 
power reserved by the Tenth Amendment, in order to share 
in such unconstitutional benefits as Congress may choose to 
accord, or else of bearing unheard and without redress a 
part of the burden of conferring such alleged benefits on 
other States. 

The right of Massachusetts to bring suit may be supported 
upon the further ground that the rights of its taxpaying 
citizens are invaded. It is doubtful whether taxpayers can 
maintain suits in their individual capacity to restrain an 
unconstitutional expenditure. See Bradfield v. Roberts, 175 
U. S. 291; Millard v. Roberts, 202 U. S. 429, 438. There is, 
however, in my opinion, strong argument for the view that 
the State can present the question on their behalf as parens 
patria', following the analogy of the nuisance cases already 
cited. If neither the State nor the taxpayer can sue, then 
there can be no remedy against such an unconstitutional 
exercise of power by Congress, although the issue is plainly 
justiciable. 

The novelty of the question prevents a more definite 
answer to your inquiry. It is for the Legislature, in its 
wisdom, to determine whether a question of such vital impor- 
tance to the State, involving, as it does, a principle capable 
of indefinite appHcation in the broad and paternalistic field 
of social welfare, should not be submitted for adjudication 
to our highest court. 

2. It remains to be considered whether suit may be brought 
against the Federal officials whose duty it is to administer 
the act. 

In Mississippi v. Johnson, 4 Wall. 475, the Supreme Court 
denied leave to file a bill against President Johnson to restrain 
him from putting the Reconstruction Acts into force. In 
Georgia v. Stanton, 6 Wall. 50, the Supreme Court dismissed 



130 ATTORNEY GENERAL'S REPORT. [Jan. 

a similar bill, as already stated. The circumstances which 
led to the passage of these bills, which were designed to 
create a temporary government for the seceded States, and 
the effect of later decisions, afford ground for belief that 
those decisions would not govern in the present case. 

Later cases hold that suit will lie where rights of property 
are unlawfully invaded by Federal officers, and where the 
United States is not a defendant or a necessary party. United 
States V. Lee, 106 U. S. 196, 204-208; Nohle v. Union River 
Logging R.R. Co., 147 U. S. 165, 171, 172; Belknap v. Schild, 
161 U. S. 10, 18; American School of Magnetic Healing v. 
McAnnulty, 187 U. S. 94; Lane v. Watts, 234 U. S. 525, 540. 
Furthermore, the court has frequently held broadly that 
State officers clothed with some duty in regard to the en- 
forcement of the laws of the State may be enjoined from 
proceeding under an unconstitutional statute which they are 
about to enforce to the plaintiff's injury, and that a suit for 
such injunction cannot be regarded as a suit against the 
State. shorn v. United States Bank, 9 Wheat. 738, 846, 857; 
Davis V. Gray, 16 Wall. 203; Pemioyer v. McConnanghy, 140 
U. S. 1, 10; Smyth v. Ames, 169 U. S. 466, 518, 519; Ex 
parte Young, 209 U. S. 123, 149, 155, 156; Western Union 
Telegraph Co. v. Andrews, 216 U. S. 165; Truax v. Raich, 
239 U. S. 33, 37; Greene v. Louisville & I. R.R. Co., 244 
U. S. 499, 506, 507. Recently this same principle has also 
been extended to suits against Federal officers seeking to 
restrain them from acting under statutes alleged to be uncon- 
stitutional. Philadelphia Co. v. Stimson, 223 U. S. 605, 619, 
620; Wilson v. New, 243 U. S. 332; Hammer v. Dagenhart, 
247 U. S. 251. Federal jurisdiction does not depend on 
diversity of citizenship, but exists because such suits arise 
under the Constitution or laws of the United States. Ex 
parte Yoimg, 209 U. S. 123, 143-145. 

In the National Prohibition Cases, 253 U. S. 350, two of 
the cases were suits by the States of Rhode Island and New 
Jersey against the Attorney General and the Commissioner 
of Internal Revenue, seeking to have the Eighteenth Amend- 
ment and the Volstead Act declared unconstitutional and 
void, and to enjoin the enforcement of the act. The main 
ground on which unconstitutionality was claimed was that 
the amendment and the act constituted an interference with 
the sovereign rights of the States to govern their internal 
affairs, that is, the local police power. Original bills in each 



1923.] PUBLIC DOCUMENT — No. 12. 131 

of the two cases were permitted by the court to be filed 
(252 U. S. 570), and no question of jurisdiction was raised 
or reserved in the opinion by which all the suits were dis- 
missed on the merits. 

The opinion in the recent case of Texas v. hiterstate Com- 
merce Commission, 258 U. S. 158, contains an intimation that 
the original jurisdiction of the court over suits where States 
are parties may be somewhat narrow, but the decision of the 
case goes on the ground that necessary parties were not before 
the court. 

I conclude, therefore, that assuming that the Common- 
wealth may bring the suit as party plaintiff, the fact that 
the defendants would be Federal officials would not defeat it. 

III. Your third question is whether the Commonwealth 
by accepting the act would waive any right it may have to 
contest the constitutionality of the act before the courts of 
the United States. 

The act provides that any State, in order to secure the 
benefit of Federal appropriations, must accept the provisions 
of the act, designate the State agency with which the Chil- 
dren's Bureau is to co-operate, and submit to the Children's 
Bureau detailed plans for carrying out the provisions of the 
act within the State. It contemplates also appropriations 
by the State to match Federal appropriations. These pro- 
visions, it seems to me, must be construed as a proposal 
for a contract with the several States which, when accepted 
by any State, would constitute an agreement by the State 
to be bound by the terms of the act, if such an agreement 
could be made. Whether the State, acting by its Legislature 
alone or in any manner other than that provided by the 
Constitution itself, can contract away its sovereign rights 
is a matter of grave doubt. But apart from any question of 
the validity of such a contract, there would appear to be an 
inconsistency in accepting the benefits of the act and then 
bringing suit to avoid its obligations and effect. 

I am therefore of opinion that the passage of an act by 
the General Court accepting the provisions of the Sheppard- 
Towner Act would place the Commonwealth in a less favor- 
able position to contest its validity. 
Very truly yours, 

J. Weston Allen, Attorney General. 



132 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitidional Law — Eminent Domain — Taking of Picture 
exhibited in a Public Library ui^on a Public Charitable 
Trust — Public or Private Purpose. 

The power to take private property for public use, upon payment of 
reasonable compensation, extends to all property within the jurisdic- 
tion of the Commonwealth, including personal property, and can 
neither be bargained away by statute nor defeated by private contract. 

A "taking" by eminent domain of private property which is subject to a 
contract does not "impair" that contract, within the meaning of 
U. S. Const., art. I, § 10, even though further performance of that con- 
tract is defeated by such "taking." 

Private property cannot be "taken" by eminent domain for a private 
purpose, even upon payment of reasonable compensation. 

A statute which authorizes a "taking" by eminent domain for a public 
purpose or for a private purpose is unconstitutional. 

A picture held and pubHcly exhibited in a public library upon a public 
charitable trust cannot be "taken" by eminent domain in order to 
remove it from exhibition in said library, since such a taking is not 
for a public purpose. 

A "taking" by eminent domain of property already devoted to a pubhc 
purpose is unconstitutional if the taking may or does work a mere 
change of control without change of use. 

A picture held and publicly exhibited in a public library upon a public 
charitable trust cannot be "taken" by the Department of Education 
by eminent domain under a statute which would permit the use of the 
picture by the department for the same public purpose to which it is 
now devoted, since such a taking would work a mere change in control 
without change of use. 

May 5, 1922. 

Joint Committee on the Judiciary. 

Gentlemen: — You submit for my consideration a bill 

entitled " An Act to take the picture 'The Synagogue' for 

educational purposes," which provides: — 

Section 1. The department of education of the commonwealth 
is hereby authorized and directed wdthin thirty days of the passage of 
this act to take by right of eminent domain for educational purposes 
the picture entitled "The Synagogue" now in the Boston public library. 
At the time of the taking, the department shall file a statement of the 
taking with the city clerk of the city of Boston, and shall award all 
damages sustained by any person by reason of such taking. 

Any person entitled to an award of damages under this act, or the 
commonwealth, whether or not an award has been made, may petition 
for the assessment of all such damages to the superior court of Suffolk 
county within sixty days from the taking. 

All damages incurred under this act shall be paid by the treasurer 
of the commonwealth upon due presentation. 



1923.] PUBLIC DOCUMENT — No. 12. 133 

The provisions of chapter seventy-nine of the General Laws, save 
as herein expressly provided, shall apply to this act so far as they are 
apphcable. 

Section 2. The department of education is authorized to make 
rules and regulations for the custody of the picture and its use for 
educational purposes under section seven of chapter sixty-nine or 
under chapter seventj^-three of the General Laws or for SLny other 
educational purpose. 

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

With the bill have been submitted: (1) a contract, dated 
Jan. 18, 1893, between the trustees of the Boston Public 
Library and John S. Sargent, an artist of recognized reputa- 
tion, by which Mr. Sargent agreed, for the sum of $15,000, to 
paint certain pictures for the " Special Library Hall of the 
new Public Library building in Copley Square in Boston;" 
(2) a contract between said Sargent and the trustees of a 
fund subscribed by citizens, dated Dec. 5, 1895, whereby 
said Sargent agreed to paint certain additional pictures for 
lunettes in said hall, and the said trustees agreed to pay 
said $15,000 for the original paintings and the extra panels. 
It further appears that over eighty persons subscribed to 
this fund over $16,000; that "The Synagogue" was painted 
pursuant to said contracts' and installed in said hall in said 
library in 1919; that a movement for the removal of said 
picture was undertaken; and that the corporation counsel 
of Boston, on April 12, 1920, advised the trustees of the 
library that the facts disclosed a public charitable trust 
which precluded them from removing said picture. Eliot v. 
Trinity Church, 232 Mass. 517. 

At this legislative session a petition (No. 723) was filed, 
praying "for legislation relative to the removal of the picture 
*The Synagogue' from the Boston Public Library, or for such 
further legislation as may be necessary for the taking of the 
picture by the right of eminent domain. " This petition was 
accompanied by a bill (House 1131), which directed the 
trustees of the Boston Public Library to remove said picture 
from the library. Upon suggestion that this bill impaired 
the obligation of the contract with the subscribers, the present 
bill was substituted. 

You ask whether the proposed bill would be constitutional. 
Your inquiry raises two questions: first, whether the con- 
tracts with Mr. Sargent and with the subscribers prevent 
taking said picture by eminent domain either with or without 



134 ATTORNEY GENERAL'S REPORT. [Jan. 

taking said contracts; second, whether the "taking" is for a 
public purpose. 

1. The power to take private property for public use is 
incident to and inseparable from sovereignty. Kohl v. United 
States, 91 U. S. 367, 371. It extends to all property within 
the jurisdiction of the Commonwealth, including personal 
property {Offield v. New York, N. H. & H. R.R. Co., 203 
U. S. 372) and contracts. West River B. Co. v. Dix, 6 How. 
507; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; 
Cincinnati v. Louisville d' Nashville R.R., 223 U. S. 390, 400; 
Meade v. United States, 2 Ct. CI. 224; Brimmer v. Bosto7i, 
102 Mass. 19. It cannot be diminished or bargained away 
by statute. Pennsylvania Hospital v. Philadelphia, 245 U. S. 
20. Nor can private parties remove property from the scope 
of the power of eminent domain by making contracts con- 
cerning it. Long Island Waaler Supply Co. v. Brooklyn, 166 
U. S. 685; Chicago, etc., R.R. Co. v. Nebraska, 170 U. S. 57, 
74; McGrath v. Boston, 103 Mass. 369. The fact that the 
taking renders impossible further performance of a contract 
touching the property taken does not "impair" the obliga- 
tion of such contract, within the meaning of U. S. Const., 
art. I, § 10. Long Island Water Supply Co. v. Brooklyn, 166 
U. S. 685. I am therefore of opinion that the contracts with 
Mr. Sargent and with the subscribers are not a bar to taking 
said picture for a public purpose. 

2. The authority of the Commonwealth could not be 
preserved if it lacked power to take the instruments needed 
by it to execute public ends. But the social necessity upon 
which the power rests imposes limits upon its exercise. Article 
X of the Bill of Rights provides, in part: — 

. . . And whenever the pubUc exigencies require that the property 
of any individual should be appropriated to pubUc uses, he shall receive 
a reasonable compensation therefor. 

The property must be "appropriated to public uses" and 
"reasonable compensation" must be paid. While neither 
individual obstinacy nor individual greed can defeat an 
appropriation to public uses, both the citizen whose property 
is taken and the taxpayer who pays for the taking have a 
right under both the State and the Federal Constitution to 
require that private property shall not be appropriated to 
private uses by eminent domain. Riverbank Improvement Co. 



1923.] PUBLIC DOCUMENT — No. 12. 135 

V. Chadwick, 228 Mass. 242; Missouri Pacific Ry. Co. v. 
Nebraska, 164 U. S. 403. In Salisbury Land & Improve- 
ment Co. V. Commonwealth, 215 Mass. 371, 377, the court 
said : — 

Private propertj^ cannot be taken directly or indirectly for a private 
end. It cannot be seized ostensibly for a public use and then diverted 
to a private use. Legislation which is designed or which is so framed 
that it may be utilized to accomplish the ultimate result of placing 
property in the hands of one individual for private enjoyment after it 
has been taken from another individual avowedly for a pubhc purpose 
is unconstitutional. It would enable that to be achieved by indirection 
which by plain statement would be impossible. 

The question whether a statute appropriates property by 
eminent domain to a public use or to a private use is a 
judicial one upon which the constitutionality of the act 
depends. 

The picture is now held upon a charitable trust of indefi- 
nite duration. Eliot v. Trinity Church, 232 Mass. 517. It 
is one of a series which is daily exhibited free to the public 
in a building dedicated to public education, which is centrally 
located in the capital and largest city of the Commonwealth. 
As the picture is in effect a part of the Public Library of the 
city of Boston, it is, in my opinion, dedicated to educational 
purposes to the same extent as that library. See Cary 
Library v. Bliss, 151 Mass. 364 

The proposed bill directs the Department of Education 
to take the picture for ''educational purposes." Section 2 
provides as follows : — 

The department of education is authorized to make rules and 
regulations for the custody of the picture and its use for educational 
purposes under section seven of chapter sixty-nine or under chapter 
seventy-three of the General Laws or for any other educational purpose. 

G. L., c. 69, § 7, provides: — 

The department may co-operate with existing institutions of learning 
in the establishment and conduct of university extension and corre- 
spondence courses; may supervise the administration of all such courses 
supported in whole or in part bj^ the commonwealth; and also, where 
deemed advisable, may establish and conduct such courses for the 
benefit of residents of the commonwealth. It may, in accordance mth 
rules and regulations estabhshed bj^ it, grant to students satisfactorily 
completing such courses suitable certificates. 



136 ATTORNEY GENERAL'S REPORT. [Jan. 

G. L., c. 73, § 1, provides: — 

The department of education, in this chapter called the department, 
shall have general management of the state normal schools at Barn- 
stable, Bridgewater, Fitchburg, Framingham, Lowell, North Adams, 
Salem, Westfield and Worcester, and the normal art school at Boston, 
wherever said schools maj' be hereafter located, and of any other state 
normal schools hereafter estabhshed, and of boarding houses connected 
therewith, and may direct the expenditure of money appropriated for 
their maintenance. 

While the act appropriates the picture to educational pur- 
poses generally, the manner in which it shall be used to 
accomplish those purposes is left to be determined by the 
Department of Education. The picture is already appro- 
priated to educational purposes by the trust under which it 
is now held. Under the proposed bill the Department of 
Education might determine that the picture should remain 
w^here it now is and be exhibited in the same manner as 
heretofore. If so, the bill works simply a change of control. 
To such a situation Cary Library v. Bliss, 151 Mass. 364, 
seems applicable. In that case, in holding that a public 
library held upon a public charitable trust of indefinite dura- 
tion by trustees provided by the donor could not be taken 
by eminent domain and transferred to a corporation created 
to manage it for like purposes, the court said: — 

The question arises, whether taking property from one party, who 
holds it for a pubhc use, by another, to hold it in the same manner for 
precisely the same pubhc use, can be authorized under the Constitution. 
Can such a taking be founded on a public neces.sity? It is unlike 
taking for a public use property which is already devoted to a different 
public use. There may be a necessity for that. In the first case, the 
property is alreadj^ appropriated to a public use as completely in every 
particular as it is to be. Can the taking be found to be for the purpose 
which must exist to give it vahdity? In ever}^ case it is a judicial 
question whether the taking is of such a nature that it is or may be 
founded on a pubhc necessity. If it is of that nature, it is for the 
Legislature to say whether in a particular case the necessity exists. 
We are of opinion that the proceeding authorized by the statute was 
in its nature merely a transfer of property from one party to another, 
and not an appropriation of property to public use, nor a taking which 
was, or which could be found by the Legislature to be, a matter of 
pubhc necessity. West River Bridge v. Dix, 6 How. 507; Lake Shore 
& Michigan Southern Railway v. Chicago & Western Indiana Railroad, 
97 111. 506; Chicago & Northwestern Railway v. Chicago & Evanston 
Railroad, 112 lU. 589. 



1923.] PUBLIC DOCUMENT — No. 12. 137 

The suggestion that the Department of Education might 
make a different or more effective use of the picture for 
educational purposes than the use to which it is at present 
devoted cannot, in my opinion, save the bill. It is not 
enough that under the authority of a statute the property 
may be appropriated either to public or to private uses. 
An act which appropriates private property either to a use 
which is public or to a use which is private is unconstitutional. 
Salisbury Land & Improvement Co. v. Commornvealth, 215 
Mass. 371. Similarly, an act which permits the Department 
of Education to devote the picture either to the same use to 
which it is now devoted or to a different use would not be 
constitutional. 

The committee is entitled to take into consideration all 
the facts relating to the pending bill in determining whether 
or not, in the particular case now before it, the necessity 
exists for taking the picture. If the result which is to be 
achieved by the proposed legislation is in reality to secure the 
removal of the picture from the place where it is now devoted 
to a public use, a taking to achieve such a result would not 
be authorized. See also Mass. Const. Amend. XI and XLVI. 
If the result is to take the picture from public trustees who 
hold it for a public use, to be held by a public official for 
what is in effect the same public use, such taking would not 
be within the power of the Legislature. In order to enable 
the Commonwealth to take the picture by eminent domain 
the committee must be satisfied that the result to be achieved 
by the taking is not to accomplish the removal of the picture 
to prevent it from being put to the public use to which it is 
now devoted, but that, when taken by the Department of 
Education, it is not only to be devoted to a public use which 
is in reality different from the exhibition purposes to which 
it is now devoted, but also to such a use that the resultant 
benefit to the public will justify the expenditure of the tax- 
payers' money as a matter of public necessity. Otherwise, 
under the rule laid down in Cary Library v. Bliss, supra, 
the result would not be one to achieve which the power of 
eminent domain could constitutionally be employed or public 
money spent. 

Yours very truly, 

J. Weston Allen, Attorney General. 



138 ATTORNEY GENERAL'S REPORT. [Jan. 



Drainage Law — Land owned by Tico Proprietors — Meaning 
of Word '"Several" 

Under G. L., c. 252, §§1 and 5, improvements of low land can be made 
on petition to the Drainage Board only when such land is owned by 
more than two proprietors. 

The word "several," in relation to number, means more than two, but not 
very many. 

May 5, 1922. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir : — You ask me to advise you whether or not 
the Drainage Board can act on a petition in regular form 
signed by two men who own a swamp of thirty acres and 
who ask help of the Board in forming a drainage district. 

G. L., c. 252, § 1, is as follows: — 

If it is necessary or useful to drain or flow^ a meadow, swamp, marsh, 
beach or other low land held by several proprietors, or remove obstruc- 
tions in rivers or streams leading therefrom, such improvements may 
be made as provided in the thirteen following sections. 

G. L., c. 252, § 5, provides, in part, as follows: — 

The proprietors, or a majority in interest either in value or area, may 
petition the board setting forth their desire to form a drainage dis- 
trict. ... If the board approves of the undertaking, it shall issue a 
certificate appointing three, five or seven district drainage commis- 
sioners. . . . 

I understand your inquiry to be directed to the question 
whether the provisions of the chapter are applicable where 
the land which it is desired to improve is owned by but two 
proprietors. 

The answ^er to your question seems to be governed by the 
provision in section 1 limiting the application of the chapter 
to low land held by "several proprietors." The word "sev- 
eral," in relation to number, is defined by Webster as "con- 
sisting of a number more than two, but not very many," 
and other definitions are to the same effect. This definition 
was approved in Einstein v. Marshall, 58 Ala. 153. See also 
Lunt V. Post Printing Co., 48 Colo. 316, 321. While the 
question is not free from doubt, I am of opinion that the 
intention of the General Court, as expressed in section 1, 
was to limit the application of G. L., c. 252, to improve- 
ments of low land owned by more than tw^o proprietors. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 139 



Town Meeting — Warrant — Appropriation — Municipal Fi- 
nance — Vote — Rescission — Director of Accounts. 

Under an article of the warrant for an annual town meeting an appropria- 
tion was passed by a majority vote for the purpose of building a school 
building. Under another article of the same warrant the town 
authorized the borrowing of the amount appropriated by a two-thirds 
vote "of the voters present and voting," as required by G. L., c. 44, 
§§ 1 and 7. 

Subsequently, at a special town meeting called pursuant to a warrant 
containing articles expressly calling for the rescinding of the action 
taken at the annual town meeting, it was voted by a majority vote 
to rescind the appropriation aforesaid, while consideration of the 
remaining articles specifically referring to the borrowing was indefi- 
nitely postponed. 

Held, That the revocation and rescission of the original appropriation by a 
majority vote of the special town meeting resulted in rendering the 
action taken at the annual town meeting ineffective without an express 
rescission thereof. Accordingly, the Director of Accounts would not 
be authorized to approve notes issued under authority granted by 
vote of the annual town meeting. 

May 11, 1922. 

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

Dear Sir: — You request my opinion upon the following 
facts: — • 

The town of Chatham has voted to borrow $65,000 to build, furnish, 
and equip a new school building; and it is proposed to issue notes 
of the town for this purpose. 

Under article 22 of the warrant for the annual town meeting, it was 
voted, by a vote of 243 to 152, to raise and appropriate $65,000 for the 
purpose of building a school building. Under article 23 a committee 
was appointed to carry out the preceding vote; under article 24 the 
committee was given full powers to construct the school building; 
and under article 25 the treasurer was authorized to borrow $65,000 on 
notes of the town. 

Subsequently, on March 23, a special town meeting was held. The 
warrant for this meeting contained articles caUing for the rescinding of 
the action taken at the annual town meeting. The first article was to 
rescind the vote passed under article 22; and it was voted to rescind 
the vote passed, by 195 to 167, or a majority vote. The articles in 
the warrant for the special meeting which referred to articles 23, 24, 
and 25 were indefinitely postponed. 

I would therefore like to be advised as to whether the Director of 
Accounts is authorized to approve notes issued under authority granted 
by the vote passed under article 25 of the warrant for the annual town 
meeting, in view of the action taken at the special town meeting held 
on March 23. 



140 ATTORNEY GENERAL'S REPORT. [Jan. 

I would also like to be advised as to whether or not all four articles 
in the warrant for the annual town meeting must be considered in 
connection with the articles in the warrant for the special town meeting, 
as a question arises as to whether a two-thirds vote would be required 
to rescind the authority granted under article 25 of the warrant for the 
annual town meeting. 

The facts stated disclose that the original action taken 
under article 22 of the warrant for the annual town meeting 
was passed by a majorit}^ vote. This was sufficient to pass 
the appropriation of $65,000 for the purpose stated. 

The action taken under article 25 of said warrant, authoriz- 
ing the borrowing of said sum, received the two-thirds vote 
"of the voters present and voting" (G. L., c. 44, § 1), as 
required by G. L., c. 44, § 7, which provides, in part, as 
follows: — 

Cities and towns may incur debt, within the hmit of indebtedness 
prescribed in section ten, for the following purposes, and payable 
within the periods hereinafter specified : 

(3) For acquiring land for any purpose for which a city or town is 
or may hereafter be authorized to acquire land, not otherwise herein 
specified, and for the construction of buildings which cities and towns 
are or may hereafter be authorized to construct, including the cost of 
original equipment and furnishing, twenty years. 

Debts may be authorized under this section only by a two thirds 
vote. 

Subsequently, at the special town meeting called pursuant 
to a warrant containing articles calling for the rescinding 
of the action taken at the annual town meeting, and referring 
specifically to the articles contained in the warrant thereof, 
it was voted by a majority vote to rescind the action taken 
at the annual town meeting under article 22, while considera- 
tion of the remaining articles, which specifically referred to 
articles 23, 24 and 25 of the annual town meeting, was 
indefinitely postponed. Apparently this was done under the 
supposition that the rescinding of the action taken under 
article 22 aforesaid automatically rescinded the action taken 
under the remaining articles, which specifically referred thereto, 
that being the keystone article under which the appropria- 
tion was voted. But since article 25 required a two-thirds 



1923.] PUBLIC DOCUMENT — No. 12. 141 

vote for its passage (G. L., c. 44, § 7, supra), it would follow 
that the same majority would be required for its express 
rescission. 

It is apparently well settled that a corporate body may 
rescind previous votes and orders at any time before the 
rights of third persons have vested. *'But where the original 
vote requires for its adoption a specified proportion of the 
council, e.g., three-fifths or three-fourths, the same proportion 
is necessary to carry a motion to reconsider. " II Dillon on 
Municipal Corporations, § 539; Whitney v. Hudson, 69 Mich. 
189; Beach v. Kent, 142 Mich. 347. "Where by statute a 
vote of two-thirds is required to pass a resolution, and no 
rule has been adopted regulating practice on motions for 
reconsideration, a two-thirds vote is necessary therefor." 
29 Cyc. 1690, and cases cited. 

It would seem, therefore, that the action taken under said 
article 25, authorizing the treasurer to borrow $65,000 on 
notes of the town, would still be outstanding unless the 
rescinding of the action taken under article 22 aforesaid 
renders it ineffective, in that it cancels the original purpose 
for which the appropriation was made, and to meet the 
expenditure for which the action under article 25 aforesaid 
was taken. The vote under said article 25 was as follows: — 

Voted^ That the treasurer, with the approval of the selectmen, be 
and hereby is authorized to borrow a sum not to exceed sixty-five 
thousand dollars ($65,000) for the purpose of building, furnishing and 
equipping a new school building on the town lands near the high school 
building, in accordance with the provisions of a vote under a preceding 
article in this warrant, and to issue notes therefor, said notes to be 
payable in accordance with the provisions of section 19, chapter 44, 
General Laws, so that the whole loan shall be paid in not more than 
ten years from the date of the issue of the first bond or note, or at such 
earlier dates as the treasurer and selectmen may determine. 

Clearly, this vote is not an unconditional authorization to 
expend money for the building of a new high school, but by 
its express terms the vote limits the expenditure of the money 
to building, furnishing and equipping the building in accord- 
ance with the prior vote. If the words "in accordance with 
the provisions of a vote under a preceding article in this 
warrant" were not included, a difl^erent interpretation of the 
statute might be argued with some force. But it is not 
necessary to consider what might be the effect of a different 



142 ATTORNEY GENERAL'S REPORT. [Jan. 

wording of the statute. The question is not before us. It 
is to be observed that the four articles in the warrant for the 
annual town meeting relate to one and the same objective, 
and each expressly refers to and is dependent upon the pas- 
sage of the appropriation called for by article 22 aforesaid. 

In view of all the surrounding facts, it would seem, there- 
fore, that the words above quoted, as contained in said 
article 25, cannot be treated as mere surplusage, but condition 
the authority to borrow upon the appropriation called for and 
passed under article 22. Since the original purpose upon 
which rested the authority to borrow has been rescinded, the 
authority to borrow lapses. 

I am therefore led to the conclusion that the revocation 
and rescission of the original appropriation by a majority 
vote of the special town meeting under article 2 resulted in 
rendering the action taken at the annual town meeting 
under articles 22, 23, 24 and 25 ineffective without an express 
rescission thereof. It accordingly follows that, as the facts 
stand, the Director of Accounts would not be authorized to 
approve notes issued under authority granted by the vote 
passed under article 25 of the warrant for the annual town 
meeting. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Law — Contract made by Statute — Review of 
Question whether Cofitract ivas procured by Fraud or 
Undue Influence. 

The Legislature has power to investigate the conduct of its own members 

in enacting legislation. 
If a contract be made by statute, a repeal of said act impairs the obligation 

of said contract, within the meaning of U. S. Const., art. I, § 10. 
If a contract be made by statute, the Legislature has no power to set said 

contract aside upon the ground that it was procured by fraud and 

corruption. 
As the court does not possess legislative power and cannot repeal a statute 

which the Legislature has constitutional power to enact, it will not 

hear and determine whether a constitutional statute, which creates 

a contract, was procured by fraud or corruption. 

May L5, 1922. 
Committee on Rules, House of Representatives. 

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



1923.] PUBLIC DOCUIMEXT — No. 12. 143 

If a contract be made by a statute which is "within the constitutional 
power of the Legislature, is there any tribunal which has power to 
hear and determine whether such contract was procured by fraud, 
briber}" or undue influence and to set such contract aside if such fraud, 
bribery or undue influence be established? 

I am informed that this question, though general in form, 
relates to the so-called Boston Elevated Act, Spec. St. 1918, 
c. 159. It divides naturally into two parts, — first, as to the 
power to investigate; second, as to the power to set an act 
aside for the reasons named. 

1. There can be no question that the Legislature has power 
to investigate the conduct of its own members in respect to 
legislation. In re Chapman, 166 L^. S. 661. The Legislature 
conducted such an investigation last year to ascertain the 
circumstances under which Spec. St. 1918, c. 159, was passed. 
The record of that investigation was referred by the Legisla- 
ture to the then district attorney for the Suffolk District. I 
assume that that record is still in the office of the district 
attorney and that it is available to the Legislature. If in any 
respect the Legislature should deem that investigation to be 
incomplete, I perceive no obstacle either to reopening it or to 
instituting a new one. 

2. In Boston v. Treasurer and Receiver-General, 237 Mass. 
403, the Supreme Judicial Court held that Spec. St. 1918, 
c. 159, created a contract, and that said act was constitutional. 
Where a contract is made by an act which is within the 
constitutional power of the Legislature, the question whether 
such contract can be set aside upon the ground of legislative 
corruption has been several times considered by the Supreme 
Court of the United States. By reason of U. S. Const., 
art. I, § 10, which forbids any State to impair the obligation 
of contracts, the decisions of that court constitute the ulti- 
mate and binding authority upon the second branch of your 
inquiry. 

In Fletcher v. Peck, 6 Cranch, 87 (1810), the Legislature 
of Georgia, by an act within its constitutional authority, 
contracted to sell certain public lands, w^hich were sold and 
granted pursuant to said act. Subsequently the Legislature 
of Georgia repealed said act upon the ground that it was 
procured by legislative fraud and corruption. In holding 
that the repealing act impaired the obligation of the contract 
previously made, and therefore was unconstitutional, the 
Supreme Court said, by Chief Justice Marshall, at page 132: — 



144 ATTORNEY GENERAL'S REPORT. [Jan. 

That corruption should find its way into the governments of our 
infant repubhcs, and contaminate the very source of legislation, or 
that impure motives should contribute to the passage of a law, or the 
formation of a legislative contract, are circumstances most deeply to be 
deplored. How far a court of justice would, in any case, be competent, 
on proceedings instituted by the State itself, to vacate a contract thus 
formed, and to annul rights acquired, under that contract, by third 
persons having no notice of the improper means by which it was ob- 
tained, is a question which the court would approach with much 
circumspection. It may well be doubted how far the validity of a law 
depends upon the motives of its framers, and how far the particular 
inducements, operating on members of the supreme sovereign power of 
a State, to the formation of a contract by that power, are examinable 
in a court of justice. If the principle be conceded, that an act of the 
supreme sovereign power might be declared null by a court, in con- 
sequence of the means which procured it, still would there be much 
difficulty in saying to what extent those means must be applied to 
produce this effect. Must it be direct corruption, or would interest or 
undue influence of any kind be sufficient? Must the vitiating cause 
operate on a majority, or on what number of the members? Would 
the act be null, whatever might be the ^^dsh of the nation, or would 
its obligation or nullity depend upon the public sentiment? 

If the majority of the Legislature be corrupted, it may well be 
doubted, whether it be within the province of the judiciary to control 
their conduct, and, if less than a majority act from impure motives, 
the principle by which judicial interference would be regulated is not 
clearly discerned. 

The circumstances under which both the original and the 
repealing acts were passed by the Georgia Legislature, as 
described in Beveridge's Life of Marshall, vol. Ill, c. X, set 
in high relief the decision in Fletcher v. Peck, supra. That 
description is too long to quote and must be briefly sum- 
marized. A previous bill, in w^hich a majority of Georgia's 
law-making body was financially^ interested, which was passed, 
to use Beveridge's own words, amid "a saturnalia of corrup- 
tion," had been vetoed by the Governor (pp. 546-549). A 
new bill, which disposed of more than thirty million acres of 
fertile, well-watered and well-w^ooded land to four corpora- 
tions, at less than l]^ cents an acre, was introduced as a 
supplement to a law just enacted to pay the State troops. 
Again every possible influence was brought to bear to pass 
this bill with the utmost dispatch. Some members who 
would not support it were induced to leave the capital; 
others who were recalcitrant were brow^beaten and bullied. 



1923.] PUBLIC DOCUMENT — No. 12. 145 

One senator actually menaced, with a loaded riding whip, 
members who objected to the scheme. In little more than 
a week the bill was rushed through both houses, and this 
time received the reluctant approval of the Governor on 
Jan. 7, 1795 (pp. 549, 550). It later came out "that every 
member of the Legislature who had voted for the measure, 
except one, had shares of stock in the purchasing companies" 
(p. 561). 

The tidings of the corruption which attended the sale were 
swiftly carried over the State. Indignation meetings were 
held in every hamlet. Crowds marched on the capital de- 
termined to lynch their legislative betrayers, whose lives 
were saved either by the pleadings of those who had voted 
against the bill or by flight (pp. 559, 560). Nearly every 
man elected to the new Legislature was pledged to vote for 
the undoing of the fraud in any manner that might seem 
the most effective (p. 561). The repealing act declared the 
former statute null and void and "annulled" all claims 
directly or indirectly arising therefrom (p. 563). The Legis- 
lature further enacted that all records, documents and deeds 
connected with the fraud be expunged, and that the "usurped 
act" be publicly burnt (p. 564). This was done, with elabo- 
rate ceremonies, in front of the State House and in the 
presence of both branches of the Legislature (p. 565), 

It is perhaps not without interest that the decision in 
Fletcher v. Peck, supra, was anticipated by the Supreme 
Judicial Court of Massachusetts by some eleven years. In 
Derby v. Blake, decided in 1799, which was a case involving a 
subsequent sale of some of the Georgia lands, and of which a 
fragmentary report is reprinted in 226 Mass. 618, that court, 
in holding unconstitutional the repealing act of Georgia, 
said, in substance: — 

It was also decidedly the opinion of the Court, that the bargain with 
J. and WiUiamson, had not been legally affected by the Repealing Act 
of Georgia — That Act they considered a mere nullity — as a flagrant, 
outrageous violation of the first and fundamental principles of social 
compacts. The idea of a Legislature reclaiming property they had 
once sold, and been paid for, was said by the Court to be not less 
preposterous, than for an individual to repeal his own note of hand, 
or to render void by his own act and determination, any contract, 
however sacred or solemn. The vociferations of the Georgia Legisla- 
ture, who were the very granters of the property in question, about 
fraud and circumvention, could not be admitted in a Judiciary of 



146 ATTORNEY GENERAL'S REPORT. [Jan. 

Massachusetts, as evidence of the real existence of such facts — Whether 
the original grant of the Georgia Legislature were valid or not, was 
considered by the Court a cause of judicial, and not of legislative 
cognizance. The Repealing Act of Georgia was moreover declared 
void, because it was considered directl}^ repugnant to Article 1st, 
Sec. 10, of the United States Constitution, which provides that ''no 
State shall pass any ex post facto Law, or Law impairing the obligation 
of contracts." — On this ground, the Court expressed a clear and 
decided opinion, that the title of the State of Georgia, at the time of 
their grant, held to the territory in dispute, had been fairl}^ and legally 
conveyed to the purchasers, under J. and Williamson. 

Although the question as to the effect of legislative corrup- 
tion arose in Fletcher v. Peck, supra, in a suit between private 
individuals, the broad rule laid down in that case has been 
affirmed and reaffirmed by the Supreme Court of the United 
States without any qualification as to the manner in which 
the question is presented. Ex 'parte McCardle, 7 Wall. 506, 
514; Doyle v. Continental Ins. Co., 94 U. S. 535, 541; Soon 
Hing v. Crowley, 113 U. S. 703, 710; Amy v. Watertown, 130 
U. S. 301, 319; United States v. Des Moines Nav. d' R. 
Co., 142 U. S. 510, 545; United States v. Old Settlers, 148 
U. S. 427, 463; Aiigle v. Chicago, St. Paul dc Ry., 151 U. S. 
1, 17-19; New Orleans v. Warner, 175 U. S. 120, 145; Calder 
V. Michigan, 218 U. S. 591, 598. In Soon Hing v. Crowley, 
113 U. S. 703, 710, the court said: — 

And the rule is general with reference to the enactments of all 
legislative bodies that the courts cannot inquire into the motives of 
the legislators in passing them, except as they may be disclosed on the 
face of the acts, or inferrible from their operation, considered vAi\\ 
reference to the condition of the country and existing legislation. 
The motives of the legislators, considered as the purposes they had 
in view, will always be presumed to be to accomplish that which follows 
as the natural and reasonable effect of their enactments. Their 
motives, considered as the moral inducements for their votes, vAW 
vary with the different members of the legislative body. The diverse 
character of such motives, and the impossibility of penetrating into 
the hearts of men and ascertaining the truth, precludes all such inqui- 
ries as impracticable and futile. 

In Angle v. Chicago, St. Paul &c. Ry., 151 U. S. 1, 18, 
the court, after quoting from Fletcher v. Peck, said: — 

The rule upon which this decision rests has been followed in many 
cases and has become a settled rule of our jurisprudence. The rule, 



1923.] PUBLIC DOCUMENT — No. 12. 147 

briefly stated, is that whenever an act of the Legislature is challenged 
in court the inquiry is limited to the question of power, and does not 
extend to the matter of expediency, the motives of the legislators, or 
the reasons which were spread before them to induce the passage of 
the act. This principle rests upon the independence of the Legislature 
as one of the co-ordinate departments of the government. It would 
not be seemly for either of the three departments to be instituting an 
inquiry as to whether another acted wdsely, intelligently, or corruptly. 

In New Orleans v. Warner, 175 U. S. 120, 145, the court 
said, before proceeding to quote from Fletcher v. Peck : — 

It may be that the city made a bad bargain. It may be that it 
paid far more than the fair value of the property and claims purchased. 
It may be that the action of the common council was dictated by im- 
proper considerations, though this is rather hinted at than asserted; 
but from the case of Fletcher v. Peck, 6 Cranch, 87, 130, to the present 
time we have uniformlj^ refused to inquire into the motives of legis- 
lative bodies. 

In Calder v. Michigan, supra, the State was a party to the 
proceeding, but the rule was reaffirmed none the less. The 
same is true of Lynn v. Polk, 8 Lea (Tenn.), 121, and State 
v. Terra Haute, etc., R.R., 166 Ind. 580, in each of which 
the court declined to investigate whether the action of the 
Legislature was procured by corrupt means. 

The question, in the last analysis, turns upon the scope of 
the judicial power. As to that, the ultimate authority is the 
courts of this Commonwealth (see Bill of Rights, art. XXX; 
Boston V. Chelsea, 212 Mass. 127; Dinan v. Swig, 223 Mass. 
516), subject to review by the Supreme Court of the United 
States as to any question arising under the Federal Consti- 
tution. The decisions of the latter court, to which your 
attention has been directed, seem to be conclusive as to the 
power of the court to set aside a statute upon the ground of 
corruption practised by or upon a Legislature. If, in the 
face of these decisions, any person desires to put that ques- 
tion to the test of judicial determination again, the courts are 
always open. 

Yours very truly, 

J. Weston Allen, Attorney General. 



148 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitutional Laic — Rearra7igement of the Constitution — 
Printing of Rearrangement in Blue Book — Expeiiditure 
of Public Money. 

Under Mass. Const., pt. 2d, c. I, § I, art. IV, and c. II, § I, art. XI, authority 

to expend public money must be conferred by an act or resolve. 
G. L., c. 5, § 2, does not authorize the printing of the Rearrangement of the 

Constitution in the annual laws (Blue Book), since that rearrangement 

is neither a constitution nor an act or resolve. 
As the rearrangement is neither a constitution nor an act or resolve, it can 

itself confer no authority to expend public money to print the same 

as a part of the annual laws (Blue Book). 

May 16, 1922. 
Hon. F. W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You inquire whether, in view of Loring v. 
Young, 239 Mass. 349, both the Constitution, with amend- 
ments thereof, and the Rearrangement of the Constitution 
which was ratified by the people on Nov. 4, 1919, shall be 
printed in the annual volume of laws of the Commonwealth, 
and, if so, in what order. 

G. L., c. 5, § 2, provides, in part: — 

The state secretarj^ shall, at the close of each regular session of the 
general court, collate and cause to be printed in a single volume the 
following : 

(1) The constitution of the commonwealth. 

(2) All acts and resolves passed at such session. 

(3) All amendments to the constitution referred at such session to 
the next general court or to be submitted to the people at the next 
state election. 

(4) All acts and resolves passed at any special session of the general 
court, except a general revision of the statutes, and not theretofore 
published in any preceding annual volume. 

(5) All laws and constitutional amendments adopted by the people 
at the last preceding state election, with the aggregate vote thereon, 
both affirmative and negative, arranged in such detail as the secretary 
maj^ determine. 

1. In Loring v. Young and Bates v. Loring, decided to- 
gether (239 Mass. 349), the Supreme Judicial Court decided 
that the Rearrangement was not the Constitution of the 
Commonwealth, and dismissed two petitions for writs of 
mandamus ordering it to be printed as and for such Consti- 
tution. Under those decisions it is clear that the Rearrange- 
ment is not within said section 2, clause (1), which directs 



1923.] PUBLIC DOCUMENT — No. 12. 149 

the secretary to print "the constitution of the common- 
wealth." For the same reason the Rearrangement is not 
within section 2, clauses (3) and (5). In my opinion, the 
two latter clauses are also inapplicable for the further reason 
that the Rearrangement is not a constitutional amendment 
referred at the session of 1922 to the next General Court or 
to be submitted to the people at the next State election, nor 
is it a law or constitutional amendment adopted by the 
people at the last preceding State election. 

2. The Rearrangement is not within section 2, clause (2). 
It is not an act or resolve passed at the session of 1922. 

3. Articles 157 and 158 of the Rearrangement do not 
authorize you to print it. Those articles provide: — 

Art. 157. Upon the ratification and adoption by the people of 
this rearrangement of the existing constitution and the amendments 
thereto, the constitution shall be deemed and taken to be so rearranged 
and shall appear in such rearranged form in all future pubUcations 
thereof. Such rearrangement shall not be deemed or taken to change 
the meaning or effect of any part of the constitution or its amendments 
as theretofore existing or operative. 

Art. 158. This form of government shall be enrolled on parch- 
ment, and deposited in the secretary's office, and be a part of the laws 
of the land; and printed copies thereof shaU be prefixed to the book 
containing the laws of this commonwealth, in all future editions of 
such laws. 

As the Rearrangement is not the Constitution, those 
sections impose no constitutional duty. Nor is the Rearrange- 
ment an act or resolve. It was not passed by the Legislature 
and either approved by the Governor or permitted to become 
a law without his signature, in the manner prescribed by the 
Constitution. It was not enacted by the people in the manner 
prescribed by the Mass. Const. Amend. XLVIII. If the 
Rearrangement be neither a constitution nor a law, it cannot 
impose any duty to print it. 

Mass. Const., pt. 2d, c. I, § I, art. IV, provides that public 
moneys shall "be issued and disposed of . . . according to 
such acts as are or shall be in force within" the Common- 
wealth, and pt. 2d, c. II, § I, art. XI, further provides: — 

No money's shall be issued out of the treasury of this commonwealth, 
and disposed of . . . but by warrant . . . and agreeably to the acts 
and resolves of the general court. 



150 ATTORNEY GENERAL'S REPORT. [Jan. 

The printing of the Rearrangement as a part of the annual 
laws (Blue Book) necessarily involves some expense which, 
if incurred, must be met out of public funds. If neither 
G. L., c. 5, § 2, nor any other act or resolve authorizes such 
expenditure, and the Rearrangement itself is neither a con- 
stitution nor an act or resolve, it seems plain that, under the 
constitutional provisions above cited, no money can be issued 
from the treasury for this purpose. 

I am not unmindful of the opinion of my predecessor to 
which you call my attention, but, as it was rendered on Jan. 
21, 1920, long prior to Loring v. Young, supra, and in part 
relies upon article 158 of the Rearrangement, I am constrained 
to a different conclusion. I am therefore of opinion that the 
Constitution of 1780, with amendments thereof, should be 
printed, and that the Rearrangement should not be printed 
in the annual volume of laws. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Laic — Women — Eligibility to he ayjpointed a 
Justice of the Peace — Effect of Nineteenth Amendment. 

As the Constitution prescribes the mode of appointment, tenure and 
method of removing justices of the peace, the qualifications for that 
office cannot be prescribed or modified by statute, and therefore St. 
1922, c. 371, does not apply thereto. 

By reason of the adoption of the Nineteenth Amendment to the Constitu- 
tion of the United States, women are not excluded by the Constitution 
from any elective or appointive office, and are therefore now eligible 
to appointment as justices of the peace. 

May 25, 1922. 

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

Sir: — You inquire whether, in view of St. 1922, c. 371, 
women are eligible to appointment as justices of the peace. 

St. 1922, c. 371, § 1, provides, in part: — 

Women shall be eligible to election or appointment to all state 
offices, positions, appointments and emplojonents. . . . 

The office of justice of the peace is a constitutional office. 
The mode of appointment, tenure and method of removal 
are all prescribed by the Constitution. Mass. Const., c. Ill, 
arts. I and III; Amend. XXXVII. The question whether 
women are eligible depends upon the Constitution. Opinion 



1923.] PUBLIC DOCUMENT — No. 12. 151 

of the Justices, 107 Mass. 604. If the Constitution fixes the 
qualifications for an office, they cannot be modified by statute. 
Kinneen v. Wells, 144 Mass. 497; Opinio7i of the Justices, 
165 Mass. 599. In my opinion, St. 1922, c. 371, is inappli- 
cable to any office the qualifications for which are fixed by 
the Constitution, but for the reasons hereinafter stated the 
right of women to hold such offices is not thereby diminished 
or abridged. 

Prior to the adoption of the Nineteenth Amendment to the 
Constitution of the United States, women were ineligible to 
the office of justice of the peace in this Commonwealth. 
Opinion of the Justices, 107 Mass. 604. In Opinion of the 
Justices, 240 Mass. 601, the justices advised that, by reason 
of that amendment, "women are not excluded by the Consti- 
tution from any elective or appointive civil office." In the 
light of that opinion it is plain that the earlier opinions 
which advised that women were ineligible to certain consti- 
tutional offices no longer apply. I therefore advise you that, 
irrespective of St. 1922, c. 371, women are now eligible to 
appointment as justices of the peace. 
Yours very truly, 

J. Weston x\llen, Attorney General. 



Civil Service — Veteran — Reappointment within Two Years 
after Honorable Discharge or Release from Active Duty. 

A person who is employed in the classified public service of the Common- 
wealth, or of any city or town therein, and who leaves such employment 
for the purpose of serving in the military or naval service of the United 
States, is entitled, under G. L., c. 31, § 27, within two years from the 
date of the receipt of his honorable discharge or release from active 
duty, whichever is granted first, to be reinstated in his former position. 

June 6, 1922. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion as to the con- 
struction of G. L., c. 31, § 27, reading, in part, as follows: — 

Any person who resigns from or leaves the classified public service 
of the commonwealth or of any city or town therein or who is dis- 
charged, suspended or granted a leave of absence therefrom, for the 
purpose of serving in the military or naval service of the United States 
in time of war, and who so serves, shall, if he so requests of the ap- 
pointing authority within two years after his honorable discharge from 



152 ATTORNEY GENERAL'S REPORT. [Jan. 

such military or naval service, or release from active duty therein, 
and if also, within said time, he files with the division the certificate 
of a registered physician that he is not physically disabled or incapaci- 
tated for the position, be reappointed or re-employed, without civil 
service apphcation or examination, in his former position, provided 
that the incumbent thereof, if any, is a temporary appointee; . . . 

Your question is whether the two years commenced to run 
from the date of receiving the honorable discharge, or whether 
it is reckoned from the date of receiving a release from active 
duty, if the release is received before the honorable discharge. 

I quote a portion of an opinion of my predecessor w^hich 
seems to cover the precise question in point, and w^ith the 
reasoning in which I concur: — 

I am informed that the release from active duty is given in the na\y 
only to men who will later receive an honorable discharge, and that the 
only difference between the release and a chscharge is that in the 
former case the na\y reserves the right to call a man back into ser\'ice. 
Under the bonus act a release from active duty is sufficient to entitle 
a man to his compensation, and is treated as equivalent to an honorable 
discharge, so far as the terms of that act are concerned. 

It is my opinion that the w^ords are used in a similar sense here, and 
that the year commences from the date of receipt of the honorable 
discharge or release from active duty, whichever is granted first, and 
that a man who has received a release from active duty, and at some 
later date gets his honorable discharge, is not entitled to be reappointed 
within the year after the date of the receipt of said honorable discharge. 

In the case in which the above opinion was given the 
question related to reappointment of members to the Boston 
police force. In your case it is a question of reinstating an 
employee of the city of Boston. 

Any other interpretation of the statute as it now stands, 
which is the result of the amendments of Gen. St. 1919, c. 14, 
and St. 1920, c. 219, would defeat the very purposes tow^ard 
which these amendments were directed, namely, to treat men 
serving in the army and navy on an equal basis, as far as 
possible, with respect to their right to reinstatement in the 
classified public service. 

Very truly yours, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 153 



Workme7i's Compensation — State Employees — Medical 
Services. 

State employees, not entitled to the benefits of the workmen's compensa- 
tion act, are not entitled to medical services for injuries sustained in 
the course of their employment. 

June 6, 1922. 

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

Dear Sir : — You have requested my opinion on the fol- 
lowing question: — 

If a State employee who is not entitled to the benefits of G. L., c. 
152, commonly known as the Workmen's Compensation Act, is injured 
while in the course of his employment, ma^^ the charges for medical 
services be paid out of the maintenance appropriation of his depart- 
ment? 

Money can be paid out of the State treasury for such pur- 
poses only by statutory authority. There is no statute which 
authorizes payment for medical services in the case of em- 
ployees who are not entitled to the benefits of G. L., c. 152. 
I am therefore of the opinion that the question should be 
answered in the negative. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Constitutional Law — Taxation — Due Process of Law — Ap- 
propriation of Public Money for a Private Purpose — 
Payment of Uneariied Salary of Deceased Representative 
to his Widow. 

An appropriation of public money for a private purpose takes the property 
of the taxpayer without due process of law, in violation of both the 
State Constitution and the Fourteenth Amendment. 

A payment of public money as a reward for conspicuous public service, 
in order to stimulate others to render similar service, may be found 
to promote the public welfare and to be constitutional even though 
the recipient has no right to the money in law or in equity. 

Public money cannot constitutionally be given away as a mere gratuity. 

In the absence of any showing by recital in the resolve or otherwise that a 
deceased representative to the General Court has rendered such 
conspicuous public service that a payment of the unearned balance of 
his salary to his widow will primarily promote a public purpose, such 
resolve violates both the Constitution of this Commonwealth and the 
Fourteenth Amendment. 



154 ATTORNEY GENERAL'S REPORT. [Jan. 



June 9, 1922. 

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

Sir: — You have submitted for my consideration House 
Resolve No. 1736, entitled "Resolve providing for the pay- 
ment to the widow of the late representative Walter S. Hale 
of the balance of the salary to which he would have been 
entitled for the current session," and which provides as 
follows : — 

Resolved, That there be allowed and paid out of the treasury of the 
commonwealth to the widow of Walter S. Hale of Gloucester, who 
died while a member of the present house of representatives, the 
balance of the salary of fifteen hundred dollars to which he would have 
been entitled had he lived and served until the end of the present 
session. The state treasurer is hereby directed to make the payment 
hereby authorized out of the appropriation made in item three of the 
current general appropriation act. 

The question before me is whether this resolve is constitu- 
tional. 

In the leiading case of Lowell v. Boston, 111 Mass. 454, the 
court, in holding unconstitutional a statute which authorized 
a loan of public money upon mortgage to victims of the 
Boston fire of 1872, in order to enable them to rebuild, said, 
by Wells, J.: — 

The power to levy taxes is founded on the right, duty and respon- 
sibility to maintain and administer all the governmental functions of 
the State, and to provide for the public welfare. To justify any 
exercise of the power requires that the expenditure which it is intended 
to meet shall be for some public service, or some object which concerns 
the public welfare. The promotion of the interests of individuals, 
either in respect of property or business, although it may result inci- 
dentally in the advancement of the public welfare, is, in its essential 
character, a private and not a public object. However certain and 
great the resulting good to the general public, it does not, by reason 
of its comparative importance, cease to be incidental. The incidental 
advantage to the public, or to the State, which results from the pro- 
motion of private interests, and the prosperity of private enterprises 
or business, does not justify their aid by the use of public money 
raised bj^ taxation, or for which taxation may become necessary. It 
is the essential character of the direct object of the expenditure which 
must determine its vahdity, as justifjdng a tax, and not the magnitude 



1923.] PUBLIC DOCUMENT — No. 12. 155 

of the interests to be affected, nor the degree to which the general 
advantage of the community, and thus the pubHc welfare, may be 
ultimately benefited by their promotion. 

In 1900 the Senate submitted to the justices the following 
question: — 

Has the General Court the right to appropriate money to pay to the 
widow, heirs or legal representatives of a person who died while holding 
an office, the salary of which is payable from the treasur}^ of the Com- 
monwealth, or from the treasury of a county, city or town, the salary, 
for any period of time after such decease, to which such person would 
have been entitled if living and continuing to hold such office? 

In Opinion of the Justices, 175 Mass. 599, in answering that 
question the justices said, in part: — 

In general the power to pay gratuities to individuals is denied to the 
Legislature by the Constitution. Ordinarily a gift of money to an 
individual would be an appropriation of public funds to private uses 
which could not be justified by law. Mead v. Acton, 139 Mass. 341; 
Lowell V. Boston, 111 Mass. 454; Freelmid v. Hastings, 10 Allen, 570; 
Loan Association v. Topeka, 20 Wall. 655; Parker shurg v. Brown, 
106 U. S. 487, 500, 501; Cole v. LaGrange, 113 U. S. 1, and cases cited 
there and in Kingman v. Brockton, 153 Mass. 255, 259. Cooley, 
Const. Lim. (6th ed.) 601, 602. We deem this proposition so plain 
that we do not delay to enforce it, but it is not a proposition which 
disposes of the questions before us. For it is hardly less clear that 
when a public purpose can be carried out or helped b}'- spending public 
money, the power of the Legislature is not curtailed or destroyed by 
the fact that the money is paid to private persons who had no previous 
claim to it of any kind. 

The power to give rewards after the event for conspicuous public 
service, if it exists at all, cannot be limited to military service. If a 
man has deserved greatly of the Commonwealth by civil services, the 
public advantage of recognizing his merit may stand on ground as 
strong as that for rewarding a general. We cannot foresee the possi- 
bilities of genius or distinguished worth and settle in advance the 
tariff at which its action shall be paid. 

It will be plain from what we have said that in our opinion the 
public welfare alone must be the ground, as it is the only legal justi- 
fication, for this kind of payment. And it follows that our answer to 
the first of the two questions before us is that the General Court has 
the right to appropriate money for the purposes supposed in a case 



156 ATTORNEY GENERAL'S REPORT. [Jan. 

where it fairly can be thought that the public good mil be served by 
the grant of such an unstipulated reward, but that it has not that right 
where the only public advantage is such as may be incident and collat- 
eral to the relief of a private citizen. To a great extent the distinc- 
tion must be left to the conscience of the Legislature. Whether a 
judicial remedy could be found if a clear case should arise of an uncon- 
stitutional appropriation, it happily is unnecessary to inquire. 

In Opinion of the Justices, 186 Mass. 603, the Governor 
and Council requested the justices to advise as to the con- 
stitutionality of St. 1904, c. 458, section 1 of which read as 
follows: — 

There shall be allowed and paid out of the treasury of the Com- 
monwealth the sum of one hundred and twenty-five dollars to every 
veteran of the civil war living at the date of the passage of this act, not 
being a conscript or a substitute, who served in the army or navy of 
the United States to the credit of Massachusetts during the civil war, 
and who was honorably discharged from such service: provided, that 
he has not received a bounty from any city or town or from the Com- 
monwealth for such service; and provided, that he makes application 
for the said bounty prior to the first day of November in the year 
nineteen hundred and six. 

In advising that this act was unconstitutional the justices 
said: — 

It is a familiar rule of law that, under the Constitution of the Com- 
monwealth, money can be raised by taxation only for, public purposes. 
This rule has been stated and explained in many judicial opinions. 
See Lowell v. Boston, 111 Mass. 454, and cases hereinafter cited. 
Whether the use of money under the provisions of a particular statute 
is for a public purpose, or merely for the benefit of individuals, is 
sometimes a question difficult to answer, although usually it is easy of 
determination. In the present case, if the only object of the statute 
is to give gratuities to individuals of a certain class, -without any bene- 
fit to the general public, the statute is unconstitutional. 

But in this opinion we need not consider the subject of pensions to 
soldiers, for the statute does not purport to grant pensions or rewards 
for meritorious service, or money for the relief of present necessities. 
It purports to give bounties now only to those who did not receive 
them at the time of enlistment, which, if given then, would have been 
given as inducements to enlist in the service of the United States. 
Under the provisions of this statute, those who enlisted without a 
bounty, under other influences or upon other inducements, would 



1923.] PUBLIC DOCUMENT — No. 12. 157 

receive now as a gratuity this sum of money representing an additional 
inducement. The object of the act, as disclosed by its provisions, is 
not to give rewards in recognition of valuable services, and thus to 
promote loyalty and patriotism, but to equalize bounties given to 
induce enlistments in a particular military service many years ago. 

Follo^\dng the law as stated in Mead v. Acton, we are of opinion that 
the proposed expenditure of money is for a use which is not public, 
but private, and that therefore the statute is not in conformity with 
the Constitution of the Commonwealth. 

In Opinion of the Justices, 190 Mass. 611, the Senate sub- 
mitted to the justices the following question: — 

Is it a constitutional exercise of the legislative power of the General 
Court to enact a law providing for an appropriation of money from the 
treasury of the Commonwealth for the purpose of recognition of 
valuable services of persons who served to the credit of Massachusetts 
during the Civil War and who were honorably discharged from such 
service, such appropriation to be used either for the pajmient of sums 
of money to such persons, or for medals or other evidences of appre- 
ciation of their services, if in the opinion of the General Court the 
pubhc good will be served, and loyalty and patriotism promoted, by 
such recognition? 

In advising thereon the justices said: — 

It is a familiar rule of law that a statute is to be interpreted in 
reference to its purpose and effect, as shown by its application to the 
subject to which it relates. If a bill should appear, by its substantive 
provisions, to be a measure for the equalization of bounties among 
the soldiers of Massachusetts who served in the Civil War, or for the 
payment of moneys to make the result of their contracts of enlistment 
more favorable to certain soldiers because the contracts of other 
soldiers were made on better terms, it would be unconstitutional, 
even if it contained recitals that the payments would be made in 
recognition of valuable services, wdth a view to the promotion of 
loyaltj^ and patriotism. 

We cannot undertake to answer the question of the Honorable 
Senate in reference to every conceivable application of it. We infer 
that our opinion is desired in regard to the right of the State to give 
sums of money or other like rewards, in recognition of valuable military 
service. The power to reward distinguished public service, with a 
view to the promotion of loyalty and patriotism, has long been regarded 
as one of the attributes of organized government. 

The question asked bj^ the Honorable Senate should be answered 
in the affirmative, so far as to say that the general principle referred to 



158 ATTORNEY GENERAL'S REPORT. [Jan. 

may have legitimate application to services such as generally have been 
treated as deserving recognition by the payment of sums of money, the 
erection of statues, or the bestowal of medals, decorations or other 
badges of honor. In the apphcation of the principle the question 
ordinarily will be, whether the benefit is conferred as an appropriate 
recognition of distinguished and exceptional service, such that the 
dignity of the State will be enhanced and the loyalty and patriotism of 
the people will be promoted by making it a subject of governmental 
action. 

In Opinion of the Justices, 211 Mass. 608, the Senate 
requested the justices to advise as to the constitutionality 
of Senate Bill No. 240, the first two sections of which pro- 
vided as follows: — 

Section 1. For the purpose of promoting the spirit of loyalty and 
patriotism, and in recognition of the sacrifice made both for the com- 
monwealth and for the United States by those veteran soldiers and 
sailors who volunteered their services in the civil war, and for the 
purpose of promoting the public welfare, by giving visible evidence to 
this generation and future generations that, if danger should again 
threaten the nation and the call should again come for men, Massa- 
chusetts will not forget the great ser\dce of those who volunteer, a 
gratuity of one hundred and twenty-five dollars to each veteran is 
hereby authorized to be paid from the treasury of the commonwealth 
under the conditions hereinafter set forth. 

Section 2. The gratuity herein pro\'ided for shall be paid to every 
person, or his legal representative, not being a conscript or a substitute, 
and not having received a bounty from the commonwealth or from 
any city or town therein, who served in the army or navy of the United 
States to the credit of the commonwealth during the civil war, and 
was honorably discharged from such service, and is Uving at the time 
of the passage of this act; it being intended and provided that the 
said gift shall not be a bounty, nor a payment in equahzation of boun- 
ties, nor a paj^ment for services rendered, nor a payment for the pur- 
pose of making the result of their contracts of enlistment more favor- 
able to them because the contracts of other soldiers were on better 
terms, but a testimonial for meritorious service such as the common- 
wealth may rightly give, and such as her sons may honorably accept 
and receive. 

Five of the justices advised that, in view of the provisions 
and recitals of the bill, it sufficiently appeared that the pay- 
ments authorized were for a public purpose, namely, the 
promotion of the spirit of loyalty and patriotism, and that 
the bill was therefore constitutional. Mr. Justice Rugg 



1923.] PUBLIC DOCUMENT — No. 12. 159 

dissented, upon the ground that in spite of the recitals of the 
bill it was upon its face a measure designed to equalize 
bounties, and was therefore unconstitutional. 

In WhiUaker v. Salem, 216 Mass. 483, the school committee 
reappointed as principal of the high school for another year 
one who had been principal for several years, who had worked 
especially hard during the previous year, had devoted his 
entire vacation to school matters, and w^ho had, as a result, 
become ill from overwork. At the same meeting the com- 
mittee granted such principal leave of absence for the 
year upon half pay on account of sickness. In holding 
that the grant of half pay was void as an unauthorized gift 
of public money for a private purpose, the court said, by 
Rugg, C.J.:- 

The power of school committees within the scope of the authority 
conferred upon them by the statute is extensive. Their right to fix 
the salaries of teachers is comprehensive. Their duty and respon- 
sibihty in this direction is a heavy one. Charlestown v. Gardner, 98 
Mass. 587; Batchelder v. Salem, 4 Gush. 599. In the performance of 
their functions they have a wide discretion, and to a large degree they 
are unhampered as to the details of administration and their acts 
are not subject to review. Morse v. Ashley, 193 Mass. 294; Kimball 
V. Salem, 111 Mass. 87. But they must keep within the broad princi- 
ples which govern all public boards of officers. They are charged 
wdth the expenditure of moneys raised by taxation. They can vote 
it only for public uses. They have no right to devote it to private 
purpose*?. However meritorious the project maj^ appear to be, either 
in its practical or ethical or sentimental aspects, if it is in essence a 
gift to an individual rather than a furthering of the public interest, 
money raised by taxation cannot be appropriated for it. These 
principles often have been declared respecting a great variety of sub- 
jects and cannot be doubted. Lowell v. Boston, 111 Mass. 454; Mead 
V. Acton, 139 Mass. 341; Opinion of the Justices, 204 Mass. 607; 
Opinion of the Justices, 211 Mass. 624. 

The court has more rigidly applied the rule that public 
money can be expended only for a public purpose in actual, 
decided cases than in its advisory opinions. Freeland v. Hast- 
ings, 10 Allen, 570; Lowell v. Boston, 111 Mass. 454; Mead v. 
Acton, 139 Mass. 341; Kingman v. Brockton, 153 Mass. 255; 
Whittaker v. Salem, 216 Mass. 483. An advisory opinion is 
given by the justices as individuals, without the benefit of 
argument, and is not a decision binding upon the court under 
the rule of stare decisis. Young v. Duncan, 218 Mass. 346, 



160 ATTORNEY GENERAL'S REPORT. [Jan. 

351. On the contrary, if the question considered in an ad- 
visory opinion arises in actual litigation, "the ground is 
reexamined by the justices sitting as a court in the light of 
the arguments presented, and with the effort to guard against 
any influence flowing from the earlier opinion." Boston v. 
Treasurer and Recciver-Gcfieral, 237 Mass. 403, 410. In so far as 
decisions and advisory opinions differ, the decisions must control. 

Both decisions and advisory opinions agree that public 
money cannot be presented to individuals as a gratuity. The 
advisory opinions indicate that there is power to reward 
conspicuous public service where such reward will promote the 
public welfare by inducing others to render similar service 
and inculcating loyalty and patriotism. On the other hand, 
the decisions clearly declare that an incidental benefit to the 
public will not sustain either a gratuity or an expenditure 
which is primarily and in essence for a private purpose. 
Loivell V. Boston, 111 Mass. 454; Whittaker v. Salem, 216 
Mass. 483. It seems, also, that where a bill or statute 
authorizes a payment of public money to one who has no 
legal right thereto, the ordinary presumption of constitu- 
tionality does not obtain, and the bill must disclose upon 
its face a sufficient public purpose to warrant the payment. 
Of. Opinion of the Justices, 186 Mass. 603; Opinion of the 
Justices, 211 Mass. 608; Whittaker v. Salem, 216 Mass. 483. 
Were it otherwise, a bare direction to pay would, in such a 
case, be a substitute for the constitutional authority to au- 
thorize the payment. In my opinion, a bill or resolve which 
directs a payment of public money to persons not legally 
entitled to it, without affirmatively disclosing any sufficient 
public purpose which is thereby primarily and directly fur- 
thered, would not be constitutional. Opinion, Attorney Gen- 
eral to President of the Senate, April 17, 1922. 

The present resolve directs that the balance of the salary 
to w^hich a deceased member of the House would have been 
entitled had he lived shall be paid to his widow. It con- 
tains no statement of any public purpose to be furthered by 
such payment. Even if it were permissible to infer what 
the Legislature has not chosen to determine and declare, 
no public purpose appears by inference. The sum paid 
increases in proportion to the service which has 7iot been 
rendered, and diminishes in proportion to the service which 
has been rendered. A payment which is inversely as the 
service rendered can scarcely be intended as a reward for 



1923.] PUBLIC DOCUMENT — No. 12. 161 

conspicuous and meritorious service. It does not appear, 
and I cannot believe, that a payment of unearned salary is 
intended to inculcate loyalty and patriotism among the 
members of the House or to stimulate the citizens to volun- 
teer for legislative service. These considerations compel the 
conclusion that the resolve authorizes a private gratuity 
rather than an expenditure for a public purpose. I am 
therefore constrained to advise you that, in my opinion, it 
is unconstitutional. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Armories — Use for a "Business Pagecmt" — Public Purpose, 

Under G. L., c. 33, § 52, armories may be used for certain public purposes 

therein defined. 
Whether an entertainment to be given in an armory and designed to raise 

funds for a purpose authorized by G. L., c. 33, § 52, is a ''meeting," 

within the meaning of the statute, is a mixed question of law and 

fact, to be determined by the Adjutant General. 

June 12, 1922. 
Brig. Gen. Jesse F. Stevens, Adjutant General. 

Deae Sir: — You have submitted a request by the Elks 
Charitable Relief Association of Wakefield for authority to use 
the armory at Wakefield for a "business pageant," the pro- 
ceeds to be used "for any and all charitable purposes in the 
towns of Wakefield, Stoneham and Reading." 

Armories may be used for a "public purpose," as defined 
in G. L., c. 33, § 52. Under this section meetings to raise 
funds are limited to "meetings to raise funds for any non- 
sectarian charitable or non-sectarian educational purpose," or 
funds "for a benefit association of policemen or firemen." As 
the present request states that the proceeds are to be used 
"for any and all charitable purposes," it is not limited to 
"non-sectarian charitable purposes," as required by the act. 

The question whether an entertainment designed to raise 
funds for a purpose authorized by the statute is a "meeting," 
within the meaning of the act, is a mixed question of law and 
fact, to be determined by your department in the exercise 
of a sound discretion, in the light of the principles already 
set forth in opinions previously rendered to you. See Attorney 
General's Report, 1921, p. 69. 

Yours very truly, 

J. Weston Allen, Attorney General. 



162 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitutional Law — Eminent Domain — Taking of Picture 
exhibited in Public Library upon Public Charitable Trust 
— Public or Private Purpose — Reasonable Com pens atioii. 

The promotion of popular education is a public purpose for which property 
may be taken by eminent domain. 

Where a picture is held by a public library upon a public charitable trust 
for educational purposes, a bill already enacted, which provides that 
the picture shall be taken by the Department of Education for use in 
teaching art or the history of art, under G. L., c. 69, § 7, or c. 73, but 
not in or in connection with any public library, cannot be held, as 
matter of law, to take the picture for a purpose not public. 

Article X of the Bill of Rights requires that reasonable compensation shall 
be paid for property taken by eminent domain. 

Paym.ent of reasonable compensation for property taken by eminent 
domain cannot be limited to a particular fund or made to depend 
upon a contingency. 

A bill which provides for taking private property by eminent domain, 
all damages to be paid "from such appropriation as the General Court 
may make for the purpose," does not adequately secure the right to 
receive reasonable compensation, since such compensation is restricted 
in amount to such appropriation as shall be made, and is contingent 
upon the appropriation, which maj^ never be made. 

June 13, 1922. 

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

Sir: — You have submitted for my consideration House 
Bill No. 1749, entitled *' An Act providing for the taking, 
for educational purposes, of the picture entitled 'The Syna- 
gogue,' " which provides: — 

Section 1, The department of education of the commonwealth is 
hereby authorized and directed within six months of the effective date 
of this act to take by right of eminent domain for educational pur- 
poses in teaching art or the history of art under section seven of chapter 
sixty-nine or under chapter seventy-three of the General Laws, but 
not in, or in connection with, any public library, the picture entitled 
"The Synagogue," now in the Boston pubUc library, and all rights 
therein, of whatever nature or description. At the time of the taking 
the department shall file a statement of the taking wdth the city clerk 
of the city of Boston, and shall award all damages sustained by any 
person by reason of such taking. Any person entitled to an award of 
damages under this act, or the commonwealth, w^iether or not an 
award has been made, may petition to the superior court for Suffolk 
county within six months from the taking for the assessment of all 
such damages. All damages incurred under this act shall be paid 
from such appropriation as the general court may make for the pur- 



1923.] PUBLIC DOCUMENT — No. 12. 163 

pose by the treasurer of the commonwealth upon due presentation. 
The provisions of chapter seventy-nine of the General Laws, so far 
as applicable and save as herein otherwise expressly provided, shall 
apply to any action under this act. 

Section 2. The department of education is authorized to make 
rules and regulations for the custody of said picture and its use for 
the educational purposes stated in section one. 

I assume that you desire to be advised whether this bill 
is constitutional. 

1. It is settled that property cannot be taken by eminent 
domain for a private use. Riverhank Imjyrovement Co. v. 
Chadwick, 228 Mass. 242. A taking ostensibly for a public 
purpose, but in reality for a private purpose, cannot be sus- 
tained. Salisbury Land & lynprovement Co. v. Commo7iwealth, 
215 Mass. 371, 377. The picture is held upon a public 
charitable trust for educational purposes. Cary Library v. 
Bliss, 151 Mass. 364; Eliot v. Trinity Church, 232 Mass. 517. 
The bill now provides that the picture shall be taken for 
educational purposes different from those to which it is now 
put, and thereby avoids a constitutional defect which existed 
in an earlier form of the same measure. See opinion of the 
Attorney General to the Joint Committee on the Judiciary, 
May 5, 1922. The promotion of popular education is a 
public purpose. Knights v. Treasurer and Receiver-General, 
237 Mass. 493, 496. In view of the amendment of the use 
for which the picture is to be taken, and of the presumption 
of constitutionality which attends enactment by the Legisla- 
ture, I cannot advise you that the bill does not appropriate 
the picture to a public purpose. 

2. Article X of the Bill of Rights provides, in part: — 

And whenever the public exigencies require that the property of any 
individual should be appropriated to public uses, he shall receive a 
reasonable compensation therefor. 

A "taking" w'ithout compensation is also forbidden by the 
Fourteenth Amendment to the Federal Constitution. Chicago, 
etc., R.R. Co. V. Chicago, 166 U. S. 226, 241. Unless adequate 
provision for compensation is made, either by the statute 
which authorizes the "taking" or by a general act applicable 
to it, the authority to "take" is void. Boston & Lowell R.R. 
Corpn. V. Salem & Lowell R.R. Co., 2 Gray, 1, 37. Nor can 
the Legislature prescribe in advance the amount of the com- 



164 ATTORNEY GENERAL'S REPORT. [Jan. 

pensation which shall be paid. Monongahela Nav. Co. v. 
United States, 148 U. S. 312. Moreover, the right to receive 
compensation must be given unconditionally. Nichols: Emi- 
nent Domain, 2d ed., § 206. It cannot be restricted to a 
particular fund. Bent v. Emery, 173 Mass. 495, 498; Con- 
necticut River R.R. Co. v. County Commissioners, 127 Mass. 50. 
By an amendment made since the measure was previously 
before me, the bill now provides that "all damages incurred 
under this act shall be paid from such appropriation as the 
general court may make for the purpose. ..." This 
clause expressly excludes the provisions for compensation 
made by G. L., c. 79. Under it the right to compensation 
is contingent upon an appropriation which may never be 
made, and is restricted in amount to such appropriation as 
shall be made. 

I am therefore constrained to advise you that under the 
bill in its present form the right to compensation is not 
secured in the manner required by the Constitution. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Restraint of Trade — Minimum Resale Prices — Agreements 
to maintain Prices. 

Agreements designed to maintain prices after the seller has parted with 
the title to his goods, and to prevent competition among those who 
trade in them, is a violation of law. 

Such agreements may be expressed or implied from a course of dealings, or 
other circumstances. 

A system for maintaining resale prices, which is made effective by co- 
operative methods between the manufacturer and various dealers 
and agents to the extent that it constitutes a scheme which restrains 
the natural flow of trade, is illegal. 

June 13, 1922. 

Mr. Eugene C. Hultman, Chairman, Special Commission on the Neces- 
saries of Life. 

Dear Sir: — You have requested my opinion as to whether 
the practice of a baking company in refusing to sell its 
bread to retail dealers who do not maintain a minimum 
resale price is a violation of law. 

G. L., c. 93, § 2, provides: — 



1923.] PUBLIC DOCUMENT — No. 12. 165 

Every contract, agreement, arrangement, combination or practice 
in violation of the common law whereby a monopoly in the manu- 
facture, production, transportation or sale in the commonwealth of 
any article or commodity in common use is or may be created, estab- 
lished or maintained, or whereby competition in the commonwealth 
in the supply or price of any such article or commodity is or may be 
restrained or prevented, or whereby for the purpose of creating, estab- 
lishing or maintaining a monopoly within the commonwealth of the 
manufacture, production, transportation or sale of any such article or 
commodity, the free pursuit in the commonwealth of any lawful busi- 
ness, trade or occupation is or may be restrained or prevented; or 
whereby the price of any article or commodity in common use is or 
may be unduly enhanced within the commonwealth, is hereby declared 
to be against public policy, illegal and void. 

Section 13 of that act reads as follows: — 

Maintaining or increasing unreasonably the price of any necessary 
of life is hereby declared to be unlawful. Whoever, in combination 
or association with another or others, enters into any agreement or 
understanding to maintain or increase or cause to be maintained or 
increased unreasonably the price of any necessary of life shall be 
deemed guilty of criminal conspiracy, and upon conviction thereof 
shall be punished by a fine of not more than one thousand dollars or 
by imprisonment in the house of correction for not more than two 
years, or both. Prosecutions hereunder shall be under the control 
of the attorney general and shall be conducted by him or an assistant 
designated by him. 

It seems to be firmly established that agreemenis designed 
to maintain prices after the seller has parted with the title 
to the articles, and to prevent competition among those who 
trade in them, is a violation of law. Dr. Miles Medical Co. 
v. John D. Park d' Sons Co., 220 U. S. 373; U?iited States v. 
A. Schrader's Son, Inc., 252 U. S. 85; Federal Trade Com- 
TTiission V. Beech-Nut Packing Co., 257 U. S. 441. See also 
opinion of the Attorney General to the Senate, dated May 
1, 1922. Such agreements may be expressed or implied from 
a course of dealing, or other circumstances. United States v. 
A. Schrader's Son, Inc., supra; Federal Trade Commission v. 
Beech- Nut Packing Co., supra. 

If the system for maintaining resale prices is made effective 
by co-operative methods between the manufacturer and 
various dealers and agents to the extent that it constitutes a 
scheme which restrains the natural flow of trade or commerce 



166 ATTORNEY GENERAL'S REPORT. [Jan. 

and the freedom of competition, it is illegal. Federal Trade 
Commission v. Beech-Nut Packing Co., supra. 

The facts stated in your letter are not sufficient to enable 
me to determine whether the refusal of the company in 
question to sell its bread to retail dealers who do not sell at 
a minimum resale price constitutes a violation of law. 
Very truly yours, 

J. Weston Allen, Aitorney General. 



Taxation — Banks and Banking — Savings Deposits — Nature 
of Such Deposits — Returns by Trust Companies to the 
Commissioner of Corporations and Taxation of the Amount 
of Profits paid upon Deposits in the Savings Department. 

A deposit in the savings department of a trust company is a trust rather 
than a debt. 

A book evidencing a deposit in the savings department of a trust company 
is not an "evidence of indebtedness," within the meaning of G. L., 
c. 62, § 33. 

While the division of profits made by trust companies upon deposits in 
their savings departments may for some purposes be regarded as 
*' interest" and for other purposes be regarded as ''dividends," it is 
not interest paid by the trust company "on its bonds, notes or other 
evidences of indebtedness," within the meaning of G. L., c. 62, § 33, 
and the trust company is not required by that section to make a 
return thereof to the Commissioner of Corporations and Taxation. 

June 14, 1922. 

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

Dear Sir: — You inquire whether, under G. L., c. 62, § 33, 
you can require trust companies and national banks which 
have savings departments to return the names and addresses 
of all residents of the Commonwealth to whom they have 
paid "taxable interest" in such departments during the 
preceding calendar year. You state that by taxable interest 
you mean interest upon deposits in such departments which 
exceed the amount prescribed by G. L., c. 168, § 31, and 
which are not taxable to the corporation under G, L., c. 63, 
§ 11. You have submitted with your request two specimen 
books, each of which provides that the book must be presented 
at the time when deposits are made or withdrawn. See G. L., 
c. 172, §§ 60, 70. 

G. L., c. 62, § 33, provides, in part: — 



1923.] PUBLIC DOCUMENT — No. 12. 167 

Every corporation, partnership, association or trust doing business 
in the commonwealth shall report annuallj'- to the commissioner, in 
such form as he shall from time to time prescribe, the names and 
addresses of all residents of the commonwealth to whom it has paid 
interest during the preceding calendar year on its bonds, notes or 
other evidences of indebtedness, and to whom it has paid any annuities, 
except, however, interest coupons payable to bearer, and income 
exempt from taxation under this chapter. In any individual case, 
any such corporation, partnership, association or trust shall, upon 
request of the commissioner, state the respective amounts of interest 
and annuities so paid bj^ it to an}^ person during any calendar year. 

Assuming, without deciding, that the book ''evidences" 
the obligation from the trust company or bank to the cus- 
tomer, the controlling question is whether that obligation 
is an "indebtedness." A deposit in the commercial depart- 
ment of a bank or trust company is a debt. Demmon v. 
Boylston Baiik, 5 Gush. 194; National Mahaiwe Bank v. 
Peck, 127 Mass. 298. But deposits in the savings " depart- 
ment of a trust company have in general the incidents of a 
deposit in a savings bank. J. S. Lang Engineering Co. v. 
Commonwealth, 231 Mass. 367; Bachrach v. Commissioner of 
Banks, 239 Mass. 272, 273. Under G. L., c. 127, § 61, 
they constitute ''special" deposits, and the legal relation 
between bank and depositor is not that of debtor and creditor, 
but substantially that of trustee and cestui que trust. Bach- 
rach V. Commissioner of Banks, 239 Mass. 272, 274; Greenfield 
Savings Bank v. Abercrombie, 211 Mass. 252; Kelly v. Com- 
missioner of Banks, 239 Mass. 298, 301; see also Commissioner 
of Banks v. Jordan Marsh Co., 241 Mass. 273. As a trust 
is not a debt, it w^ould seem that a book which "evidences" 
the obligation of a trustee to the cestui que trust is not an 
"evidence of indebtedness" within the meaning of this 
statute. 

G. L., c. 167, § 17, and G. L., c. 172, § 65, describe the 
payments made upon savings deposits as "interest or divi- 
dends." G. L., c. 172, § 67, refers to them as "interest," 
while section 68 refers to them as dividends. It may be 
that this seeming confusion in terms springs from the dual 
character of these payments. They are at no fixed rate and 
can be made only out of earnings. G. L., c. 167, § 17; G. L., 
c. 172, §§ 65, 68; V Op. Atty. Gen. 442. In this respect 
they resemble dividends upon corporate stock rather than 
interest paid upon money loaned by the depositor. On the 



168 ATTORNEY GENERAL'S REPORT. [Jan. 

other hand, they are derived in large part from interest paid 
upon loans made by or bonds owned by the trust company. 
Even if they are viewed as a division of the earnings of trust 
funds which are invested by the trust company in loans or 
bonds, rather than as hire paid by the trust company for the 
use of money loaned by the depositor, they might still be 
regarded as payments of interest earned by those funds. I 
am of opinion, however, that such interest is not interest 
paid in the manner defined by G. L., c. 62, § 33. A division 
of interest earned by trust funds is not interest paid upon 
the bank books as "evidences of indebtedness,'' similar to 
notes or bonds. 

For these reasons I am constrained to advise you that, 
in my opinion, your inquiry must be answered in the nega- 
tive. This renders it unnecessary to determine whether G. L., 
c. 62, § 33, can apply or does apply to national banks, which 
are Federal instrumentalities. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Drainage Law — Application of Amendatory Statute to Pending 

Proceedings. 

It is a general principle that a new statute which provides merely for 
changes in remedy or in modes of procedure will not invalidate steps 
taken before the statute goes into effect, but will apply to all pro- 
ceedings taken thereafter. 

St. 1922, c. 349, making certain changes in the procedure prescribed by 
G. L., c. 252, and other changes not material to the inquiry, is appli- 
cable to proceedings pending when the statute took effect, since no 
constitutional rights are impaired. 

June 20, 1922. 

Dr. Akthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You request my opinion in behalf of the 
Drainage Board regarding the effect of St. 1922, c. 349, upon 
a pending petition from landowners in the town of Salisbury 
for the formation of a drainage district. Said statute amends 
certain sections of G. L., c. 252, relative to the improvement 
of low land and swamps, and adds a new section thereto. 
You state that upon receipt of the petition the Board pro- 
ceeded to appoint district drainage commissioners, and ask 
whether it will be necessary, in view of the passage of the 
amendatory law, to reappoint them or whether they may go 
ahead and function under the new law. 



1923.] PUBLIC DOCUMENT — No. 12. 169 

The principal purpose and effect of St. 1922, c. 349, is to 
make certain changes in the procedure prescribed by G. L., 
c. 252, for the formation by the district drainage commission- 
ers of a drainage district and for the submission of estimates 
and the drawing of funds from the county treasury, to give 
the district drainage commissioners expressly the power to 
acquire property outside the Commonwealth, and to give to 
the drainage district the power to assess upon its members 
such sums as may be necessary for further improvements 
and maintenance. Other changes are merely incidental and 
not material to the present inquiry. The effect of the amend- 
ments is merely to substitute the language of the sections as 
amended for the sections as they appear in G. L., c. 252; 
and of course the sections of that chapter not amended stand 
as they are. Fitzgerald v. Leiois, 164 Mass. 495. The act 
contains an emergency preamble reciting that "it is impor- 
tant and for the interest of the Commonwealth that prompt 
action should be taken in respect to the method of formation 
of drainage districts and their powers." 

The object of the act appears, from the nature of its pro- 
visions as well as from the preamble, to be to make needed 
changes in the existing law, to clarify provisions which were 
uncertain, and to supply omissions for the purpose of making 
the law more workable. The intention seems clearly to have 
been that the amendments should go into effect upon the 
passage of the act, and should apply to all proceedings there- 
after, whether or not they had been begun before the passage 
of the amending act. 

It is a general principle that a new statute which provides 
merely for changes in remedy or in modes of procedure will 
not invalidate steps taken before the act goes into effect, 
but will apply to all proceedings taken thereafter. In Com- 
missioners of Union County v. Greene, 40 Oh. St. 318, there 
w^ere proceedings before county commissioners, begun by 
petition, for the improvement of a road pursuant to a statute. 
After the proceedings were brought, but before contracts for 
the improvement had been made and before assessment of the 
cost had been ordered, the statute was amended in a way 
which materially changed the rule of apportionment. The 
assessors subsequently applied the rule prescribed in the 
amendatory act. The court held that the assessment was 
correctly made, that the statute was simply remedial in its 
operation on pending proceedings, and was not in conflict 



170 ATTORNEY GENERAL'S REPORT. [Jan. 

with constitutional inhibition against retroactive laws. See 
also Howard v. Fall River Iron Works Co., 203 Mass. 273, 
276; In re Hickory Tree Road, 43 Pa. St. 139; Mayne v. 
Huntington County, 123 Ind. 132; Endlich: Interpretation 
of Statutes, § 482. 

The intention manifested by the Legislature must be 
observed and carried into effect unless the amendatory act 
is found to operate retroactively to destroy or diminish rights 
created by the former law and proceedings under it which 
could not be constitutionally taken away by the Legislature. 

The objection to retroactive legislation, to be valid, must 
be founded on the constitutional prohibition against the 
taking away of vested rights or the impairment of the obli- 
gation of a contract. Wilson v. Head, 184 Mass. 515, 518; 
Danforth v. Groton Water Co., 178 Mass. 472; National 
Surety Co. v. Architectural Co., 226 U. S. 276. In m^^ opinion, 
the amendatory act has no such effect. The changes made 
thereby were in part formal and in part changes in pro- 
cedure. There was in addition an amendment giving to the 
district drainage commissioners a power to acquire land 
outside the Commonwealth, which, as a corporation organized 
under the provisions of G. L., c. 158, it probably had before, 
and an additional provision authorizing the drainage district 
to assess upon its members such sums as might be necessary 
for further improvements and for maintenance, which pre- 
viously, under G. L., c. 252, §§ 13 and 14, were to be paid 
for by the towns where the land improved was located, and 
assessed on the parcels benefited by the improvement. 

It is my opinion that there were no constitutional rights 
acquired either under the original statute or by virtue of the 
filing of the petition prior to the amendatory act, which are 
taken away by St. 1922, c. 349, and that the amendments 
are applicable to proceedings under the petition filed by 
landowners in Salisbury. 

Very truly yours, 

J. Westox Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 171 



Public Records — Registrar of Motor Vehicles — Report of 

Accident. 

The report required to be sent to the registrar by every person operating 
a motor vehicle which is in any manner involved in an accident is 
not open to pubhc inspection. 

June 20, 1922. 
Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — I have 3'our request for an opinion as to 
whether you should allow examination of the records of 
automobile accidents on file in your department. 

I assume that your inquiry concerns the report required to 
be sent you by every person operating a motor vehicle which 
is in any manner involved in an accident, which is required 
by St. 1913, c. 530, now G. L., c. 90, § 26. This report is 
not a paper "received for filing," within the meaning of G. L., 
c. 4, § 7, cl. 26. It is therefore not a public record open to 
public inspection, as provided by G. L., c. 66, § 10. See Round 
V. Police Cominissioner, 197 Mass. 218. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Civil Service — Veterans — Inspectors of Plumhing — Qualifica- 
tions — Interpretation of the Word " Continuously. " 

Whether persons, otherwise ehgible, would be precluded from taking the 
civil service examination for plumbing inspectors because, by reason 
of having served in the military or naval service during the past five 
years, they have not had "practical experience . . . continuously," 
as required by G. L., c. 142, § 11, is a mixed question of law and fact, 
the decision of which rests upon the official who passes upon the 
qualifications of applicants for examination. 

June 21, 1922. 

Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir : — You have requested my opinion upon a 
question of law in connection with the interpretation of G. L., 
c. 142, § 11, relating to the appointment of inspectors of 
plumbing, which section provides, in part, as follows: — 

The said inspector of buildings, if any, otherwise the board of health, 
of each city and town, shall, ^^dthin three months after it becomes 
subject to sections one to sixteen, inclusive, appoint from the classified 
civil service list one or more inspectors of plumbing who shall be prac- 



172 ATTORNEY GENERAL'S REPORT. [Jan. 

tical plumbers and shall have had practical experience either as master 
plumbers or journeymen, continuously, during five j^ears next pre- 
ceding their appointment. 

Your specific inquiry concerns the correctness of a ruling 
made by you, as Commissioner, to the effect that persons who 
have served in the military or naval service during the last 
five years, and who would otherwise be eligible to take the 
civil service examination for plumbing inspectors, are excluded 
by the law, for the reason that they have not had ''practical 
experience either as master plumbers or journeymen, con- 
tinuously, during the five years next preceding their appoint- 
ment. " 

Your inquiry, of course, requires a construction of the phrase 
"shall have had practical experience either as master plumb- 
ers or journeymen, continuously, during five years next pre- 
ceding their appointment." While it is to be presumed that 
"continuously" is used in the ordinary sense, as meaning 
without interruption, this does not necessarily mean that the 
individual must have been engaged every day or every week 
or every month of the specified period. But in view of the 
fact that interruptions, if of long duration, might affect the 
knowledge and ability of the applicant to perform the duties 
incumbent upon the position of plumbing inspector, and 
would prevent such applicant from keeping up with the 
improvements and changes made from time to time in the 
practice of his trade, particular care must be taken not to 
give an interpretation to the law which is contrary to its 
spirit and which would defeat its purpose. 

This is really a mixed question of law and fact, and it is 
for the oflScial upon whom rests in a given case the respon- 
sibility to determine whether the applicant has been con- 
tinuously having practical experience, within the meaning 
of the statute. In determining this question the intent of 
the applicant with respect to his occupation during the interim 
period, the length of the interim period, and all other facts 
respecting his employment are to be considered, the decision 
to rest upon the person finally passing upon the qualifications 
of the applicant, having due regard for the express language, 
the spirit and the purpose of the law. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 173 



Foreign Mortgage Corporations — Branch Offices — Use of 
Words " Trust Company." 

With certain exceptions, only trust companies incorporated under the 
laws of Massachusetts can lawfully use the words "Trust Company.'^ 

An exemption in a statute which limits the application of a general policy 
should be construed strictly in favor of the Commonwealth. 

Such a statute should be construed so as to carry out the intent of the 
Legislature, if the intent can be reasonably ascertained from the words 
used, or by fair implication, although such construction may seem 
contrary to the ordinary meaning of the letter of the statute. 

Foreign mortgage corporations which were authorized to do business in 
the Commonwealth prior to Oct. 1, 1899, and which were conducting 
an established business here at the time of the passage of that act, 
may use the words "Trust Company." 

June 30, 1922. 

Mr. Joseph C. Allen, Commissioner of Banks. 

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

May a foreign corporation not now registered under G. L., c. 181, 
legally establish and maintain a branch office in this Commonwealth, 
by registration mth the Commissioner of Corporations and Taxation, 
and carry on a foreign mortgage business within the meaning of 
G. L., c. 172, § 4? 

From the papers and data submitted by you it appears 

that the Trust Company was incorporated under the 

laws of North Dakota in 1886; that it paid the assessment 
required by St. 1889, c. 427, § 6, for several years; that it 
paid the Commissioner of Foreign Mortgage Corporations* 
tax in 1894; that it had no usual place of business in Massa- 
chusetts; that it contended that it was not required to, and 
that it did not, comply with the provisions of St. 1884, 
c. 330; and that it conducted its business through the mails 
or through persons principally in banks who were not agents 
of the company. 

G. L., c. 172, § 4 (St. 1899, c. 467, as amended), reads 
as follows : — 

No person or association and no bank or corporation, except trust 
companies, shall use in the name or title under which his or its business 
is transacted the words "Trust Company" even though said words 
may be separated in such name or title by one or more other words, 
or advertise or put forth a sign as a trust company or in any way 
solicit or receive deposits as such. Whoever violates this section 



174 ATTORNEY GENERAL'S REPORT. [Jan. 

shall forfeit one hundred dollars for each day during which such viola- 
tion continues. But this section shall not prohibit an insurance com- 
pany authorized prior to October first, eighteen hundred and ninety- 
nine, to do business in the commonwealth nor a company authorized 
prior to said date to transact a foreign mortgage business in the com- 
monwealth from using the words "Trust Company" as a part of its 
corporate name. 

St. 1899, c. 467, established the policy, which has since 
been strictly adhered to, that, with certain exceptions, only 
trust companies incorporated under the laws of the Com- 
monwealth could lawfully use the words ''Trust Company." 
The reason for the policy, obviously, was that trust companies 
were subject to specific laws affecting such companies and 
were subject to the supervision of the Savings Bank Com- 
missioners, and that the use of the words "Trust Company" 
by persons or corporations not subject to such laws or super- 
vision might deceive the public. 

The Legislature, however, provided that certain companies 
should not be prohibited from using the w^ords "Trust Com- 
pany." Since this exemption limits the application of the 
general policy thus laid down and is in the nature of a privi- 
lege or legislative grant, it should be construed strictly in 
favor of the Commonwealth, and should not be extended by 
implication in favor of parties on whom such rights ma}' be 
bestowed. Butchers Slaughtering d-c Assn. v. Boston, 214 
Mass. 254, 258. The act must also be construed so as to 
carry out the intent of the Legislature, if the intent can be 
reasonably ascertained from the words used or by fair impli- 
cation, although such construction may seem contrary to the 
ordinary meaning of the letter of the statute. Staniels v. 
Raymond, 4 Cush. 314, 316; Moore v. Stoddard, 206 Mass. 
395, 399; Bergeron, Petr., 220 Mass. 472, 475; Hohj Trinity 
Church V. United States, 143 U. S. 457, 459, 472. 

In Moore v. Stoddard, supra, the court said, at page 399: — 

A construction which would lead to such a result is to be avoided 
if that fairly can be done. The manifest intention of the Legislature, 
as gathered from its language considered in connection \vith the existing 
situation and the object aimed at, is to be carried out. This rule 
has been declared in many of our decisions. 

In Holy Trinity Church v. United States, supra, the court 
said, at pages 459, 463 and 472: — 



1923.] PUBLIC DOCUMENT — No. 12. 175 

It is a familiar rule, that a thing may be within the letter of the 
statute and yet not within the statute, because not within its spirit, 
nor within the intention of its makers. This has been often asserted, 
and the reports are full of cases illustrating its application. This is 
not the substitution of the will of the judge for that of the legislator, 
for frequently words of general meaning are used in a statute, words 
broad enough to include an act in question, and yet a consideration 
of the whole legislation, or of the circumstances surrounding its enact- 
ment, or of the absurd results which follow from giving such broad 
meaning to the words, makes it unreasonable to believe that the 
legislator intended to include the particular act. 

Another guide to the meaning of a statute is found in the evil which 
it is designed to remedy; and for this the court properly looks at 
contemporaneous events, the situation as it existed, and as it was 
pressed upon the attention of the legislative body. 

The construction invoked cannot be accepted as correct. It is a 
case where there was presented a definite evil, in view of which the 
Legislature used general terms with the purpose of reaching all phases 
of that evil, and thereafter, unexpectedly, it is developed that the 
general language thus employed is broad enough to reach cases and 
acts which the whole history and life of the country affirm could not 
have been intentionally legislated against. It is the duty of the 
courts, under those circumstances, to say that, however broad the 
language of the statute may be, the act, although within the letter, is 
not within the intention of the Legislature, and therefore cannot be 
within the statute. 

G. L., c. 172, § 4, was aimed at a specific e\il. The 
Legislature, while laying down a new policy, manifestly 
intended not to disrupt the existing business of foreign mort- 
gage corporations in the Commonwealth. This was fair 
dealing with respect to such corporations which had for a 
number of years paid a special tax for the privilege of doing 
business here. But the Legislature clearly did not intend to 
extend the privilege or exemption to companies which were 
not at the time of the passage of the act doing business in 
Massachusetts, merely because such companies had at some 
prior time been authorized to do business here. 

The act provides that it shall not be construed "to j^^^- 
hibit . . . any company heretofore authorized to transact a 
foreign mortgage business in this commonwealth from using 
the words 'Trust Company' as a part of its corporate name." 
A company which was not doing business in the Common- 



176 ATTORNEY GENERAL'S REPORT. [Jan. 

wealth at the time of the passage of the act was not within 
our jurisdiction, and the prohibition could not operate upon 
such company. The language also clearly applies to a present 
situation and to a company doing business at that time. 

Whether or not the corporation above referred to was 
authorized to do business in the Commonwealth prior to 
Oct. 1, 1899, and was conducting an established business at 
that time, is a question of fact for you to determine. The 
mere payment of the assessment under St. 1889, c. 427, 
would not constitute such authorization, since the Com- 
missioner of Foreign Mortgage Corporations, under that act, 
had no power to authorize or prohibit the transaction of 
such business. The issuance of a license under St. 1893, 
c. 303, would constitute such authorization. 

St. 1895, c. 311, § 2, provides: — 

Such corporations [foreign mortgage corporations] shall make an 
annual return to the commissioner of corporations of their assets and 
Habilities, and shall make such further statements of fact to him at 
such times and in such form as he may require or approve. 

Whether or not the Trust Company filed such re- 
turns might be of assistance to you in determining whether 
the company did business in Massachusetts continuously to 
Oct. 1, 1899. I am of the opinion that the question should 
be answered in the negative unless it be found as a fact that 
the company was authorized to do business in the Common- 
wealth prior to Oct. 1, 1899, and was actually conducting 
an established business at that time. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Banks — Bond and Investment Companies. 

The business of selling foreign currency on the instalment plan and issuing 
certificates therefor is not the business of receiving deposits of money 
for transmission abroad, under G. L., c. 169, § 1, but is the business 
of issuing, negotiating or selling bonds, certificates or obligations on 
the instalment plan, and is subject to the requirements of G. L., c. 174. 

June 30, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You call my attention to an examination 
made by you of three closely affiliated companies, as fol- 
lows : — 



1923.] PUBLIC DOCUMENT — No. 12. 177 

1. The First State Bank, a banking corporation organized 
and doing business under R. L., c. 115. This bank receives 
deposits of money for transmission to foreign countries. 

2. The Nutile-Shapiro Company, a Massachusetts corpora- 
tion now dissolved by legislative act as a delinquent cor- 
poration. This company sells steamship tickets. Although 
the corporation is dissolved, the business, you state, is still 
being conducted under the name of the company. 

3. The State Bankers Corporation, organized under the 
laws of Massachusetts for the purpose of dealing in notes, 
drafts and other evidences of debt, securities of all kinds, 
coin and bullion, and for other purposes. This company is 
engaged in the business of bu^dng and selling foreign bonds 
and foreign currency. It sells foreign currency on the partial 
payment plan, a certain amount being paid in cash and a 
note given for the balance. The customer receives a so- 
called "exchange interim certificate," on the back of which 
successive payments are entered. It also receives payments 
in money of the United States, the equivalent of which in 
foreign currency is placed to the credit of the customer and 
a certificate given for a like amount. Interest is allowed 
on a full-paid certificate at the rate of 2 or 23^ per cent. 
The certificate states that the holder is entitled to receive upon 
surrender a draft for the amount named in foreign currency, 
and that the corporation agrees upon request to convert the 
foreign amount into dollars at the corporation's bu3'ing rate 
of exchange. You state that the State Bankers Corporation 
does not have a foreign correspondent, but that it buys 
drafts from the First State Bank, drawn on the First State 
Bank's correspondent. Your examination has disclosed that 
the State Bankers Corporation is in an insolvent condition. 

The officers and stockholders of the three corporations are 
the same, the same officers and clerks handle their daily 
transactions, and they all do business in the same building 
at 107 Salem Street, Boston. 

On the above facts you ask the following three questions : — 

1. Would the close connection between the State Bankers Corpora- 
tion, the First State Bank and the Nutile-Shapiro Companj^ and the 
manner of receiving funds, as set forth above, warrant the Commis- 
sioner of Banks in taking the position that the State Bankers Corpora- 
tion is subject to the provisions of G. L., c. 169, § 1? 

2. Does the fact that the "exchange interim certificate," issued bj^ 
the State Bankers Corporation, states that the holder is entitled to a 



178 ATTORNEY GENERAL'S REPORT. [Jan. 

draft on a correspondent abroad warrant the Commissioner of Banks 
in assuming that the corporation is engaged in the business of trans- 
mitting money or equivalents thereof to foreign countries, and there- 
fore subject to the pro^dsions of the second clause of the above 
section? 

3. As the State Bankers Corporation issues a certificate payable 
on the instalment plan, and as this corporation is insolvent, is the 
Commissioner of Banks warranted in taking the position that this 
corporation is transacting business in the Commonwealth in violation 
of the provisions of G. L., c. 174, § 1? 

1. G. L., c. 169, § 1, is as follows: — 

This chapter shall apply to — 

First. All persons engaged in the selling of steamship or railroad 
tickets for transportation to or from foreign countries, or in the sup- 
pljdng of laborers, who, in conjunction with said business, carry 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 any other purpose. 

Second. All persons who carry on the business, or make a practice, 
of receiving deposits of money for the purpose of transmitting the 
same or equivalents thereof to foreign countries, except banks or trust 
companies or express companies having contracts with railroad or 
steamship companies for the operation of an express service upon the 
Unes of such companies, or persons engaged in the banking or broker- 
age business. 

Third. Any person engaged or financially interested in the selling 
of tickets or suppljdng of laborers as aforesaid who is also engaged or 
financially interested in the business of receiving deposits of money 
as aforesaid, and any person engaged or financially interested in the 
business of receiving deposits of money as aforesaid who is also engaged 
or financially interested in the selling of tickets or suppljdng of laborers 
as aforesaid, under whatever name or by whatever persons the said 
business of selling tickets or supplying laborers or the said business of 
receiving deposits is carried on. 

Your first question is largely a question of fact. If the 
business purporting to be done by the First State Bank or by 
the Nutile-Shapiro Company were really being done by the 
State Bankers Corporation, either directly or through the 
other concerns as agents, then the State Bankers Corporation 
would be engaged in the business done by the other concerns, 
within the meaning of G. L., c. 169, § 1, but otherwise not. 
I am informed by conversation with an officer of your de- 
partment that the business done by the three concerns is 



1923.] PUBLIC DOCUMENT — No. 12. 179 

probabh^ actually an independent business. That being so, 
there seems to be no basis for the application of G. L., c. 169, 
to the State Bankers Corporation on account of the business 
done by the other two concerns. 

2. G. L., c. 169, § 1, cl. 2d, is applicable only to "persons 
who carry on the business, or make a practice, of receiving 
deposits of money for the purpose of transmitting the same 
or equivalents thereof to foreign countries." The business 
of the State Bankers Corporation, as you state it, is the 
selling of certificates for cash or on the instalment plan, 
entitling the holder to a draft in foreign currency on a for- 
eign correspondent. These drafts the State Bankers Cor- 
poration procures from the First State Bank. The customer 
frequently leaves the money which he has deposited with the 
corporation, even after the maturity of the certificate, re- 
ceiving interest from the corporation thereon. 

It is apparent that the purpose for which deposits are 
received is not to transmit money to foreign countries but 
to speculate in foreign exchange, and that the State Bankers 
Corporation does not do the business of transmitting money 
to foreign countries but merely receives deposits, and, when 
necessary, purchases drafts on foreign correspondents from 
the First State Bank. It takes no part itself in the trans- 
mission of any money abroad. In my opinion, therefore, 
its business does not come within the second clause. 

3. G. L., c. 174, § 1, provides, in part, 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 b}^ adequate property, real or 
personal, shall be transacted in the commonwealth only by corpora- 
tions subject to the requirements of this chapter. . . . 

In my opinion, the business of the State Bankers Corpora- 
tion, as already described, of selling exchange interim cer- 
tificates to be paid for on a partial payment plan, comes 
within the description of this provision as the business of 
issuing, negotiating and selling unsecured certificates or obli- 
gations on the partial payment or instalment plan in this 
Commonwealth. The corporation, doing business in Boston, 
issues documents which it calls certificates, purporting to 
state its obligation upon surrender thereof to deliver drafts 
in foreign currency for stated amounts or to convert them on 



180 ATTORNEY GENERAL'S REPORT. [Jan. 

request into dollars. Such certificates are issued on a par- 
tial payment plan, and they are unsecured. Consequently, 
the corporation is subject to the requirements of said chapter. 
Sections 1 and 3 of said chapter contain requirements, as a 
prerequisite to the doing of such business by corporations in 
the Commonwealth, for the deposit of capital with the 
Treasurer and Receiver-General or some other duly authorized 
officer, and the receipt of a certificate of authority from the 
Commissioner of Banks. Section 4 authorizes the Commis- 
sioner to examine the affairs of any corporation engaged in 
such business. Section 8 provides as follows: — 

If upon examination the commissioner is of opinion that any domes- 
tic corporation subject to the requirements of this chapter is in an 
unsound financial condition or has exceeded its powers, or has failed 
to comply mth any provision of law, he shall apply to the supreme 
judicial court in equity for an injunction restraining the corporation 
from further proceeding with its business in v/hole or in part. The 
court may issue an injunction forthwith, and may, after a full hearing, 
make the injunction permanent, and may appoint a receiver or re- 
ceivers to take possession of the property and effects of the corporation 
and to settle its affairs, subject to the order of the court. 

Since, as you state in 3'our letter, the State Bankers Cor- 
poration is in an insolvent condition, and as I am informed 
\t has not complied with the provisions of G. L., c. 174, it is 
my opinion, and I advise you, that you may apply to the 
Supreme Judicial Court in equity for relief, under section 8. 
Very truly yours, 

J. Weston Allen, Attorney Getieral. 



Savings Banks — Savings Insura^ice Plan. 

A plan by which a savings bank, as agent for a savings and insurance 
bank under G. L., c. 178, § 13, transmits payments of premiums and 
receives dividends for a depositor, and performs other incidental 
services for the savings and insurance bank, is not unlawful. 

Since G. L., c. 178, § 13, does not authorize the savings departments of 
trust companies to act as agents of savings and insurance banks, they 
would not be authorized to engage in business under the plan proposed. 

June 30, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — Following my opinion of April 11, 1922, you 
have submitted to me a revised savings insurance plan pre- 



1923.] PUBLIC DOCUMENT — No. 12. 181 

pared by parties interested in savings bank life insurance, 
and ask m^^ opinion whether such a plan may be lawfully 
adopted by savings banks and trust companies in their 
savings departments. 

The plan originally presented was in the form of a certif- 
icate purporting to be issued by a savings bank and signed 
by the depositor desiring to secure the benefits of the plan 
and by the treasurer of the bank, whereby the depositor 
agreed to open a savings account, to deposit a certain amount 
monthly for i period of ten years, to take out a policy of 
insurance on his life written by a savings and insurance 
bank, and to deliver the policy to the savings bank; and 
the savings bank agreed to pay the premiums on the policy, 
to hold the policy for the depositor, and upon surrender of 
the certificate and pass book to pay the depositor the balance 
standing to his credit, and also either to pay him the cash 
surrender value of his policy or to deliver the policy to him, 
and in the event of the death of the depositor to pay the 
balance in his account to the person entitled to receive it, 
and to pay the amount of the policy to the beneficiary 
thereunder. I stated that in my opinion this plan seemed 
to require the savings bank to engage in a business which 
was not the business of a savings bank and which was not 
authorized by the statutes; that the contract for the deposit 
at intervals of sums of money exceeded the authority given 
by G. L., c. 167, § 16; that the agreement by the bank to 
hold the policy for the depositor was in excess of the authority 
given by G. L., c. 168, § 33; that in so far as the bank was 
to act as an agent it was to act as the agent of the depositor 
and not of the savings and insurance bank, as permitted by 
G. L., c. 178, § 13; and that the bank, by agreeing at the 
end of the period to pay the depositor the cash surrender 
value of the policy, and in the event of his death to pay the 
beneficiary the amount of the policy, was to that extent 
itself engaging in the business of life insurance. 

By the revised plan the objections stated to the original 
plan appear to have been eliminated. By this plan the 
savings bank certifies that it has been appointed agent of 
the insurance department of the insuring bank, under G. L., 
c. 178, § 13, and as such has agreed, so far as authorized by 
the depositor, to receive and transmit payments of premium 
on the policy issued to him by the insuring bank, to receive 
for the depositor dividends paid him by the insuring bank. 



182 ATTORNEY GENERAL'S REPORT. [Jan. 

and to perform other incidental services for the insurance 
department. The certificate states the amounts which the 
depositor will be entitled to receive, either ascertained or 
estimated, from the insuring bank on his policy and from 
the savings bank on his account, either at the end of the 
period or on his death. There is no agreement by the deposi- 
tor to make monthly deposits, but a mere statement that he 
intends to do so. The depositor does not deliver his policy 
to the savings bank, but merely states that he has received 
it. The depositor authorizes the bank to receive dividends 
payable under the policy and to pay premiums in his behalf 
as they become due. The savings bank's liability under the 
certificate is limited to the making of payments on the deposi- 
tor's account, as it is required to do by law. 

The objections which I stated to the original plan appear 
to have been removed in the revised plan. This plan seems 
to provide for the doing of certain acts by a savings bank as 
agent for a savings and insurance bank under the authority 
given by G. L., c. 178, § 13. I therefore find nothing ob- 
jectionable in the plan which you have now submitted to me 
so far as it applies to services to be performed by savings 
banks. But G. L., c. 178, § 13, does not authorize the savings 
departments of trust companies to act as agents of savings 
and insurance banks. With respect to trust companies in 
their savings departments, therefore, I conclude that they 
would not be permitted by statute to engage in the business 
proposed. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Public Park — Change of Use — Metropolitan District Com- 
mission — Armory Commission. 

To transfer certain land now owned by the Commonwealth and acquired 
for boulevard purposes by the Metropolitan Park Commission, now 
succeeded by the Metropolitan District Commission, to the Armory 
Commission, to construct and maintain an armory thereon, legislative 
authority is necessary. 

July 7, 1922. 

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

Dear Sir: — You ask my opinion as to the proper pro- 
cedure to be followed in the matter of transferring to the 
Armory Commission, to construct an armory thereon, cer- 



1923.] PUBLIC DOCUMENT — No. 12. 183 

tain land now owned by the Commonwealth and taken for 
boulevard purposes by the Metropolitan Park Commission, 
now succeeded by the Metropolitan District Commission. 

In this situation it should be noted that while the title 
to lands taken by the Metropolitan District Commission 
vests in the Commonwealth, the expense of acquiring such 
land does not fall on the Commonwealth altogether, but one- 
half is assessed on the cities and towns of the district. 

G. L., c. 92, § 85, empowers the Metropolitan District Com- 
mission, under certain conditions and under a certain form 
of procedure, to sell any of its lands thus obtained. I am 
of the opinion that this section is not sufficiently broad to 
authorize a transfer of the said land to the Armory Com- 
mission, especially in view of section 87 of said chapter 92, 
which provides for a transfer of care and control of such 
land by the Metropolitan District Commission. Section 87, 
however, does not empower a transfer to any State depart- 
ment, and apparently contemplates such transfer as will substan- 
tially carry out the purpose of the taking by the Metropolitan 
District Commission. 

It appears, therefore, that the transfer you desire would 
be appropriating for a public use land taken for another 
distinct public use. 

In Eklon v. Chelsea, 223 Mass. 213, 216, the court said: — 

Land taken for one public use may be devoted to another pubhc 
use only by legislative authority clearly expressed, whose mandate as 
to the method of actually making the change must be exactly followed. 

And in Higginson v. Treasurer, etc., of Boston, 212 Mass. 
583, 591, the court said: — 

Land appropriated to one public use cannot be diverted to another 
inconsistent public use without plain and explicit legislation to that 
end. 

See also III Op. Atty. Gen. 406. 

Neither does this transfer come within G. L., c. 79, § 5, 
relating to the taking of land already in public use. 

I am of the opinion, therefore, that there is no "legislative 
authority clearly expressed" by virtue of which the Metro- 
politan District Commission may transfer this land to the 
care and control of the Armory Commission, and that the 
power granted the Armory Commission by G. L., c. 33, § 45, 



184 ATTORNEY GENERAL'S REPORT. [Jan. 

to take land by eminent domain is not such ** explicit legis- 
lation" as would permit the exercise of that power in this 
instance. 

I am therefore of opinion that such transfer as you desire 
requires further authorization by the Legislature. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Banks and Banking — Savings Banks — Investment of De- 
posits — Purchase of, and Extraordinary Alterations in. 
Bank Building. 

A savings bank may, with the approval of the Commissioner of Banks, 
invest in the acquisition of a suitable bank building a sum not exceeding 
an amount determined in the manner prescribed by the first sentence 
of G. L., c. 168, § 54, cl. 11, but in no event exceeding $200,000. 

The authority of a savings bank, with the approval of the Commissioner, 
to invest deposits in extraordinary alterations in or additions to a 
bank building already owned by it, which is conferred by the second 
sentence of G. L., c. 168, § 54, is separate from and independent of the 
authority to invest such deposits in the acquisition of such building, 
and the amount which may be expended for alterations is not dimin- 
ished by the sum spent for such acquisition, although the amount 
which may be invested in such alterations is likewise determined in 
the manner prescribed by the first sentence. 

The amount which the Commissioner should approve either for the acqui- 
sition of a bank building or for extraordinary alterations in or additions 
thereto, is, within the limits prescribed, to be determined by him in 
the exercise of a sound discretion. 

July 10, 1922. 

Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — G. L., c. 168, § 54, cl. 11, provides: — 
Deposits and the income therefrom shall be invested onlj^ as follows : 



A sum not exceeding the guaranty fund and undivided earnings of 
such corporation, nor in any case exceeding five per cent of its deposits 
or two hundred thousand dollars, may, subject to the approval of the 
com.missioner, be invested in the purchase of a suitable site and the 
erection or preparation of a suitable building for the convenient trans- 
action of its business. Extraordinary alterations in, or additions to, 
a bank building owned by a sa\dngs bank, involving an expense ex- 
ceeding ten thousand dollars, shall not be made \\'ithout the approval 
of the commissioner, and the cost of such alterations or additions 
shall not exceed the sum specified in this clause. 



1923.] PUBLIC DOCUMENT — No. 12. 185 

A certain savings bank, which carries its bank building 
upon its books at $100,000, now proposes to expend a further 
sum for additions and alterations which will increase the 
amount invested in the building to more than $200,000. You 
inquire whether such expenditure is permitted by said section 
54, clause 11. 

1. Section 54, clause 11, places two limitations upon the 
investment of the funds of a savings bank in the purchase of 
a suitable site for, and the preparation or erection of, a suit- 
able bank building. In the first place, such investment must 
be approved by the Commissioner of Banks. In the second 
place, the maximum amounts which the Commissioner has 
power to approve for this purpose must be determined in the 
manner prescribed by the first sentence. Even with such 
approval, the bank cannot invest for this purpose more than 
the amount of its guaranty fund and undivided surplus 
earnings. If this sum exceeds 5 per cent of the deposits, the 
latter amount is the permitted maximum. Finally, if each 
of said sums exceeds $200,000, not more than $200,000 may 
be so invested in the acquisition and erection or preparation 
of such building. In other words, that one of the three 
prescribed sums which is the smallest is the maximum amount 
which, with the approval of the Commissioner, may be in- 
vested in the purchase of a suitable site and the erection or 
preparation of a suitable bank building. 

2. The second sentence of section 54, clause 11, is in form 
a prohibition. No extraordinary alterations in or additions 
to a bank building already owned, which involve an expense 
of more than $10,000, can be made without the approval of 
the Commissioner, and even with such approval the cost of 
such alterations or additions must "not exceed the sum 
specified in this clause." But an express prohibition of such 
expenditures beyond certain prescribed limits authorizes, by 
implication, an expenditure for extraordinary alterations or 
additions within such limits. The prohibition w^as imposed 
and the implied authority was conferred by St. 1910, c. 281, 
w^hich was enacted after the first sentence of clause 11 had 
been in force many years. 

In my opinion, the authority conferred by the second 
sentence is separate from and independent of the authority 
conferred by the first sentence. In other words, the amount 
which may, with the approval of the Commissioner, be ex- 
pended for extraordinary alterations in or additions to a 



186 ATTORNEY GENERAL'S REPORT. [Jan. 

building already owned does not depend upon, and is not 
diminished by, the sum originally expended to erect or pre- 
pare that building. On the other hand, it would be a plain 
evasion of the law for a bank to expend the maximum sum 
to acquire the building, and then to ask immediate approval 
of alterations or additions. 

The amount which the Commissioner may approve for 
extraordinary alterations or additions is not without limit. 
The second sentence of clause 11 expressly provides that 
"the cost of such alterations or additions shall not exceed 
the sum specified in this clause." In my opinion, the *'sum 
specified" refers to the several limits of cost defined in the 
first sentence, and makes those applicable to the alterations 
or additions authorized by the second sentence. Whichever 
one of those limits is applicable to the particular bank at the 
time w^hen the Commissioner is asked to approve an ex- 
penditure for extraordinary alterations or additions fixes the 
maximum sum which the Commissioner may approve for 
that purpose. I am of the opinion, however, that if the Com- 
missioner approves an expenditure for extraordinary altera- 
tions or additions, the authority to approve for that pur- 
pose is correspondingly^ diminished, and if further approval 
be subsequently sought, the maximum sum which the Com- 
missioner may authorize for such purpose is the appropriate 
limit less the sum already approved for such alterations or 
additions. 

3. In the present instance the bank already owns the 
building. Approval of extraordinary alterations or additions 
is therefore governed by the second sentence of clause 11. 
In my opinion, you have power to approve an expenditure 
for this purpose not exceeding the limit applicable to this 
particular bank at the present time. This amount is not 
diminished by the sum which the bank originally spent to 
acquire the building, but any sum which you now approve 
for alterations or additions does diminish the amount which 
you can later approve for this purpose. Within the limits 
prescribed by law, the actual amount which you should ap- 
prove is to be determined by you, in the exercise of a sound 
discretion, in the light of all the facts. 
Yours very truly, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 187 



Constitutional Law — Mass. Const. Amend. XLVI — Legal 
Obligations already entered into — Exemytion of a Toivn 
from maintaining a High School — Attorney General. 

The exception touching "legal obligations . . . already entered into," 
made by Mass. Const. Amend. XLVI, § 2 (anti-aid amendment), 
must be construed to mean lawful contracts entered into prior to the 
adoption of the amendment, and still existing. 

A bequest to trustees to establish a high school, free to all the children of 
Deerfield, made upon condition that the town shall annually appro- 
priate and pay over to the trustees a sum equal to all the taxes assessed 
upon the trust estate, with a gift over to the town of Whately in case 
the town of Deerfield should fail to comply with said condition for 
the space of one year, does not, when accepted by the town, constitute 
a legal obligation to make such appropriation, within the meaning of 
Mass. Const. Amend. XLVI, § 2, since the town is left free either to 
fulfil the condition or to forfeit the property. 

A bequest upon condition that the town of Deerfield shall pay over to 
trustees who hold the gift a sum equal to the taxes assessed upon 
the trust estate imposes no obligation upon the town to make any 
payment, where the property is by special statute exempted from 
taxes. 

An illegal appropriation of money by a town to a private academy which 
furnishes free high school teaching to the children of the town will 
not justify the Department of Education in exempting the town from 
maintaining a public high school. 

The Attorney General does not determine the facts upon which he advises; 
such facts must be determined by the department which requests the 
opinion. 

July 11, 1922. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You state the following facts: — 
Mrs. Esther Dickinson died in 1875, leaving the residue of 
her property to five trustees to carry out certain trusts, largely 
for public purposes. Finally, it was provided that the funds 
should accumulate until they should be sufficient to erect neces- 
sary buildings for a school, library and reading room, the school 
to be under the management of the trustees, "in which the 
scholars may be fitted for college, and free to all the children 
of Deerfield whom my trustees may deem qualified for admis- 
sion thereto." The will went on to provide: — 

As a condition on which this bequest for the estabhshment of the 
high school, librarj^ and reading room and other minor objects of a 
public character is given, I order and direct that from and ever after 
the establishment of the high school, library and reading room, the 
town of Deerfield shall annually appropriate and pay ovei^ to my said 
trustees or their successors, a sum of money at least equal to all the taxes 



188 ATTORNEY GENERAL'S REPORT. [Jan. 

assessed upon the estate held in trust hy mxj trustees not including any 
tax assessed by the government of the United States. Should the town 
of Deerfield refuse or neglect for the space of one year to complj^ with 
this condition, then I give and bequeath my entire estate {except the lega- 
cies to private individuals) to the town of Whately, for the establishment 
of a high school and library on the same principles as designated for the 
town of Deerfield. 

St. 1876, c. 97, § 1, provides: — 

For the purpose of encouraging the estabhshment of a high school, 
Hbrary and reading-room, under the will of Mrs. Esther Dickinson, 
late of Deerfield, deceased, and of obviating certain objectioas which 
now exist to the execution of the trusts thereby created, all the estate 
real and personal held in trust under said will for the purpose aforesaid, 
shall be exempt from all manner of taxes, rates and impositions, so 
soon and so long as the trustees shall maintain the high school, library 
and reading-room therein provided for: provided, however, that this 
act shall not take effect unless accepted by the town of Deerfield on 
or before the fifteenth day of June next, at a regular annual town 
meeting, or a town meeting called for the purpose. 

Section 2 incorporated the trustees of the Deerfield Academy 
and Dickinson High School. 

On April 10, 1876, the town voted to accept said St. 1876, 
c. 97. 

Of late the town has made appropriations for the support of 
said school. 

Mass. Const. Amend. XLVI, § 2, provides: — 

All moneys raised by taxation in the towns and cities for the support 
of public schools, and all moneys which may be appropriated by the 
commonwealth for the support of common schools shall be applied to, 
and expended in, no other schools than those which are conducted 
according to law, under the order and superintendence of the authori- 
ties of the town or city in which the money is expended; and no grant, 
appropriation or use of pubhc money or property or loan of public 
credit shall be made or authorized by the commonwealth or any polit- 
ical division thereof for the purpose of founding, maintaining or 
aiding any school or institution of learning, whether under public 
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 owned and under the exclusive control, order and superin- 
tendence of public officers or public agents authorized by the common- 
wealth or federal authority or both, except that appropriations may 
be made for the maintenance and support of the Soldiers' Home in 



1923.] PUBLIC DOCUIVIENT — No. 12. 189 

Massachusetts and for free public libraries in any city or town, and to 
carry out legal obligations, if any, already entered into; and no such 
grant, appropriation or use of public money or propertj^ or loan of 
pubhc credit shall be made or authorized for the purpose of founding, 
maintaining or aiding any church, religious denomination or society. 

You inquire whether, upon the above facts, there was any 
*' legal obligation . . . already entered into" by the towm, 
prior to the adoption of said amendment on Nov. 6, 1917, by 
which the town v»'as and is bound to appropriate public 
money for the support of said school. 

The Attorney General has no power to determine the facts 
upon which he advises. That must be done by the department 
by w^hom the inquiry is made. While 3'our letter does not ex- 
pressly state that you find the above facts to be true, I have 
assumed that such was the case. 

Your letter discloses that your inquiry is made in order 
to determine whether the town of Deerfield should be ex- 
empted, under G. L., c. 71, § 4, from maintaining a high 
school. It appears that the Deerfield Academy and Dickin- 
son High School is not under public control, within the 
meaning of Mass. Const. Amend. XLVI. St. 1876, c. 97. 
It further appears that the town is appropriating public money 
to the support of said school. If Deerfield is providing high 
school facilities at public expense in a manner forbidden by 
Mass. Const. Amend. XLVI, such facilities w^ould not justify 
your department in exempting the town from the statutory 
duty to maintain a high school, imposed by G. L., c. 71, § 4. 
Opinion, Attorney General to Commissioner of Education, 
April 6, 1922. Upon the facts presented by you, the deter- 
mination of that question depends upon whether the town is 
under a legal obligation to make the appropriations which it has 
made to the Deerfield Academy and Dickinson High School. 

The exception touching "legal obligations . . . already en- 
tered into" was undoubtedly inserted in Mass. Const. Amend. 
XLVI in order to save it from possible conflict with U. S. 
Const., art. I, § 10, which forbids any State to pass any "law 
impairing the obligation of contracts." The exception must 
therefore be construed to mean lawful contracts entered into 
prior to the adoption of the amendment, and still existing, w^hich 
are within the protection of said U. S. Const., art. I, § 10. The 
question whether the town of Deerfield entered into such a con- 
tract with the academy, and w^hether such contract, if any, justi- 
fies the appropriations made to the academy by the town, are 



190 ATTORNEY GENERAL'S REPORT. [Jan. 

questions of fact to be determined by your department in de- 
ciding whether or not to exempt the town under G. L., c. 71, 
§ 4. I can only advise you whether the facts submitted by you 
do or do not, as matter of law, warrant a finding that such a 
contract now exists. Opinion, Attorney General to Commis- 
sioner of Education, May 24, 1922. 

The quoted portion of Mrs. Dickinson's will, coupled with 
acceptance of the bequest upon the part of the town, does not, 
in my opinion, warrant a finding that the town contracted to 
make the designated appropriation " annually. " There is serious 
doubt whether the town could have so bound itself even if it had 
desired to do so. Drury v. Natick, 10 Allen, 169, 183. But the 
will does not require such an agreement on the part of the town. 
Instead, the will imposes a condition, to be annually fulfilled, 
violation of which entails a forfeiture of the property. The pro- 
vision for a forfeiture of the bequest for breach of the condition 
is not a contract upon the part of the town upon which the con- 
dition is imposed. The town is left free either to fulfil the con- 
dition or to give up the property. The threat of forfeiture is 
an inducement to perform the condition, but it is not an obli- 
gation to do so. No action would lie to recover the desig- 
nated appropriation in case the town failed to make it. 

Even if the condition imposed by the will upon the town 
could be held to be a contract by the town to fulfil it, I am 
of opinion that it would not warrant any appropriation by 
the town at the present time. When the town accepted 
St. 1876, c. 97, all the real and personal property of the 
trust was exempted from taxation in the manner therein 
provided. That statute is still in force. No State taxes are 
assessed upon the property. If no State taxes are assessed 
upon the property, no obligation to appropriate a sum equal 
to such taxes can or does arise. The exemption from taxes 
is the equivalent of an appropriation to pay them. If the 
condition be satisfied, no further appropriation can be rested 
upon any assumed (but in my opinion non-existent) obligation 
to fulfil it. 

I am therefore constrained to advise you that, in my 
opinion, the facts submitted by you do not, as matter of 
law, warrant any finding by you that there is any legal 
obligation upon the town to appropriate public money to 
this academy. 

Yours very truly, 

J. Weston Allen, Attorney General. 



1923.] PUBLIC DOCUMENT — No. 12. 191 



Banks arid Banking — Property of Insolvent Private Banker in 
Possession of Commissioner of Banks, under G. L., c. 167, 
§§ 1 and 22 — Right of Banker's Administrator to ad- 
minister Such Property. 

Where the Commissioner of Banks takes possession of the property of an 
insolvent private banker, under G. L., c. 167, §§1 and 22, the bond 
given by such banker, under G. L., c. 169, §§2 and 3, is not an asset 
of the estate of such banker after his decease, and neither that bond 
nor its proceeds should be surrendered by the Commissioner to the 
administrator of such banker. 

Where the Commissioner of Banks takes possession of the property of an 
insolvent private banker, under G. L., c. 167, §§ 1 and 22, and such 
banker fails to contest his right so to do within the ten days prescribed 
by section 33, and thereafter dies, his administrator succeeds only 
to the rights of his intestate, and is likewise barred. 

July 12, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You ask my opinion upon the following 
facts : — 

Acting under G. L., c. 167, §§ 1 and 22, on Feb. 11, 1921, you took 
possession of the property and business of F, a private banker. I 
assume, therefore, that you found that said F was not only conducting 
the business defined in G. L., c. 169, § 1, but was also "doing a banking 
business in the commonwealth under the supervision of the commis- 
sioner, " within the meaning of G. L., c. 167, § 1, and that the cir- 
cumstances rendered said section 22 applicable. You further state 
that said F conducted the business of a private banker as an individual, 
that he carried all his assets, both real and personal, upon the books 
of the bank, and that you took possession of all said assets whenever 
discovered. Said general assets consisted principally of real estate 
which has not been sold. Under the provisions of G. L., c. 169, §§2 
and 3, said F filed a bond in the sum of $200,000, and out of the pro- 
ceeds of this bond a dividend of 25 per cent has been paid, leaving a 
balance of between $6,000 and $7,000 therefrom which is still undis- 
tributed. Said F died subsequently to Feb. 11, 1921, and an adminis- 
trator of his estate has been appointed. You inquire whether you 
should surrender to such administrator (1) the said general assets, 
and (2) the balance of the proceeds of said bond given under G. L., 
c. 169, §§2 and 3. You do not state what, if any, demand has been 
made upon 3^ou by said administrator. For convenience I shall 
consider these questions in the reverse order. 

1. G. L., c. 169, § 2, provides, in part, as follows: — 



192 ATTORNEY GENERAL'S REPORT. [Jan. 

All persons subject to this chapter shall, before entering into or 
continuing in any business described in section one, make, execute 
and deliver a bond to the state treasurer in such sum as the commis- 
sioner of banks, in this chapter called the commissioner, may deem 
necessary to cover money or deposits received for the purposes men- 
tioned in said section by such persons, the bond to be conditioned 
upon the faithful holding and repaj^nent of the money deposited, and 
upon the faithful holding and transmission of any money, or equivalent 
thereof, which shall be delivered to them for transmission to a foreign 
country, and in the event of the iasolvencj^ or bankruptcy of the 
principal upon the payment of the full amount of such bond to the 
assignee, receiver or trustee of the principal, as the case may require, 
for the benefit of such persons as shall deliver money to said principal 
for safe keeping or for the purpose of transmitting the same to a foreign 
countrj^ . . . 

The bond required by this section is not an asset of the 
banker. It is a liability. Russo v. Chapin, 197 Mass. 64. 
G. L., c. 169, § 3, further provides, in part: — 

. . . The money and securities deposited with the state treasurer 
as herein provided, and the money which in case of default shall be 
paid on the aforesaid bond by any licensee or the surety thereof, shall 
constitute a trust fund for the benefit of such persons as shall deliver 
money to the licensee for safe keeping or for the purpose of transmitting 
the same to foreign countries, and such beneficiaries shall be entitled 
to an absolute preference as to such money or securities over all general 
creditors of the licensee. . . . 

Under these circumstances it seems plain that the adminis- 
trator of the defaulting banker has no claim to any part of 
the proceeds of said bond. 

2. In taking possession of a ''bank," under G. L., c. 167, 
§ 22, ct seq., the Commissioner of Banks exerts administrative 
powers conferred upon him by statute. Greenfield Savings 
Bank v. Commonwealth, 211 Mass. 207; Commomvealth v. 
Commissioner of Banks, 240 Mass. 244. The statute covers 
the entire field and provides a comprehensive and exclusive 
scheme for the liquidation of such "bank." CommoniveaUh 
V. Commissioner of Banks, swpra. Section 33 provides a 
mode in which the "bank" may contest the right of the 
Commissioner to take possession. In my opinion, this remedy 
is exclusive. x\s such remedy must be invoked within ten 
days after the Commissioner takes possession, I assume that 
F did not successfully avail himself of it, and that it had been 



1923.] PUBLIC DOCUMENT — No. 12. 193 

lost prior to F's death. If F was barred of this exclusive 
remedy prior to his death, F's administrator could not suc- 
ceed to it. I am therefore of opinion that upon the facts 
presented the rights of F's administrator cannot rise higher 
than the rights of F at the time of F's death. Accordingly, 
I advise you that unless and until a court of competent 
jurisdiction shall order you to surrender the property in your 
possession, or some part thereof, to F's administrator, you 
should retain it and conduct the liquidation according to 
law. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Retirement — Pension — Perquisites. 

The right of the superintendent of the State Farm to reside there, with 
his family, is a perquisite and not a part of his salary. 

The value of the family maintenance of such superintendent cannot be 
considered in determining the amount of his pension upon retirement. 

July 13, 1922. 
Hon. Sanford Bates, Commissioner of Correction. 

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

The superintendent of the State Farm at Bridgewater, 
whose retirement you are about to recommend, has in addi- 
tion to receiving a salary of $4,000 been permitted to reside 
with his family at the State Farm. Last year the State 
Income Tax Division assessed a tax on the basis of an income 
of $4,425, and the tax so assessed was paid. His mainte- 
nance for many years has been worth at least $425 to him. 
You desire to know whether upon retirement the superin- 
tendent should be allowed a pension equal to one-half of 
$4,000 or one-half of $4,000 plus one-half the value of his 
family maintenance. 

G. L., c. 32, § 48, provides, in part: — 

An officer, instructor or emploj^ee who is retired under section forty- 
six shall be allowed a pension equal to one half of the salary which he 
was receiving at liis retirement. . . . 

G. L., c. 125, § 47, provides: — 



194 ATTORNEY GENERAL'S REPORT. [Jan. 

The superintendent and phj^sician may reside \vith. their famihes 
at the state farm. The superintendent shall receive no perquisites 
for his services except as aforesaid. 

The statute thus refers to the family maintenance as a 
perquisite. A ''perquisite," as defined by Webster in the 
International Dictionary, is ''a gain or profit incidentally 
made from employment in addition to regular salary or 
wages." A similar definition is given by Bouvier's Law 
Dictionary and by " Words and Phrases. " It therefore 
seems clear that the right of the superintendent and his 
family to reside at the State Farm is in the nature of a 
privilege granted by the Commonwealth, and is not part of 
his salary, within the purview of G. L., c. 32, § 48. See 
also III Op. Atty. Gen. 128, 141. 

I am therefore of the opinion that the salary of the superin- 
tendent of the State Farm at Bridgewater is $4,000, and that 
upon retirement he should be allowed a pension equal to 
one-half of that amount. 

Very truly yours, 

J. Weston Allen, Atiorney General. 



Board of Health — Public Funds — Appropriation — Emerge7icy. 

The failure on the part of a town to appropriate a reasonable sum of money 
for board of health work does not constitute an emergency, within 
the meaning of G. L., c. 44, § 31, but if a case of extreme emergency, 
as therein defined, should arise, the selectmen of a town, who act as a 
board of health, could incur liability in excess of the appropriation 
made for the use of such department to the extent of adequately 
caring for the emergency existing. 

July 25, 1922. 
Eugene R. Kelley, M.D., Commissioner of Public Health. 

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

1. As to whether or not the failure on the part of a town to appro- 
priate a reasonable sum of money for board of health work does not 
constitute an emergency whereby it would be permissible to expend 
public funds which have not been specifically appropriated. 

2. What is the proper procedure for the local board to adopt where 
no reasonable fund has been appropriated? 



1923.] PUBLIC DOCUMENT — No. 12. 195 

The powers and duties vested in boards of health of cities 
and towns under the present law are broad and comprehen- 
sive. G. L., c. Ill, enumerates many of these, among 
which are the following: organization, section 27; regula- 
tions, section 31; report of diseases to State Department of 
Public Health, section 112; householders to report to local 
boards of health, section 109; local board of health to examine 
nuisances, section 122; duties relative to vaccination, sec- 
tions 181-183; control of communicable diseases, section 122. 
These and many other duties imposed upon local boards of 
health all require and involve the expenditure of money. 

G. L., c. 40, § 5, par. (19), authorizes the expenditure of 
money by towns for board of health purposes in the following 
language : — 

A town may at any town meeting appropriate money for the fol- 
lo'v^'ing purposes : 

(19) For the performance of the duties of the board of health and 
for the establishment and maintenance of hospitals, or of beds therein, 
sanitary stations, chnics, dispensaries and quarantine grounds, and 
for the care of indigent persons suffering from disease, in accordance 
with the provisions of chapter one hundred and eleven. 

It is a fixed principle that cities and towns shall not incur 
liability in excess of appropriations. An exception to this 
rule exists *'in cases of extreme emergency involving the 
health or safety of persons or property." This authority is 
conferred by G. L., c. 44, § 31, as follows: — 

No department of any city or town, except Boston, shall incur 
liability in excess of the appropriation made for the use of such depart- 
ment, except in cases of extreme emergency involving the health or 
safety of persons or property, and then only by a vote in a city of two 
thirds of the members of the city council, and in a town by a vote of 
two thirds of the selectmen. 

I am informed that in the town of Rowe, to which your 
inquiry especially pertains, the selectmen also act as the 
board of health, as is the case in many other towns. No 
separate appropriation for the salary of such members of the 
board of health is therefore necessary, and I am accordingly 
of the opinion that the failure on the part of the town to 
appropriate a reasonable sum of money for board of health 



196 ATTORNEY GENERAL'S REPORT. [Jan. 

work does not constitute an emergency, within the meaning of 
G. L., c. 44, § 31, supra, and I so answer your first question. 
It would seem that your second question is answered by 
the provisions of law above quoted, for if a case of "extreme 
emergency," as defined in section 31, supra, should arise, the 
selectmen of such towns, acting as a board of health, could 
incur liability in excess of the appropriation made for the use 
of such department to the extent of adequately caring for the 
emergency existing. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Ordinances — Fruits and Vegetables — Hawkers and Pedlers — 

License. 

G. L., c. 101, § 22, is to be construed as an assumption by the Common- 
wealth of the right to regulate the sale by hawkers and pedlers, in 
any city or town mentioned in the license, of any fish, fruits, vege- 
tables or other goods, wares or merchandise, the sale of which is not 
prohibited by law; and while the aldermen or selectmen may license 
the sale of fish, fruit and vegetables within their respective territories, 
under the authority conferred by G. L., c. 101, § 17, they have no 
legal right or power to prohibit the sale of said articles by hawkers 
and pedlers duly licensed by the Director of Standards, regardless of 
whether a local license has or has not been granted therefor. 

Aug. 8, 1922. 
E. Leroy Sweetser, Esq., Commissioner of Labor and Industries. 

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

Has a city or town any legal authoritj'' to restrain or limit the exercise 
of a State license in the sale of fruits and vegetables in such municipality 
by adopting ordinances, bj'-laws or regulations prohibiting the sale of 
fruits and vegetables by hawkers and pedlers unless a local license has 
been granted therefor. 

The general question which arises, where a by-law of a 
town or ordinance of a city is concerned, is whether it is 
authorized by a statute, and whether it is reasonable. See 
Commonwealth v. Stodder, 2 Cush. 562; Commonwealth v. 
Crouminshield, 187 Mass. 221. 

The right of towns and cities to require the licensing of 
hawkers and pedlers of fish, fruit and vegetables is conferred 
by G. L., c. 101, § 17, which provides as follows: — 



1923.] PUBLIC DOCUMENT — No. 12. 197 

• Hawkers and pedlers may sell without a license books, newspapers, 
pamphlets, fuel, provisions, yeast, ice, live animals, brooms, agricul- 
tural implements, hand tools used in making boots and shoes, gas or 
electric fixtures and appliances, flowering plants and all flowers, fruits, 
nuts and berries that are uncultivated. The aldermen or selectmen 
may bj^ regulations, not inconsistent with this chapter, regulate the 
sale or barter, and the carrying for sale or barter or exposing therefor, 
by hawkers and pedlers, of said articles without the payment of any 
fee; may in like manner require hawkers and pedlers of fish, fruit and 
vegetables to be licensed except as otherwise provided, and may make 
regulations governing the same, provided that the license fee does not 
exceed that prescribed by section twenty-two for a license embracing 
the same territorial limits; and may in like manner affix penalties for 
violations of such regulations not to exceed the sum of twenty dollars 
for each such violation. A hawker and pedler of fish, fruit and vege- 
tables licensed under this section need not be licensed under section 
twenty-two. 

G. L., c. 101, § 22, provides as follows: — 

The director maj^ grant a license to go about carrjdng for sale or 
barter, exposing therefor and seUing or bartering any goods, wares or 
merchandise, the sale of which is not prohibited by section sixteen, 
to any person who files in his office a certificate signed by the mayor 
or by a majority of the selectmen, stating that to the best of his or 
their knowledge and belief the applicant therein named is of good 
repute as to morals and integrity, and is, or has declared his intention 
to become, a citizen of the United States. The mayor or selectmen, 
before granting such certificate, shall require the applicant to make 
oath that he is the person named therein, and that he is, or has de- 
clared his intention to become, a citizen of the United States. The 
oath shall be certified by an officer duly qualified to administer oaths 
and shall accompany the certificate. The director shall cause to be 
inserted in every such license the amount of the license fee and the 
name of the town for which it is issued. The licensee may go about 
carrying for sale or barter, exposing therefor and selling or bartering 
in any town mentioned in his license any fish, fruits, vegetables or 
other goods, wares or merchandise, not prohibited in section sixteen, 
upon payment to the director of the following fees: for each town 
containing not more than one thousand inhabitants, according to the 
then latest census, state or national, four dollars; for each town con- 
taining more than one thousand and not more than two thousand 
inhabitants, seven dollars; for each town containing more than two 
thousand and not more than three thousand inhabitants, nine dollars; 
for each town containing more than three thousand and not more than 
four thousand inhabitants, eleven dollars; and for each city and each 
other town, eleven dollars, and one dollar for every one thousand 



198 ATTORNEY GENERAL'S REPORT. [Jan. 

inhabitants thereof over four thousand; but the fee shall in no case 
exceed twenty-six dollars, and the amount paid shall be certified on 
the face of the license. The director shall retain one dollar for every 
city and town named in each of the above described licenses, and shall 
pay over to the respective cities and towns at least semi-annually the 
balance of said fees so received. The director may grant, as aforesaid, 
special state licenses upon pajnuent by the applicant of fift}^ dollars 
for each license; and the licensee may go about carrying for sale or 
barter, exposing therefor and selling or bartering in any city or town 
in the commonwealth any fish, fruits, vegetables, or other goods, 
wares or merchandise, the sale of which is not prohibited bj^ statute. 

It is to be observed that section 17 applies to the hawking 
and peddling of the specific articles therein mentioned, while 
section 22 vests in the Director of Standards the authority 
to grant a license to go about carrying for sale or barter 
"any goods, wares or merchandise," including fish, fruits 
and vegetables, the sale of which is not prohibited by G. L., 
c. 101, § 16, which forbids the sale by hawkers or pedlers of 
jewelry, furs, wines, spirituous liquors and playing cards. It 
is also significant that said section 17, in conferring authority 
upon aldermen of cities or selectmen of towns to require 
hawkers and pedlers of fish, fruit and vegetables to be licensed, 
contains the phrase "except as otherwise provided," and that 
said section 22 specifically confers upon the hawker or pedler 
acting under a license given by the Director of Standards 
authority to go about carrying for sale or barter, exposing 
therefor and selling or bartering "in any town mentioned in 
his license" any fish, fruits, vegetables or other goods, wares 
or merchandise not prohibited in said section 16, and fixes 
the fees for such licenses according to the number of in- 
habitants of the respective towns, as shown by the latest 
census. 

In the case of Greene v. Mayor of Fitchhurg, 219 Mass. 121, 
it was decided that the express authority given by R. L., 
c. 65, § 15, as amended by St. 1906, c. 345 (now G. L., c. 101, 
§ 17), to cities and towns to license the sale by hawkers and 
pedlers of fruits and vegetables must be interpreted as ex- 
cluding any authority in cities and towns to require a license 
for the sale of the other articles mentioned in that section, 
and it accordingly follow^s that cities and towns have no 
authority to require licenses of hawkers and pedlers before 
permitting them to sell the articles described in that section, 
other than fruits and vegetables. 



1923.] PUBLIC DOCUMENT — No. 12. 199 

If a city or town has in fact licensed the hawking and 
peddling of fish, fruit and vegetables, there is no necessity for 
the obtaining of a license under section 22, covering the sale 
of said articles in such city or town. 

But if, on the other hand, a license has been granted by 
the director under section 22, no other license is required to 
enable the licensee to sell as a hawker and pedler fish, fruit 
and vegetables in any city or tovv^n in the Commonwealth. 

It is to be observed that the statute (section 17) does not 
confer any authority upon cities and towns to enact ordi- 
nances and by-laws regulating the sale by haw^kers and ped- 
lers of the aforesaid articles. Such authority, in fact, existed 
under R. L., c, 65, § 15, and subsequent amendments thereto. 
St. 1920, c. 591, § 20, repealed said section and substituted 
in place thereof the present law embodied in section 17, 
which confers upon the aldermen of cities and the selectmen 
of towns the authority to impose regulations upon, and to 
require licenses by, such hawkers and pedlers. But it is 
expressly provided therein that such regulations, if made, 
shall be ''not inconsistent with the provisions of this chapter." 

I am accordingly of the opinion that section 22 is to be 
construed as an assumption by the Commonwealth of the 
right to regulate the sale by hawkers and pedlers, in any city 
or town mentioned in the license, of any fish, fruits, vege- 
tables or other goods, wares or merchandise, the sale of which 
is not prohibited by law; and that while the aldermen or 
selectmen may license the sale of fish, fruit and vegetables 
within their respective territories, under the authority con- 
ferred by section 17, they have no legal right or power to 
prohibit the sale of said articles therein by hawkers and 
pedlers duly licensed by the director under section 22, regard- 
less of whether a local license has or has not been granted 
therefor. 

Yours very truly, 

J. Weston Allen, Attorney General. 



200 ATTORNEY GENERAL'S REPORT. [Jan. 



Commonwealth — Back Bay Lands — Enforccme7it of Restric- 
tions. 

Even though the Commonwealth has sold all of its lands in the Back Bay 
(Boston), it may, in its sovereign capacity, enforce restrictions im- 
posed by it in the deeds conveying such lands. 

Under G. L., c. 91, § 37, grantees of the Commonwealth may enforce in 
equity, in the manner and under the conditions defined in that section, 
restrictions imposed upon lands in the Back Bay by the Common- 
wealth. 

Unless a public interest in enforcing such restrictions is disclosed, the 
Commonwealth should leave its grantees to the remedy provided by 
G. L., c. 91, § 37. 

Aug. 9, 1922. 
Hon. John N. Cole, Commissioner of Public Works. 

Dear Sir: — You submit certain correspondence from 
which it appears that certain real estate owners in the Back 
Bay hold under deeds from the Commonwealth to them or 
their predecessors in title, which deeds impose certain restric- 
tions upon the use of said premises and reserve a right to the 
Commonwealth to enter upon the premises, and, at the 
expense of the party at fault, to remove or alter any building 
or portion thereof which may be erected in violation of the 
restrictions. Certain other owners who hold under similar 
deeds from the Commonwealth to them or their predecessors 
are proposing to erect private garages upon their lots. It 
appears that the Commonwealth has sold all its lands in the 
Back Bay area. You inquire whether the erection of said 
garages is in violation of the restrictions imposed by said 
deeds from the Commonwealth, and if so, what your duty 
is under G. L., c. 91, § 37, which provides: — 

If the commonwealth has the right under stipulations in a deed 
given in its name to enter upon premises and, at the expense of the 
part}' at fault, to remove or alter a building, any of its grantees under 
similar deeds, their heirs, legal representatives or assigns may institute 
proceedings in equity to compel the division to enforce such stipula- 
tions. 

When the Back Bay lands were laid out by the Common- 
wealth it imposed certain restrictions as a part of the scheme 
of development. Even though it has disposed of all its lands, 
it may still enforce these restrictions in its sovereign capacity 
by an information in equity in the name of the Attorney 
General. Attorney General v. Williams, 140 Mass. 329; 



1923.] PUBLIC DOCUMENT — No. 12. 201 

Attorney General v. Gardiner, 117 Mass. 492. On the other 
hand, the several grantees of the Commonwealth have a 
private remedy, as between themselves, by a proceeding 
under G. L., c. 91, § 37, to which the Commonwealth, by 
the Division of Waterways and Public Lands of the Depart- 
ment of Public Works, is a party, because the Common- 
wealth holds the restrictions in trust for the benefit of all 
its grantees. Attorney General v. Williams, 140 Mass. 329, 
331. 

The question whether the Commonwealth should proceed 
by an information in the name of the Attorney General or 
should leave its grantees to assert such rights as they may 
have in the manner provided in G. L., c. 91, § 37, depends 
primarily upon whether a public or a private interest is 
involved. Litigation necessarily involves risk, burden and 
expense. Public money cannot be spent for a private pur- 
pose. Whittaker v. Salem, 216 Mass. 483. It ought not to 
be spent for a purpose nominally public and in fact private. 
To bring an information in the name of the Attorney General 
in order to enforce these restrictions against one grantee for 
the private benefit of another grantee would in effect be an 
expenditure of public money for a private purpose. In such 
a case the risk, burden and expense of the controversy should 
fall upon the party who is in effect asserting his private 
right. Unless, therefore, a public interest is disclosed, the 
question whether or not these restrictions have been violated 
ma}^ properly be left to a proceeding under G. L., c. 91, § 37. 
Laivrence v. Smith, 201 Mass. 214. 

Your inquiry and the correspondence attached do not dis- 
close that any interest of the Commonwealth is involved. 
It appears that the Commonwealth has sold all its lands 
in the Back Bay area. Certain grantees of the Common- 
wealth or their successors in title object to the erection of 
private garages upon the lands of other grantees of the Com- 
monwealth or their successors in title. The fact that the 
controversy arises under restrictions imposed by the Common- 
wealth does not necessarily give to it a public character. 
See Lawrence v. Smith, 201 Mass. 214. It does not appear 
to differ in any practical respect from a similar question 
arising under restrictions imposed by a private grantor. See 
Riverbank Improvement Co. v. Bancroft, 209 Mass. 217. Under 
these circumstances, I perceive no reason why the Common- 
wealth should assume the risk and expense of litigation de- 



202 ATTORNEY GENERAL'S REPORT. [Jan. 

signed to determine this question for the benefit of certain 
of its grantees as against other grantees. Even if it be a 
trustee for the benefit of all its grantees, no reason appears 
wh}^ it should take sides at the expense of the general tax- 
payer as between its beneficiaries. In my opinion, the parties 
should be left to their remedy under G. L., c. 91, § 37. 

That proceeding, if brought, will determine the question. 
It is therefore unnecessary to decide whether the erection of 
such garages does or does not violate the restrictions in 
question. In my opinion, your department should await such 
action as the objectors may take under G. L., c. 91, § 37. 
Yours very truly, 

J. Weston Allen, Attorney General. 



License — Permit to store Gasoline — Permit to erect a Garage — 
Fire Marshal — Street Commissioners of Boston. 

The authority vested in the Fire Marshal by G. L., c. 148, §§ 30, 31 and 
45 (formerly St. 1914, c. 795), to issue permits for the storage of 
gasoline is entirely distinct from the authority vested in the street 
commissioners of Boston by St. 1913, c. 577, as amended, to issue 
permits for the erection of garages; and the authority so vested in 
the Fire Marshal does not depend upon the issuance of a permit to 
erect a garage, and is not affected by St. 1922, c. 316. 

Aug. 19, 1922. 
Col. A. F. FooTE, Commissioner of Public Safety. 

Dear Sir: — You state, in substance, the following facts: — 

Acting under St. 1913, c. 577, as amended by St. 1914, c. 119, the 
street commissioners of the city of Boston, on Sept. 13, 1921, issued a 
permit to a certain corporation to erect a garage in Charlestown on 
land bounded on three sides by Tremont, Edge worth and Ferrin 
streets. At the same time the street commissioners, acting under 
authority delegated by the Fire Marshal under G. L., c. 148, §§ 30, 
31 and 45, issued a permit to store gasoline on said premises, from 
which an appeal to the Fire Marshal was taken under said section 45. 
On Dec. 19, 1921, the street commissioners, without hearing, voted to 
revoke both permits. On June 29, 1922, the Supreme Judicial Court, 
in General Baking Co. v. O^Callaghan, held that the permit to erect 
the garage had not been effectively revoked.^ By St. 1922, c. 316, 
which was approved on April 18, 1922, and was accepted bj^ the city of 
Boston on May 1, 1922, the Legislature amended St. 1914, c. 119, 
so as to prohibit the issue of a permit for the erection, maintenance or 
use of any building as a garage for more than four cars on the same 



1923.] PUBLIC DOCUMENT - No. 12. 203 

street as, and within 500 feet of anj^ building occupied as, a public or 
private school. Section 2 of said act excepted garages "maintained" 
at the time of the passage of this act. You state that upon Edge worth 
Street there is located a school within 100 feet of the wall of the pro- 
posed garage, but that the garage will not have an entrance on Edge- 
worth Street. 

On these facts you inquire (1) whether St. 1922, c. 316, 
has affected the validity of the license to erect the garage 
previously granted by the street commissioners; and (2) 
whether the State Fire Marshal has power to act upon the 
appeal from the issue of the permit to store gasoline. I shall 
deal with these questions in reverse order. 

1. Under St. 1914, c. 795, since re-enacted as G. L., 
c. 148, §§ 30, 31 and 45, power to grant permits for the storage 
of gasoline is vested in the Fire Marshal. This authority is 
entirely distinct from the power to issue permits for the 
erection of garages, which is vested in the street commissioners 
of Boston by St. 1913, c. 577, as amended by St. 1914, 
c. 119, and St. 1922, c. 316. V Op. Atty. Gen. 718; Attorney 
General's report, 1921, 320. The issue by the street com- 
missioners of a permit to erect a garage is not in law a con- 
dition precedent to the issue by the Fire Marshal of a permit 
to store gasoline. The permit to store gasoline may be 
issued for a purpose wholly unconnected with a garage. St. 
1922, c. 316, does not amend or affect the power of the Fire 
Marshal to issue permits for the storage of gasoline. On the 
contrary, it expressly amends the statute under which the 
street commissioners issue permits for the erection of garages. 
It follows that the power of the Fire Marshal to hear and 
determine an appeal from the issue of the permit to store 
gasoline is not affected by St. 1922, c. 316. 

2. Your inquiry as to the effect of St. 1922, c. 316, upon 
the permit to erect the garage previously issued by the street 
commissioners presents a legal question which you need not 
consider. St. 1913, c. 577, as amended, is distinctly a home 
rule measure, and in its enforcement the State officials have 
no concern. V Op. Atty. Gen. 718. It is therefore un- 
necessary to answer this question. 

Yours very truly, 

J. Weston Allen, Attorney General. 



204 ATTORNEY GENERAL'S REPORT. [Jan. 



Constitutional Laiv — Fuel Administrator — Power to fix Price 
of Fuel in Time of Emergency — ■ Poiver of Governor to 
determine whether Emergency exists. 

-Those portions of Gen. St. 1917, c. 342, relating to the appointment, 
duties, authority and powers of a fuel administrator, which are revived 
and made operative until April 1, 1923, by St. 1922, c. 544, confer 
power upon the Governor, ''when in his opinion the public exigency 
so requires," to fix reasonable prices for fuel during the period of the 
emergency, and to delegate power to such persons as he may select, 
to do in his name whatever may be necessary to carry said powers 
into effect; and as so construed the statute is not unconstitutional. 

Under the police power and the authority conferred by Mass. Const. 
Amend. XL VII, the General Court has power to provide for distri- 
bution of fuel at reasonable rates in time of public emergency, and to 
that end may authorize the Governor to determine whether such 
emergency exists, to fix reasonable prices for fuel during the continu- 
ance of the emergency, and to delegate to persons selected by him 
power to do in his name whatever may be necessary to carry said 
powers into effect. 

Aug. 21, 1922. 

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

Sir: — You inquire (1) whether St. 1922, c. 544, is con- 
stitutional; (2) whether, if a Fuel Administrator were ap- 
pointed under it, such Fuel Administrator would have power 
to fix the price of coal sold within the Commonwealth. 

St. 1922, c. 544, is as follow^s: — 

An Act authorizing the Appointment by the Governor of a 
Fuel Administrator. 

Whereas, In order to secure an adequate supply of fuel for the 
citizens of Massachusetts in the event of an emergency, the services 
of a fuel administrator are necessary, and whereas, the provisions of 
the Commonwealth Defence Act of nineteen hundred and seventeen 
have become inoperative, therefore this act is hereby declared to be an 
emergenc}^ 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 1917, being 
chapter three hundred and fortj^-two of the General Acts of nineteen 
hundred and seventeen, relating to the appointment, duties, authority 
and powers of a fuel administrator, are hereby revived and made opera- 
tive until April first, nineteen hundred and twenty-three. 



1923.] PUBLIC DOCUMENT - No. 12. 205 

Gen. St. 1917, c. 342, contains the following provisions: — 



Section 6. Whenever the governor shall believe it necessary or 
expedient for the purpose of better securing the pubhc safety or the 
defence or welfare of the commonwealth, he may uith the approval of 
the council take possession: (a) Of any land or buildings, machinery 
or equipment, (b) Of any horses, vehicles, motor vehicles, aeroplanes, 
ships, boats, or anj^ other means of conveyance, rolling stock of steam 
or electric railroads or of street railways, (c) Of any cattle, poultry 
and any provisions for man or beast, and any fuel, gasoline or other 
means of propulsion which may be necessary or convenient for the 
use of the mihtary or naval forces of the commonwealth or of the 
United States, or for the better protection or welfare of the common- 
wealth or its inhabitants. He may use and employ all property so 
taken possession of for the service of the commonwealth or of the 
United States, for such times and in such manner as he shall deem for 
the interests of the commonwealth or its inhabitants, and may in 
particular, when in his opinion the public exigency so requires, sell or 
distribute gratuitously^ to or among any or all of the inhabitants of the 
commonwealth anything taken under clause (c) of this section and 
may fix minimum and maximum prices therefor. He shall, with the 
approval of the council, award reasonable compensation to the owners 
of any property of which he msLj take possession under the provisions 
of this section and for its use, and for any injmy thereto or destruction 
thereof caused by such use. 

Section 7. Any owner of property of which possession has been 
taken under section six of this act, to whom no award has been made, 
or who is dissatisfied with the amount awarded him by the governor 
and council as compensation, may file a petition in the superior court 
to have the amount to which he is entitled by way of damages deter- 
mined. Either the petitioner or the commonwealth shall have the 
right to have the amount of such damages fixed by a jury in the said 
court upon making claim in such manner as the court maj^ have pro- 
vided or shall provide by its rules. 

Section 8. The petition provided for by section seven of this act 
may be filed either in the county in which the petitioner lives or has 
his usual place of business, if the petitioner either lives or has a usual 
place of business in the commonwealth, or otherwise in the county of 
Suffolk. The petition shall be brought within one year after the date 
when possession of the property was taken under section six of this 
act, and except as is otherwise provided herein, shall be heard and 
determined in accordance with the provisions of chapter two hundred 
and one of the Revised Laws and all acts in amendment thereof or in 
addition thereto. 

Section 9. Upon such petition full damages shall be awarded 
whether or not the same had fully accrued at the time of the filing of 



206 ATTORNEY GENERAL'S REPORT. [Jan. 

the petition, and, whenever necessary, the hearing on the petition 
shall on the application of either the petitioner or the commonwealth 
be continued for assessment of damages until the same are fully ascer- 
tained. 



Section 12. Whenever the governor shall determine that cir- 
cumstances warrant the exercise by him of all or any of the powers con- 
ferred on him by this act, he may, ^vith the approval of the council, 
by writings signed by him, confer upon such officials of the common- 
wealth 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 carrj^ the said powers into effect. He maj^ re- 
voke such written authority at any time. 

On Oct. 6, 1920, the Governor, acting under the authority 
of Gen. St. 1917, c. 342, as continued to Jan. 1, 1922, by St. 
1920, c. 610 (an act substantially similar to St. 1922, c. 544), 
appointed a Fuel Administrator, to hold said office until 
Jan. 1, 1922. It thus appears that the powers revived and 
made operative by St. 1922, c. 544, have been exercised in 
this Commonwealth from Oct. 6, 1920, to Jan. 1, 1922. 

1. There can be little, if any question as to the power of 
the Legislature to revive and continue in force a statute 
previously enacted. St. 1922, c. 544, revives and continues 
certain powers created by Gen. St. 1917, c. 342. It follows 
that the questions which underlie your inquiry are (1) whether 
the portion of Gen. St. 1917, c. 342, so revived and continued 
is constitutional, and (2) whether it confers power to fix the 
price of coal sold within the Commonwealth. 

2. Gen. St. 1917, c. 342, § 6, expressly provides that — 

Whenever the governor shall believe it necessary or expedient for 
the purpose of better securing the public safety ... or welfare of the 
commonwealth, he may with the approval of the council take pos- 
session ... of any fuel . . . which may be necessary or convenient 
... for the better protection or welfare of the commonwealth or its 
inhabitants. He may, . . . when in his opinion the public exigency 
so requires ... fix minimum and maximum prices therefor. 

By St. 1922, c. 544, these powers and others are revived 
and made operative. This act was declared an emergency 
measure by the preamble, which states that it was passed 
"in order to secure an adequate supply of fuel in the event 
of an emergency. " In my opinion, the two acts when con- 



1923.] PUBLIC DOCUMENT — No. 12. 207 

strued together authorize the Governor, during the period 
indicated, to fix minimum and maximum prices for fuel 
(which includes coal) "when in his opinion the public exigency 
so requires.'' The remaining question is whether the act as 
so construed is constitutional. 

3. Mass. Const. Amend. XLVII provides: — 

The maintenance and distribution at reasonable rates, during time 
of war, public exigenc}^, 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 addition to the powers specifically conferred by this 
amendment, the General Court has the broad powers con- 
ferred by Mass. Const., pt. 2d, c. I, § I, art. IV, which 
are for convenience called the police power. While the 
courts have not made an exhaustive and complete definition 
of the police power, it is in general held to include legisla- 
tion reasonably adapted to promote the safety, health, morals, 
and, in a limited sense, the welfare of the people. Common- 
wealth V. Lihhey, 216 Mass. 356, 358; Commonwealth v. Beau- 
lieu, 213 Mass. 138, 141; Commonwealth v. Strauss, 191 Mass. 
545, 550; Chicago & Alton R.R. v. Tranbarger, 238 U. S. 69, 
77. Ordinarily, this power does not extend to regulating the 
price of property which is not affected with a public use. V 
Op. Atty. Gen. 484; Opinion, Attorney General to President 
of the Senate, April 4, 1922. On the other hand, a change 
in circumstances may carry a business previously private 
across the line into the classes of business which are affected 
with a public use. Munn v. Illinois, 94 U. S. 113; German 
Alliance Ins. Co. v. Kansas, 233 U. S. 389; V Op. Atty. Gen. 
484. Even an emergency of a continuing though not neces- 
sarily permanent character — such as a shortage of houses — 
may temporarily affect a business ordinarily private with a 
public use, and thereby subject the rates charged therein to 
an appropriate measure of public regulation. Marcus Broion 
Holding Co., Inc. v. Feldman, 256 U. S. 170; Edgar A. Levy 
Leasing Co., Inc., v. Siegel, 258 U. S. 242. Moreover, a 
finding and declaration by the Legislature that such an 
emergency exists or continues will not be lightly disturbed. 
Marcus Brown Holding Co. v, Feldman, supra; Edgar A. 
Levy Leading Co., Inc., v. Siegel, supra; Block v, Hirsh, 256 



208 ATTORNEY GENERAL'S REPORT. [Jan. 

U. S. 135. As Amendment XL VII declares in express words 
that "the maintenance and distribution at reasonable rates 
. . . during time of . . . public exigency, emergency or dis- 
tress of a sufficient supply of food and other common neces- 
saries of life are public functions ..." I am of opinion that 
if such exigency, emergency or distress is determined to exist 
with respect to fuel, which is manifestly a common necessary 
of life in this State, the power to fix the price of fuel comes 
into existence and may be exerted in the manner prescribed 
by the General Court. Jones v. Portland, 245 U. S. 217; 
V Op. Atty. Gen. 331. In view of Amendment XLVII, the 
Opinions of the Justices in 155 Mass. 598 and 182 Mass. 605, 
advising that the Legislature has no power to authorize cities 
and towns to buy coal and wood for resale to their inhabit- 
ants, no longer apply. 

The question then arises whether the Legislature may 
authorize the Governor to determine whether the emergency 
exists, so as to put into operation the emergency powers con- 
ferred by Gen. St. 1917, c. 342, as revived by St. 1922, c. 544. 
This question is, in essence, whether the act is an unconsti- 
tutional delegation of legislative power. The true distinction 
is between a delegation of power to make the law, and con- 
ferring a discretion as to its execution to be exercised under 
and in pursuance of the law. Field v. Clark, 143 U. S. 649, 
692; Cincinnati, Wilmington, &c. R.R. v. Commissioners, 1 
Ohio St. 77, 88. In the present case the power to fix coal 
prices, conferred by the law, already exists. It comes into 
operation when and if the Governor determines that the 
emergency exists. The power to determine whether the 
emergency exists does not differ materially from the power 
to fix rates, which latter power, though it may be exerted by 
the Legislature, may be conferred upon the executive or upon 
a commission. Martin v. Wither spoon, 135 Mass. 175, 178; 
Broivn v. Boston & Maine R.R., 233 Mass. 502, 510; Minne- 
scta Rate Cases, 230 U. S. 352. Nor is the authority vested 
in the Governor by section 12 to delegate the power to fix 
prices open to constitutional objection. As the Legislature 
might have directly conferred it upon the nominee appointed 
by the Governor, with the approval of the Council, it may 
confer power to select that nominee. In my opinion, the 
act is not an unconstitutional delegation of legislative power. 
Opinion, Attorney General to President of the Senate, May 23, 
1921, and cases cited (Attorney General's Report, 1921, p. 171). 



1923.] PUBLIC DOCUMENT - Xo. 12. 209 

The final question is whether the act confers too broad a 
power to regulate prices. It is well settled that the consti- 
tutional power to fix prices is not unlimited. The price 
must be reasonable, not confiscatory. Denver v. Denver 
Union Water Co., 246 U. S. 178. V Op. Atty. Gen. 484; 
ibid. 507. The present act confers power to "fix minimum 
and maximum prices." It does not, in express words, require 
that such prices shall be reasonable. The act must, however, 
be construed in connection with Amendment XLVII, which 
is expressly confined to ''reasonable rates," and in connection 
with the police power, which is subject to a similar restric- 
tion. It is well settled that if an act is susceptible of two 
constructions, one constitutional and one unconstitutional, it 
will be presumed that the Legislature intended the constitu- 
tional construction. County of Berkshire v. Cande, 222 Mass. 
87, 90; Salisbury Land and Improvement Co. v. Common- 
wealth, 215 Mass. 371, 373. This is simply one aspect of the 
broader principle that every rational intendment is made in 
favor of constitutionality. Perkins v. Westwood, 226 Mass. 
268. In view of the well-settled limitation upon the power 
to fix prices, it is not to be presumed that the Legislature 
intended to authorize either the Governor or his nominee to 
fix prices which would be unreasonable or confiscatory. I 
am therefore of opinion that the act must be construed in 
relation to the scope of the power vested in the Legislature; 
that, as so construed, it confers power to fix only reasonable 
rates or prices; and that, as so construed, it is constitutional. 
Yours very truly, 

J. Westox Allen, Attorney General. 



Officers — Women — Eligibility to be appointed Sta7iding Mas- 
ters in Chancery. 

A standing master in chancery is not a "judicial officer," within the 

meaning of Mass. Const., pt. 2d, c. Ill, art. I. 
Under St. 1922, c. 371, a woman is eligible to appointment as a standing 

master in chancery. 

Aug. 22, 1922. 

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

Sir: — You have inquired whether a woman may be ap- 
pointed a master in chancery. I assume that your inquiry 
relates to the standing masters in chancery for which G. L., 



210 ATTORNEY GENERAL'S REPORT. [Jan. 

c. 221, § 53, provides, rather than to the special masters 
appointed from time to time by the court in specific cases, 
under the authority conferred by G. L., c. 221, § 55. 

Originally, masters in chancery acted as assistants of the 
chancellor. Eastern Bridge d' Structural Co. v. Worcester 
Auditorium Co., 216 Mass. 426, 430. One of my predecessors 
has advised that a standing master is not a "judge of any 
court in this Commonwealth," within the meaning of Mass. 
Const. Amend. VIII, which forbids such a judge to have, 
at the same time, a seat in the Senate or House of Repre- 
sentatives. IV Op. Atty. Gen., 457. The first provision for 
appointment of standing masters by the Governor was made 
by St. 1826, c. 109, § 4, which authorized such appointment 
for a term of four years. This is a legislative determination 
that standing masters are not *' judicial officers," within the 
meaning of Mass. Const., pt. 2d, c. Ill, art. I, since such 
officers hold their offices during good behavior. As this legis- 
lative construction of the words "judicial officers" has stood, 
apparently unquestioned, for nearly a century, it is entitled 
to weight in determining the meaning of that provision. 

It is not necessary to determine whether the eligibility of 
women to appointment as standing masters in chancery de- 
pends in any respect upon the Constitution. In Opinion of 
the Justices, 240 Mass. 601, the justices advised that by reason 
of the adoption of the Nineteenth Amendment to the Consti- 
tution of the United States "women are not excluded by the 
Constitution [of Massachusetts] from any elective or appoin- 
tive civil office." In view of this opinion, I have already 
advised you that women are now eligible to appointment as 
justices of the peace — an office for which Mass. Const., pt. 
2d, c. Ill, art. Ill, expressly provides. Opinion, May 25, 
1922. That opinion disposes of any constitutional aspect of 
your inquiry. 

St. 1922, c. 371, § 1, approved May 2, 1922, provides, in 
part : — 

Women .shall be eligible to election or appointment to all state 
offices, positions, appointments and employments. . . . 

Section 2 makes similar provision in respect to "county 
offices, positions, appointments and employments." That act 
has now taken effect. In so far as the eligibility of women 
to the office of standing master in chancery depends upon 



1923.] PUBLIC DOCUMENT -No. 12. 211 

statute, these provisions clearly make them eligible, whether 
the office be a State or a county office. See III Op. Atty. 
Gen. 186. 

I am therefore of opinion that women are now eligible to 
appointment as standing masters in chancery. 
Yours very truly, 

J. Weston Allen, AUorney General. 



Certified Public Accountant — Right of Certified Public Ac- 
countant registered in Another State to hold Himself out as 
Such in this Commonwealth. 

A person registered as a certified public accountant in another State is 
forbidden, by G. L., c. 93, § 39, as amended by St. 1922, c. 395, § 2, 
to designate himself as a certified public accountant, either with or 
without letters indicating the State in which he is registered, if he is 
not registered in this Commonwealth under G. L., c. 93, § 37. 

A foreign certified public accountant is not forbidden to do business as 
such in Massachusetts if he does not designate or hold himself out 
as a certified public accountant, in violation of G. L., c. 93, § 39, as 
amended by St. 1922, c. 395, § 2. 

Aug. 28, 1922. 
]\'Ir. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You ask my opinion upon the following 
question: — 

Has a person, registered as a certified public accountant under the 
laws of any State other than the Commonwealth of Massachusetts, but 
not so registered in Massachusetts, the legal right to advertise or 
otherwise designate himself as a certified public accountant on his 
stationery heading or on the doors of his business office, or to solicit or 
receive business as a certified public accountant in any way in the 
Commonwealth of Massachusetts, even though he may affix after the 
letters "C. P. A." the name of the State from which he holds a cer- 
tificate as a certified public accountant? 

G. L., c. 93, §§ 35 to 39, as amended, provide a compre- 
hensive scheme for licensing certified public accountants in 
this State. Both character and professional ability are con- 
ditions not only of receiving but also of retaining the certifi- 
cate. These are to be ascertained by the Commissioner in 
the manner prescribed in section 36 and in section 37, as 
amended by St. 1922, c. 395, § 1. If the accountant is regis- 
tered under section 37, he may, if his certificate is in force, 
style himself "Certified Public Accountant." (§ 38.) The 



212 ATTORNEY GENERAL'S REPORT. [Jan. 

plain purpose of these provisions is to protect the public 
from public accountants who are unscrupulous or unfit, by 
subjecting both the character and the qualifications of the 
applicant to scrutiny by an official of this Commonwealth. 
Section 39 formerly provided as follows: — 

Any person who falsely represents himself to be a public accountant 
registered under section thirty-seven shall be punished by a fine of not 
more than five hundred dollars or by imprisonment for not more than 
six months, or both. 

By St. 1922, c. 395, § 2, it was amended so as to read as 
follows : — 

No person not registered under section thirty-seven shall designate 
himself or hold himself out as a certified public accountant. No 
partnership unless all of its members are registered under section thirt}^- 
seven, and no corporation, shall use the words '' certified pubhc ac- 
countant" in describing the partnership or corporation or the business 
thereof; provided, that any partnership or corporation may represent 
that a specified person registered under section thirty-seven is a member 
of such partnership or is in the service of such partnership or corpora- 
tion. Any violation of this section shall be punished by a fine of not 
more than five hundred dollars or by imprisonment for not more than 
six months or both. 

The change is significant. Formerly, section 39 provided 
punishment for one who falsely represented that he was 
registered under section 37. It may be assumed, without 
deciding, that one who described himself as registered in 
another State did not violate this provision. Section 39, as 
amended, now punishes one who designates himself or holds 
himself out as a certified public accountant unless he is 
registered under section 37. It seems plain that one who 
designates himself or holds himself out as a certified public 
accountant does not cease to do so because he adds words 
or letters which sufficiently indicate that he is registered 
in another State. To designate himself or hold himself out 
as a certified public accountant of that State manifestly 
embraces and includes designating himself or holding him- 
self out as a certified public accountant. He therefore com- 
mits the offence made punishable by section 39, as amended, 
unless he is registered under section 37. 

Your inquiry whether a foreign certified public accountant 
who ''solicits or receives business in any way in Massa- 



1923.] PUBLIC DOCUMENT — Xo. 12. 213 

chusetts" commits an offence under section 39, as amended, 
presents questions of fact upon which it is not my province 
to pass. The statute does not forbid a certified public 
accountant from another State to receive or do business here 
if he obtains and does that business without violating section 
37, as amended. It does forbid him to designate himself or 
hold himself out as a certified public accountant in this State 
if he is not registered under section 37. In this aspect the 
answer to your inquiry depends upon the facts of each case. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Illegitimate Child — Support from Labor of Father in the 
Massachusetts Reformatory. 

Where the father of an illegitimate child is committed to the Massachusetts 
Reformatory on a complaint for bastardy, the child and its mother, 
when in needy circumstances, may claim the benefit of G. L., c. 273, 
§9. 

Aug. 28, 1922. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You ask my opinion whether, in the case of a 
prisoner committed to the Massachusetts Reformatory on a 
complaint for bastardy, under G. L., c. 273, § 11, the reforma- 
tory should pay over to the probation officer the sum of 50 
cents per day as provided by G. L., c. 273, § 9. You state 
as a fact that the court has found that the mother and child 
are in needy circumstances. 

G. L., c. 273, § 9, is as follows: — 

If the court imposing a sentence under section one, finds the wife 
or child, as the case may be, of the defendant to be in destitute or 
needy circumstances, the superintendent, master or keeper of the 
reformatory or penal institution where he is confined upon such sen- 
tence shall pay over to the probation officer of such court at the end 
of each week, out of the annual appropriation for the maintenance of 
such reformatory or penal institution, a sum equal to fifty cents for 
each day's hard labor performed b}^ the person so confined, and shall 
state the name of the person for whose labor the payment is made. 
The probation officer shall pay over said sum in the manner provided 
in section five for the payments therein provided for. 

G. L., c. 273, § 16, is as follows: — 



214 ATTORNEY GENERAL'S REPORT. [Jan. 

After the adjudication and the birth of the child, in proceedings 
under section eleven, or after conviction, in proceedings under the 
preceding section, the defendant shall be subject upon the original com- 
plaint or indictment in such proceedings to penalties and orders for 
payments similar to those provided by the first ten sections of this 
chapter; and the practice established thereby shall, so far as appli- 
cable, appl}^ to any proceedings under sections eleven to nineteen, 
inclusive. 

G. L., c. 273, § 15, is as follows: — 

Any father of an illegitimate child, whether begotten within or 
\sithout the commonwealth, who neglects or refuses to contribute 
reasonably to its support and maintenance, shall be guilty of a mis- 
demeanor. If there has been any final adjudication of the paternity 
of the child, such adjudication shall be conclusive on all persons in 
proceedings under this section; otherwise, the question of paternity 
shall be determined in proceedings hereunder. The duty to contrib- 
ute reasonably to the support of such child shall continue during its 
minoritj^ 

The question is not free from doubt in that section 16 
says: "After the adjudication and the birth of the child, in 
proceedings under section eleven, or after convictiony in pro- 
ceedings under the preceding section, the dcSendant shall be 
subject upon the original complaint or indictment in such 
proceedings to penalties and orders for payments similar to 
those provided by the first ten sections of this chapter." It 
does not refer to section 9 or make specific provision for pay- 
ment by the superintendent, master or keeper of the reforma- 
tory or penal institution. However, section 16 goes on to 
say: "and the practice established thereby shall, so far as 
applicable, apply to any proceedings under sections eleven to 
nineteen, inclusive. " It may, therefore, be fairly said that 
it was the intent of the Legislature that the mother and the 
illegitimate child, when in needy circumstances, should have 
the benefit of section 9, and I so advise you. 
Very truly 3'ours, 

J. Weston Allex, Attorney General. 



1923.] PUBLIC DOCUMENT — Xo. 12. 215 



Public School — Federal Reservation — State Reintbursement — 

Tuition. 

The town of Harvard is not required by St. 1921, c. 296, to provide high 
school facihties for children living within its boundaries but on the 
Federal reservation known as Camp Devens. In this respect there 
can be no distinction between a high school and an elementary school. 

Aug. 30, 1922. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You request my opinion on tlie following 
questions : — 

1. Is the town of Harvard required to provide high school facilities 
for children living within its boundaries but on the Federal reservation 
known as Camp Devens? 

2. Is the town of Harvard entitled to receive State reimbursement 
for expenditures for high school tuition of such pupils? 

3. Is the town of Harvard under legal obligation to provide ele- 
mentarj^ school facilities for children living within its boundaries but 
on the Federal reservation known as Camp Devens? 

1. By the provisions of St. 1921, c. 456, the consent of the 
Commonwealth of Massachusetts was granted to the United 
States of America to acquire b}' purchase or condemnation a 
certain tract of land situated in the townships of Shirley and 
Ayer, county of Middlesex, and the townships of Lancaster 
and Harvard, county of ^Yo^cester, known as Camp Devens. 
Section 2 of said chapter provides as follows: — 

Jurisdiction over the said land is hereb}^ granted and ceded to the 
United States of America, but upon the express condition that the 
commonwealth of Massachusetts shall retain concurrent jurisdiction 
with the United States of America in and over the land so acquired, 
in so far that all civil processes, and such criminal processes as may 
issue under the authority of this commonwealth against any person or 
persons charged with crimes, may be executed thereon in the same 
manner as though this consent and cession had not been granted; 
provided, that the exclusive jurisdiction shall revert to and revest 
in the commonwealth whenever the area so acquired shall cease to be 
used for purposes of national defence. 

vSt. 1921, c. 296, § 1, provides as follows: — 

Chapter seventy-one of the General Laws is hereby amended by 
striking out section six and inserting in place thereof the following : — 



216 ATTORNEY GENERAL'S REPORT. [Jan. 

Section 6. If a town of less than five hundred families or householders, 
according to such census, does not maintain a public high school 
offering four years of instruction, it shall pay the tuition of any pupil 
who resides therein and obtains from its school committee a certificate 
to attend a high school of another town included in the list of high 
schools approved for this purpose by the department. Such a town 
shall also, through its school committee, provide, when necessary, for 
the transportation of such a pupil at cost up to forty cents for each 
day of actual attendance, and it may expend more than said amount. 
The department shall approve the high schools which may be attended 
by such pupils, and it ma}', for this purpose, approve a public high 
school in an adjoining state. Whenever, in the judgment of the de- 
partment, it is expedient that such a pupil should board in the town 
of attendance the town of residence may, through its school committee, 
pay toward such board, in lieu of transportation, such sum as the said 
committee may fix. 

If the school committee refuses to issue a certificate as aforesaid, 
application maj^ be made to the department, which, if it finds that the 
educational needs of the pupil in question are not reasonably provided 
for, may issue a certificate having the same force and effect as if issued 
by the said committee. The application shall be filed with the super- 
intendent of schools of the town of residence, and by him trans- 
mitted forthwith to the department with a report of the facts relative 
thereto. 

Practically the same question raised in your first inquiry 
was presented to the justices of the Supreme Court by the 
House of Representatives in 1841, and their answer was as 
follows: — 

We are of opinion that persons residing on lands purchased b}', or 
ceded to, the United States for navy yards, forts and arsenals, where 
there is no other reservation of jurisdiction to the State, than that 
above mentioned (referring to the right to serve civil and criminal 
processes), are not entitled to the benefits of the common schools for 
their children, in the towns in which such lands are situated. — Opinion 
of the Justices, 1 Met. 580, 583. 

This opinion is cited with approval by the Supreme Court 
of the United States in the case of Fort Leavenworth R.R. Co. 
V. Loive, 114 U. S. 525, where the subject-matter is fully con- 
sidered. In that case it was said by Mr. Justice Field: — 

Where, therefore, lands are acquired in any other way bj^ the United 
States within the limits of a State than by purchase with her consent, 
they will hold the lands subject to this qualification: that if upon 
them forts, arsenals, or other public buildings are erected for the uses 



1923.] PUBLIC DOCUMENT — No. 12. 217 

of the general government, such buildings, with their appurtenances, 
as instrumentalities for the execution of its powers, will be free from 
any such interference and jurisdiction of the State as would destroy 
or impair their effective use for the purposes designed. Such is the 
law with reference to all instrumentalities created by the general 
government. Their exemption from State control is essential to the 
independence and sovereign authority of the United States within 
the sphere of their delegated powers. But when not used as such 
instrumentalities, the legislative power of the State over the places 
acquired will be as full and complete as over any other places within 
her limits. 

See also Benson v. United States, 146 U. S. 325; ChappcU v. 
rnited States, 160 U. S. 499; Palmer v. Barrett, 162 U. S. 399. 
The question was also considered by the Supreme Court 
of Massachusetts in the case of Neivcomb v. Inhahitants of 
Rockport, 183 Mass. 74. In that case the court used the 
following language (pages 78 and 79) : — 

Conceding, for the purposes of the case, that the United States has 
not exclusive jurisdiction over the islands in question, it by no means 
follows that the prayer of the petitioners should be granted. The 
petitioners contend that the town ought either to build a school- 
house on Thatcher's Island or to provide suitable transportation for 
the scholars. We are of opinion that the town is not bound to do 
either. It is agreed that on the mainland the town of Rockport pro- 
vides and maintains a sufficient number of schoolhouses, properly 
furnished and conveniently located for the accommodation of all chil- 
dren therein who are entitled to attend the public schools. This being 
so, we are of opinion that the town has done its whole duty so far as the 
building of schoolhou.ses is concerned. If a few persons happen to 
live on a small island, it cannot be expected that the town within the 
territorial limits of which the island is, is bound to build and maintain 
a schoolhouse for their benefit, especial^ w^here, as here, it does not 
appear that the town would have a right to build a schoolhouse, 
without authority derived from the Commonwealth, which owned the 
islands when the grants were made to the United States, and which, 
for aught that appears, may own them now. 

See also Davis v. Inhahitants of Chilmark, 199 Mass. 112; V 
Op. Atty. Gen. 435. 

I am accordingly of the opinion that the tow^n of Harvard 
is not required by St. 1921, c. 296, to provide high school 
facilities for children living within its boundaries but on the 
Federal reservation known as Camp Devens. 

2. G. L., c. 71, §§ 8 and 9, are as follows: — 



218 ATTORNEY GENERAL'S REPORT. [Jan. 

Section 8. If the valuation of a town of less than five hundred 
families or householders for its fiscal year preceding any school j^ear 
does not exceed five hundred thousand dollars, the commonwealth shall 
reimburse it, subject to the following section, for the whole amount 
paid by it for such school yesir for tuition under section six; if said 
valuation exceeds five hundred thousand dollars but not one million 
dollars, the reimbursement shall be for three fourths of said amount; 
and if said valuation exceeds one miUion dollars, the reimbursement 
shall be one half of said amount. 

Section 9. No town shall receive any reimbursement for a school 
3^ear under sections five and eight if its valuation for its fiscal year 
preceding said school year, divided by the net average membership 
of its pubhc schools as defined bj^ section five of chapter seventy for 
the school year preceding the year for which reimbursement is claimed, 
exceeds the corresponding quotient for the commonwealth. 

The provision for reimbursement to towns for amounts 
expended from the treasury of the Commonwealth for tuition, 
in my opinion, refers to sums which the towns are compelled 
to pay. "If the town sees fit to expend money for tuition 
which it is not compelled to, it cannot ask reimbursement 
therefor from the treasury of the Commonwealth. " See II 
Op. Atty. Gen. 98. 

3. G. L., c. 76, § 5, provides as follows: — 

Every child shall have a right to attend the public schools of the 
town where he actually resides, subject to the following section, and 
to such reasonable regulations as to numbers and qualifications of 
pupils to be admitted to the respective schools and as to other school 
matters as the school committee shall from time to time prescribe. 
No child shall be excluded from a public school of anj^ town on account 
of race, color or religion. 

G. L., c. 71, § 68, provides as follows: — 

Every town shall provide and maintain a sufficient number of school- 
houses, properly furnished and conveniently situated for the accom- 
modation of all children therein entitled to attend the pubhc schools. 
If the distance between a child's residence and the school he is en- 
titled to attend exceeds two miles, and the school committee declines 
to furnish transportation, the department, upon appeal of the parent 
or guardian of the child, may require the town to furnish the same for a 
part or for all of the distance. If said distance exceeds three miles, 
and the distance between the child's residence and a school in an 
adjoining town giving substantially equivalent instruction is less 
than three miles, and the school committee declines to pay for tuition 



1923.] PUBLIC DOCUMENT — No. 12. 219 

in such nearer school, and for transportation in case the distance 
thereto exceeds two miles, the department, upon like appeal, may- 
require the town of residence to pay for tuition in, and if necessary 
provide for transportation for a part or for the whole of said distance 
to, such nearer school. The school committee, unless the town other- 
wise directs, shall have general charge and superintendence of the 
schoolhouses, shall keep them in good order, and shall, at the expense 
of the town, procure a suitable place for the schools, if there is no 
schoolhouse, and provide fuel and all other things necessary for the 
comfort of the pupils. 

I am of the opinion that the same general principles of law- 
laid down in the cases above cited, in answer to your first 
and second questions, must govern the answer to your third 
question, as in this respect there can be no distinction be- 
tween a high school and an elementary school. I am accord- 
ingly of the opinion that the town of Harvard is under no 
legal obligation to provide elementary school facilities for 
children living within its boundaries but on the Federal 
reservation known as Camp Devens. 
Very truly yours, 

J. Weston Allen, Attornnj General. 



Cinl Service — Veterans' Preference — Special Preference to 
Disabled Veterans — Established Lists. 

The special preference accorded to disabled veterans by St. 1922, c. 463, 
applies to disabled veterans upon eligible lists already established, 

Aug. 31, 1922. 
Payson Dana, Esq., Commissioner of Civil Service. 

Dear Sir: — You inquire whether St. 1922, c. 463, applies 
to eligible lists established prior to Aug. 21, 1922, the date 
when said chapter took effect.. St. 1922, c. 463, amends 
G. L., c. 31, § 23, by striking out said section and inserting 
in place thereof a new section, of which the following are the 
provisions material to the present inquiry: — 

The names of veterans who pass examinations for appointment to 
any position classified under the civil service shall be placed upon the 
eligible lists in the order of their respective standing above the names 
of all other applicants, except that any such veterans who are disabled 
and who present a certificate of any physician, approved by the board, 
that their disability is not such as to prevent the efficient performance 



220 ATTORNEY GENERAL'S REPORT. [Jan. 

of the duties of the position to which the}' are ehgible and who shall 
present proof satisfactory to the commissioner that such disability 
was received in line of duty in the military or naval service of the 
United States in time of war or insurrection and is a continuing dis- 
ability shall be placed ahead of all other veterans on such eligible lists 
in the order of their respective standing. ... A disabled veteran 
shall be appointed and employed in preference to all other persons, 
including veterans. 

In answer to oral inquiries your department informs me 
that eligible lists are from time to time established as a 
result of competitive examinations held for that purpose; 
that under the regulations adopted by your department an 
eligible list remains in force for not exceeding two years from 
the date of establishment; that such lists are divided into 
two groups, consisting (1) of veterans in the order of their 
examination rank; and (2) of civilians in the order of their 
examination rank; that in some cases, where the list is a 
very active one, competitive examinations are held once a 
year or oftener; that in such a case the successful applicants 
are placed upon the proper eligible list (with due regard for 
veterans' preference) in the positions to which their respec- 
tive marks entitle them, so that the head of an existing list 
may be displaced by an applicant who obtains a higher mark 
in a subsequent examination; that a person already upon a 
list may compete in a subsequent examination, taking such 
rank as he may achieve in that examination; that for these, 
and other reasons which need not be here enumerated, not 
only the absolute but also the relative rank upon a list already 
established is subject to change; and that from the head of 
such established lists the proper number of names is certified 
in response to requests from time to time received. 

Assuming that St. 1922, c. 463, is constitutional (see 
Brou'n v. Russell, 166 Mass. 14; Opinion of the Justices, 166 
Mass. 589), it seems clear that if an examination should be 
held on or after Aug. 21, 1922, in connection with a list 
already established, and one who duly establishes that he is 
a disabled veteran, within the meaning of the act, should 
pass such examination, he would outrank all veterans not 
disabled and all civilians upon such established list, irrespec- 
tive of his competitive mark, just as a veteran not disabled, 
passing such an examination under the law as it previously 
existed, would outrank civilians already on the established 



1923.] PUBLIC DOCUMENT — No. 12. 221 

list, even though such civilians had higher competitive marks 
than he. In other words, a place upon an established list 
ensures neither absolute nor relative rank, but is, on the 
contrary, held in continuing competition not only with those 
who in subsequent examinations achieve better competitive 
marks, but also with those to whom the Legislature accords 
a valid preference by law. I am therefore of opinion that 
the preference accorded to disabled veterans by St. 1922, 
c. 463, applies to any such veteran who, as a result of an ex- 
amination held on or after Aug. 21, 1922, is placed upon an 
eligible list already established. 

A somewhat more difficult question arises in connection 
with a disabled veteran already upon an eligible list, in 
connection with which no examination is held subsequent to 
the date when St. 1922, c. 463, took effect. If such an exami- 
nation were held, such veteran could take it, and if he passed, 
would outrank all others except other disabled veterans who 
obtain a better mark than he. The fundamental question is 
the order in which those upon such eligible list shall be 
certified for employment. If the act had said "veterans who 
shall hereafter pass examinations," it would clearly not apply 
to those who had already passed when it took effect. If, on 
the other hand, it had said "veterans who pass or shall have 
passed examinations," it would as clearly apply to those 
already upon the eligible lists. It actually employs the 
words "veterans who pass examinations," which may be so 
construed as to describe either class. 

I am not unmindful that a statute will not be held to be 
retroactive unless that intention is clearly expressed. Martin 
L. Hall Co. V. Commonwealth, 215 Mass. 326, 329. But this 
principle seems inapplicable to a list as fluid in character as 
these eligible lists appear to be. If both the absolute and 
relative standing of an applicant may be affected by prefer- 
ences flowing from an examination held subsequent to the 
creation of such list, I am unable to believe that it remains 
unaffected by preferences created by a subsequent statute, 
assuming that such preferences are otherwise valid. A 
different conclusion would make the preference conferred upon 
disabled veterans by St. 1922, c. 463, depend upon whether 
an examination shall or shall not be held in connection with 
the particular list upon which such veteran happens to be. 
I cannot believe that the Legislature intended such a dis- 



999 



ATTORNEY GENERAL'S REPORT. [Jan. 



crimination as between disabled veterans. I am therefore 
of opinion that if a veteran shall establish, in the manner 
prescribed by the act, that he is a disabled veteran, within 
the meaning of the act, he becomes entitled to the preference 
thereby accorded, assuming that said act is constitutional. 
Yours very truly, 

J. Weston AllExV, Attorney General. 



Salaries of Officers and Employees of the Commonwealth — 
Classification — Metropolitan District Commission. 

The power granted to the commissioners of the Metropolitan District 
Commission, under G. L., c. 28, § 4, to fix the compensation of em- 
ployees is subject to G. L., c. 30, §§45 and 46, providing that the 
salaries of all officers and employees holding offices and positions 
required to be classified, with certain exceptions, shall be fixed in 
accordance with the classification and specifications of the Super- 
visor of Administration, 

The salaries of employees of the Metropolitan District Commission are 
not "salaries . . . regulated by law," within the excepting clause of 
G. L., c. 30, § 46. 

Sept. 12, 1922. 

Metropolitan District Commission. 

Gentlemen: — You ask my opinion as to whether the 
Commission has authority to fix the rate of pay of laborers 
and other employees in its employ, or whether, on the con- 
trary, its exercise of this authority is subject to the approval 
of the Supervisor of Administration and may be limited by 
him. 

G. L., c. 28, § 4, granting certain powers to the commis- 
sioners of the Metropolitan District Commission, is as fol- 
lows: — 

The commissioners may appoint a secretary, engineering chiefs, a 
purchasing agent, engineers, inspectors, officers and members of the 
police force, one or more women as special police officers, clerks and 
such other officers and employees as the work of the commission may 
require, may assign them to divisions, transfer and remove them, and 
fix their compensation. The secretary and engineering chiefs shall be 
exempt from chapter thirty-one. 

G. L., c. 30, §§ 45-50, inclusive, provide for the classifi- 
cation of **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 



1923.] PUBLIC DOCUMENT - No. 12. 223 

additional clerical and other assistants in the sergeant-at- 
arms' office" (G. L., c. 30, § 45). 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. 

Whether the Metropolitan District Commission is a part 
of the "government of the commonwealth," within the 
meaning of G. L., c. 30, § 45, so that appointive offices and 
positions under the Commission are required to be classified, 
might, in the absence of legislative enactment, be a question 
of considerable doubt. See Gen. St. 1919, c. 150. But the 
General Court has expressly provided that the power of the 
Commission to fix compensation of officers and employees is 
subject to the statute requiring classification. G. L., c. 28, 
§ 4, is a re-enactment of Gen. St. 1919, c. 350, § 126, which 
contains the provision: — 

The commissioners may also appoint a secretary- and engineering 
chiefs, and, subject to the civil service law and rules, where they apply, 
appoint a purchasing agent, engineers, inspectors, officers and members 
of the police force, clerks and such other officers and employees as the 
work of the commission may require; may assign them to divisions, 
transfer and remove them, and, subject to the provisions of chapter 
two hundred and twenty-eight of the General Acts of nineteen hun- 
dred and eighteen, and to the approval of the governor and council, 
where that is required by law, fix the compensation of the said persons. 

Gen. St. 1918, c. 228, is the act which appears in codified 
form in G. L., c. 30, §§ 45-50, providing, in section 1, for 
the classification of "all appointive offices and positions in 
the government of the commonwealth, except those in the 
judicial and legislative branches. " 

In G. L., c. 28, § 4, the provisos appearing in Gen. St. 1919, 
c. 350, § 126, are omitted; but it is a familiar principle of 
statutory interpretation that " verbal changes in the revision 
of a statute do not alter its meaning, and are construed as a 
continuation of pre-existing law in the absence of some 
accompanying report of revisers or other indication showing 
an express purpose to change the substance of the law." 



224 ATTORNEY GENERAL'S REPORT. [Jan. 

Derinza's Case, 229 Mass. 435, 442. See also Wright v. 
Dressel, 140 Mass. 147, 149; Commonwealth v. Kozlowsky, 
238 Mass. 379, 387; G. L., c. 281, § 2. In this instance the 
revisers have indicated a purpose not to change the law. In 
the report to the General Court of the Joint Special Com- 
mittee on Consolidating and Arranging the General Laws, at 
the end of chapter 30, there is the following note: — 

The classification of salaries provided for in §§ 45 to 50 is a general 
provision relating to all state employees or appointees unless otherwise 
provided therein, and therefore the fact that the fixing of the salaries 
of such persons is subject to said sections has been omitted in each 
particular instance where the fixing of such salaries is provided for. 

A further question arises whether the salaries of the em- 
ployees of the Commission are "salaries . . . regulated by 
law," within the excepting clause of G. L., c. 30, § 46. In 
an opinion rendered by me to the Supervisor of Adminis- 
tration, 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." It 
clearly was not intended to apply to all those cases in which 
departments, commissions and officers are given authority to 
fix the compensation of employees. It is with respect to 
just those cases that the note referred to above is intended 
to apply. 

I am clearly of the opinion that the provision in G. L., 
c. 28, § 4, authorizing the Metropolitan District Commission 
to fix the compensation of employees, is subject to G. L., 
c. 30, §§ 45-50, providing that the salaries of all officers and 
employees holding offices and positions required to be classi- 
fied shall be fixed in accordance with the classification and 
specifications of the Supervisor of Administration, with the 
exceptions stated in section 46, and that the employees of 
your Commission are not within those exceptions. 
Very truly yours, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 225 



Board of Dental Examiners — Determination whether Applicant 
for Registration has received a Diploma from a Reputable 
Dental College — Attorney General. 

Under G. L., c. 112, §§ 45 and 46, the Board of Dental Examiners, in the 
exercise of a sound discretion, should determine whether an applicant 
for registration has furnished "satisfactory proof," under section 45, 
that he has attended a "reputable dental college," within the meaning 
of section 46, and in so determining the board is not, as matter of 
law, bound to accept the affidavit of the applicant. 

The Attorney General neither decides questions of fact nor substitutes 
his discretion for the discretion vested by law in another officer or 
board. 

Sept. 13, 1922. 

Mr. William F. Craig, Director of Registration, Departmerit of Civil Serv- 
ice and Registration. 

Dear Sir: — I have your inquiry on behalf of the Board 
of Dental Examiners relative to acceptance of the affidavit 
of a graduate of a Russian dental school as proof of the 
requirements imposed by G. L., c. 112, §§ 45 and 46. 

Section 45 requires the applicant to furnish "satisfactory 
proof" either that he has received a diploma from a "reputable 
dental college," as defined in section 46, or that he has at- 
tended such college for four years and has passed the exami- 
nations for the first three years. In order that there may 
be no doubt as to what is meant by a "reputable dental 
college" the Legislature has defined the same in section 46. 
"Satisfactory proof" means proof which either does satisfy 
the Board or ought to satisfy it, as reasonable men. Whether 
any particular proof is "satisfactory" is a question of fact 
for the Board itself to determine. Unless the decision of the 
Board in that regard is plainly unreasonable, it will not be 
reversed. The Board is not, as matter of law, bound to 
accept the affidavit of the applicant as a substitute for proof 
which the Board ordinarily requires from other sources. 
Indeed, the credibility of any affidavit is peculiarly a question 
of fact to be determined by the Board, under the circum- 
stances of each case. 

It should be, and doubtless is, unnecessary to point out 

that the Attorney General does not decide questions of fact or 

substitute his judgment for the judgment of the officer or Board 

to which the decision of such questions is committed by law. 

Yours very truly, 

J. Weston Allen, Attorney GeneraL 



226 ATTORNEY GENERAL'S REPORT. [Jan. 



Private Detective — Effect of License — Right of Constable to 
engage in the Business of a Private Detective. 

The license granted to a private detective, under G. L., c. 147, § 23, au- 
thorizes the licensee to engage in and to soHcit the business of procuring 
evidence for use in civil or criminal proceedings, and to employ opera- 
tors, agents and assistants for the conduct of such business. 

A constable, by virtue of his appointment as such, has no right to solicit 
business as, or engage in the business of, a private detective. 

Sept. 16, 1922. 
Col. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir : — You ask my opinion upon the following 
questions : — 

1. Referring to G. L., c. 147, §§ 22 to 30, inclusive, being the law 
relative to the licensing of private detectives, will you please advise 
me what rights and privileges can be exercised by the person granted a 
private detective's license, in consequence of holding such license? 

2. Is a constable, appointed in accordance with the provisions of 
G. L., c. 41, §§91 to 95, authorized, b}^ virtue of such appointment, to 
exercise any or all of the rights and privileges granted to a licensed 
detective? 

1. Prior to the enactment of Gen. St. 1919, c. 271, the 
licensing of private detectives was governed by R. L., c. 108, 
§§36 and 37. In construing these provisions the court said, 
in Frost v. American Surety Co., 217 Mass. 294, 296: — 

It is made a misdemeanor punishable by fine or imprisonment or 
both, for any citizen to engage in the general business of a private 
detective without having obtained a hcense from the pubUc authorities 
authorized to grant it. While the statute expressly provides that 
the Hcensee shall not be clothed with the power and authority of con- 
stables or pohce officers, the purpose for which the license is granted is 
to enable him "to act as a private detective for the detection, pre- 
vention and punishment of crime." 

It is for the Hcensing board to pass upon the competency and integ- 
rity of the appUcant and while by the proviso he is not ranked wdth 
pubhc officials entrusted with the conservation of the public peace, 
yet, in the accepted meaning of the words, he is designated as a person 
unofficially engaged in obtaining secret information for the use and 
benefit of those who choose to employ him and to pay his compensation. 
State V. Bennett, 102 Mo. 356. The Hcense enables him to engage in a 
business which, if unlicensed, is prohibited, and, as a precedent con- 
dition to granting the license, a bond with sureties to be approved by 



1923.] PUBLIC DOCUMENT — No. 12. 227 

the licensing board is required, running to the treasurer of the munic- 
ipality with a condition that the licensee will properly discharge "the 
services which he may perform by virtue of such license." The "serv- 
ices" obviousl}^ are the services rendered in "the detection, preven- 
tion and punishment of crime" under his employment by private 
persons who generally desire to obtain evidence enabhng them to sup- 
port or defend civil actions or criminal prosecutions successfully. 

R. L., c. 108, §§36 and 37, were repealed by Gen. St. 
1919, c. 271, and the provisions of said chapter 271 are now 
codified in G. L., c. 147, §§ 22 to 30, inclusive, to which you 
call my attention. The significant sections are sections 22, 23 
and 29, which provide as follows : — 

Section 22. No person shall engage in the business of or solicit 
business as a private detective, or the business commonly transacted 
by a private detective, under any name or title whatsoever, without 
first obtaining a license so to do as provided in sections twenty-three to 
thirty, inclusive. 

Section 23. The said license may be granted by the commissioner 
to an}^ reputable citizen of the United States, or to any firm or corpora- 
tion making written application therefor. The persons making the 
appHcation shall be not less than twenty-one years of age, and shall 
have had at least three years' experience as investigators. The holder 
of a Hcense may employ as many agents, operatives and assistants 
as may be deemed necessary by the licensee for the conduct of the 
business. 

Section 29. Any person other than an agent, employee or assist- 
ant of a licensee hereunder, and any corporation acting as a private 
detective mthout obtaining a license in accordance with sections 
twenty-three to thirty, inclusive, shall be punished by a fine of not 
more than five hundred dollars or by imprisonment for a term not 
exceeding one year, or both; but no corporation shall be liable to the 
said penalty if its resident manager or superintendent is duly licensed 
under said sections. 

It is not without significance that the Legislature has not 
itself defined the "business of a private detective." It has 
not enumerated the rights thereto appertaining. My prede- 
cessor has already given you a general but not exhaustive 
definition of a private detective. V Op. Atty. Gen. 425. As 
both the court and my predecessor point out, the primary 
function of a detective is to seek out evidence for use in civil 
or criminal proceedings. The license issued to a private 



228 ATTORNEY GENERAL'S REPORT. [Jan. 

detective authorizes a private person, who would not other- 
wise have that right, to engage in that business for private 
persons and to solicit that business from private persons, and, 
further, to employ agents, operators and assistants for the 
conduct of such business. The things which he may lawfully 
do in connection with and in execution of that business must 
necessarily depend upon the facts of each case. 

2. A constable is a public officer charged with the per- 
formance of public duties. G. L., c. 41, §§ 91 to 95; Frost 
V. American Surety Co., 217 Mass. 294, 296. It is no part 
of the duty of a policeman, who is also a public officer, to 
act as a detective in order to procure evidence for private 
parties. Attorney General v. Tufts, 239 Mass. 458, 513. I 
find nothing in the powers conferred on constables by G. L., 
c. 41, §§ 91 to 95, which authorizes them to engage in the 
business of a private detective. A private detective is a 
private person engaged in a private business. The appoint- 
ment of a constable as a public oflScer does not, in my opinion, 
carry by implication a right to engage in or solicit business 
as a private detective. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Income Tax — Local Taxation of Intangible Personal Property — 
Exemption — Domicil. 

A person who becomes a resident of this State prior to April 1 is not sub- 
ject to local taxation upon intangible personalty owned by him upon 
that date when the income received therefrom during the previous 
year is not subject to the income tax. 

G. L., c. 59, § 5, cl. 27, when construed with G. L., c. 62, §§ 49-53, exempts 
from local taxation intangibles, the income of which is of the kind 
made taxable by G. L., c. 62, even though such income cannot in 
fact be taxed because the recipient was not a resident of this State 
at the time such income was received. 

Sept. 19, 1922. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 
Dear Sir: — You state the following facts: — 

A was domiciled in another State in 1921. During that year he 
received income from intangible personal property, which income 
would have been taxable if he had been an inhabitant of this State. 
On Jan. 2, 1922, he became domiciled in this Commonwealth. On 
April 1, 1922, he owned intangible personal property which would 



1923.] PUBLIC DOCUMENT — No. 12. 229 

have been taxable prior to the enactment of the income tax law. Upon 
the authority of Hart v. Tax Commissioner, 240 Mass. 37, A seasonably 
and lawfully refused to pay an income tax upon said income so re- 
ceived in 1921. You inquire whether you should, because of such 
refusal, instruct the local assessors to levy a personal property tax 
upon said intangible personal property, under G. L., c. 59, §§ 2, 5, 
cl. 27, and § 75. 

G. L., c. 59, §§ 2, 5 and 75, provide: — 

Section 2. All property, real and personal, situated within the 
commonwealth, and all personal property of the inhabitants of the 
commonwealth wherever situated, unless expressly exempt, shall be 
subject to taxation. 

Section 5. The following property and polls shall be exempt 
from taxation: 



Twenty-seventh, Property the income of which is taxed under 
chapter sixty-two, or would be taxable thereunder if the property 
yielded income, except as provided in sections forty-nine to fifty- 
three, inclusive, of said chapter. 

Section 75. If the real or personal estate of a person, to an amount 
not less than one hundred dollars and liable to taxation, has been 
omitted from the annual assessment of taxes, the assessors shall be- 
tween December tenth and twentieth follomng, both inclusive, assess 
such person for such estate. The taxes so assessed shall be entered on 
the tax Hst of the collector, who shall collect and pay over the same. 
Such additional assessment shall not render the tax of the town invaUd 
although its amount, in consequence thereof, shall exceed the amount 
authorized by law to be raised. 

A lawful and seasonable refusal by A to pay a 1922 income 
tax (see G. L., c. 62, §§ 43 to 47) cannot subject him to 
local assessment upon the intangible personalty owned by 
him on April 1, 1922. A is either taxable upon such person- 
alty or he is not. If he is subject to a local assessment 
thereon, he can neither discharge that liability nor acquire 
an exemption therefrom by payment of a 1922 income tax 
for which he is admittedly not liable. If he is not subject to 
such local assessment, that assessment cannot be grounded 
upon a seasonable refusal to pay an income tax which he 
does not owe. A's refusal, therefore, is immaterial and may 
be laid aside. The fundamental question is whether a want 



230 ATTORNEY GENERAL'S REPORT. [Jan. 

of jurisdiction to tax A's 1921 income {Hart v. Tax Com- 
missioner, 240 Mass. 37) renders A subject to local assess- 
ment upon the intangible personal property owned by him 
on April 1, 1922. 

Prior to the adoption of Mass. Const. Amend. XLIV and 
the enactment of Gen. St. 1916, c. 269, which imposed the 
income tax, intangible personal property was subject to local 
assessment. That assessment had to be "proportional," 
within the meaning of Mass. Const., pt. 2d, c. I, § I, art. 
IV. Perkins v. Westwood, 226 Mass. 268. But the word 
"proportional" did not require that the rate be uniform 
throughout the Commonwealth. Northampton v. County Com- 
missioners, 145 Mass. 108. The variation in local rates and 
the failure to require compulsory returns led to grave in- 
equalities in the taxation of intangible personalty. Various 
expedients were suggested or tried, but they did not meet 
the "proportional" requirement. See Perkins v. Westwood, 
supra. In November, 1915, the people ratified Mass. Const. 
Amend. XLIV, which conferred power to levy a tax "at a 
uniform rate throughout the commonwealth upon incomes 
derived from the same class of property," and authorized 
the Legislature to exempt from proportional taxes "any class 
of property, the income from which is taxed under this 
article." Pursuant to the authority thus conferred, the 
Legislature enacted Gen. St. 1916, c. 269, which classified 
the income from intangible personal property, imposed a tax 
upon each class of income at a uniform rate throughout the 
Commonwealth, and, by section 11, conferred certain exemp- 
tions, which, as amended, are not codified in G. L., c. 59, § 5, 
cl. 27. The history of this legislation manifests a general 
purpose to substitute a State-wide tax upon the income of 
intangible personalty for the more onerous and unequal local 
tax previously imposed upon the property itself. Diiffy v. 
Treasurer and Receiver-General, 234 Mass. 42; Tax Com- 
missioner V. Putnam, 227 Mass. 522, 525; Magu/ire v. Tax 
Commissioner, 230 Mass. 503, 506; Dane v. Jackson, 256 
U. S. 589. It is plain that the exemptions conferred by 
Gen. St. 1916, c. 269, § 11, and now codified, as amended, in 
G. L., c. 59, § 5, cl. 27, must be construed in the light of the 
history of the law of which they form a part. 

The exemption from local taxation conferred by G. L., 
c. 59, § 5, cl. 27, is of broad scope. It is not confined to such 
specific property as produces income which is in fact assessed 



1923.] PUBLIC DOCUMENT - No. 12. 231 

under G. L., c. 62. It also Includes property the income of 
which would be taxable under chapter 62 if such property 
yielded income. This second clause of the exemption is 
plainly generic; that is, it describes a class of property which 
is exempted from local taxation. It does not define a con- 
dition which must be met by specific parcels of property in 
order to secure exemption. This is a plain indication that 
the first clause of the exemption is generic also. If so, the 
words "property the income of which is taxed under chapter 
sixty-two" must be held to describe those classes of property, 
the income of which is taxable under chapter 62, rather than 
the specific property, the income of which is actually assessed 
thereunder. This construction is consistent with and effec- 
tuates the general intent to substitute for the local tax upon 
intangible personalty a tax upon the income thereof. 

The scope of the exemption from local taxation conferred 
by G. L., c. 59, § 5, cl. 27, may be tested by the express 
exception to it. This exception is defined in G. L., c. 62, 
§§ 49 to 53, inclusive, which read as follows: — 

Section 49. All property owned by a resident of the common- 
wealth on April first in any year, which during the preceding calendar 
year had produced for such owner any income taxable under this 
chapter, shall, despite anything in this chapter, be subject to taxation 
to such owner in accordance with chapters fifty-nine and sixty, if 
such owner does not make to the commissioner a full return of his 
taxable income from such property on or before September first of the 
year in which a return of income is required by sections twenty-two 
to twenty-five, inclusive, and provided the tax so assessed is greater 
than the amount of the tax properly paj^able under sections one and 
thirty-five to thirty-seven, inclusive. 

Section 50. Property taxable in any year under the preceding 
section shall be assessed in that year between September second and 
December tenth, both inclusive. The amount of taxes assessed by 
the local assessors upon such property in such town in any year, less 
the amount assessed and collected by the commissioner as hereinafter 
provided, shall be entered on the tax fist of the collector of such town, 
and he shall collect and pay over the same to the town. 

Section 51. Any taxpayer aggrieved by the assessment of a tax 
under section forty-nine may appeal to the commissioner within 
thirty days after the receipt of the tax bill therefor, or other actual 
notice of the assessment. In case of an adverse determination by the 
commissioner, the taxpayer may appeal to the board of appeal as 
provided in section forty-five, or to the superior court as provided in 
section forty-seven; and if the taxpayer shall prove that the income 



232 ATTORNEY GENERAL'S REPORT. [Jan. 

of the property was duly returned or that it was not taxable or that 
there was reasonable excuse for not making the return, the tax shall 
be abated, and, if it has previously been paid, the amount abated shall 
be repaid by the town to the taxpayer, with interest from the time of 
such pajmient. 

Section 52. At any time prior to the collection by the town of 
the tax provided for by section forty-nine the commissioner may assess 
and collect the tax provided for by this chapter on the income of the 
propertj^, subject to the limitation of time provided by section thirty- 
seven. Upon the collection of the tax, the commissioner shall at once 
notify the tax collector of the town where the taxpayer resides, and 
the tax collected by the commissioner shall be deducted from the tax 
assessed in that town; and if the tax assessed therein has been collected, 
the amount so deducted shall be repaid bj^ the town to the taxpayer. 
If a tax collected by a town under section forty-nine is afterward 
abated, the amount of the abatement, together with the amount of 
any interest paid by the taxpayer on that amount, shall be paid by the 
town to the taxpayer. 

Section 53. Upon discovery of property the income of which for 
the preceding calendar year, taxable under this chapter, has not been 
returned on or before September first of the year in which the return 
is required, the commissioner shall forthwith notify the assessors of the 
town where the property is taxable, unless there is within his knowledge 
a reasonable excuse for the failure of the taxpayer to file the return. 
Upon making any assessment under section forty-nine, the assessors 
shall forthwith notify the commissioner. 

Section 49 subjects to local taxation "all property owned 
by a resident of this commonwealth on April first in any 
year, which during the preceding calendar year had pro- 
duced for such owner any income taxable under this chapter" 
{i.e., chapter 62) if such ow^ner does not make "a full return 
of his taxable income from such pro2:)erty" on or before Septem- 
ber 1 as required b}^ law. The condition upon which liability 
to local taxation attaches, and the nature of the property 
to be taxed in that event, are both significant. Liability to 
local taxation does not attach unless there be a failure to 
file a return of the "taxable income from such property." 
The property to be locally taxed in that event is property 
"which during the preceding year . . . produced ... in- 
come taxable under this chapter" {i.e., chapter 62). Thus, 
the liability to local taxation accrues because of failure to 
return taxable income, not because the jurisdiction to tax 
such income fails. The property subjected to local taxation 
is property which produces taxable income which is not 



1923.] PUBLIC DOCUMENT — No. 12. 233 

returned, not property which produces income which would 
normally be taxable, but which cannot in this instance be 
taxed because it is not within the jurisdiction of the Com- 
monwealth. 

Sections 51 and 53 support and compel the same conclu- 
sion. Section 51 requires that a local tax assessed under 
section 49 shall be abated, or if paid, shall be repaid with 
interest, if the taxpayer seasonably appeals and proves either 
"that the income of the property was duly returned or that 
it icas not taa'ahle." Section 53 imposes on the Commissioner 
a duty to notify the local assessors "upon discovery of prop- 
erty, the income of which for the preceding calendar year, 
taxable under this chapter," has not been duly returned. It 
is plain that this duty does not arise in respect of property 
the income of which for the preceding calendar year is not 
taxable under chapter 62. Indeed, if such property should be 
locally taxed, the taxpayer could, under section 51, compel an 
abatement or recover such tax if paid, by proving that the 
income thereof was not taxable. Both these provisions repel 
any intention to tax the property locally because the income 
thereof, though within the provisions of chapter 62, is outside 
the taxing jurisdiction of Massachusetts. 

Comparison of G. L., c. 59, § 75, with G. L., c. 62, § 50, 
is significant. Section 75 provides that the local assessment 
of omitted property to be made thereunder shall be made 
between December 10 and 20, both inclusive. Section 50 
provides that the local assessment to be made under section 
49 shall be made between September 2 and December 10, 
both inclusive. Neither assessment can be made at a different 
time. Gannett v. Cambridge, 218 Mass. 60. It is plain that 
property, the income of which is subjected to taxation under 
chapter 62, cannot be included in the regular local assessment, 
made as of April 1, since the liability to local assessment 
does not arise until there is a failure to file the required 
income tax return on or before September 1. The local 
assessment upon such property is in that case made under 
G. L., c. 62, § 50, between September 2 and December 10, 
both inclusive. It is not made between December 10 and 
20 under G. L., c. 59, § 75. In my opinion, the provisions of 
G. L., c. 62, § 50, exclude such property from local assess- 
ment under G. L., c. 59, § 75. 

When G. L., c. 59, § 5, cl. 27, is read in connection with 
G. L., c. 62, §§ 49 to 53, I am constrained to the conclusion 



234 ATTORNEY GENERAL'S REPORT. [Jan. 

that intangible personal property is not to be subjected to 
local taxation except under the conditions and in the manner 
defined by the latter provisions. Such seems to be the 
necessary scope of the express exemptions conferred by said 
section 5, clause 27. This is entirely in accord with the prin- 
ciple that an exemption from taxation is not to be lightly 
inferred, but must be established either expressly or by clear 
intendment of the statute. Wheelwright v. Tax Commissioner, 

235 Mass. 584, 586; G. L., c. 59, § 2. G. L., c. 62, §§ 49 to 
53, must be held to define a comprehensive and exclusive 
scheme for local taxation of intangible personalty under 
chapter 59, and the exemption conferred by G. L., c. 59, § 5, 
el. 27, must, in my opinion, be construed accordingly^ 

For the reasons already pointed out, it is plain that the 
facts stated by you do not present a case which is within 
G. L., c. 62, §§ 49 to 53. So far as appears, there has been 
no failure by A to return taxable income on or before Sept. 
1, 1922. Indeed, it does not appear that the intangible 
personalty owned by A on April 1, 1922, produced in 
1921 any income which would have been taxable if A had 
then been an inhabitant of this State. But even if it be 
assumed that the intangible personalty owned by A on April 
1, 1922, produced income otherwise taxable, it is admitted 
that under the rule of Hart v. Tax Commissioner, supra, 
such income cannot be taxed. If, therefore, the intangible 
personalty in question were locally taxed in 1922 under G. L., 
c. 62, § 49, A could require such tax to be abated if he 
seasonably invoked the remedy given by section 51. I am 
therefore constrained to advise you that your inquiry must 
be answered in the negative. 

Yours very truly, 

J. Weston Allen, Attorney General. 



hisurance — Declaratiori of Trust — Partnership — Agent's or 
Broker's License. 

Partnership licenses under G. L., c. 175, § 173, may not be granted to 
persons doing business under a declaration of trust, 

Sept. 20, 1922. 
Hon. Clarence W. Hobbs, Commissioner of Insurance. 

Dear Sir: — I have your letter, with copy of an instru- 
ment attached purporting to be a declaration of trust, stating 



1923.] PUBLIC DOCUMENT — No. 12. 235 

that application has been made by three persons under said 
declaration for agents' or brokers' licenses from your depart- 
ment, under G. L., c. 175, § 173. Section 173 reads as 
follows : — 

The hcenses described in sections one hundred and sixty-three, one 
hundred and sixty-six, one hundred and sixty-seven, one hundred and 
sixty-eight and one hundred and seventy-two may be issued to part- 
nerships on the conditions specified in and subject to said sections, 
except as otherwise provided herein. Each member of the partner- 
ship shall file the statement or application required by law, including 
a written request that the license be issued in the partnership name. 
Together with said statements or appUcations, there shall be filed a 
dupHcate original of the TVTitten partnership agreement signed by aU 
the partners. The hcense shall be issued in the partnership name, and 
may be revoked or suspended as to one or all members of the partner- 
ship. Minors who are parties to the written articles of partnership 
may be included in the partnership license, provided that there is 
one adult member of the firm. If the partnership is terminated prior 
to the expiration of the hcense, the partners shall forthwith give notice 
thereof to the commissioner, who shall thereupon without a hearing 
revoke the Hcense. Each partner shall be personally liable to the 
penalties of the insurance laws for any violation thereof, although the 
act of violation is done in the name of or in behalf of the partnership. 
Whoever, being licensed as a partner under this section, fails to give 
notice as required herein of the termination of the partnership, or 
after the partnership is terminated acts under such license, shall be 
punished by a fine of not less than twenty nor more than five hundred 
dollars. 

You ask the following questions : — 

1. Does said section 173 authorize the Commissioner to hcense, 
as agents or brokers, persons operating under a declaration of trust 
in the form hereto attached? 

2. Is the declaration of trust a written partnership agreement 
within the meaning of said section? 

3. If the provisions of article 13 and article 14 were omitted from 
the declaration, would the Commissioner have the authority referred 
to in question 1, and would the declaration then constitute a partner- 
ship agreement for the purposes of said section 173? 

Answering your first question, I point out that the instru- 
ment filed with you purports on its face to be an agreement 
and declaration of trust. I am advised by counsel for the 
petitioners that it is intended to be one, drafted, however. 



236 ATTORNEY GENERAL'S REPORT. [Jan. 

to make the trust as responsible for its acts as a corporation. 
It is apparent, therefore, that these petitioners do not con- 
sider themselves partners, and the instrument submitted is 
not a partnership agreement such as section 173 requires. I 
am of opinion that the Legislature contemplated and intended 
the usual partnership relation, especially since limited part- 
nerships are not permitted to do insurance business. G. L., 
c. 109, § 1. Your first and second questions, therefore, are 
answered in the negative. 

In the light of my answer to questions 1 and 2, I do not 
think I should advise you further as to what the suggested 
change in the instrument might effect as a matter of law. 
These petitioners would still, on the face of things, be apply- 
ing for the license, not as partners, but as trustees under a 
written declaration of trust. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Taxation — Income Taxes — Additional Assessments — Notice 
and Opportunity to confer with the Commissioner of Cor- 
porations and Taxation. 

An additional assessment of income taxes cannot be made after the two- 
3^ear period prescribed by G. L., c. 62, § 37, has expired. 

The notice and opportunity to confer, for which G. L., c. 62, § 37, as 
amended by St. 1922, c. 143, provides, are conditions precedent to the 
making of an additional assessment of income tax. 

If a taxpayer, having received notice of the intention of the Commissioner 
of Corporations and Taxation to assess an additional income tax, 
confers with the Commissioner before the ten days prescribed by 
G. L., c. 62, § 37, as amended by St. 1922, c. 143, have expired, the 
Commissioner need not wait to make the assessment until the ten- 
day period has expired. 

The Commissioner cannot shorten the ten-day period by prescribing the 
time at which such conference shall be had. 

If the taxpayer has not conferred with the Commissioner, the Commis- 
sioner cannot make an additional assessment of income tax until 
the ten-day period prescribed by G. L., c. 63, § 37, as amended by 
St. 1922, c. 143, has expired, even though the two-year period within 
which such assessment may be made will expire before the ten days 
have elapsed. 

Sept. 25, 1922. 

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

Dear Sir: — You ask my opinion upon the following 
facts: — 



1923.] PUBLIC DOCUMENT — No. 12. 237 

A formal notice in respect of a proposed additional assess- 
ment of income taxes for the year 1920 is given to the tax- 
payer on Aug. 28, 1922. The taxpayer has his hearing on 
Aug. 30, 1922. You inquire whether, under G. L., c. 62, § 37, 
as amended by St. 1922, c. 143, the Commissioner may pro- 
ceed to make the assessment on August 31 or September 1, 
without waiting for the ten days after August 28 to expire. 
You further inquire whether, if a verification of 1920 income 
taxes be begun on Aug. 28, 1922, and during such verification 
omissions are called to the attention of the taxpayer, the 
taxpayer may insist upon the notice and opportunity to con- 
fer, for which section 37 provides. 

The material portion of G. L., c. 62, § 37, as amended by 
St. 1922, c. 143, provides: — 

If the commissioner finds from the verification of a return, or other- 
wise, that the income of smy person subject to taxation under this 
chapter or any portion thereof, has not been assessed, he maj- , at any 
time within two years after September first of the year in which such 
assessment should have been made, assess the same, -^dth interest at 
six per cent from the date when such tax was due under section thirty- 
nine, first giving notice to the person so to be assessed of his intention, 
and such person shall thereupon have an opportunity T\dthin ten days 
after such notification to confer with the commissioner in person or 
by counsel or other representative as to the proposed assessment. 
After the expiration of ten daj^s from such notification the commissioner 
shall assess the income of such person subject to taxation, or any por- 
tion thereof, which he believes has not theretofore been assessed, and 
he shall thereupon give notice under section thirty-nine to the person 
so assessed, and the tax, with interest as aforesaid, shall be payable 
fourteen days after the date of such notice. . . . 

1. In my opinion, the provisions of the first sentence are 
mandatory. In Gannett v. Cambridge, 218 Mass. 60, it was 
held that where a statute (now G. L., c. 59, § 75) provided 
that property omitted from the regular annual assessment of 
real and personal property should be assessed "between 
December tenth and twentieth, following, both inclusive, '* 
an assessment made in May of the next year was void, be- 
cause not made within the permitted period. I am of opinion 
that the provision for assessment "within two years after 
September first of the year in which such assessment should 
have been made" is a limitation upon the power to make 
such additional assessment. An assessment made after the 



238 ATTORNEY GENERAL'S REPORT. [Jan. 

expiration of that period would be void. Gannett v. Cam- 
bridge, supra. 

2. The statute provides that before making the assess- 
ment the Commissioner shall "first" give notice to the person 
to be assessed, who "shall thereupon have an opportunity, 
within ten days after such notification, to confer with the 
commissioner ... as to the proposed assessment. " In Torrey 
v. Millhury, 21 Pick. 64, 67, Chief Justice Shaw stated the 
test for distinguishing directory regulations from conditions 
precedent as follows: — 

In considering the various statutes regulating the assessment of 
taxes, and the measures preliminary thereto, it is not always easy to 
distinguish which are conditions precedent to the legaHty and vahdity 
of the tax, and which are directory merely, and do not constitute condi- 
tions. One rule is very plain and well settled, that all those measures, 
which are intended for the security of the citizen, for ensuring an 
equality of taxation, and to enable every one to know, with reasonable 
certainty, for what polls and for what real and personal estate he is 
taxed, and for what all those who are Hable with him are taxed, are 
conditions precedent, and if they are not observed he is not legally 
taxed, and he may resist it in anj^ of the modes authorized by law for 
contesting the vahdity of the tax. 

But many regulations are made b}^ statute, designed for the infor- 
mation of assessors and officers, and intended to promote method, 
system and uniformity in the modes of proceeding, the compUance or 
non-compliance with which, does in no respect affect the rights of 
tax-paying citizens. These may be considered directory; officers 
may be hable to legal animadversion, perhaps to punishment, for not 
observing them; but yet their observance is not a condition precedent 
to the validity of the tax. On consideration, the Court are of opinion 
that the requirement in the statute, in regard to "reduced value," 
is of the latter character. 

In my opinion, the provisions for notice and opportunity 
to confer must be regarded as conditions precedent to the 
assessment rather than as merely directory. Doubtless the 
notice may be given in the manner provided in section 39 
{i.e., either by mail, postage paid and duly addressed, or 
otherwise delivered at such address), and it may be that 
failure to receive such notice would not affect the validity of 
the tax. But it is significant that both sections 35 and 36 
likewise provide for notice as a condition precedent to the 
action therein provided for. I am therefore constrained to 
the view that failure to give the required notice or to accord 



1923.] PUBLIC DOCUMENT — No. 12. 239 

the prescribed opportunity to confer would render the assess- 
ment invaHd. 

3. I am of opinion, however, that upon the facts stated in 
your first inquiry there has been a sufficient compliance with 
these conditions precedent. The notice was given on August 
28. The taxpayer had his conference on August 30. He has 
therefore received every substantial right to which these pro- 
visions of law entitle him. The provision of the next sen- 
tence, that the assessment shall be made "after the expira- 
tion of ten days from such notification," must be construed 
with the first sentence. It is manifestly intended to ensure 
to the taxpayer the opportunity for conference "within ten 
days after such notification," to which he is entitled under 
the first sentence. It does not require that the Commissioner 
shall wait the whole ten days, if within that time the tax- 
payer has had his conference. I am therefore of opinion 
that, under these circumstances, the assessment may be made 
at any time after the conference and before midnight of 
September 1. 

4. These considerations dispose of your second inquiry. 
Even if it be assumed, without deciding, that calling certain 
omissions to the attention of the taxpayer in the course of 
verification under G. L., c. 62, § 30, could be found to be 
equivalent to the notice required by section 37 (a question 
of fact as to which I express no opinion), the taxpayer is 
still entitled to choose his own time, within the ten days, 
for the conference with the Commissioner. The conference 
is not an idle ceremony. It is an opportunity for the tax- 
payer to show why he should not be subjected to an additional 
assessment. He is entitled to prepare for it. If the Com- 
missioner could select the time for such conference, the tax- 
payer would not receive the right which the statute gives 
him, namely, opportunity to confer "within ten days after 
such notification." Unless such conference shall have been 
had, I am of opinion that the assessment cannot be made 
until the ten days after such notification have expired. The 
possible expiration of the two-year period for assessment within 
the ten days cannot relieve from compliance with the con- 
ditions precedent upon which the assessment depends. 

Yours very truly, 

J. Weston Allen, Attorney General. 



240 ATTORNEY GENERAL'S REPORT. [Jan, 



Registration of Births, Marriages and Deaths — Illegitimate 

Children. 

Marriage of the parents of a child born out of wedlock does not operate to 
change the name of the child. 

G. L., c. 46, § 13, does not provide for the making of any change in the 
record of birth, upon the marriage of the parents of a child born out 
of wedlock. 

The recording of the name of the father of an illegitimate child, on the 
written request of both father and mother, as authorized by G. L., 
c. 46, § 1, does not change the rule that illegitimate children have no 
family names and take the names they have gained by reputation. 

Under G. L., c. 46, § 13, the record of a birth, marriage or death can be 
corrected only to conform with the facts as they existed at the time 
of the birth, marriage or death to which the record relates. 

Sept. 25, 1922. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You ask my opinion in answer to the fol- 
lowing questions: — 

1. Does a child born out of wedlock, when parents subsequently 
marry, take the name of the father, and can the record of birth be 
corrected accordingly, as provided in G. L., c. 46, § 13 ? 

2. Does an illegitimate child take the name of the father when the 
name of the father is recorded on the written request of both the 
father and mother, as provided in G. L., c. 46, § 1? 

3. Can a record made at the time the birth, marriage or death, 
occurred be amended or corrected to agree with subsequently acquired 
names or facts, or can the record only be corrected in accordance with 
the facts as they existed at the time of the happening of the event? 

To these questions I reply in order, as follows : — 
1. Your first question consists of two distinct parts, which 
must be answered separately, the first being whether a child 
born out of wedlock takes the name of the father upon the 
subsequent marriage of the parents; and the second, whether, 
in that event, the record of birth can be changed. 

In an opinion to you under date of June 10, 1921 (Attorney 
General's Report, 1921, p. 198), I stated: — 

Illegitimate children have no family names, and take the names 
which they have gained by reputation. ... If a child goes by its 
mother's name it should be so recorded; otherwise not. 

If a child born out of wedlock has gained a name, that 
name can be changed only in ways provided or recognized 



1923.] PUBLIC DOCUMENT — No. 12. 241 

by the law. Our statutes permit a change of name by peti- 
tion to the probate court. G. L., c. 210, §§ 12-14. In 
addition to the statutory method, it seems also that a person 
may assume a name by which he can contract and be sued. 
Young v. Jewell, 201 Mass. 385; William Gilligan Co. v. 
Casey, 205 Mass. 26, 31. But while it is true that the mar- 
riage of the parents of a child born out of wedlock and the 
acknowledgment of the child by the father will legitimatize 
that child (G. L., c. 190, § 7), there is no statute or rule of 
law which operates to change the name of the child in that 
event. In my judgment, the child's name will not be changed 
except by a decree of the probate court or by the assumption 
and common use of the father's name by the child. 

If in any way the name of the child is changed upon the 
marriage of the parents, it is my opinion that the statute 
does not provide for the making of any change in the record 
of birth. G. L., c. 46, § 13, which you cite, providing for the 
correction of errors in the record, is, in part, as follows: — 

If the record relating to a birth, marriage or death does not contain 
all the required facts, or if it is claimed that the facts are not correctly 
stated therein, the town clerk shall receive an affidavit containing 
the facts required for record, if made by a person required by law to 
furnish the information for the original record, or, at the discretion of 
the town clerk, by credible persons having knowledge of the case. . . . 

The remainder of the section provides for the filing and 
recording of the affidavit, correcting the record by drawing a 
line through the incorrect statements, and entering the facts 
required to amend the record, etc. Manifestly this section 
is intended to provide for a correction of the record by the 
addition of facts not previously stated, or a correction of 
facts incorrectly stated, and not to provide for a change of the 
record occasioned by subsequent occurrences. 
2. G. L., c. 46, § 1, is, in part, as follows: — 

Each town clerk shall receive or obtain and record in separate 
columns the following facts relative to births, marriages and deaths 
in his town; 

In the record of births, date of record, date of birth, place of birth, 
name of child, his sex and color, names, places of birth and residence 
of his parents, including the maiden name of the mother and occupa- 
tion of the father. In the record of birth of an illegitimate child, the 
name of, and other facts relating to, the father shaU not be recorded 
except on the written request of both father and mother. The term 



242 ATTORNEY GENERAL'S REPORT. [Jan. 

''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. . . . 

I find nothing herein to change the rule of law which I have 
previously stated to be that illegitimate children have no 
family names and take the names which they have gained 
by reputation. 

3. My answ^er to this question is, as I have already indi- 
cated, that the record can only be corrected so as to conform 
with the facts as they existed at the time of the birth, mar- 
riage or death to which the record relates. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Drainage Laic — Jurisdiction of Drainage Board. 

Under G. L., c. 252, § 5, as amended by St. 1922, c. 349, § 4, the question 
whether the petitioners hold an interest sufficient to authorize them 
to petition the Drainage Board is a jurisdictional question, for the 
Board to determine. 

Oct. 3, 1922. 
Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You state that a question has arisen with 
respect to the State drainage law (G. L., c. 252, as amended 
by St. 1922, c. 349), as to how the valuation of property held 
by proprietors who seek to form a drainage district is to be 
determined in case the petitioners claim a majority in interest 
in respect to value, but do not have a majority in interest in 
respect to area. You ask w^hether in such a case the Drain- 
age Board should determine the question of valuation, and 
if not, by whom such question should be determined and 
upon what basis. You say that in some instances mill 
rights or other special privileges may be involved which 
would give lands in a proposed district a special value, and 
might, if such value should be set very high, enable the holder 
of the mill right practically to control the formation of the 
district. 

G. L., c. 252, § 5, as amended by St. 1922, c. 349, § 4, is, 
in part, as follows : — 

The proprietors, or a majority in interest either in value or area, 
may petition the board setting forth their desire to form a drainage 
district as provided in the following section, stating the proposed 



1923.] PUBLIC DOCUMENT — No. 12. 243 

name of said district, the necessity for the same, the objects to be 
accompHshed, and a general description of the lands proposed to be 
affected, together with the names of known owners of said lands. 
Upon the receipt of said petition the board shall proceed, at the expense 
of the commonwealth, to make such surveys of the land proposed to 
be drained as it shall deem necessary, and shall further ascertain by 
such surveys or other investigations the need of any drainage required 
for the benefit of the pubhc health, agricultural and other uses to which 
the land can be put after drainage, and its value for such uses after 
drainage, and in general the advisability of undertaking the proposed 
drainage or maintenance, and shall make recommendations in relation 
thereto, including a statement of what portion, if any, of the expense 
should be borne by the commonwealth on account of the cost of that 
part of the improvement relating to the pubhc health, and, after notice 
by publication in a newspaper pubHshed in the county where the greater 
part of the land lies and further notice to each known proprietor by 
registered mail and a hearing, if the board approves of the undertaking, 
it shall issue a certificate appointing three, five or seven district drain- 
age commissioners, who shall be sworn to the faithful performance of 
their duties, and fix their compensation, which shall not exceed five 
dollars a day, while in conference, and their necessary traveHng ex- 
penses while performing their duties, and authorize said commissioners 
to form a drainage district under the following section. . . . 

The authority given by this section to proprietors of land to 
petition for the formation of a drainage district extends to all 
cases where either the value of the lands held by the proprietors 
amounts to more than half of the value of the land in the dis- 
trict proposed to be formed, or the area of the lands so held 
amounts to more than half of the area of the proposed dis- 
trict. The question whether the petitioners hold an interest 
sufficient to authorize them to petition the Board is a jurisdic- 
tional question which the Board must determine. Every 
tribunal has necessarily the power, in connection with proceed- 
ings before it, to hear and determine in the first instance the 
question of its ow^n jurisdiction. C/. Brougham v. Oceanic Steam 
Navigation Co., 205 Fed. 857. What remedy a proprietor of 
land in the district, who is not a petitioner, may have by cer- 
tiorari or otherwise, it is not for me to decide. 

You refer to instances where mill rights and other special 
privileges may give to lands in a proposed district a special 
value which might enable the holder of such a right to exer- 
cise an influence disproportionate to the area of the land 
held by him. No doubt the value of land may be increased 
by mill rights and other rights involving the use of water or 



244 ATTORNEY GENERAL'S REPORT. [Jan. 

water power appurtenant to the land. Lowell v. County 
Commissioners, 152 Mass. 372; Essex Co. v. Lawrence, 214 
Mass. 79, 90. In every such case the question must be, 
what is the value of the land with the appurtenant rights? 
Yours very truly, 

J. Weston Allen, Attorney General. 



State Teachers' Retirement Association — Termination of Mem- 
bership — Part- Time Em'ployment by City of Boston. 

Teachers who are members of the State Teachers' Retirement Association 
discontinue their membership in such association after appointment 
by the city of Boston to positions where they receive only part of 
their salary for courses that come under the provisions of G. L., c. 74, 
§§ 1-24, inclusive, serving the remainder of their time in courses 
for which there is no reimbursement, and under which they would be 
subject to the retirement laws for regular Boston pubhc school teachers. 

Oct. 9, 1922. 
Teachers' Retirement Board, Department of Education. 

Gentlemen: — You request my opinion as to whether 
teachers who are members of the State Teachers' Retire- 
ment Association continue to be members of the association 
after they are appointed by the city of Boston to positions 
where they receive only part of their salary for courses that 
come under the provisions of G. L., c. 74, §§ 1-24, inclusive, 
serving the remainder of their time in courses for which 
there is no reimbursement, and under which they would be 
subject to the retirement laws for regular Boston public 
school teachers. 

St. 1908, c. 589, established a permanent school pension 
fund for the payment of pensions to members of the teaching 
and supervising staff of the public day schools of the city 
of Boston. These pensions are non-contributory and are 
met out of taxation (§§ 4, 5 and 6). The act was accepted 
by the city in accordance with the provisions of section 9 
thereof, and went into effect on June 22, 1908. 

St. 1913, c. 832, established a Massachusetts Retirement 
Association for teachers in the public day schools of the 
Commonwealth. Members of this association are assessed a 
certain proportion of their salaries, and at retirement receive 
an annuity based upon the contributions so made. In addi- 
tion, they receive from the State a pension equal to the 



1923.] PUBLIC DOCUMENT — No. 12. 245 

amount of such annuity. Attorney General's Report, 1921, 
p. 315. This act became effective on July 1, 1914, and as 
amended is now codified in G. L., c. 32, §§ 6-19. Section 7 
of said G. L., c. 32, provides, in part: — 

There shall be a teachers' retirement association organized as 
follows : 

(1) All persons now members of the teachers' retirement associa- 
tion established on July first, nineteen hundred and fourteen, shall be 
members thereof. 

(2) All teachers hereafter entering the service of the public schools 
for the first time shall thereby become members of the association. . . . 

But this provision must be read with section 18, which pro- 
vides: — 

Sections six to fifteen, inclusive, shall not apply to teachers in the 
pubUc schools of Boston, except teachers employed by Boston in day 
schools conducted under sections one to twenty-four, inclusive, of 
chapter seventy-four. 

As originally enacted in St. 1913, c. 832, § 3, cl. 3, this 
provision read: — 

Teachers in the service of the public schools of the city of Boston 
shall not be included as members of the retirement association. 

It is plain that under this clause teachers in the "public 
schools" of Boston were excluded from and were ineligible to 
membership in the State Retirement Association. I am of 
opinion that the change in form made in G. L., c. 32, § 18, 
has not in this respect changed the meaning. Verbal changes 
made in the course of the periodic codifications of our laws 
will not be held to change the meaning unless the intent to 
change clearly appears. Commonwealth v. Kozlowsky, 238 
Mass. 379, 387. Teachers in the "public schools" of Boston 
are still excluded by said section 18 from membership in the 
State Retirement Association. The reason for the exclusion 
appears to be that membership in the State association would 
render such teachers ineligible to receive the non-contributory 
pension for which St. 1908, c. 589, provides. (G. L., c. 32, 
§ 15.) 

St. 1911, c. 471, §§ 1-24 (now G. L., c. 74), provided 
for the establishment of vocational schools. St. 1914, c. 494, 
§§1 and 2, provided, in substance, that teachers employed 



246 ATTORNEY GENERAL'S REPORT. [Jan. 

by the city of Boston in such vocational schools, prior to 
June 30, 1914, might become members of the State Retire- 
ment Association established by St. 1913, c. 832, and that all 
teachers employed in said vocational schools for the first 
time after July 1, 1914, *' shall thereby" become members of 
such association. These provisions are now re-enacted in and 
continued in force by G. L., c. 32, § 7. In other words, 
while teachers employed in the regular "public schools" of 
Boston, no matter at what date employed, were and are 
excluded from membership in the State Retirement Associa- 
tion, teachers in the vocational schools, which are not a part 
of the regular public school system, were required to join the 
State Retirement Association if employed for the first time 
in such schools after July 1, 1914. 

In June, 1920, the Department of Education presented to 
this Department the question of the status of a teacher in 
the regular "public schools" of Boston who was thereafter 
employed upon a part-time basis in the vocational schools 
of Boston, for the first time, after July 1, 1914. This 
presented a situation where, under the particular circum- 
stances, one provision of law excluded such teacher from the 
State association, while another provision required such 
teacher to be a member. Under these circumstances, the 
Attorney General advised that the provision of law which 
required the teacher in the vocational schools to be a member 
of the State association (St. 1914, c. 494, § 1) did not relieve 
from the disability arising from the fact that such teacher 
was, at the same time, a teacher in the regular "public 
schools" of Boston, and that therefore such teacher should 
not be enrolled in the State association. V Op. Atty. Gen. 
576. In the same opinion the Attorney General further 
advised, in answer to another inquiry, that even though 
both employments were entered into at the same time, 
employment as teacher in the regular "public schools" of 
Boston excluded such teacher from the State Retirement 
Association. This opinion governs in the present case. Even 
though the teacher in question be a member of the State 
Retirement Association by reason of employment in the 
vocational schools of Boston, subsequent acceptance of em- 
ployment in the regular "public schools" renders such teacher 
ineligible to continue a member of such association. A 
different view would lead to the confusing and inequitable 
result that the respective rights of two teachers, each em- 



1923.] PUBLIC DOCUMENT — No. 12. 247 

ployed in both classes of schools, would depend upon the 
order in which the employments were undertaken. I am 
unable to believe that such was the intention of the Legis- 
lature, and therefore advise you that under the circumstances 
stated in your inquiry such teacher does not continue to be a 
member of the State Association. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Druggist — License — Federal Permit — Board of Registra- 
tion in Pharmacy — Intoxicating Liquor — Attorney Gen- 
eral. 

The revocation of the Federal permit issued to a druggist, authorizing 
him to have intoxicating liquor in his store, is not a judgment which 
establishes a violation of law, and it is the duty of the Board of Regis- 
tration in Pharmacy to give a hearing, as required by G. L., c. 112, 
§ 40, and decide for itself, upon the evidence, whether or not a viola- 
tion of law has occurred which would justify the Board in suspending 
or revoking the registration of such druggist. 

The Attorney General does not decide questions of fact or substitute his 
judgment for the judgment of the officer or Board to which the deci- 
sion of such questions is committed by law. 

Oct. 18, 1922. 

Mr. William F. Craig, Director oj Registration. 

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

A drug store in Cambridge was visited by Federal authorities in 
search of liquor. The druggist held a permit from the Federal govern- 
ment authorizing him to have liquor in his store. The agents found, 
however, several bottles of whiskey, spuriously labeled, which had 
not been purchased under the permit from the Federal government. 
The druggist testified that these bottles of whiskey had been given 
him by a friend, and that they were kept in his store for his personal 
use. 

This druggist has been brought before the Board, has had a hearing 
at which he appeared and testified, confirming the facts as given above. 
He holds a permit to operate a drug store, issued to him by the Board 
of Registration in Pharmacy under the provisions of G. L., c. 112, 
§§ 37-42. The Board desires to know whether, under these circum- 
stances, it is authorized by law to suspend this drug store permit. 

It is disclosed that, by order of the Federal Prohibition 
Director of the Third Judicial District of Massachusetts, 



248 ATTORNEY GENERAL'S REPORT. [Jan. 

dated Aug. 9, 1922, permit No. H-5428, issued to the druggist 
in question, " be, and the same hereby is, revoked and can- 
celed upon the following grounds, to wit; in that said per- 
mittee has not in good faith conformed to the provisions 
of the National Prohibition Act and the permit issued from 
this Department." 

G. L., c. 112, § 40, provides as follows: — 

The board may suspend or revoke any registration made under the 
preceding section and any permit issued thereunder for any violation 
of the law pertaining to the drug business or the sale of intoxicating 
liquors or for aiding or abetting in a violation of any such law; but 
before such suspension or revocation the board shall give a hearing to 
the holder of the permit, after due notice to him of the charges against 
him and of the time and place of the hearing. Such holder may appear 
at the hearing -^vith witnesses and be heard by counsel. Witnesses 
shall testify on oath and any member of the board may administer 
oaths to them. The board may require the attendance of persons and 
compel the production of books and documents. Three members of 
the board shall be a quorum for such a hearing, but no registration 
or permit shall be suspended or revoked unless upon the affirmative 
vote of three or more members thereof. 

This section expressly provides that the Board may suspend 
or revoke any registration or permit issued thereunder "for 
any violation of the law pertaining to the drug business or 
the sale of intoxicating liquors or for aiding or abetting any 
violation of any such law." 

In my opinion, this provision must be held to include 
violations of the Federal law passed to enforce the Eighteenth 
Amendment to the Federal Constitution, commonly called 
the Volstead Act, which is operative in Massachusetts and 
regulates the sale of liquor in this State. Under appropriate 
circumstances a violation of that law, or aiding or abetting 
in such violation, may be found to establish that the violator 
is not of fit character to hold the license or permit in question. 
See Lawrence v. Board of Registration, 239 Mass. 424, 428. 
On the other hand, proof of such violation cannot be held 
in every instance to require revocation of such license or 
permit. Each case must rest upon its own facts and be 
determined by the Board in the exercise of a sound discretion. 
I therefore advise you that the Board must determine in the 
manner prescribed by law whether or not a violation of the 
Volstead Act has occurred. If that fact be found adversely 



1923.] PUBLIC DOCUMENT - No. 12. 249 

to the druggist, the Board should than determine what action 
ought to be taken, in the exercise of a sound discretion. 

In this connection it may be advisable to point out that 
the office of Federal Prohibition Director is an administrative 
and not a judicial office. Accordingly, the revocation of the 
Federal permit in question is not a judgment which establishes 
a violation of law. It is a finding of fact which neither adds 
to nor detracts from the evidence upon which it rests. Such 
a finding of fact by an administrative officer cannot relieve 
your Board either from the duty to give a hearing, as required 
by G. L., c. 112, § 40, or from the duty to decide for itself 
upon the evidence whether or not a violation of law has 
occurred. 

With reference to what action the Board may take in the 
present case, it should be, and doubtless is, unnecessary to 
point out that the Attorney General does not decide questions 
of fact or substitute his judgment for the judgment of the 
officer or Board to which the decision of such questions 
is committed by law. 

Yours very truly, 

J. Weston Allen, Attorney General. 



State Employee — Pension Deduction — Workmen's Compensa- 
tion Act — Wages — Board — Auditor. 

St. 1922, c. 341, § 2, providing for the addition of S5 per week, in certain 
instances, to the cash payment for regular services, concerns only 
the basis upon which annuity contributions and computation of pen- 
sions based upon prior service are to be made under the retirement 
and pension system outlined in G. L., c. 32, and, consequently, should 
not enter into the basis of the computation of awards made to injured 
employees under the workmen's compensation law. 

Whenever an employee is provided with board, in accordance with the 
practice in a State institution, the same is in the nature of a perquisite, 
which is not to be included in determining the "average weekly 
wages" under G. L., c. 152. 

Accordingly, the State Auditor is not required to approve vouchers for 
awards made by the Department of Industrial Accidents under the 
provisions of G. L., c. 152, if it appears that the $5 addition granted 
under St. 1922, c. 341, and the value of maintenance have been in- 
cluded in the basis of computation for said awards. 

Oct. 27, 1922. 

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

Deae Sir: — You request my opinion as to whether or 
not St. 1922, c. 341, § 2, which adds $5 per week to the 



250 ATTORNEY GENERAL'S REPORT. [Jan. 

cash payments made to institution employees for the purpose 
of pension deductions, would also have the effect of fixing 
the full amount of salary or wage said institution employees 
would receive for the purpose of finding the amount which 
should be used when making payments under the provisions 
of G. L., c. 152. 

You state that recently the Department of Industrial Acci- 
dents has filed with your office certain agreements made with 
injured institution employees, which show the addition to 
their cash wages of amounts for maintenance valued at 
$4.60, $5 and $7 per week, and then allowing payment on 
the basis of two-thirds of the same. You inquire whether 
the Department of Industrial Accidents has the right to fix 
the value of said maintenance, and, if so, whether the amount 
should be the same in all cases. 

I assume that the purpose of your question is to ascertain 
whether or not it is your duty to approve vouchers of the 
Department of Industrial Accidents which disclose that said 
additions have been made or allowed in connection with 
payments under the provisions of G. L., c. 152. It would 
seem that your query is divisible into two parts, viz.: First, 
is the Department of Industrial Accidents justified, under 
the provisions of St. 1922, c. 341, in adding the sum of $5 
per week to the weekly wage of an institution employee 
who becomes injured, when determining the basis of com- 
pensation under the provisions of G. L., c. 152? Second, 
has the Department of Industrial Accidents the right to 
compute the value of maintenance where the same is allowed 
to such institution employee and include it when determining 
the basis of said compensation? 

1. St. 1922, c. 341, § 2, provides as follows: — 

Section three of ^aid chapter thirty-two is hereby amended by 
inserting after the word "limits" in the fourteenth line the following: — 
It shall add to the cash pajTnent for regular pervices, in cases where 
an employee of a state institution receives a non-cash allowance to 
cover compensation in the form of full or complete boarding and 
housing in accordance with the practice in such state institution, 
an amount at the rate of five dollars per week, which amount added 
to said cash payment shall be the basis upon wliich annuity contribu- 
tions shaU be made; and the foregoing provision shall also apply 
in computing pensions based upon prior service, — so that paragraph 
(4) "will read as follows : — (4) It shall determine the percentage of 
wages or salary that employees shall contribute to the fund, subject 



1923.] PUBLIC DOCUMENT — No. 12. 251 

to the minimum and maximum percentages, and may classify em- 
ployees for the purposes of the system and establish different rates of 
contribution for different classes within the prescribed limits. It 
shall add to the cash payment for regular services, in cases where an 
employee of a state institution receives a non-cash allowance to cover 
compensation in the form of full or complete boarding and housing in 
accordance with the practice in such state institution, an amount at 
the rate of five dollars per week, which amount added to said cash 
payment shall be the basis upon which annuity contributions shall be 
made; and the foregoing provision shall also apply in computing 
pensions based upon prior service. 

It is to be observed that this amends G. L., c. 32, which 
provides for retirement systems and pensions only. G. L., 
c. 152, embodies the workmen's compensation law and defines 
what shall be the basis of computation for compensation, 
namely, the average weekly wages of the injured employee. 
Section 1, paragraph (1), thereof defines "average weekly 
wages" as follows: — 

(1) ''Average weekly wages," the earnings of the injured employee 
during the period of twelve calendar months immediately preceding 
the date of injury, divided by fifty-two; but if the injured employee 
lost more than two weeks' time during such period, the earnings for 
the remainder of such twelve calendar months shall be divided by the 
number of weeks remaining after the time so lost has been deducted. 
Where, by reason of the shortness of the time during which the em- 
ployee has been in the employment of his employer or the nature or 
terms of the employment, it is impracticable to compute the average 
weekly wages, as above defined, regard may be had to the average 
weekly amount which, during the twelve months previous to the 
injury, was being earned by a person in the same grade employed at 
the same work by the same employer, or, if there is no person so em- 
ployed, by a person in the same grade employed in the same class of 
emplojmient and in the same district. 

In Gagjion's Case, 228 Mass. 334, 338, the Supreme Court 
has defined "wages" in this connection in the following 
language: — 

"Wages" as used in the statute must be taken to refer to the only 
wages referred to anywhere in the act (with the exception noted), 
namely, the wages earned in the particular employment out of which 
the injury arose. If any exception to this rule were intended, doubt- 
less it would have been stated with the same expHcitness with which 
the only exception in the definition is set forth. 



252 ATTORNEY GENERAL'S REPORT. [Jan. 

It is significant that St. 1922, c. 341, does not in terms 
refer to or amend the provisions of G. L., c. 152, and it is 
fair to assume that if the Legislature had intended to amend 
the workmen's compensation law in this connection it would 
have done so expressly. 

I am accordingly of the opinion that St. 1922, c. 341, 
providing for the addition of $5 per week, in certain instances, 
to the cash payment for regular services, concerns only the 
basis upon which annuity contributions and computation of 
pensions based upon prior service are to be made under the 
retirement and pension system outlined in G. L., c. 32, and, 
consequently, should not enter into the basis of the computa- 
tion of awards made to injured employees under the work- 
men's compensation law. 

2. The above considerations determine the answer to the 
second question as well, and it is accordingly my opinion 
that wherever an employee is provided with board, in accord- 
ance with the practice in a State institution, the same is in 
the nature of a perquisite, which is not to be included in 
determining "average weekly wages" under G. L., c. 152. 

I therefore answer each of the above questions in the nega- 
tive, and advise you that you are not required to approve 
vouchers for awards made by the Department of Industrial 
Accidents under the provisions of G. L., c. 152, if it appears 
that the $5 addition granted under said chapter 341 and the 
value of maintenance have been included in the basis of 
computation of said awards. 

Very truly yours, 

J. Weston Allen, Attorney General. 



1923.1 PUBLIC DOCUMENT — No. 12. 253 



Civil and Military Settlements — Military Aid and Soldiers* 
Relief — Dependents. 

An existing civil settlement of a soldier or sailor who served in the Spanish 
War, Philippine Insurrection or World War is not defeated by the 
provisions of St. 1922, c. 177. 

"VMiile St. 1922, c. 177, is retroactive, and the militar}- settlement is ac- 
quired as of the date of the entry of the soldier or sailor into the 
service, and not as of the date when the act takes effect, such settle- 
ment may be defeated or changed in any of the ways pro\aded by law. 

Dependents of a soldier or sailor who died prior to June 17, 1922, the date 
upon which St. 1922, c. 177, took effect, acquire the same military 
settlement as the soldier or sailor would have acquired had he hved. 

Dependents ehgible to receive soldiers' relief under G. L., c. 115, and 
amendments thereof, may receive it in the place where the soldier or 
sailor had acquired a civil settlement, if such settlement has not been 
lost; otherwise, from the city or to-uTi in which such dependents are 
deemed to have acquired a miUtary settlement, unless such military 
settlement has been lost. 

Nov. 3, 1922. 

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

Dear Sir: — You have asked my opinion with respect to the 
proper interpretation to be given to St. 1922, c. 177, amending 
the settlement law, with reference to men who served in the 
Spanish War, Philippine Insurrection and World War, and 
which became effective on June 17, 1922. More specifically 
you ask, first, whether said chapter 177 defeats the existing, 
civil settlement of a soldier, thus obliging him and certain 
dependents to apply for military aid or soldiers' relief in the 
city or town of his residence at the time of his acceptance 
into the United States service; and second, whether the 
dependents of a soldier who died prior to June 17, 1922, the 
date when said chapter became effective, will be eligible to 
receive soldiers' relief under G. L., c. 115, §§17 and 18, as 
amended by St. 1921, c. 222, in the place where the soldier 
had acquired a civil settlement by continuous residence, or 
will the dependents be obliged to apply to the city or towm 
of the soldier's residence at the time of his enlistment or 
draft. 

The statute involved, while amendatory of section 1 of 
G. L., c. 116, which is the chapter relating to settlement of 
paupers, with respect to the questions here raised effected no 
change material to our present inquiry. Said St. 1922, c. 177, 
is entitled **An Act relative to the acquisition of settlements 
by soldiers and sailors," and provides as follows : — 



254 ATTORNEY GENERAL'S REPORT. [Jan. 

Section one of chapter one hundred and sixteen of the General 
Laws is hereby amended by striking out all after the word "town" 
in the twenty-seventh line down to and including the word "enemy" 
in the thirtieth line, by inserting after the word "not" in the thirty- 
ninth line the words : — , or who enlisted and served in said forces 
during the Philippine insurrection, — and by striking out, in the 
fortieth line the words ", subject to the same proviso,", — so that 
clause Fifth will read as follows : — Fifth, A person who enlisted and 
was mustered into the military or naval service of the United States, 
as a part of the quota of a town in the commonwealth under any call 
of the president of the United States during the war of the rebellion 
or any war between the United States and any foreign power, or who 
was assigned as a part of the quota thereof after having enlisted and 
been mustered into said service, and his wife or \\ddow and minor 
children, shall be deemed thereby to have acquired a settlement in 
such tow^n; and any person who would otherwise be entitled to a 
settlement under this clause, but who was not a part of the quota of 
any town, shall, if he served as a part of the quota of the common- 
wealth, be deemed to have acquired a settlement, for himself, his wife 
or widow and minor children, in the place where he actually resided 
at the time of his enlistment. Any person who was inducted into the 
mihtary or naval forces of the United States under the federal selective 
service act, or who enlisted in said forces in time of war between the 
United States and any foreign power, whether he served as a part of 
the quota of the commonwealth or not, or who enlisted and served in 
said forces during the Phihppine insurrection, and his wife or mdow 
and minor children shall be deemed to have acquired a settlement in 
the place where he actually resided in this commonwealth at the time 
of his induction or enUstment. But these provisions shall not apply 
to any person who enlisted and received a bounty for such enlistment 
in more than one place unless the second enlistment was made after 
an honorable discharge from the first term of service, nor to any person 
who has been proved guilty of wilful desertion, or who left the service 
otherwise than by reason of disability or an honorable discharge. 

L A statute will not be held to be retroactive in the absence 
of a plainly expressed intention that it shall be so. Martin L. 
Hall Co. V. Commonicealth, 215 Mass. 326, 329. This statute 
does plainly express the intention that it shall be retroactive. 
In Boston v. Warwick, 132 Mass. 519, 520, the court, in 
construing a similar statute, said: — 

The pauper to whom it [the statute] applies is to be "deemed to 
have acquired a settlement" by his service for a term not less than 
one year as a part of the quota of the town. The settlement conferred 
upon him is not a settlement acquired at the time of the passage of 
the statute, but, by virtue of the retroactive force of the statute, is 



1923.] PUBLIC DOCUMENT — No. 12. 255 

to be treated in all respects as a settlement acquired by him at the 
expiration of his service for a term not less than a year. Worcester v. 
Springfield, 127 Mass. 540. 

. . . There is nothing in the statutes to prevent his changing this 
settlement and acquiring a new one in any of the modes provided by 
law. ... It was intended for the benefit of the soldier, and not to 
disable him from gaining a settlement after he left the service in any 
of the modes provided by statute, as any other person might. 

In view of this decision, it is plain that the present act is 
retroactive, that the settlement is, by virtue of the statute, 
acquired as of the time of enlistment or induction into the 
service and not as of the date when the act takes effect, and 
that such settlement ma^' be defeated or changed in any of 
the modes provided by law. I am of the opinion that the act 
neither prevents a soldier from acquiring a subsequent settle- 
ment in some other city or town nor defeats a subsequent 
settlement so obtained, and therefore answer your first ques- 
tion in the negative. 

2. With respect to your second inquiry, the answer is to be 
arrived at in understanding the purpose of the act, and I 
believe that to be, not to give the widow or children more 
than the soldier or sailor himself would have been entitled to, 
but to put them in the same position he would have been in 
had he lived. The phraseology of the statute, that the 
persons enumerated "shall be deemed to have acquired a 
settlement," clearly shows that it is retroactive in its purpose. 
Consequently, the widow or minor children of a soldier or 
sailor who has died prior to June 17, 1922, acquire the same 
military settlement wdiich the husband or father would have 
acquired had he lived; but, just as the soldier or sailor might 
have lost this military settlement, so too, if the widow or 
minor children have moved from the city of whose quota the 
soldier formed a part, this military settlement ma}' be lost by 
them. I am consequently of opinion that the dependents 
eligible to receive soldiers' relief under G. L., c. 115, and 
amendments thereof, may receive it in the place w^here the 
soldier or sailor had acquired a civil settlement, if said settle- 
ment has not been abandoned or lost; otherwise, from the 
city in which the dependent is deemed to have acquired a 
military settlement, unless said military settlement has been 
abandoned or lost. 

Very truly yours, 

J. Weston Allen, Attorney General, 



256 ATTORNEY GENERAL'S REPORT. [Jan. 



Division of Fisheries and Game — Acceptance of Unconditional 

Gifts — Trust. 

In the absence of any express prohibition in the Constitution or statutes 
of the Commonwealth, the Division of Fisheries and Game, as a part 
of the Department of Conservation, is entitled to receive uncondi- 
tional gifts of chattels, the title to which, however, vests in the Com- 
monwealth, but any sums of money which may be offered to the 
Division of Fisheries and Game by way of absolute and unconditional 
gift to the Commonwealth must be deposited in the treasury of the 
Commonwealth, in accordance with Mass. Const., pt. 2d, c. II, § I, 
art. XI, and G. L., c. 30, § 27, and can only be withdrawn from the 
treasury in accordance with the method provided by law. On the 
other hand, the Department of Conservation has no authority to 
receive and accept any gift of money charged with any form of trust 
for the purpose of carrying on local activities of the Division of Fish- 
eries and Game. 

Nov. 10, 1922. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

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

The Division of Fisheries and Game is about to receive as a gift 
an automobile as an addition to its law-enforcement equipment. 
The deed is an out and out gift, wdth no conditions attached. 

There is a movement on foot among certain clubs in the western 
part of the State to supply the funds with which to build a camp at 
the Montague Rearing Station, for housing the superintendent during 
a portion of the year. 

It is likely that sums of money may be offered to the Division from 
time to time to help defray the cost of extending the rearing facilities 
at some of the fish hatcheries and bird farms. 

Is there any statutory provision which would prevent this Division 
from accepting gifts of money or materials to assist in carrying on its 
work, provided that these are unconditional gifts and are not to be 
construed in any sense as the creation of trusts or as giving the donors 
any right to follow the property or the funds and have a voice in their 
handling or expenditure? 

Your question is properly divisible into two parts: first, 
has the Division of Fisheries and Game the right to receive 
and hold chattels by unconditional gift; and second, has 
said division the right to receive money by unconditional 
gift? 

The Division of Fisheries and Game forms a part of the 
Department of Conservation. G. L., c. 21, § 1. As such it 
is a branch of the administration of government of the Com- 



1923.] PUBLIC DOCUMENT — No. 12. 257 

monwealth. In and of itself it is not an entity. It would 
accordingly follow that the donee should be the Common- 
wealth of Massachusetts. The right of the Commonwealth 
to acquire and hold property may be thus generally stated 
(36 Cyc. 869, and cases cited) : — 

A state has in general the same rights and powers in respect to 
property as an individual. It may acquire property, real or personal 
by conveyance, wiU, or otherwise, and hold or dispose of the same or 
applj^ it to any purpose, public or private, as it sees fit. 

In the absence, therefore, of any express prohibition in the 
Constitution or statutes of the Commonwealth, it is my 
opinion that the Division of Fisheries and Game is entitled 
to receive unconditionally gifts of chattels, the title to which, 
however, vests in the Commonwealth. 

In this connection I desire to point out that the expendi- 
ture for operation of such chattels, for example, an auto- 
mobile, might raise a different question involving considera- 
tion of other principles. 

Mass. Const. Amend. LXIII, § 1, provides as follows: — 

Collection of Revenue. — All money received on account of the 
commonwealth from any source whatsoever shall be paid into the 
treasury thereof. 

The Constitution of Massachusetts also provides in pt. 
2d, c. II, § I, art. XI: — 

No moneys shall be issued out of the treasury of this commonwealth, 
and disposed of (except such sums as may be appropriated for the 
redemption of bills of credit or treasurer's notes, or for the payment of 
interest arising thereon) but by warrant under the hand of the governor 
for the time being, with the advice and consent of the council, for the 
necessary defence and support of the commonwealth; and for the 
protection and preservation of the inhabitants thereof, agreeably to 
the acts and resolves of the general court. 

G. L., c. 30, § 27, provides: — 

All fees or other money received on account of the commonwealth 
shall be paid into the treasury thereof and such payments shall, except 
as otherwise expressly provided, be made at least once in each month. 

See also Opinion of the Justices, 13 Allen, 593, and opinion of 
the Attorney General to the Treasurer and Receiver-General,, 
dated Sept. 10, 1921 (Attorney General's Report, 1921, p. 264). 



258 ATTORNEY GENERAL'S REPORT. [Jan. 

It is accordingly my opinion that any sums of money 
which may be offered to the Division of Fisheries and Game 
from time to time by way of absolute and unconditional 
gift to the Commonwealth must be deposited in the treasury 
of the Commonwealth, in accordance with the foregoing 
provisions of the Constitution and acts of the Legislature, 
and can only be drawn therefrom in accordance with the 
method provided by law. 

Inasmuch as you state that the proposed gifts to the 
division are to be devoted "to assist in carrying on its work," 
it may be well to point out that such a gift would unques- 
tionably constitute a trust, regardless of the fact that such 
gifts "are not to be construed in any sense as the creation 
of trusts or as giving the donors any right to follow the prop- 
erty or the funds and have a voice in their handling or ex- 
penditure." There is nothing to prevent the Commonwealth 
of Massachusetts, as a sovereign, from sustaining the character 
of a trustee for such a purpose as that under consideration, 
but in such case the money would have to be received and 
accepted by some officer, commission or department of the 
Commonwealth, duly authorized by statute to receive the 
money, in trust for the designated purpose, as, for example, 
the Department of Education, G. L., c. 69, § 3. See also 
G. L., c. 45, §§3 and 14, relating to powers of boards of 
park commissioners; G. L., c. 114, §§ 20 and 21, relative to 
care of cemeteries and cemetery lots; G. L., c. 45, § 19, 
relative to public domain. I find no statute authorizing the 
Department of Conservation or the Division of Fisheries 
and Game to receive money in trust for the purpose of ex- 
panding or carrying on the work of that department or divi- 
sion. 

I am therefore of the opinion that your department has 
no authority to receive money on behalf of the Common- 
wealth in trust for the purpose of carrying on lawful activ- 
ities of the Division of Fisheries and Game. I am accord- 
ingly constrained to advise you that while your department 
may receive and deposit in the treasury an absolutely un- 
conditional gift of money, your department has no authority 
to accept any gift of money charged with any form of trust. 
Yours very truly, 

J. Weston Allen, Attorney General, 



1923.] PUBLIC DOCUMENT — No. 12. 259 



Auditor of the Commonwealth — Inspection of Income Tax 

Returns. 

St. 1922, c. 545, § 27, when construed with G. L., c. 62, §§32 and 58, does 
not authorize the Auditor of the Commonwealth to inspect income 
tax returns in making an audit of the Income Tax Division. 

Nov. 13, 1922. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — G. L., c. 62, § 32, provides, in part: — 

Returns shall be open to the inspection of the commissioner, and 
his deputies, assistants and clerks when acting under his authority, 
and the income tax assessors, and their deputies, assistants and clerks 
when acting under their authority. The books, accounts and other 
records in the hands of the commissioner, except returns, shall be open 
to the inspection of the state auditor, and his deputies, assistants 
and clerks when acting under his authority for the purpose of auditing 
the accounts of the commissioner. . . . 

Section 35 of said chapter provides: — - 

The commissioner shall determine from the returns required by 
this chapter, or in any other manner, the income of every person 
taxable thereunder, and shall assess thereon the tax hereby provided; 
but he shall not determine the income of a person who has filed a 
return in accordance with sections twenty-two to twenty-five, inclu- 
sive, within the time prescribed by law, to be in excess of that dis- 
closed by such return, without notifying such person and giving him 
an opportunity to explain the apparent incorrectness of his return. 

Section 58 of said chapter provides: — 

The disclosure by the commissioner or by the state auditor, or by 
any deputy, assistant, clerk or assessor, or other emploj^ee of the 
commonwealth or of any city or town therein, to any person but the 
taxpayer or his agent, of anj'- information whatever contained in or 
set forth bj^ any return filed under this chapter, other than the name 
and address of the person filing it, except in proceedings to collect the 
tax or by proper judicial order, or for the purpose of criminal prose- 
cution under this chapter, shall be punishable by a fine of not more 
than one thousand dollars, or by imprisonment for not more than six 
months, or both, and by disqualification from holding office for such 
period, not exceeding three years, as the court determines. 

St. 1922, c. 545, § 27, provides, in part: — 



260 ATTORNEY GENERAL'S REPORT. [Jan. 

The department of the state auditor shall annually make a careful 
audit of the accounts of all departments and activities of the com- 
monwealth, including those of the income tax division of the depart- 
ment of corporations and taxation, and for said purpose the authorized 
officers and emploj^ees of said department of the state auditor shall 
have access to such accounts at reasonable times. Said department 
shall keep no books or records except records of such audits, and its 
annual report shall relate only to such audits. . . . 

You inquire whether, under these provisions of law, you 
have a right to inspect income tax returns for the purpose 
of making an audit of the Department of Corporations and 
Taxation. 

In an opinion rendered to the Tax Commissioner on May 
3, 1918, the Attorney General advised that, under Gen. St. 
1916, c. 269, § 16, the Auditor could not lawfully inspect 
the books or cards w^hich set forth in detail the name and 
address of each taxpayer, the amount of the tax and penalty, 
the amount of abatement, if any, the additional charges for 
costs and interest, and the final balance paid or unpaid. At 
that time the statute forbade the disclosure of any informa- 
tion contained in the return of each taxpayer, and there was 
no act which authorized the Auditor and his deputies, assist- 
ants and clerks to inspect the books, accounts and other 
records in the hands of the Commissioner, except returns, 
for the purpose of making an audit. The latter authority, 
with an express exception as to returns, was conferred by 
Gen. St. 1919, c. 117, which is now codified as G. L., c. 62, 
§ 32. Under that act, therefore, the iVuditor and his depu- 
ties, assistants and clerks may inspect "the books, accounts 
and other records of the tax commissioner, except returns,'* 
in order to make an audit. 

I find nothing in St. 1922, c. 545, w^hich enlarges the 
authority of the Auditor in this respect. That act estab- 
lishes a Commission on Administration and Finance. Section 
1 of that act transfers to said commission "all the rights, 
powers, duties and obligations ... of the state auditor 
except such as relate to the auditing of accounts of all depart- 
ments, offices and commissions of the commonwealth and to 
the keeping of reports of such audits." Section 27 simply 
reaffirms the existing duty to "make a careful audit," a 
duty which already rested upon the Auditor under the 
powers and obligations reserved to him by section 1. If the 



1923.] PUBLIC DOCUMENT — No. 12. 261 

Legislature had intended to abolish the express exception 
as to inspection of income tax returns, it would probably 
have done so by words equally clear and unambiguous. 
When section 27 is construed with section 1, I am unable to 
discover any intention to enlarge the powers of the Auditor. 

I am confirmed in this conclusion by the consideration 
that inspection of the returns is unnecessary in order to make 
a careful audit. The tax is assessed by the Commissioner 
upon the basis of those returns (and possibly supplementary 
information), but until that assessment is made, no money 
obligation to the Commonwealth arises. I can discover no 
intention in this act to make the Auditor a reviewing officer 
charged with the duty to determine whether the Commissioner 
is assessing income taxes according to law. If the Auditor 
is permitted to see the books, accounts and other records, 
except returns, which show the amount of the tax as assessed, 
any abatement of it, any charges for costs or interest, and 
the final balance paid or unpaid, he has before him all the 
financial history of that money obligation from the time when 
that obligation comes into existence. A careful audit does 
not require the Auditor to go behind the assessment of the 
tax. I am therefore of opinion that St. 1922, c. 5^, § 27, 
does not confer power to inspect the returns 
Yours very truly, 

J. Weston Allen, Attorney General. 



Optometry — Examination and Registration of Applicants — 
Approval of Schools. 

G. L., c. 112, § 68, giving to the Board of Registration in Optometry power 
to approve schools of optometry whose graduates may apply for 
examination, is a valid exercise of the police power, and is constitu- 
tional. 

Nov. 14, 1922. 

Payson Dana, Esq., Commissioner of Civil Service and Registration. 

Dear Sir: — You ask my opinion on points relative to 
the optometry law. Your first question is whether, under 
G. L., c. 112, § 68, the Board has a right to approve schools 
of recognized standing and reject those of questionable 
character and standing, and whether the clause of that sec- 
tion which relates to qualifications of applicants for exami- 
nation will stand the test of constitutionality. 



262 ATTORNEY GENERAL'S REPORT. [Jan. 

G. L., c. 112, § 68, is, in part, as follows: — 

No person, except as other^wdse provided in this section, shall prac- 
tice optometry until he shall have passed an examination conducted 
by the board in theoretic, practical and physiological optics, theoretic 
and practical optometry, and in the anatomy and physiology of the 
eye, and shall have been registered and shall have received a certificate 
of registration which shall have conspicuously printed on its face the 
definition of optometry set forth in section sixty-six. Every appli- 
cant for examination shall present satisfactory evidence, in the form 
of affidavits properly sworn to, that he is over twenty-one, of good 
moral character, that he has studied the subjects herein prescribed for at 
least three years in a registered optometrist's oflSce or has graduated 
from a school of optometry, approved by the board, maintaining a 
course of study of not less than two j^ears with a minimum require- 
ment of one thousand attendance hours and that he has graduated 
from a high school approved by the board or has had a preliminary 
education equivalent to at least four years in a pubKc high school; 
provided, that if he is unable to prove graduation from, or four years' 
actual attendance at, a high school the board shall determine his 
quahfications by proper preHminarj^ examination, the fee for which 
shall be five dollars to be paid by the appHcant. . . . 

The ease of Commonwealth v. Houtenbrinh, 235 Mass. 320, 
323, to w^iich you refer in your letter, holds directly that St. 
1912, c. 700, re-enacted in G. L., c. 112, §§ 66 to 73, inclusive, 
is a valid exercise of the police power, and is constitutional. 
In that case section 5 of the statute, re-enacted in G. L., 
c. 112, § 68, is expressly referred to. In G. L., c. 112, § 2, 
there is a corresponding provision requiring an applicant for 
registration as a qualified physician to furnish satisfactory 
proof that he has received the degree of doctor of medicine, 
or its equivalent, from a legally chartered medical school 
having the power to confer degrees in medicine. The con- 
stitutionality of such a provision relating to physicians is 
settled by numerous decisions. Heivitt v. Charier, 16 Pick. 
353; Dent v. West Virginia, 129 U. S. 114; ColUiis v. TexaSy 
223 U. S. 288. Cf. Commonwealth v. Porn, 196 Mass. 326; 
CommomceaUh v. Zimmerman, 221 Mass. 184. I have no 
doubt that the requirements to w^hich you refer are not in 
violation of any constitutional provision. 

Section 68, in the part quoted above, gives the Board 
power, where an applicant has graduated from a school of 
optometry maintaining certain standards, to approve or 
disapprove that school, as a condition of registration. The 



1923.] PUBLIC DOCUMENT — No. 12. 263 

discretion which the Board is thus called upon to exercise 
cannot be reviewed unless the exercise is arbitrary or un- 
reasonable. See Chelsea v. Treasurer and Receiver-General, 237 
Mass. 422. 

Very truly yours, 

J. Weston Allen, Attorney General. 



Gifts to the Commomvealth — Acceptance — Delegation of Legis- 
lative Authority — Department of Education, Division of the 
Blind. 

Authority to accept a gift to the Commonwealth is in the Legislature 
unless the Legislature has delegated such authority. 

The Department of Education is authorized by G. L., c. 69, § 3, to receive 
"in trust for the Commonwealth . . . any gift or bequest of personal 
property for educational purposes," and therefore may receive a 
legacy of $2,000 "to the Massachusetts Commission for the Blind." 

Nov. 14, 1922. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion as to whether the 
Commission for the Blind, known as the Division of the Blind, 
Department of Education, may receive a legacy of $2,000. 
The will containing the bequest was executed Sept. 9, 1914, 
and by the seventh clause thereof the testator requested his 
executor to pay, among other legacies, the following: "Two 
thousand dollars to Massachusetts Commission for the Blind." 
By a codicil executed March 25, 1916, the testator provided 
that one-third of the principal of his estate theretofore undis- 
posed of should go "to the Massachusetts Commission for the 
Blind of said Boston to help in its work for the adult blind." 

As a general proposition, authority to accept a gift to the 
Commonwealth is in the Legislature unless the Legislature has 
delegated such authority. G. L., c. 69, § 3, provides as 
follows : — 

The department of education, in this chapter caUed the depart- 
ment, may receive, in trust for the commonwealth, any grant or devise 
of land or any gift or bequest of personal property for educational 
purposes, and shall forthwith transfer the same to the state treasurer, 
who shall administer it as provided in section sixteen of chapter ten. 

This section is a re-enactment of a similar provision coming 
down from St. 1850, c. 88. 

The Legislature has, then, delegated to the Department of 



264 ATTORNEY GENERAL'S REPORT. [Jan. 

Education authority to accept gifts for educational purposes, 
so that the question in the present case turns upon whether or 
not this legacy comes within the scope of said section. In this 
connection it is material to review briefly the establishment of 
the Massachusetts Commission for the Blind and its functions 
as a subdivision of said department. 

St. 1906, c. 385, established a State board to be known as 
the Massachusetts Commission for the Blind, and enumerated 
among its functions that of acting as a bureau of information 
and industrial aid for the purpose of aiding the blind in finding 
employment and developing home industries for them, giving 
to the commission authority to furnish materials and tools to 
any blind person, and to assist such blind persons as are 
engaged in home industries in marketing their products. Said 
chapter also authorized the commission to establish, equip and 
maintain one or more schools for industrial training. It is 
quite evident, then, from the law originally establishing such 
a commission, that one of the primary purposes was to aid and 
assist the blind by education and training to make themselves 
self-supporting, or as nearly so as possible. The provisions of 
the original statute were, in substance, re-enacted in Gen. St. 
1918, c. 266, and in turn incorporated in G. L., c. 69, §§12 
to 25, inclusive. 

The duties of the Division of the Blind are prescribed by 
section 12 of said chapter 69, which is as follows: — 

The division of the blind shall make its own by-laws and adopt all 
necessary rules and regulations, and shall act in an advisory capacity 
with respect to the administration and execution of the laws by the 
director and shall visit all schools and workshops established under 
its authority. 

In thus incorporating this division within the Department 
of Education our Legislature gave tangible recognition to the 
modern and broad scope which education to-day embraces. 
As was said by Knowlton, J., in Mount Hermon Boys' School 
V. Gill, 145 Mass. 139, 146: — 

Education is a broad and comprehensive term. It has been de- 
fined as ''the process of developing and training the powers and capa- 
bilities of human beings." To educate, according to one of Webster's 
definitions, is "to prepare and fit for any calling or business, or for 
activity and usefulness in Hfe." Education may be particularly di- 
rected to either the mental, moral, or physical powers and faculties, 
but in its broadest and best sense it relates to them all. 



1923.] PUBLIC DOCUMENT — No. 12. 265 

Having in mind, then, the legislation which has led up to 
the establishment of a commission for the blind, its incorpora- 
tion within the Department of Education and its defined duty 
and authority to establish schools for the aid and advancement 
of the blind, I am of opinion that the gift above referred to 
may properly be received by the Massachusetts Commission 
for the Blind, now known as the Division of the Blind, to be 
administered in accordance with such rules and regulations as 
said division may deem necessary to adopt under said sec- 
tion 12, and in conformity with G. L., c. 10, § 16. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Savings Banks — Business of Receiving Deposits — Automatic 
Receiving- Teller Machines. 

Automatic receiving-teller machines installed by savings banks for re- 
ceiving deposits of small coins may properly be regarded as depots, 
within G. L., c. 168, § 25. 
Under G. L., c. 168, § 25, automatic receiving-teller machines may be 
maintained and established by a savings bank, with the written per- 
mission of, and under regulations approved by, the Commissioner of 
Banks. 

Nov. 15, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You state that automatic receiving-teller 
machines have been installed by certain savings banks in 
department stores, factories, etc., that these machines are 
of the slot machine type and are arranged for the depositing 
of small coins, stamps being received in return, which may 
be attached to cards and later taken to the savings banks 
and redeemed or credited to depositors' accounts, and that 
no persons are in attendance, no withdrawals can be made, 
and no offices are maintained by the banks at the places 
where the machines are located. You ask whether there is 
any authority for the conduct of this form of business by 
savings banks. 

G. L., c. 168, § 25, provides, in part, as follows: — 

Such corporation shall carry on its usual business at its banking 
house only, and a deposit shall not be received or payment on account 
of deposits be made by the corporation or by a person on its account 
in any other place than at its banking house, which shall be in the 
town where the corporation is estabhshed; except that the corpora- 



266 ATTORNEY GENERAL'S REPORT. [Jan. 

tion may, mth the TVTitten permission of and under regulations ap- 
proved by the commissioner, maintain and estabhsh one or more 
branch offices or depots in the town where its banking house is located, 
or in towns not more than fifteen miles distant therefrom where there 
is no savings bank at the time when such permission is given; . . . 

The remainder of the section deals with the collection of 
savings from school children, and with the holding of meetings. 
In my judgment, the business which you have described 
comes within the excepting clause in section 25, quoted above. 
While, clearly, a slot machine such as you have described is 
not a branch office, it seems to me that it may properly be 
regarded as a depot. The primary meaning of the word 
"depot" is "a place of deposit" (Century Dictionary). 
Other definitions, such as "warehouse" or "railroad station," 
would seem to be wholly inapplicable. It is not, I think, 
an unreasonable construction of the word "depot," as used 
in section 25, to hold that it includes slot machines installed 
in a particular place for the purpose of receiving deposits. 
It follow^s that, with the written permission of, and under 
regulations approved by, the Commissioner, such machines 
may be maintained and established by a savings bank in the 
town where its banking house is located, or in towns not more 
than fifteen miles distant therefrom where there is no savings 
bank at the time when such permission is given. 
Very truly yours, 

J. Westox Allex, Attorney General. 



License — Division of Waterways and Public Lands — Date. 

A license which requires the approval of the Governor and Council takes 
effect when so approved, and its date is the date of such approval. 

Xov. 16, 1922. 
My. Frederick N. Wales, Acting Commissioner of Public Works. 

Dear Sir: — You write me stating that "a question has 
arisen as to whether or not a license which was issued by 
the Department of Public Works, Division of Waterways and 
Public Lands, requiring the approval of the Governor and 
Council, and bearing the date of Oct. 3, 1921, immediately 
preceding the signatures of the Associate Commissioners and 
the date of approval by the Governor and Council, Oct. 19, 
1921, is void, in view of the fact that said license and the 



1923.] PUBLIC DOCUMENT — No. 12. 267 

accompanying plans were filed in the registry of deeds Oct. 
17, 1922." 

G. L., c. 91, § 18, in respect to such licenses says, in 
part : — 

. . . Such Hcense shall be void unless, within one year after its 
date, it and the accompanjdng plan are recorded in the registry of 
deeds for the county or district where the work is to be performed. 

I assume that Oct. 3, 1921, is the actual date of the signing 
by the Commissioners, and Oct. 19, 1921, the actual date of 
approval by the Governor and Council. The instrument did 
not become effective as a license until the approval of the 
Governor and Council, and could not be filed in the registry 
of deeds before that date. 

I am therefore of opinion that Oct. 19, 1921, is the date 
of the instrument, and as it was recorded Oct. 17, 1922, the 
requirement of the statute has been met. See Old Colony 
Trust Co. V. Medfield & Medimy St. Ry. Co., 215 Mass. 156. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Constitutional Law — "Anti-aid'^ Amendment — State Scholar- 
ships in Institutions not under Public Co7itrol — Attorney 
General. 

The Attorney General does not advise officers, boards or commissions 
which are subordinate to the Legislature upon constitutional questions, 
unless such advice is clearly required in order to enable such officers, 
boards or commissions to discharge the duties required of them by law. 

Mass. Const. Amend. XVIII did not forbid payment of public money to 
colleges or universities not under public control. 

Mass. Const. Amend. XVIII did forbid an appropriation of public money 
to aid a private school or to pay the tuition of scholars therein or to 
reimburse parents for tuition paid by them to such academy, even 
though such appropriation is made from moneys other than those 
raised by taxation for the support of common schools. 

Mass. Const. Amend. XL VI, § 2, which superseded Amend. XVIII but 
re-enacted and reaffirmed the prohibitions contained therein, forbids 
an appropriation of pubhc money to aid a school not under pubUc 
control or to pay the tuition of scholars therein, or to reimburse 
parents for tuition so paid by them, but subject, nevertheless, to the 
exception made by section 3. 

Mass. Const. Amend. XL VI forbids an appropriation of public money for 
the purpose of founding, aiding or maintaining a college or university 
not under public control. 



268 ATTORNEY GENERAL'S REPORT. [Jan. 

If the effect of paying the tuition of a student at a privately controlled 
college or university is to aid the institution, such payment is forbidden 
by Mass. Const. Amend. XLVI, § 2, even though the payment be 
made to the student instead of directly to the institution. 

The scope of the prohibitions made by Mass. Const. Amend. XLVI, § 2, 
may be measured by the exception made by section 3. 

If the payment of public money to a student at a privately controlled 
college or university is in effect a private gratuity which does not 
directly accomplish some pubHc purpose, such payment would take 
the property of the taxpayer without due process of law, in violation 
of both the State Constitution and the Fourteenth Amendment. 

The promotion of popular education is a public purpose. 

A statute has no magic to alter facts, nor can constitutional restrictions 
be brushed aside by a descriptive phrase. 

Dec. 4, 1922. 

George F. Zook, Esq., Director, Special Commission on Higher Education. 

Dear Sir: — You inquire, in substance, whether a law 
providing for the payment out of public funds of scholar- 
ships to individuals, to be classified as "Massachusetts State 
University students," in order to assist such students in 
attending some approved university or college within the 
Commonwealth, could be drafted without infringing Mass. 
Const. Amend. XLVI, commonly known as the "anti-aid" 
amendment. Your inquiry does not relate to the powers and 
duties vested in your commission by Res. 1922, c. 33. It 
draws in question the powers vested by the people in the 
General Court, to which your commission owes its existence. 

While the Legislature, or either house thereof, or a com- 
mittee of either house, or the Governor, may properly inquire 
whether a proposed bill would be constitutional, if enacted, 
the Attorney General does not advise officers, boards or 
commissions upon constitutional questions unless such advice 
is clearly required to enable such officers, boards or commis- 
sions to discharge the duties required of them by law. This 
principle is so far applicable to the present case that I feel 
that I ought not to attempt to advise you -whether a bill 
which has yet to be drawn would be beyond the power of 
the General Court. On the other hand, the nature of the 
duties imposed upon your commission by Res. 1922, c. 33, 
renders it proper, in my opinion, to advise you as to the 
general principles which you should take into consideration if 
you deem it expedient to draft a bill. 

On May 23, 1855, the people ratified the eighteenth amend- 
ment to the Massachusetts Constitution, which provided as 
follows : — 



1923.] PUBLIC DOCUMENT — No. 12. 269 

All moneys raised by taxation in the towns and cities for the sup- 
port of public schools, and all moneys which may be appropriated by 
the state for the support of common schools, shall be applied to, and 
expended in, no other schools than those which are conducted according 
to law, under the order and superintendence of the authorities of the 
town or city in which the money is to be expended; and such money 
shall never be appropriated to any reHgious sect for the maintenance, 
exclusively, of its own school. 

This amendment was confined to expenditures for public or 
common schools. It did not forbid payment of public money 
to higher institutions of learning, such as colleges or univer- 
sities. Merrick v. Amherst, 12 Allen, 500; Opi7iion of the 
Justices, 214 Mass. 599, 601. But as applied to expenditures 
by cities or towns on account of education similar to that 
given in common schools, this amendment has been so con- 
strued as to give full effect to the prohibition. 

The Supreme Judicial Court has decided that the Legis- 
lature has no power to authorize a town to appropriate 
money to aid in maintaining, as a high school, a free academy 
founded by a private benefactor, which was under private 
superintendence and control. Jenkins v. Andover, 103 Mass. 
94. Three Attorneys General have advised that the pro- 
hibition cannot be evaded by appropriating the money to 
pay the tuition of the children, instead of appropriating it 
directly for the maintenance of the private academy as a 
high school. I Op. Atty. Gen. 319 (Knowlton); V Op. 
Atty. Gen. 204 (Attwill); V Op. Atty. Gen. 711 (Allen); 
Opinion, Attorney General to Commissioner of Education, 
April 6, 1922. An appropriation to reimburse parents for 
tuition paid by them to the academy is equally forbidden, 
"since the substance, not the mere form of the transaction 
must be considered." V Op. Atty. Gen. 204, 205; Opinion, 
Attorney General to Commissioner of Education, April 6, 
1922. So, also, it is of no consequence that the appropriation 
is made from moneys other than those raised by taxation for 
the support of common schools. I Op. Atty. Gen. 315, 321. 
The guiding principle was thus declared by Attorney General 
Knowlton in 1896 (I Op. Atty. Gen. 315, 321, 322): — 

It is of no consequence that the tuition of such pupils may not be 
paid from money especially appropriated by the town for the support 
of its public schools. The question is not one of mere appropriation. 
The purpose of the constitutional amendment was to prohibit the use 



270 ATTORNEY GENERAL'S REPORT. [Jan. 

of public funds for the education of the children of the Commonwealth 
in any institution, however conducted, and whether sectarian or not, 
the control of which is not in the municipal authorities. If the expend- 
iture be for the purpose of the education of the children of the town, 
it is within the spirit of the prohibition of the amendment. Jenkins 
V. Andover, 103 Mass. 94. 

Undoubtedly the statute in question may be in some cases of great 
benefit to the children of small towns, and, incidentally, to the tax- 
payers of the towns, who are thus relieved from the disproportionate 
expense of maintaining a high school estabhshed for the benefit of a 
few pupils. The question, however, is not to be determined by con- 
siderations of mere convenience in special cases. If this statute is 
allowed to stand, the poUcy of paying the tuition of school children 
may be further extended, and it might even be possible to provide for 
the education of all the children of a town in sectarian schools and at 
the public expense; a proposition which the people of the Common- 
wealth would be slow, I apprehend, to accept, and against which, 
indeed, the amendment in question may be said to have been princi- 
pally directed. 

An executive construction of Mass. Const. Amend. XVIII, 
which has been approved and followed for over thirty years 
(see V Op. Atty. Gen. 711, 713), is entitled to great weight, 
even though it may not be, perhaps, conclusive. Costley v. 
Commonwealth, 118 Mass. 1, 36; Commoiiwealth v. Lockivood, 
109 Mass. 323, 339. 

On Nov. 6, 1917, the people ratified Amendment XLVI, 
commonly known as the "anti-aid" amendment, of which 
sections 2 and 3 provide: — 

Section 2. All moneys raised by taxation in the towns and cities 
for the support of public schools, and all moneys which may be appro- 
priated by the commonwealth for the support of common schools 
shall be apphed to, and expended in, no other schools than those which 
are conducted according to law, under the order and superintendence 
of the authorities of the town or city in which the money is expended; 
and no grant, appropriation or use of public money or property or 
loan of public credit shall be made or authorized by the commonwealth 
or any political division thereof for the purpose of founding, main- 
taining or aiding any school or institution of learning, whether under 
public control or otherwise, wherein any denominational doctrine is 
inculcated, or any other school, or any college, infirmary, hospital, 
institution, or educational, charitable or religious undertaking which is 
not pubhcly owned and under the exclusive control, order and superin- 
tendence of pubUc officers or public agents authorized by the common- 
wealth or federal authority or both, except that appropriations may 



1923.] PUBLIC DOCUMENT - No. 12. 271 

be made for the maintenance and support of the Soldiers' Home in 
Massachusetts and for free pubHc Hbraries in any city or town, and 
to carry out legal obhgations, if any, already entered into; and no 
such grant, appropriation or use of public money or property or loan 
of public credit shall be made or authorized for the purpose of founding, 
maintaining or aiding any church, religious denomination or society. 
Section 3. Nothing herein contained shall be construed to pre- 
vent the commonwealth, or any pohtical division thereof, from paying 
to privately controlled hospitals, infirmaries, or institutions for the 
deaf, dumb or blind not more than the ordinary and reasonable com- 
pensation for care or support actually rendered or furnished by such 
hospitals, infirmaries or institutions to such persons as may be in 
whole or in part unable to support or care for themselves. 

This amendment superseded Amendment XVIII. It will be 
observed, however, that the first clause of section 2 (supra) 
is in effect a re-enactment of Amendment XVIII. So far, 
therefore, from weakening or in any way qualifying Amend- 
ment XVIII, Amendment XLVI reaffirms it, presumably 
with the construction placed thereon during the past thirty 
years. Indeed, Amendment XLVI contains further pro- 
hibitions which were not included in Amendment XVIII. 

There can be no question that Amendment XLVI em- 
braces colleges and other higher institutions of learning. 
Section 2 expressly forbids any use of public money, property 
or credit — 

for the purpose of founding, maintaining or aiding any school or institu- 
tion of learning, whether under public control or otherwise, wherein 
any denominational doctrine is inculcated, or any other school, or 
any college . . . institution, or educational . . . undertaking which is 
not publicly owned and under the exclusive control, order and superin- 
tendence of public officers or public agents authorized by the common- 
wealth or federal authority or both. . . . (Italics ours.) 

In view of these prohibitions, a former Attorney General 
advised that payments which had theretofore been made by 
the Commonwealth for the purpose of aiding or maintaining 
educational institutions under private control, such as the 
Perkins Institution for the Blind, were no longer lawful. 
Opinion, Attorney General to Joint Special Committee on 
Finance, Dec. 28, 1917; V Op. Atty. Gen. 315. On the other 
hand, the opinion of Dec. 28, 1917, advised that payments to 
the Massachusetts Agricultural College would be lawful because 
that institution was owned by the Commonw^ealth and under 



272 ATTORNEY GENERAL'S REPORT. [Jan. 

exclusive public control. It seems clear, therefore, that, in 
view of the express language of the amendment, the use of 
public money or public property or public credit "for the 
purpose of founding, maintaining or aiding" any college or 
university not owned by the Commonwealth and under ex- 
clusive public control is now forbidden, and further, that even 
public ownership and control cannot avail if any denomina- 
tional doctrine is inculcated by such university or college. 

It may be suggested, however, that a payment of the 
scholarship money to the individual, to enable him to obtain a 
college education at some approved institution to be selected 
by him, could be found not to be made for the purpose of 
aiding or maintaining the institution that he elects to attend. 
That suggestion presents a question which cannot be deter- 
mined with certainty until the precise plan be cast in the 
form of a bill. We may assume, however, that any plan 
must be subjected to the test of substance rather than to a 
mere test of form. A payment of tuition, whether directly 
to the private institution (Opinion, Attorney General to the 
Commissioner of Education, Dec. 14, 1921, Attorney General's 
Report, 1921, p. 344) or to the scholar under such conditions 
that in effect it is a payment to the institution, if the effect 
of it is to aid the institution, would seem to achieve the for- 
bidden result by indirection. See I Op. Atty. Gen. 319; 
V Op. Atty. Gen. 204 and 711. 

The shadow cast by section 2 upon payments in either 
of these forms is deepened by section 3. It may be that the 
scope of the prohibition in the second section is measured by 
the exception made by the third section. That section, by 
way of exception, permits payments to privately controlled 
institutions for the deaf, dumb or blind of not more than 
reasonable compensation for care or support rendered to 
such persons who are unable in whole or in part to care for 
themselves. Opinion, Attorney General to Committee on 
Public Health, March 13, 1922. The exception thus expressly 
made may exclude similar payments for the benefit of those 
who are not deaf, dumb or blind, and who, therefore, do not 
come within the terms of the third section. Opinion, Attor- 
ney General to Commissioner of Education, Dec. 14, 1921, 
supra. Thus, the third section would appear to emphasize 
the doubt whether the Commonwealth may, directly or 
indirectly, pay the tuition, in whole or in part, of normal 
persons who attend colleges or institutions not owned by the 



1923.] PUBLIC DOCUMENT — No. 12. 273 

Commonwealth and not under exclusive public superintend- 
ence and control. 

If the scholarship payment be made outright to the indi- 
vidual, without restriction upon its use for tuition fees, 
in order to aid him in obtaining a college education, a different 
problem is presented. It is too well settled to require dis- 
cussion that public money cannot be spent for a private 
purpose. Opinion of the Justices, 136 N. E. 157; Whittaker 
V. Salem, 216 Mass. 483; Lowell v. Boston', 111 Mass. 454; 
Opinion, Attorney General to the Governor, June 9, 1922; 
Opinion, Attorney General to, President of the Senate, April 
17, 1922; Opinion, Attorney General to Senate Committee 
on Bills in the Third Reading, April 20, 1922; see also Mass. 
Const. Amend. LXII, § 1. With minor exceptions, public 
money is raised by taxation. To tax A in order to make a 
private gift to B takes A's property without due process of 
law. It is true that public money may be appropriated to 
one who has no legal claim to it, if a public purpose is thereby 
directly achieved. Opinion of the Justices, 136 N. E. 157. 
But an ostensible public purpose cannot be made the cover 
and excuse for a private gratuity. Lowell v. Boston, 111 
Mass. 454; Whittaker v. Salem, 216 Mass. 483; Opinion, 
Attorney General to the Governor, June 9, 1922. While I 
am not unmindful that the promotion of popular education 
constitutes a public purpose for which public money may 
constitutionally be spent {Knights v. Treasurer and Receiver- 
General, 237 Mass. 493, 496), that public purpose cannot be 
made a cloak for a mere gift which is essentially private in 
character. In seeking to avoid the prohibition upon expend- 
ing public funds in order to aid or maintain colleges or uni- 
versities not under public control, care must be exercised to 
avoid the prohibition upon giving away public money for a 
private purpose. To formulate a bill which will avoid both 
this Scylla and that Charybdis will require no little skill. 

The suggestion that the difficulty may be met by calling 
the recipients of the scholarships " Massachusetts State Uni- 
versity students" is of no avail. To attach that title to the 
holders of the scholarships will not affect the situation nor 
legalize a payment if such payment is forbidden by the Con- 
stitution. A statute may provide that certain things shall be 
done or not done, but it has no magic to alter facts. Opinion, 
Attorney General to Committee on Bills in the Third Reading, 
April 1, 1921 (Attorney General's Report, 1921, p. 111). Con- 



274 ATTORNEY GENERAL'S REPORT. [Jan. 

stitutional restrictions cannot be brushed aside by a descrip- 
tive phrase. The constitutionality of the bill, when drafted, 
will depend upon whether the money is spent in a manner 
and for a purpose permitted by the Constitution. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Taxation — Legacy and Succession Tax. 

Under St. 1922, c. 403, stock of Massachusetts corporations, the property 
of a resident who died intestate, is not subject to a succession tax on 
the death of a non-resident next-of-kin, before distribution of the 
estate of the resident decedent, as property of the non-resident dece- 
dent. 

The title to all the personal property of a deceased person vests in his 
executor or administrator by relation from the time of his death. 

Dec. 6, 1922. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You request my opinion in regard to the 
application of St. 1922, c. 403, to the following facts: — A 
resident of the Commonwealth died, without leaving a will, 
owning stock of Massachusetts corporations. Before any dis- 
tribution of his estate was made, and subsequent to the 
effective date of the act, one of his next-of-kin died, a non- 
resident of Massachusetts. You ask whether under these 
circumstances the non-resident decedent has such an owner- 
ship in the stock referred to that said stock is subject to a 
succession tax under said St. 1922, c. 403. 

St. 1922, c. 403, amends G. L., c. 65, § 1, so as to read, 
in part, as follows : — 

All property within the jurisdiction of the commonwealth, corporeal 
or incorporeal, and any interest therein, belonging to inhabitants of 
the commonwealth, and all real estate within the commonwealth or 
any interest therein and all stock in any national bank situated in 
this commonwealth or in any corporation organized under the laws of 
this commonwealth belonging to persons who are not inhabitants of 
the commonwealth, which shall pass by will, or by laws regulating 
intestate succession, . . . shall be subject to a tax at the percentage 
rates fixed by the following table : . . . 

Under this law all property of a non-resident decedent 
which is within the jurisdiction is no longer subjected to 



1923.] PUBLIC DOCUMENT — No. 12. 275 

inheritance tax. Broadly speaking, the inheritance tax upon 
non-resident decedents is now confined to three classes of 
property, — namely, (a) real estate and any interest therein, 
(b) stock in any national bank situated in the Commonwealth, 
and (c) stock in any corporation organized under the laws of 
this Commonwealth. Under the facts disclosed by your 
present inquiry no inheritance tax accrues upon the stock 
in Massachusetts corporations to which you refer unless the 
non-resident was at the time of his death the owner of such 
stock. 

The title to all the personal property of a deceased person 
vests in his executor or administrator by relation from the 
time of his death. Dawes v. Boylston, 9 Mass. 337, 352; 
Lawrence v. Wright, 23 Pick. 128; Hutchins v. State Bank, 12 
Met. 421, 425; Pritchard v. Norwood, 155 Mass. 539; Flynii 
V. Fhjnn, 183 Mass. 365; Lathrop v. Merrill, 207 Mass. 6, 
10; 24 C.J. 204. I know of no exception to this rule except, 
perhaps, in the case of personal property which is the sub- 
ject of a specific legacy. 24 C.J. 205, 208. Cf. Duffy v. 
Bourneuf, 227 Mass. 513, 517. With that possible exception, 
an executor or administrator has absolute power to sell 
personal property of the estate, and can pass good title to a 
purchaser. Clark v. Blackington, 110 Mass. 369; 24 C.J. 
207, 208. But if he sells for less than the appraised value 
of the property he is allowed for the loss only if the court 
finds that the sale was expedient and for the interest of all 
concerned. G. L., c. 206, § 5; Dudley v. Sanborn, 159 Mass. 
185. Cf. G. L., c. 206, § 21. As against an administrator, 
the rights of persons entitled to distribution are fixed by, 
and can be enforced only pursuant to, a decree for distri- 
bution in the probate court. G. L., c. 197, § 24; Norton v. 
Lilly, 210 Mass. 214, 217; Case v. Clark, 220 Mass. 344. 
Cf. Rhines v. Wentworth, 209 Mass. 585. As against an 
executor, prior to Gen. St. 1915, c. 151, a legatee could recover 
his legacy only in an action at law. Lathrop v. Merrill, 207 
Mass. 6, 10; R. L., c. 141, § 19. By section 1 of Gen. St. 1915, 
c. 151 (G. L., c. 197, § 19), it was provided that a legatee 
might recover his legacy by proceedings in equity in the pro- 
bate court, and that no action at law should be brought 
against the estate of the testator for such recovery; but 
this provision merely changes the remedy. It does not give 
to a legatee a right in the personal property held by the 
executor. 



276 ATTORNEY GENERAL'S REPORT. [Jan. 

My conclusion is, therefore, that the non-resident decedent 
did not have such an ownership in the stock of Mssachu- 
setts corporations belonging to the deceased resident of this 
Commonwealth as to make that property subject to an 
inheritance tax on the death of the non-resident. 
Very truly yours, 

J. Weston Allen, Attorney General. 



Trust Company — School Savings System. 

The powers of trust companies with respect to receiving deposits are 
defined by G. L., c. 172, § 31, and are not limited in that respect by 
laws regulating the receiving of deposits by savings banks. 

G. L., c. 172, §§ 60 and 61, are not a limitation of the powers of trust 
companies with respect to receiving deposits. 

G. L., c. 168, § 25, containing provisions authorizing savings banks to 
arrange for the collection of savings from school children, applies 
only to savings banks. 

A certain described plan for a school savings system, introduced by a 
trust company, is held not to be in violation of law. 

Dec. 6, 1922. 
Mr. Joseph C. Allen, Commissioner of Banks. 

Dear Sir: — You state that a trust company has intro- 
duced a school savings system in neighboring public schools 
under a plan substantially as follows: — 

The pupil makes his deposits with the teacher, who enters 
the amount in a receipt book. A carbon copy of the entry 
and the money deposited are enclosed in an envelope, which 
is taken to the trust company by the principal of the school. 
No withdrawals are made at the school. After a sufficient 
sum is accumulated by a pupil, the amount is transferred to a 
regular pass book, entries in which are made only at the 
trust company. 

You ask my opinion whether a trust company, through its 
savings department, may solicit and receive deposits from 
pupils at schools under the plan as outlined above. 

The powers of trust companies with respect to receiving 
deposits are defined by G. L., c. 172, § 31, which is substan- 
tially a re-enactment of St. 1888, c. 413, § 6. Said section 
31 is, in part, as follows: — 

Such corporation may receive on deposit, storage or otherwise, 
money, government securities, stocks, bonds, coin, jewelr}^, plate, 
valuable papers and documents, evidences of debt, and other property 



1923.] PUBLIC DOCUMENT - No. 12. 277 

of any kind, upon terms or conditions to be agreed upon, and at the 
request of the depositor may collect and disburse the interest or in- 
come, if any, upon said property received on deposit and collect and 
disburse the principal of such of said property as produces interest or 
income when it becomes due, upon terms to be prescribed by the corpo- 
ration. Such deposits shall be general deposits, and may be made 
by corporations and persons acting in dividual^ or in any fiduciary 
capacity. . . . 

G. L., c. 172, §§ 60 and 61, are, in part, as follows: — 

Section 60. Everj^ such corporation soliciting or receiving de- 
posits, (a) which may be withdrawn onlj^ on presentation of the pass 
book or other similar form of receipt w^hich permits successive deposits 
or withdrawals to be entered thereon, or (6) which at the option of 
such corporation may be withdrawn only at the expiration of a stated 
period after notice of intention to mthdraw has been given, or (c) in 
an}' other way which might lead the public to believe that such deposits 
are received or invested under the same conditions or in the same 
manner as deposits in savings banks, shall have a sa\dngs department 
in which all business relating to such deposits shall be transacted. . . . 

Section 61. All such deposits shall be special deposits and shall 
be placed in said savings department, and all loans or investments 
thereof shall be made in accordance T\ith the law governing the invest- 
ment of deposits in savings banks. . . . 

These provisions of sections 60 and 61 were first enacted 
by St. 1908, c. 520. They are not a limitation of the powers 
of trust companies with respect to receiving deposits. Their 
purpose and effect is merely to require that the deposits 
defined in section 60 shall be special deposits, to be placed 
in a savings department and to be safeguarded by the same 
restrictions on their investment which are imposed with respect 
to deposits in savings banks. C/. J. S. Lang Engineering 
Co. V. Commoimvealth, 231 Mass. 367. 

In my opinion, the powers of trust companies to receive 
deposits in their savings departments are the powers granted 
by G. L., c. 172, § 31, except in so far as those powders may be 
curtailed by provisions of other statutes, and are not limited 
in that respect by the laws regulating the receiving of deposits 
by savings banks. Otherwise, the limitation of the amount 
which a savings bank may receive on deposit from any person, 
fixed by G. L., c. 168, § 31, at $2,000, would apply to trust 
companies in their savings departments. In fact, however, 
the amount which may be so deposited is not limited. J. S, 



278 ATTORNEY GENERAL'S REPORT. [Jan. 

Lang Engineering Co. v. Commonwealth, 231 Mass. 367, 370. 
Where, in any statutory provisions affecting deposits in 
savings banks, trust companies in their savings departments 
are intended to be included, they are expressly mentioned, 
as in G. L., c. 167, § 16, concerning deposits at intervals. 
It should be noted that that statute, as originally enacted 
(Gen. St. 1919, c. 37), provided in section 2 that "nothing 
herein contained shall be construed to abridge the powers of 
trust companies under general or special laws. " See also 
Bachrach v. Commissioner of Banks, 239 Mass. 272, 274. 

G. L., c. 168, § 25, relating to the business of savings banks, 
contains provisions authorizing a savings bank to arrange for 
the collection of savings from school children under conditions 
with which the plan which you have outlined does not com- 
ply. But this section in its terms applies only to savings 
banks, and, for the reasons which I have stated, is not, in my 
judgment, intended to cover the business of receiving deposits 
in the savings departments of trust companies. That busi- 
ness, as I have said, is governed by G. L., c. 172, § 31, 
subject to such restrictions as are imposed by other statutes. 

It remains to be considered whether, in receiving deposits 
under the plan which you have described, there is any viola- 
tion of any other statute. I find no statute which seems to 
have any application, other than G. L., c. 172, § 45. That 
section forbids a trust company to maintain a branch office, 
with certain exceptions not here material. You suggest that 
under the plan stated, by which the teacher receipts for money 
received from pupils, it might be held that the teacher acts 
as an agent for the trust company, and might therefore be 
considered to be conducting a branch office in violation of 
the statute. Whether the teacher under that plan is actually 
acting as agent for the pupil or as agent for the trust company 
is largely a question of fact. Assuming, but by no means 
deciding, that the teacher acts as agent for the trust company, 
while it would follow that the trust company was doing 
business in the schoolroom, it would not follow that it was 
maintaining a branch office in the schoolroom in violation of 
G. L., c. 172, § 45. It should be observed that while a 
savings bank, by G. L., c. 168, § 25, is required to carry on 
its usual business at its banking house only, and is forbidden 
to receive deposits elsewhere, with certain exceptions, there 
is no such provision applicable to trust companies. 

An office is defined as "the place where a particular kind 



1923.] PUBLIC DOCUMENT — No. 12. 279 

of business or service for others is transacted" (Webster's 
Dictionary). It is, in short, a place for the transaction of 
business. A passenger room in a railway station, although 
having within it a separate enclosed room where books were 
kept and tickets sold, has been held not to be an office within 
the meaning of a criminal statute. Commonwealth v. White, 
6 Gush. 181. The fact, if it is so found, that the teacher in 
receiving deposits from the pupil is to be regarded as- the 
agent of the trust company, and in that respect is carrying 
on the business of the trust company, it seems to me, does 
not lead to the consequence that the schoolroom in which 
such deposits are received is therefore to be regarded as a 
branch office of the trust company. In my opinion, there- 
fore, in the system which you have stated there is no viola- 
tion of G. L., c. 172, § 45. 

There is, however, one aspect of the plan which you ought 
to consider in the exercise of the general powers vested in 
you as Commissioner of Banks. You state that the bank 
considers the teacher to be the agent of the pupil and not 
of the bank. I do not determine whether this intention has 
been accomplished by the receipt book and other documents 
which are attached to your request. I am, however, of the 
opinion that this intention is not sufficiently declared and 
brought to the attention of the prospective depositors. The 
receipt book, particularly, might well lead the depositor to 
believe that the deposit with the teacher was a deposit with 
the bank. 

A plan which misleads the depositors conceivably might 
be found to constitute conducting the business "in an unsafe 
and unauthorized manner," within the meaning of G. L., 
c. 167, § 22. See V Op. Atty. Gen. 726. This difficulty 
may, of course, be met by making the teacher the agent of 
the bank or by declaring clearly and unequivocally, in such a 
manner that the depositor cannot overlook it, that the 
teacher is the agent of the pupil. This matter is one within 
your discretion. That discretion I cannot and ought not to 
control. But I feel that the matter should be brought to 
your consideration for such action as you may see fit to take 
in the premises. 

Very truly yours, 

J. Weston Allen, Attorney General. 



280 ATTORNEY GENERAL'S REPORT. [Jan. 



State Officers — Powers and Duties of the Auditor of the Com- 
monwealth. 

Under St. 1922, c. 545, all the powers and duties of the Auditor of the 
Commonwealth, existing before Dec. 1, 1922, are to continue until 
the appointment and qualification of the commissioners whose offices 
are created by that act. 

Dec. 7, 1922. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir : — You ask my opinion whether, under the pro- 
visions of St. 1922, c. 545, the powers and duties of the 
Auditor with respect to the work of the 1923 fiscal year 
cease on Dec. 1, 1922, or whether they continue until the 
new Commissioners on Administration and Finance are ap- 
pointed and qualified. 

Section 1 of said act is as follows: — 

The office of supervisor of administration existing under authority 
of section one of chapter seven of the General Laws is hereby aboHshed. 
All the rights, powers, duties and obligations of said office, and those of 
the state treasurer relative to bookkeeping and accounting functions 
not necessarily connected with the cash and funds which he handles, 
those of the state auditor except such as relate to the auditing of the 
accounts of all departments, offices and commissions of the common- 
wealth and to the keeping of reports of such audits, those of the state 
secretary relative to the purchase of paper for printing and general 
use and those of the superintendent of buildings relative to purchasing 
and storeroom functions, are hereby transferred to, and shall here- 
after be exercised and performed by, the commission on administra- 
tion and finance established by this act, which shall be the lawful 
successor of said office, and of the state treasurer, state auditor, state 
secretary and superintendent of buildings with respect to said rights, 
powers, duties and obhgations. 

Section 2 provides for the establishment of a Commission 
on Administration and Finance, to serve directly under the 
Governor and Council and to be appointed by the Governor, 
with the advice and consent of the Council. 

Section 29 of said act is as follows: — 

So much of this act as authorizes appointments by the governor and 
council shall take effect on September fifteenth, nineceen hundred 
and twenty-two. So much as relates to the commission on adminis- 
tration and finance shall take effect upon the appointment and quaU- 
fication of the commissioners thereof, but not before December first. 



1923.] PUBLIC DOCUMENT — No. 12. 281 

nineteen hundred and twenty-two. All other provisions of this act 
shall take effect on said December first, provided that the state audi- 
tor shall retain such of his existing powers and duties as may be neces- 
sary to enable him to close up, prior to January first, nineteen hundred 
and twenty-three, the accounts of the current fiscal year. 

Section 1, providing for the transfer to the Commission 
on Administration and Finance of certain rights, powers, 
duties and obligations of certain offices, including the Auditor, 
is clearly one of the provisions which relate to the Commission 
on Administration and Finance, and therefore, by section 29, 
is to take effect upon the appointment and qualification of 
the commissioners thereof. Before the appointment and 
qualification of such commissioners there can be no commis- 
sion to which said rights, powers, duties and obligations can 
be transferred. I advise you, therefore, that all the powers 
and duties of the Auditor existing before Dec. 1, 1922, are to 
continue until the appointment and qualification of said 
commissioners. 

Very truly yours, 

J. Weston Allen, Attorney General. 



License — Intoxicating Liquor — Payment of Required Fee. 

Under G. L., c. 138, § 19, the fee for a heense of the fourth class must be 
not less than $250, and no valid license may be issued by the licensing 
authorities upon payment of a fee fixed by them at a lesser figure. 

Dec. 18, 1922. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — I have your request for my opinion as to the 
action of the license commissioners of the city of Springfield 
in relation to the fee charged for a certain license issued by 
them under G. L., c. 138, § 11. You state that the license 
in question is a license of the fourth class, as described in 
section 18 of the same chapter. You also state that the 
return filed with you by the city clerk, in accordance with 
section 11, above referred to, shows that the fee charged for 
the fourth class license in question was $2; that you sent 
back the return to the city clerk, calling his attention to 
G. L., c. 138, § 19. You further state that he has informed 
you that the license commissioners are of the opinion that 
they may charge what they see fit for a license. 



282 ATTORNEY GENERAL'S REPORT. [Jan. 

You state a case in which the Commonwealth has a definite 
interest. The license commissioners issue these licenses as 
public officers under the authority of the Commonwealth, 
not as agents of the city of Springfield. Brown v. Nahant, 
213 Mass. 271. Furthermore, the Commonwealth is entitled 
to one-fourth of the money received for licenses of this class. 
G. L., c. 138, § 46. 

G. L., c. 138, § 19, states, in part: — 

The fees for licenses shall be as follows : 

For a license of the first, second or fourth class, not less than two 
hundred and fiity dollars. . . . 

It seems clear, therefore, that the license commissioners 
should have charged at least $250 for this license, and the 
city treasurer should have remitted one-fourth of that sum 
to the Treasurer and Receiver-General. 

Furthermore, G. L., c. 138, § 43, says, in part: — 

A license shall not be issued until the license fee has been paid to 
the treasurer of the city or town by which it is to be issued. . . . 

In this case the fee required by statute has not been paid, and 
I am of the opinion that the license under discussion is void 
and of no effect. Hoives v. Maxwell, 157 Mass. 333; Taher 
V. New Bedford, 111 Mass. 197. 

Yours very truly, 

J. Weston Allen, Attorney General. 



Registration of Motor Vehicles — Operator's License — Motor 
Trucks used by National Guard. 

Motor trucks furnished by the United States for the use of the National 
Guard do not have to be registered, nor are the operators of them 
required to be licensed. 

Dec. 19, 1922. 

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

Dear Sir : — You ask my opinion whether, as a matter of 
law, it is necessary to register certain motor vehicles used by 
the National Guard, paying the registration fee therefor, 
with the Department of Public Works, Division of Highways, 
and also whether it is necessary for the operators of such 
vehicles to procure a license from the same division. 

As to your first question you say: — 



1923.] PUBLIC DOCUMENT — No. 12. 283 

I beg to advise you that the motor vehicles in question are not 
the property of the Commonwealth of Massachusetts, but they are 
the property of the United States of America, which are issued to the 
National Guard the same as all other items of equipment. They are 
used only for military purposes, and are used by members of the 
National Guard, who are drawing Federal pay, for their drills and 
for their tours of duty which make necessary the use of the motor 
vehicles. 

x\s to your second question you say: — 

The operators of the motor vehicles in question are all enUsted men 
in the National Guard who are operating these vehicles while on duty, 
either at drill or camp, under enlistment contract, under orders and 
under pay from the Federal government. 

You further advise me that the Registrar of Motor Vehicles 
feels that this registration is necessary. You also state that 
"the present forces, while raised by the State, are disciplined, 
paid and controlled by the Federal government. " 

It seems plain that the National Guard as at present con- 
stituted is an instrumentality of the Federal government. 
U. S. Stat, at L. 1916, c. 134; G. L., c. 33. The Common- 
wealth of Massachusetts, therefore, may not require these 
motor vehicles to be registered nor the enlisted men who 
drive them to be licensed. Ill Op. Atty. Gen. 318; V Op. 
Atty. Gen. 49; Johnson v. Maryland, 254 U. S. 51. 
Yours very truly, 

J. Weston Allen, Attorney General. 



Auditor of the Commonwealth — Taxation — Membership on 
Board of Appeal. 

St. 1922, c. 545, does not transfer from the Auditor of the Commonwealth 
to the Comptroller membership upon the Board of Appeal for which 
G. L., c. 6, § 21, provides. 

Dec. 20, 1922. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — You inquire whether, under St. 1922, c. 545, 
the Auditor remains a member of the Board of Appeal, as 
provided in G. L., c. 6, § 21, or whether that function is 
transferred to the Comptroller created by St. 1922, c. 545, 
§§ 2, 3 and 5. 

G. L., c. 6, § 21, provides: — 



284 ATTORNEY GENERAL'S REPORT. [Jan. 

The state treasurer, the state auditor and a member of the council 
designated by the governor, shall constitute the board of appeal from 
decisions of the commissioner of corporations and taxation. 

St. 1922, c. 545, § 1, provides: — 

The office of supervisor of administration existing under authority 
of section one of chapter seven of the General Laws is hereby abohshed. 
All the rights, powers, duties and obligations of said office, and those 
of the state treasurer relative to bookkeeping and accounting functions 
not necessarily connected with, the cash and funds w^hich he handles, 
those of the state auditor except such as relate to the auditing of the 
accounts of all departments, offices and commissions of the common- 
wealth and to the keeping of reports of such audits, those of the state 
secretar}^ relative to the purchase of paper for printing and general use 
and those of the superintendent of buildings relative to purchasing and 
storeroom functions, are hereby transferred to, and shall hereafter be 
exercised and performed b}% the commission on administration and 
finance estabhshed by this act, which shall be the lawful successor of 
said office, and of the state treasurer, state auditor, state secretary and 
superintendent of buildings with, respect to said rights, powers, duties 
and obligations. 

Section 2 of said act establishes a Commission on Adminis- 
tration and Finance, to consist of four members appointed 
by the Governor, with the advice and consent of the Council, 
which serves directly under the Governor and Council, within 
the meaning of Mass. Const. Amend. LXVI. Section 3 of 
said act provides: — 

Said commission shall be organized in three bureaus, namely: a 
comptroller's bureau, a budget bureau and a purchasing bureau. Each 
bureau shall be in charge of a commissioner of the commission to be 
designated by the governor, with the ad\dce and consent of the council, 
and to be kno\\Ti, respectively, as the comptroller, budget commissioner 
and state purchasing agent. Anj^ commissioner so designated shall 
be a person of abihty and extended experience in the line of work 
required in his bureau. 

Section 5 of said statute provides, in part: — 

The comptroller's bureau shall include those functions heretofore 
exercised by the state treasurer and state auditor and hereinbefore 
transferred to the commission on administration and finance. 

The rights and duties of said bureau shall in general be as follows : 



1923.] PUBLIC DOCUMENT — No. 12. 285 

To perform all the accounting duties hereinbefore transferred from 
the department of the state auditor, and all the accounting duties 
hereinbefore transferred from the department of the state treasurer. 

St. 1922, c. 545, does not in express and specific words 
prescribe that the duties imposed upon the Auditor by G. L., 
c. 6, § 21, shall either be transferred or retained. St. 1922, 
c. 545, § 1, provides that ** those [rights, powers, duties and 
obligations] of the state auditor except such as relate to the 
auditing of the accounts of all departments, offices and com- 
missions of the commonwealth and to the keeping of reports 
of such audits . . . are hereby transferred to, and shall 
hereafter be exercised and performed by, the commission on 
administration and finance established by this act. . . ." 
Taken alone, the description of the duties transferred might 
be broad enough to include membership upon the Board of 
Appeal. But the broad words of section 1 are somewhat 
narrowed by section 5, which refers to the duties transferred 
as " accounting duties. " Manifestly, the duty to sit upon 
the Board of Appeal is not aptly described by the words 
"accounting duty." Moreover, the duties transferred are 
transferred to and are to be exercised by the commission. As 
the Board of Appeal consists of three members, it is plain 
that the Legislature did not intend that all four members of 
the commission should succeed the Auditor upon that Board. 

If the Legislature had intended to transfer this duty from 
the Auditor to the Comptroller, it would have been easy to 
have so prescribed clearly and unambiguously. This the 
Legislature has not done. Indeed, the provisions relative to 
the Comptroller do not naturally bear this construction. 
Under section 3 he is in charge of the Comptroller's bureau. 
The "accounting duties" transferred from the Auditor are, 
under section 5, to be performed by that bureau. They are 
not in terms transferred to or to be performed by the Comp- 
troller. The bureau cannot sit upon the Board of Appeal. 
To infer, from the fact that the "accounting duties" of the 
Auditor are to be performed by the bureau, that the head of 
that bureau shall succeed the Auditor upon the Board of 
Appeal adds by implication something which the Legislature 
has failed to enact in express words. While no one of the 
provisions of these statutes, taken alone, is decisive, when 
they are considered in their relation to each other I am of 



286 ATTORNEY GENERAL'S REPORT. [Jan. 

opinion that the more probable construction of the act is 
that the x\uditor still retains his position upon the Board of 
Appeal. 

I am confirmed in this opinion when the question which 
you have submitted is viewed from a different aspect. Mem- 
bership on the Board of Appeal may well be regarded as an 
independent position, with duties separate and apart from 
the respective duties of the three members in their constitu- 
tional offices of Treasurer, Auditor and member of the Gover- 
nor's Council. On this aspect of the case it would seem that 
the persons holding from time to time the offices of Treasurer, 
Auditor and the member of the Council designated by the 
Governor hold their membership upon the Board of Appeal 
during incumbency in their respective offices, without regard 
to any duties which may devolve upon such offices. 
Yours very truly, 

J. Weston Allex, Attorney General. 



Metropolitan Water Works — Statute — Construction. 

Under St. 1897, cc. 445 and 467, requiring annual payments to be made by 
the Commonwealth to certain towns on lands taken or acquired 
for the metropolitan water works, in amounts equal to the previously 
assessed value of such land, so long as the land shall remain the property 
of the Commonwealth, no deduction from the amounts of such pay- 
ments may be made on account of the subsequent removal or destruc- 
tion of buildings on the land when assessed. 

Dec. 21, 1922. 

Hon. James A. Bailey, Commissioner, Metropolitan District Commission. 

Dear Sir : — You request my opinion in regard to a 
matter of construction of St. 1897, cc. 445 and 467. 

St. 1897, c. 445, § 2, is as follows: — 

The treasurer of the Commonwealth shall pay hereafter as a part 
of the expenses of the metropoUtan water works annually on or before 
the thirtj^-first day of December to the town, of Sterhng an amount 
equal to the assessment made by the assessors of the town of Sterhng 
as of the first day of May in the year eighteen hundred and ninety- 
four, on all real estate taken or acquired, and held by the metropolitan 
water board on the first day of May in each year, under authority of 
said chapter four hundred and eighty-eight of the acts of the year 
eighteen hundred and ninety-five and acts in amendment thereof, so 
long as said property is held by said metropoUtan water board, such 
payment to be in place of taxes and any other payment required by law 
upon such property. 



1923.] PUBLIC DOCUMENT — No. 12. 287 

St. 1897, c. 467, amends St. 1895, c. 488, § 16, so as to 
read, in part, as follows: — 

. . . provided, however, that the Commonwealth shall pay annually, 
on or before the thirty-first day of December, to the towns of West 
Boylston and Boylston, until such time as the payments to said towns 
hereinbefore set forth become due and payable, an amount equal to the 
assessment made by the assessors of each of said to^\Tis as of the first 
day of May in the year eighteen hundred and ninet3''-four, on all 
property in their towns taken or acquired on or before the first day of 
May in such year, under the authority of this act; and shall pay to 
said towns annually, on or before the thirty-first day of December, 
an amount equal to the assessment made as aforesaid on all real estate 
in their towns so taken or acquired on or before the first day of May in 
each year by the Commonwealth, outside the limits of said proposed 
reservoir, so long as the same shall remain the property of the Com- 
monwealth; . . . 

You state that various houses and barns which were taken 
or acquired by the Metropolitan Water Board in Sterling, 
West Boylston and Boylston have been torn down, removed 
or burned down since they were taken or acquired. You 
ask whether the Commonwealth is required to pay for all 
time sums in lieu of taxes on the buildings which no longer 
exist, or whether the Commonwealth may deduct an amount 
equal to the assessment as of the first day of May, 1894, on 
such houses, barns or other buildings as may no longer exist. 

The statutes quoted above are explicit. They provide for 
payment by the Commonwealth to the towns concerned of 
certain sums of money, in lieu of taxes, for real estate taken, 
equal in amount to assessments already made on such real 
estate, so long as said property is held by the Commonwealth. 
These amounts were then definitely determined and w^ere 
identified by the statutes. To rule that the Commonw^ealth 
might pay any less sum than the sums there stated would 
change the terms of the statutes themselves; and that the 
Legislature alone can do. 

I must advise you, therefore, that under the statutes as 
they now stand no deduction can be made on account of the 
removal or destruction of buildings, the value of which was 
included in the amount of the assessments on real estate 
taken under these acts. 

Very truly yours, 

J. Weston Allen, Attorney General. 



288 ATTORNEY GENERAL'S REPORT. [Jan. 



Trading with the Enemy Act — License — Royalties — Repay- 
ment. 

Under the provisions of the Trading with the Enemy Act, the royalties 
paid under a license to manufacture processes imder any patent 
owned or controlled by an enemy or ally of an enemy are deposited 
in the treasury of the United States as a trust fund for the benefit of 
the licensee and the owner of the patent. 

The sole reason for the requirement of the payment of royalties is to secure 
the owner of the patent in the event that he brings suit within the 
statutory period. 

If the owner of the patent does not bring suit within the statutory period, 
further royalties need not be paid, and the sums already paid in are 
to be returned to the licensee. 

Dec. 29, 1922. 

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

Dear Sir: — You request my opinion as to whether your 
department should continue to pay a royalty under the 
arsphenamine license issued to the department by the Federal 
Trade Commission. The facts, as submitted by you, are as 
follows : — 

On March 21, 1919, a license was issued by the Federal 
Trade Commission ** under authority of and in conformity 
with the Trading with the Enemy Act and with the Executive 
Order of Oct. 12, 1917," to the Department of Public Health, 
to make, use and vend, within a certain area, "Salvarsan" 
or **606, " now designated as "arsphenamine."' The license 
determines the aggregate royalty to be paid, and is "for the 
term of the patent unless sooner terminated." The Federal 
Trade Commission has advised you that "it is believed" 
that royalties accruing after July 2, 1922, need not be paid. 
No suit has been brought by the owner of the patent within 
the time limit prescribed by statute. 

Section 10 (c) of the Federal Act of Oct. 6, 1917, known as 
the Trading with the Enemy Act, gives the President of the 
United States authority to grant licenses to manufacture 
processes under any patent owned or controlled by an enemy 
or ally of an enemy, and to prescribe the conditions of the 
license. Subsection (d) provides, in part, that the licensee 
shall pay royalties fixed by the President to the Alien Property 
Custodian, and that the "sums so paid shall be deposited by 
said alien property custodian forthwith in the Treasury of 
the United States as a trust fund" for the said licensee and 
for the owner of the said patent. Subsection (e) provides, 



1923.] PUBLIC DOCUMENT — No. 12. 289 

in part, that "upon violation by the licensee of any of the 
provisions of this Act, or of the conditions of the license, the 
President may, after due notice and hearing, cancel any 
license granted by him.'* Subsection (/) provides that the 
owner of any patent under which a license is granted may, 
"after the end of the war and until the expiration of one 
year thereafter, file a bill in equity against the licensee in the 
district court of the United States for the district in which 
the said licensee resides, . . . for recovery from the said 
licensee for all use and enjoyment of the said patented inven- 
tion"; that the amount of any judgment and decree obtained 
shall be paid to the owner of the patent from the fund de- 
posited by the licensee, and that the balance, if any, shall be 
repaid to the licensee on order of the Alien Property Cus- 
todian; that "if no suit is brought within one year after the 
end of the war, . . . then the licensee shall not be liable to 
make any further deposits, and all funds deposited by him 
shall be repaid to him on order of the alien property custo- 
dian." 

Under the terms of the statute, therefore, the sole reason 
for the requirement of payment of royalties under the li- 
cense is to secure the owner of the patent in the event that 
he brings suit within the period prescribed by the statute. 
If the owner of the patent fails to bring suit within that 
period, further royalties need not be paid, and the sums 
already paid in are to be returned to the licensee. Since no 
suit was brought by the owner of the patent under which the 
license was granted to the Department of Public Health, 
within the statutory period of limitations, I am of the opinion 
that under the terms of the statute there is no obligation to 
pay royalties accruing after July 2, 1922, one year after the 
termination of the war. 

Very truly yours, 

J. Weston Allen, Attorney General. 



290 



ATTORNEY GENERAL'S REPORT. 



[Jan. 



INDEX TO OPINIONS. 



Abatement of corporation tax; application within thirty days after notice 

of assessment ......... 15 

Interest on State tax assessed to a town . . . . .16 

Tax assessed on basis of erroneous return ..... 13 

Armories; care and maintenance ....... 1 

Cities and towns; grounds for parade, drill and small arms practice . 55 

Use for a " business pageant " ....... 161 

Armory Commission; transfer of land thereto by Metropolitan District 

Commission ......... 182 

Arrests; sergeant-at-arms ; Superintendent of Buildings ... 95 

Attorney General; executive officer; duty to advise .... 65 

Auditor of the Commonwealth; inspection of income tax returns . . 259 

Membership on Board of Appeal ....... 283 

Powers and duties; Commission on Administration and Finance . 280 
Automatic receiving-teller machines; installation in department stores, 

factories, etc., by savings banks ...... 265 

Back Bay lands; enforcement of restrictions ..... 200 

Banker, deceased; property in possession of the Commissioner of Banks; 

right of administrator to administer such property . . . 191 

Banks and banking; business of selling foreign currency . . . 176 
Deceased private banker; property in possession of Commissioner 

of Banks; right of administrator to administer such property . 191 
Returns by trust companies to Commissioner of Corporations and 
Taxation of amount of profits paid upon deposits in sa\dngs de- 
partment .......... 166 

Savings banks; purchase of, and alterations in, bank building . . 184 

Billboard advertising; permits; public ways ...... 2 

Blind, Di\'ision of; acceptance of gift to the Commonwealth . . . 263 

Blue Book; Rearrangement of the Constitution; public funds . . 148 
Boston Elevated Railway Company; authority of the Legislature to 

set aside contract made by statute ...... 142 

Impairment of contract ....... 23, 37 

Certified public accountant registered in another State; right to desig- 
nate himself as such in this State . . . . . .211 

Cities and to^Tis; appropriation of public funds for a private purpose . 

100, 104 

Exemption from maintaining a liigh school ..... 187 

Civil ser\dce law; application to Plymouth fire department . . . 102 
Veterans; inspectors of plumbing; qualifications; interpretation of 

the word "continuously" ....... 171 

Reappointment in the classified public ser\'ice after discharge 
from military service . . . . . . . .151 

Veterans' preference; disabled veterans; established lists . . 219 

Commissioner of Correction; special State police officer; warrants . . 59 

Constable, right to engage in business of private detective . . . 226 



1923.1 PUBLIC DOCUMENT — No. 12. 291 



PAGE 

Constitutional law; "anti-aid" amendment; appropriations by towns 

for high school instruction in private academies ... 75 

"Legal obligation already entered into" by a town for the support 
of a private academy . . . . . . . .187 

State scholarships in colleges not under public control . . . 267 

Support of persons suffering from diseases of the eye or ear at 
privately controlled hospital ....... 42 

Appropriation of public funds; payment of unearned salary of de- 
ceased employee of a city or town ...... 100 

Payment of unearned salary of deceased representative . .153 

Reimbursement of victims of an explosion in a fireworks factory . 104 

District attorneys; members of the bar ...... 51 

Eminent domain; taking of picture exhibited in the Boston Public 

Library 132, 162 

Governor; authority to fix price of fuel in time of emergency, and to 

determine whether emergency exists ..... 204 

Impairment of contract; Boston Elevated Railway Company 23, 37, 142 

Eastern Massachusetts Street Railway Company ... 23 

79 
62 
88 



Superintendency union; dissolution ..... 

Lobster fishery, regulation of; referendum petition . 
Municipal primaries; freedom of elections .... 

Police power; discrimination in sales or leases of apparatus for dis 
pensing refined petroleum products .... 

Rearrangement of the Constitution; printing in Blue Book 
Regulation and limitation of property rights; erection of garages 
Regulation of price charged for admission to theatres 
Regulations for the manufacture, sale or transportation of food 

drugs, medicines and liquors; Eighteenth Amendment 
Unregistered co-partners and stockholders in retail drug corpora- 
tions .......... 

Vacancy in Executive Council; selection of successor 
Violation of rights reserved to states; Sheppard-Towner Act . 
Women; justices of the peace ...... 

Masters in chancery ....... 

Members of Congress ....... 

County commissioners; taking of land for highway purposes . 
Dental Examiners, Board of; applicant for registration; diploma from 
a reputable dental college ...... 

Discrimination in sales or leases of apparatus for dispensing refined pe 
troleum products ........ 

Diseases dangerous to the public health in charge of local boards of health 
District attorneys; members of the bar ..... 

District courts; double trials ....... 

Domicil; high school pupil; tuition; transportation 

Income tax ; local taxation of intangible personal property 
Settlement; married woman ...... 



109 

148 

66 

72 

18 

29 

4 

117 

150 

209 

10 

77 

225 

109 
61 
51 
52 
20 

228 
64 



Drainage law; application of amendatory statute to pending proceedings 168 

Interpretation of the words " determination of the board thereon " . 54 

Jurisdiction of Drainage Board ....... 242 

Land owned by two proprietors; interpretation of the word "several" 138 
Druggist; violation of Federal permit to keep intoxicating liquor; revo- 
cation of State license ........ 247 

Eastern Massachusetts Street Railway Company; impairment of contract 23 
Eighteenth Amendment; regulations for the manufacture, sale or trans- 
portation of food, drugs, medicines and liquors ... IS 



292 ATTORNEY GENERAL'S REPORT. [Jan. 



PAGE 

Elections, freedom of; municipal primaries ...... 88 

Eminent domain; taking of private property subject to a contract . 132, 162 

Executive Council; vacancy; selection of successor .... 4 

Federal reservation; duty of town to provide schools for children living 

thereon .......... 215 

Fire prevention; removal of slash after cutting timber .... 90 

Fisheries and Game, Di\dsion of; acceptance of gift to the Commonwealth 256 
Interpretation of the words "waters of the Commonwealth" . . 57 
Foreign mortgage corporations; branch offices; use of words "trust com- 
pany" 173 

Fuel; authority of Governor to fix price in time of emergency . . . 204 

Garage, erection of; license; street commissioners of Boston . . . 202 

Maintenance within 500 feet of a school, hospital or church; police 

power ........... 66 

Gasoline, storage of; license; Fire Marshal ...... 202 

Gifts to the Commonwealth; acceptance; trust .... 256, 263 

Hawkers and pedlers; license; fruits and vegetables; ordinances . . 196 

Health, local boards of; liability in excess of appropriation; emergency . 194 
High school ; power of Department of Education to exempt a town from the 

duty to maintain ......... 75 

Hunting and fishing licenses; unnaturalized foreign-born resident; citizen 8 

Illegitimate child; name; registration of birth ..... 240 

Support from labor of father in the Massachusetts Reformatory . 213 

Income tax; additional assessments; notice ...... 236 

Collection from non-resident delinquent ..... 22 

Local taxation of intangible personal property; exemption; domicil . 228 

Returns; right of Auditor of the Commonwealth to inspect . . 259 

Inspectors of plumbing; veterans; civil ser\ace ..... 171 

Insurance; agent's or broker's license; declaration of trust; partnership 234 
Intangible personal property, local taxation of; income tax; exemption; 

domicil 228 

Intoxicating liquor ; license; pajTuent of fee ...... 281 

Labor and Industries, Department of; appeal from ruling of the Director 

of Standards 115 

Laborers employed by the Metropolitan District Commission; workmen's 

compensation ......... 69 

Legacy and succession tax; stock of Massachusetts corporation owned by 

intestate decedent ........ 274 

Stock of voluntary association owned by non-resident decedent . 85 
Legislative power, delegation of; rules and regulations of the Depart- 
ment of Public Health; water supply ..... 92 

License issued by the Division of Waterways and Public Lands; date of 

approval by the Governor and Council ..... 266 

License issued under the Trading with the Enemy Act to make arsphena- 

mine; royalties ......... 288 

Lobster fishery; regulation of granting of licenses; referendum petition . 62 

Masters in chancery; women ........ 209 

Metropolitan District Commission; change of use of public park . . 182 

Salaries of officers and employees ....... 222 

Metropolitan water works; payments by the Commonwealth to certain 

towns for land taken; deductions ...... 286 

Motor Vehicles, Registrar of; reports of accidents; public records . . 171 

Motor vehicles used by National Guard; registration .... 282 

Narcotic drugs; confiscation; disposition ...... 41 

National bank stock tax, distribution of ...... 45 



1923.1 PUBLIC DOCUMENT — No. 12. 293 



PAGE 

282 



National Guard; registration of motor vehicles; licensing of operators 
Non-alcoholic beverages; permits to engage in the business of the manu 
facture or bottling thereof ...... 

Optometry, Board of Registration in; examination and registration of 

applicants; approval of schools of optometry . 
Overseers of the poor; dangerous diseases; local boards of health . 
Pension ; value of family maintenance ...... 

Philippine insurrection; war against a foreign power ... 
Philippine Islands, native of; citizen; hunting and fishing license . 
Plymouth fire department; application of civil service law 
Primaries, municipal; freedom of elections ...... 

Private detective, right of constable to engage in business of . 
Public funds; amount deposited in any one bank; how determined 
Appropriation; high school instruction at a private academy . 
Payment of unearned salary of deceased employee of a city oi 
town .......... 

Payment of unearned salary of deceased representative . 
Private academy established under a charitable trust; legal obli 
gation .......... 

Reimbursement of victims of an explosion in a fireworks factory 
Scholarships to colleges not under public control . 
Support of persons suffering from diseases of the eye or ear at pri- 
vately controlled hospital ....... 42 

Public Health, Department of; dangerous diseases; overseers of the poor 61 
Permits granted by local boards of health to engage in the business 
of the manufacture or bottling of non-alcoholic beverages 
Public park; change of use ....... 

Public records; reports of accidents filed with the Registrar of Motor 
Vehicles ......... 

Public schools; children living on a Federal reservation; tuition; State 
reimbursement to town ...... 

Pupil temporarily residing in town other than legal residence; tuition 
transportation ........ 

Registration of births, marriages and deaths; correction 
Restraint of trade; agreements to maintain prices 
Restrictions on Back Bay lands, enforcement of . 
Retail drug corporations; unregistered co-partners and stockholders 
Retirement system; contributions by employees of Norfolk County Tu- 
bercular Hospital and Norfolk County Agricultural School 
Employees in State Institutions; basis of annuity contributions and 
computation of pensions ...... 

State police; pensions ........ 

Superintendent of State Farm; value of family maintenance in com 
puting pension ........ 

Royalties; arsphenamine; Trading with the Enemy Act 
Salaries of State employees; classification; Metropolitan District Com- 
mission; Supervisor of Administration .... 

Salary, unearned; deceased employee of a city or town; payment to de 
pendents ......... 

Deceased representative; payment to widow .... 

Savings banks; automatic receiving-teller machines 

Investment of deposits in bank building; alterations 

Life insurance business . . . . . . . 81, 180 

Scholarships, State, in colleges not under public control; "anti-aid" 

amendment ......... 267 



30 

261 
61 

193 

34 

8 

102 
88 

226 
11 
75 

100 
153 

187 
104 
267 



30 
182 

171 

215 

20 
240 
164 
200 

29 



249 

98 

193 

288 

222 

100 
153 
265 
184 



294 ATTORNEY GENERAL'S REPORT. [Jan. 



PAGE 

School savings system; trust company; savings bank .... 276 

Sergeant-at-arms; arrest of disorderly persons in the chambers of the Gen- 
eral Court .......... 95 

64 



Settlement; married woman; domicil ....... 

Reimbursement of cities and towns under the relief laws; military 

service; Philippine insurrection ...... 34 

Settlements, civil and military; soldiers' relief; dependents . . . 253 

"Several"; interpretation ......... 138 

Sheppard-T owner Act; extent of general welfare clause of the Federal 

Constitution ......... 117 

Slash; removal after cutting timber ....... 90 

Soldiers' relief; civil and military settlements; dependents . . . 253 
Standards, Director of; ruling relative to standard clinical thermometers; 

appeal . . . . . . . . . .115 

State employees; classification; Metropolitan District Commission; 

Supervisor of Administration ...... 222 

Injuries received by laborers; payment of compensation ... 69 

Maintenance; additional cash wages; pension deductions . . 249 

Medical services for injuries sustained in course of employment . 153 

Payment of salary by United States government .... 5 

State Farm, superintendent of; value of family maintenance; pension . 193 

State highway; taking of land by county commissioners ... 77 

State police; pensions; Retirement Association ..... 98 

State police officer, special; service of warrants and orders ... 59 

State tax; abatement of interest ....... 16 

Statute, amendatory; application to pending proceedings . . . 168 

Statutes, amendment and correction of; ratification .... 71 

Superintendency union; withdrawal of one of constituent towns; con- 
tract with superintendent ....... 79 

Superintendent of Buildings; arrest of disorderly persons in and about 

the State House . . .95 

"Synagogue, The"; taking by Department of Education . . 132, 162 
Taxation; abatement; application mthin 30 days after notice of assess- 
ment of tax .......... 15 



Erroneous return ........ 

Income tax; additional assessments; notice .... 

Local taxation of intangible personal property; domicil 
Legacy and succession tax; non-resident decedent . 

Stock of voluntary association owned by non-resident decedent 
Taxes on personal property of deceased persons; distribution 
Teachers' Retirement Association; termination of membership ; part-time 
employment by the city of Boston .... 

Theatres; regulation of price charged for admission; condition inserted 
in license ......... 

Town meeting; warrant; appropriation; rescission 

Trading with the Enemy Act; license to manufacture and sell arsphena 
mine; royalties ........ 

Trust companies; returns; amount of profits paid upon deposits in 
savings department ....... 

School sa^dngs system ........ 

"Trust company"; use of title by foreign mortgage corporations . 
Veterans; inspectors of plumbing; qualifications; interpretation of word 
"continuously" ........ 

Reappointment in classified public service after discharge from mill 
tary service ......... 



13 
236 

228 

274 

85 

45 

244 

72 
139 

288 

166 
276 
173 

171 

151 



1923.] 



PUBLIC DOCUMENT — No. 12. 



295 



Veterans' preference; disabled veterans; established civil service lists 
Volunteer militia; armories; quartering and training of troops 
Warehouseman; bond; release by Governor and Council 
Water supply, protection of; rules and regulations of the Department of 

Public Health 

"Waters of the Commonwealth"; interpretation . 
Waterways and Public Lands, Di\dsion of; license; date 
Women; justices of the peace ..... 

Masters in chancery ...... 

Members of Congress ...... 

Workmen's compensation; State employees; medical services 



PAGE 

219 
55 
70 

92 
57 
266 
150 
209 
10 
153 



296 ATTORNEY GENERAL'S REPORT. [Jan. 



GEADE CEOSSINGS. 



The following petitions for the abolition of grade crossings 
are pending: — 

Berkshire County. 
North Adams, Mayor and Aldermen of, petitioners. Petition 

for abolition of State Street and Furnace Street crossings. 

Edmund K. Turner, David F. Slade and William G. 

McKechnie appointed commissioners. Commissioners' re- 
port filed. Pending. 
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. 



1923.] PUBLIC DOCUMENT — No. 12. 297 

Lawrence, Mayor and Aldermen of, petitioners. Petition for 
abolition of crossing at Merrimac and other streets in 
Lawrence. Robert O. Harris, Edmund K. Turner and 
Henry V. Cunningham appointed commissioners. Pend- 
ing. 

Lawrence, Mayor and Aldermen of, petitioners. Petition for 
abolition of grade crossing at Parker Street. James D. 
Colt, Henry V. Cunningham and Henry C. Mulligan 
appointed commissioners. Pending. 

Lynn, Mayor and Aldermen of, petitioners. Petition for aboli- 
tion of Summer Street and other crossings on Saugus 
branch of Boston & Maine Railroad and Market Street 
and other crossings on main line. George W. Wiggin, 
Edgar R. Champlin and Edmund K. Turner appointed 
commissioners. Commissioners' report filed. Edward A. 
McLaughlin appointed auditor. Auditor's ninth report 
filed. Pending. 

Lynn, Mayor and Aldermen of, petitioners. Petition for aboli- 
tion of grade crossings at Pleasant and Shepard streets. 
Gas Wharf Road and Commercial Street, on the Boston, 
Revere Beach & Lynn Railroad. Pending. 

Salem. Directors of Boston & Maine Railroad, petitioners. 
Petition for the abolition of grade crossings at Bridge, 
Washington, Mill, North, Flint and Grove streets in 
Salem. Patrick H. Cooney, George F. Swain and William 
A. Dana appointed commissioners. Pending. 

Salem, Mayor and Aldermen of, petitioners. Petition for 
abolition of Lafayette Street crossing in Salem. Pending. 

Franklin County. 

Erving, Selectmen of, petitioners. Petition for abolition of 
grade crossing on the road leading from Millers Falls to 
Northfield. Samuel D. Conant, Arthur H. Beers and 
Charles C. Dyer appointed commissioners. Commis- 
sioners' report filed. Pending. 

Greenfield, Selectmen of, petitioners. Petition for abolition of 
grade crossing at Silver Street. Stephen S. Taft, Henry 
P. Field and Thomas J. O'Connor appointed commis- 
sioners. Commissioners' report filed and recommitted 
Stephen S. Taft, Jr., appointed commissioner in place of 
Stephen S. Taft resigned. Commissioners' second report 
filed. Pending. 



298 ATTORNEY GENERAL'S REPORT. [Jan. 



Hampden County. 
Palmer, Selectmen of, petitioners. Petition for abolition of 
Burley's crossing in Palmer. Pending. 

Flampshire 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. 

Cambridge. Directors of Boston & Maine Railroad, petitioners. 
Petition for abolition of grade crossings at East and Short 
streets. Henry C. Mulligan, Joseph P. Lyons and Henry 
A. Wyman appointed commissioners. Commissioners' re- 
port filed. 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. 



1923.] PUBLIC DOCUMENT — No. 12. 299 

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. 

Marlborough, Mayor and Aldermen of, petitioners. Petition 
for abolition of Hudson Street crossing in Marlborough. 
W^alter 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. 



300 ATTORNEY GENERAL'S REPORT. [Jan. 

Weston, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Central Avenue, Conant Road, Church 
and Viles streets. P. H. Cooney, Louis A. Frothing- 
ham and Andrew M. Lovis appointed commissioners. 
Pending. 

Winchester, Selectmen of, petitioners. Petition for the aboli- 
tion of crossing at Winchester station square. George W. 
Wiggin, George F. Swain and Arthur Lord appointed com- 
missioners. Commissioners' report filed and recommitted. 
Pending. 

Norfolk County. 

Braintree, Selectmen of, petitioners. Petition for the abolition 
of the Pearl Street crossing at South Braintree. Patrick 
H. Cooney, Frank N. Nay and George F. Swain ap- 
pointed commissioners. Pending. 

Braintree. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
grade crossing at School, Elm, River and Union streets in 
Braintree. John L. Bates, Winfield S. Slocum and Arthur 
H. Wellman appointed commissioners. Commissioners' 
report filed. Pending. 

Dedham, Selectmen of, petitioners. Petition for the abolition 
of Eastern Avenue and Dwight Street crossings in Ded- 
ham. Alpheus Sanford, Charles Mills and J. Henry Reed 
appointed commissioners. Commissioners' report filed. 
Fred E. Jones appointed auditor. Pending. 

Dover, Selectmen of, petitioners. Petition for abolition of 
grade crossing at Springdale Avenue and Dedham and 
Haven streets. Public Service Commission appointed 
commissioners. Pending. 

Needham, Selectmen of, petitioners. Petition for abolition of 
Charles River Street crossing in Needham. Pending. 

Quincy. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Saville and Water streets crossings in Quincy. John L. 
Bates, Winfield S. Slocum and Arthur H. Wellman ap- 
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. 



1923.] PUBLIC DOCUMENT — No. 12. 301 

Westwood. Directors of New York, New Haven & Hartford 
Railroad Company, petitioners. Petition for abolition of 
Green Lodge Street crossing in Westwood. Samuel L. 
Powers, Stephen S. Taft and Wm. Jackson appointed com- 
missioners. Commissioners' report filed. Recommitted. 
Pending. 

Plymouth County. 

Rockland, Selectmen of, petitioners. Petition for abolition of 
grade crossings at Union and other streets in Rockland. 
Pending. 

Suffolk County. 

Boston. New York, New Haven & Hartford Railroad Com- 
pany, petitioner. Petition for abolition of grade crossing 
at West First Street. William B. Thompson, Philip 
Nichols and H. Heustis Newton appointed commis- 
sioners. Commissioners' report filed. George W. Bishop 
appointed auditor. Auditor's first report filed. Pending. 

Revere, Selectmen of, petitioners. Petition for abolition of 
Winthrop Avenue crossing in Revere of the Boston, 
Revere Beach & Lynn Railroad. Pending. 

Worcester County. 

Auburn. Boston & Albany Railroad Compan^^ petitioner. 
Petition for abolition of Cemetery Road, a private way. 
The Public Service Commission appointed commissioners. 
Pending. 

Clinton, Selectmen of, petitioners. Petition for abolition of 
Sterling, Water, Main, High and Woodlawn streets cross- 
ings. George W. Wiggin, William E. McClintock and 
James A, Stiles appointed commissioners. Commissioners' 
report filed. David F. Slade appointed auditor. Frederic 
B. Greenhalge appointed auditor in place of David F. 
Slade deceased. Auditor's fourteenth report filed. Pending. 

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. 



302 ATTORNEY GENERAL'S REPORT. [Jan. 

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. 



1923.] PUBLIC DOCUMENT — No. 12. 303 



EULES OF PEACTICE 

In Interstate Rendition. 



Every application to the Governor for a requisition upon the 
executive authority of any other State or Territory, for the de- 
livery up and return of any offender who has fled from the 
justice of this Commonwealth, must be made by the district or 
prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original 
papers, or certified copies thereof. 

The following must appear by the certificate of the district 
or prosecuting attorney : — 

(o) The full name of the person for whom extradition is 
asked, together with the name of the agent proposed, to be 
properly spelled. 

(6) That, in his opinion, the ends of public justice require 
that the alleged criminal be brought to this Commonwealth 
for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the 
conviction of the fugitive. 

(d) That the person named as agent is a proper person, and 
that he has no private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisi- 
tion for the same person growing out of the same transaction, 
it must be so stated, with an explanation of the reasons for a 
second request, together with the date of such application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or crim- 
inal arrest in the State or Territory to which he is alleged to 
have fled, the fact of such arrest and the nature of the pro- 
ceedings on which it is based must be stated. 

(g) That the application is not made for the purpose of en- 
forcing the collection of a debt, or for any private purpose 
whatever; and that, if the requisition applied for be granted, 
the criminal proceedings shall not be used for any of said 
objects. 



304 ATTORNEY GENERAL'S REPORT. [Jan. 

(h) The nature of the crime charged, with a reference, when 
practicable, to the particular statute defining and punishing 
the same. 

(i) If the offence charged is not of recent occurrence, a satis- 
factory reason must be given for the delay in making the ap- 
plication. 

1. In all cases of fraud, false pretences, embezzlement or 
forgery, when made a crime by the common law, or any penal 
code or statute, the affidavit of the principal complaining wit- 
ness or informant that the application is made in good faith, 
for the sole purpose of punishing the accused, and that he does 
not desire or expect to use the prosecution for the purpose of 
collecting a debt, or for any private purpose, and will not di- 
rectly or indirectly use the same for any of said purposes, shall 
be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying 
the Executive that the alleged criminal has fled from the jus- 
tice of the State, and is in the State on whose Executive the 
demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged 
crime was committed at the time of the commission thereof, 
and is found in the State upon which the requisition was 
made, shall be sufficient evidence, in the absence of other 
proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in dupli- 
cate, must accompany the application. 

4. If an indictment has not been found by a grand jury, the 
facts and circumstances showing the commission of the crime 
charged, and that the accused perpetrated the same, must be 
shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) 
It must also be shown that a complaint has been made, copies 
of which must accompany the requisition, such complaint to 
be accompanied by affidavits to the facts constituting the 
offence charged by persons having actual knowledge thereof, 
and that a warrant has been issued, and duplicate certified 
copies of the same, together with the returns thereto, if any, 
must be furnished upon an application. 

5. The official character of the officer taking the affidavits 
or depositions, and of the officer who issued the warrant, must 
be duly certified. 



1923.] PUBLIC DOCUMENT — No. 12. 305 

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 aflSdavit 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.