Report of the attorney general for the year ending ..

Public Document

No. 12

Cfte Commontoealtl) of e^asmtbmtm

REPORT

ATTORNEY GENERAL

Year ending November 30, 1929

Public Document No. 12

Clje Commontocaltj) of agassatbusetts

REPORT

(iii.: ATTORNEY GENERAL

Year ending November 30, 1929 " >|

C!)e Commontoealtf) of gia00acf)u$etts

Department of the Attorney General,
Boston, January 15, 1930.

To the Honorable Senate and House of Representatives.

I have the honor lo transmit herewith the report of the Depart-
ment for the year ending November 30, 1929.

Very respectfully,

JOSEPH E. WARNER,

Attorney General.

Ci)e Commontoealtfe of Q^assacfjusetts

DEPARTMENT OF THE ATTORNEY GENERAL,
State House.

Attorney General.
JOSEPH E. WARNER.

Assistants.

Franklin Delano Putnam.
Roger Clapp.
Charles F. Lovejoy.
Emivl-'l Fall Schofield.
Gerald J. Callahan.
James S. Eastham.
R. Ammi Cutter.
Edward T. Simoneau.
Stephen D. Bacigalupo.
George B. Lourie.
Louis H. Sawyer. ^

Chief Clerk.
Louis H. Freese,

Cashier.
Harold J. Welch.

1 Appointed May 1, 1929.

STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Fiscal Year.

General appropriation for 1929 $106,000 00

Appropriation for small claims 5,000 00

Supplemental appropriation 3,000 00

Special attorney for electric light rates cases 25,000 00

$139,000 00

Expenditures.

For salary of Attorney General $8,000 00

For law library 555 05

For salaries of assistants 47,126 99

For salaries of all other employees 19,803 46

For legal and special services 10,694 78

For office expenses and travel 4,927 31

For court expenses 2,810 36

For small claims ' . . . . 1,888 22

For publication of opinions 4,420 31

For special attorney for electricj^light rates cases 20,000 00

Total expenditures $120,226 48

Cfje Commontoealti) of g^a00acf)U0etts

Department of the Attorney General,
Boston, January 15, 1930.

To the Honorable Senate and House of Repi'esentatives.

Pursuant to the provisions of section 11 of chapter 12 of the
General Laws, I herewith submit my report.

The cases requiring the attention of this Department during the
year ending November 30, 1929, to the number of 10,125 are tabu-
lated below:

Corporate franchise tax cases 1,656

Extradition and interstate rendition 273

Grade crossings, petitions for abolition of 55

Land Court petitions 132

Land-damage cases arising from the taking of land:

Department of Public Works 76

Department of Mental Diseases 8

Department of Conservation 1

Department of Public Health 3

Department of Correction 3

Metropolitan District Commission 62

Metropolitan District Water Supply Commission 15

Miscellaneous cases 947

Petitions for instructions under inheritance tax laws 48

Public charitable trusts 275

Settlement cases for support of persons in State hospitals . . . . 15
All other cases not enumerated above, which include suits to require the
filing of returns by corporations and individuals and the collection of

money due the Commonwealth 6,525

Indictments for murder, capital cases 31

Disposed of ,20

Now pending 11

I. ADMINISTRATION OF CRIMINAL JUSTICE SUPERVISED
BY THE ATTORNEY GENERAL.

It is the duty of the Attorney General to "take cognizance of all viola-
tions of law . . . affecting the general welfare of the people ..." In any
criminal proceedings undertaken as a result of such cognizance, the district
attorneys may assist him, and under his direction act for him. (G. L., c.
12, § 10.)

The district attorneys appear for the Commonwealth in the Superior
Court in all cases arising within their respective districts, and "aid the
attorney general in the duties required of him, and perform such of his
duties as are not required of him personally." (G. L., c. 12, § 27.)

The administration of criminal justice, therefore, is effected in general
either through the office of the Attorney General or the offices of the district
attorneys in prosecution of violations of law, with which, by statute, he is
primarily charged, or effected through the offices of the district attorneys
in prosecution of violations of law arising in their several districts, with
which, by statute, they are primarily so charged.

The fourteen counties of the Commonwealth are divided into eight dis-
tricts with district attorneys, as follows:

Western (Berkshire and Hampden Counties), Charles R. Clason.
Northwestern (Hampshire and Franklin Counties), Charles Fairhurst.
Middle (Worcester County), Charles B. Rugg.
Northern (Middlesex County), Robert T. Bushnell.
Eastern (Essex County), William G. Clark.
Suffolk (Suffolk County), WilUam J. Foley.

Southeastern (Norfolk and Plymouth Counties), Winfield M. Wilbar.
Southern (Bristol, Barnstable, Dukes and Nantucket Counties), William C.
Crossley.

In so far as law enforcement is effected by prosecutions of violations
of law in the Superior Court, these eight district attorneys and the
Attorney General are the sole units upon which the people must rely.
Law enforcement primarily in the various cities and towns lies within
the purview of the district and municipal courts and city and town
oflficers; the measure of its aggressiveness must depend for its stimulus
upon the genuineness of community sentiment.

The mere number of undisposed of cases upon a criminal docket is
entitled to little significance; as, for example, it records every defend-
ant not yet in custody; already found guilty by verdict or plea but
awaiting sentence; on probation; complying with orders of court as
to payments; insane; under observation for insanity; defaulted; booked
after last court sitting. Nor can mere numbers be taken as sole index
to determine increase or decrease of crime or of criminals. Every so-
called "count" in an indictment is a "case." Several counts in an

P.D. 12. 7

indictment may but relate to the various aspects of a single crime. A
verdict on a single count may eliminate all the others. Several ''cases"
may apply to but one individual.

The sum total of cases is not a fair standard of increase or decrease of
criminality, as such total necessarily includes both the misdemeanor and
the felony. Felony alone leads to state prison. (G. L., c. 274, § 1.) A
sober gauge of criminality is the prevalence of felony.

Nor is the number of pending triable cases of itself a basis for true
comparison either as to the efficiency or zeal of a district attorney. In
some districts criminal sittings are had more often and more continu-
ously than in others, affording greater facility for hearing and disposition
of cases. In two counties the sitting of the Superior Court, in each, is a
mixed session for the transaction of both civil and criminal business,
which, of course, curtails opportunity for disposition of felonies; and in
one of these there has been no court sitting since April, particularly for the
disposition of misdemeanors.

Some districts are bounded in a single county and have a single trial
docket; others have two or more counties, with intercepted court sessions.
The districts vary also in character. The Northern is considered largest
in population plus area; Suffolk, most constricted in area and congested
in population, had, this year, 40 per cent of the State's criminal business;
the Southern is the rangiest, with Bristol County, urban and rural;
Barnstable, doubly coast bordered, stretching more than seventy miles;
old Nantucket, sea girt; and the County of Dukes County, the Isle of
Marthas Vineyard. Lack of uniformity makes comparison impossible.

The dockets disclose disposal of 17,534 cases, and in general, that there
are pending but four triable murder cases, not a great number of felonies,
nor an unusual number of misdemeanors; that both felonies and mis-
demeanors have been tried without delay; that appellants from lower
courts have not benefited by appeals; that the criminal dockets are not
congested; that district attorneys are now ready to prosecute at once
violations as they shall arise; that the violators of law in this Common-
wealth can find no comfort in any reliance upon a congested docket
either to delay trial or to barter the riddance of a case for a plea to a
lesser offense. We challenge historians to show any period in comparable
annals of the Bay State when criminal justice has been swifter or surer
than it is today.

In capital cases the statute already requires that, whenever a person is
held in custody on indictment by a grand jury, the State be ready to
prosecute at the sitting of the court next after six months from the date of
indictment. (G. L., c. 277, § 72.) Another statute prescribes precedence
for trial of felonies and liquor violations. (G. L., c. 212, §§ 24-29; St. 1926,
c. 228.) But let it be particularly noted that in all districts the trial of a
felony invariably is had at the sitting of the court immediately subsequent
to the indictment.

8 P.D. 12.

Moreover, the use of district court judges sitting in the Superior Court
to hear misdemeanor cases, begun in 1923, has proved of great value. So,
congestion of the criminal docket has almost vanished and clearance has
been promoted, with a logical and subsequent specialized attention to both
groups, thereby facilitating and particularizing misdemeanor dispositions
as well as assuring more careful and thorough trial of those on appeal.
This procedure has demonstrated the futility of frivolous appeals.

In the Western District, Mr. Clason reports that there are 63 cases pend-
ing in Berkshire and 190 in Hampden. Of the 63 cases in Berkshire, ex-
cluding secret indictments and defendants on probation, there are but 35
pending triable cases — all misdemeanors, principally appeals from the
lower court since the last sitting of the Superior Court in July, with pros-
pect of disposition at the January sitting in 1930; that, of the cases dis-
posed of in that county during the current year, approximately a third
were those arising since January 1, 1929; that the oldest pending cases
are a non-support from 1927 and only 9 from 1928 (4 of which are bails) ;
that as to the 190 cases pending in Hampden, the misdemeanors concern
but 54 defendants, the felonies but 3; that on January 1, 1929, the number
of cases pending was less than half the number pending January 1, 1927;
and that by January 1, 1930, there will be about one-fifth of this half;
that the trial of the last murder case in this county was on October 1, 1928,
within five months from the date of indictment, obtained at the very first
sitting of the grand jury after commission of the murder.

In the Northwestern District, Mr. Fairhurst reports that the Hamp-
shire County docket affects 60 defendants; 5 felonies, with plea of guilty
in 1; no court sitting since April for disposition of misdemeanor balance;

1 murder case, with sanity not yet determined; in Franklin County,

2 felonies, and 4 misdemeanors.

In the Middle District, Mr. Rugg reports 14 criminal cases pending
in Worcester County, with pleas of guilty in 8; none of murder, man-
slaughter, or robbery; that, in the only two capitals occurring and tried
in the last two years, conviction in one was had two months after arrest
of the accused, and in the other, three months after commission of the
murder; that in the four years, January 1, 1920, to January 1, 1924,
the number of docketed cases nearly doubled; that there has been a
steady annual reduction since, so that, although January, 1929, showed
shght increase over January, 1928, the number then pending was only
300 more than in January nine years before.

In the Northern District, Mr. Bushnell reports that in Middlesex
County there are no murder cases pending; that all cases were
disposed of in the arduous ten months of court sittings.

In the Eastern District, Mr. Clark reports only one murder case pend-
ing, with defendant under observation; that the felony docket is in better
condition than ever before; that in this district there are five trial justices
whose jurisdictions are so limited that many misdemeanors, usually dealt

P.D 12. 9

with by district courts, require grand jury proceedings, augmenting mis-
demeanor totals.

In the Suffolk District, Mr. Foley reports that there are but two triable
murder cases pending, murders committed in September and October
last; that in five others, he awaits arrest of defendants in three and res-
toration to sanity in two; that of total pending cases, those prior to Jan-
uary 1, 1928, involve but seven defendants not yet in custody, or sane;
that the total is less than half that of January, 1929, which was then the
lowest recorded; that during his administration one trial for murder was
had within sixty-seven days from the date of murder, and no murder trial
has been had later than seven months after the date of murder, including
indictment and apprehension.

In the Southeastern District, Mr. Wilbar reports that in Norfolk and
in Plymouth counties no triable murder case pending; that in the other
capital cases, insanity or question of sanity prevents trial; in Plymouth
County but one felony pending (polygamy), and not more than four
larcenies ; that the current total in the district is about the same as in 1928,
with a slight decrease in cases for prosecution of liquor violations.

In the Southern District, Mr. Crossley reports no capital case pending
in the four counties; few felonies of magnitude; that in Barnstable County
the misdemeanor list is low; in Nantucket County, two misdemeanors;
in Dukes County, two misdemeanors, and a recent indictment for assault
to murder and charges for robbery undisposable until the next court ses-
sion in April; that in Bristol County, for one example, in the current year,
five defendants were apprehended, indicted, convicted and sentenced, four
of them receiving long sentences, on charges arising out of a robbery at
gun point, — all within sixteen days.

Recommendations of District Attorneys.

The recommendations of the district attorneys in which I concur are
as follows:

1. That there be revision and clarification of the criminal statutes, to
the end that they may be carefully harmonized; that this be done by a
learned commission of wide practical experience in the criminal law,
appointed by the Governor; that a final report be required not earlier
than the second General Court from the date of its appointment; that
it may recommend substantive changes and repeal of obsolete and archaic
laws.

The learned Judicial Council is chiefly, if not principally, concerned
with procedure. Though a special commission under Res. 1923, c. 34,
made investigation "relative to the criminal law," its constructive report
stated that substantive changes were not within the scope of its authority,
and that, even if they had been, such fundamental changes could not be
sufficiently formulated in the few months designated in the resolve.

10 P.D. 12.

Certain private 'agencies have recently undertaken to study some aspects
of the substantive and procedural criminal law in force in Massachu-
setts. Notable among these investigations now in progress is that of
the Harvard Law School Committee, authorized by the President and Fel-
lows of Harvard College to make use of certain of the resources of the
Milton Fund for this purpose. This investigation, which was first under-
taken some two years ago, has not yet been terminated by a formal
report. The fact that the committee has been at work so long indicates
the amount of time needed to obtain and digest the statistics essential
to a comprehensive report. Despite the fact that any commission
appointed by the Governor will presumably have at its disposal the
work of various private agencies, including that of the Harvard Law
School Committee, it will be necessary, in my opinion, to give to the
commission at least two years in which to gather and compile informa-
tion and data, and probably a further period in which to prepare adequate
and well-considered recommendations.

2. That police officers may have the same powers, which investigators
and examiners appointed by the Registrar of Motor Vehicles have, to arrest
persons operating motor vehicles while under the influence of intoxicating
liquor. As the law now is, a police officer cannot arrest a person upon such
charge without a warrant, if the person has his license to operate in his
possession, unless such person is drunk or is a suspicious person, in which
event he may be arrested on the respective charges.

The power of officers to make arrests without warrant for violations of
laws relating to motor vehicles is found in G. L., c. 90, as amended by St.
1921, c. 349, which provides for the arrest of "any person operating a
motor vehicle on any way who does not have in his possession a license to
operate motor vehicles granted to him by the registrar, and who violates
any statute, by-law, ordinance or regulation relating to the operation or
control of motor vehicles; ..." The power of investigators or examiners
appointed by the registrar to make arrest without warrant is also defined
therein, namely, to make arrest of "any person operating a motor vehicle
while under the influence of intoxicating liquors, irrespective of his pos-
session of such a license."

G. L., c. 90, § 21, as amended by St. 1921, c. 349, should be so amended
that the powers of a police officer may specifically include power to make
arrest of "any person operating a motor vehicle on any way while under
the influence of intoxicating liquor or drugs," and who "otherwise" vio-
lates any statute, etc.

P.D. 12. 11

II. ADMINISTRATION OF CIVIL BUSINESS.

Cases of Interest wherein the Attorney General appears for the
Commonwealth.

A. CASES DECIDED DURING THE YEAR.
1. In the Supreme Court of the United States.

Ex parte Worcester County National Bank, 270 U. S. 347. This case
involved the construction and the constitutionahty of certain portions of
the so-called MacFadden bill amending the National Banking Act, au-
thorizing the direct consolidation of State trust companies with national
banks under the charter of a national bank involved in the merger. The
Supreme Judicial Court of Massachusetts (263 Mass. 444) had decided
that the Federal act purported to authorize the consolidated national
bank to succeed without any new appointment by the court to the
executorship trust and other fiduciary positions held by the absorbed
State trust company under appointments of Massachusetts probate courts,
and that, if this was the will of Congress, the act was unconstitutional as
interfering with the reserved power of the State to regulate the admin-
istration and probate of estates of deceased persons who last dwelt within
the Commonwealth.

The case arose upon the petition of the consolidated national bank to
file an account as executor in an estate in which the absorbed trust com-
pany had originally been appointed. The case, although involving no
large amount of money, raised a very important principle of constitutional
law in which the State had a decided interest from the standpoint of main-
taining the integrity of its probate courts from interference by the Federal
government. The Attorney General requested leave of the Supreme Court
of the United States to file a brief as amicus curiae, which was granted.
The court, departing from its usual custom, also granted leave to this
department to present an oral argument. The case was argued by Hon.
Newton D. Baker for the appellants and by Assistant Attorney General
Putnam for the Commonwealth. Oral argument was made. The Su-
preme Court affirmed the decree of the Massachusetts court upon grounds
which, as is disclosed by the printed record, were first suggested in the
brief of the Attorney General.

2. In the Federal Courts.

Rate Cases.

The electric light rate cases brought by the Worcester Electric Light
Company and the Cambridge Electric Light Company, and referred to as
pending in my report of last year, were ended during the present year by
entries of decrees in the United States District Court sustaining the con-
tention of the Commonwealth. The lower rates ordered by the Department
of Public Utilities thus remain in effect.

12 P.D. 12.

3. In the Supreme Judicial Court.

(a) Tax Cases.

Beside one tax case ^ in the Supreme Court of the United States, this
department has represented the Commonwealth in seventeen cases before
the full bench of the Supreme Judicial Court, involving important points
in the construction of our corporation and legacy tax acts, and in five cases
before a single justice. In all but one ^ of the eleven ^ tax cases decided by
the Supreme Judicial Court of the Commonwealth, the contentions of the
Commonwealth have been sustained.

(6) Other Cases.

In the eleven cases involving constitutionality of statutes,* charitable
trusts,^ validity of departmental acts,^ the Commonwealth was sustained.

' Macallen Company v. Commonwealth, 264 Mass. 396; reversed by the Supreme Court of the United
States, suh nom. Macallen Company v. Massachusetts, 279 U. S. 620.

2 Henry B. Cabot et als., Executors, v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929)
1239, held that a receipt in full given by the Commissioner of Corporations and Taxation prevents the
Commissioner from later making an additional assessment where the net estate of a Massachusetts decedent
is increased due to a rebate of a Federal estate tax previously allowed as a deduction by the Commissioner
in computing the Massachusetts inheritance tax.

' Hood Rubber Co. v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 1747, sustained
the construction of G. L., c. 63, § 36, adopted by the Department of Corporations and Taxation since the
enactment of the statute.

Anna W. Wolbach v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 1757, sustained
an income tax upon interest paid to the relatives of a deceased partner by the surviving partners.

Charles F. Ayer v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 2195, sustained an
income tax imposed upon dividends received by the taxpayer from a joint stock company organized under
the laws of Michigan for the purpose of conducting mining operations in that State.

Edith C. C. Ames v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 2247, sustained
the action of the Commissioner of Corporations and Taxation in denying a refund of certain taxes paid by
the taxpayer "on account" of a legacy tax.

Harold S. Coolidge et al.. Trustees, v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929)
1831, is mentioned subsequently in this report.

Queens Run Refractories Co. v. Commonwealth, Mass. Adv. Sh. (1930), sustained the contention of the
Tax Department that the complainant company was "doing business" within the meaning of G. L., c. 63,
§32.

Essex Theatres Co. v. Commonwealth, Mass. Adv. Sh. (1928) 1967, sustained the minimum excise on
certain corporations provided in G. L., c. 63, § 32A.

George A. Bacon v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 747, sustained
an income tax imposed upon an annuity received by a taxpayer under the provisions of G. L., c. 62, § 5.

Mary J. Follett v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 917, sustained
the tax imposed upon a liquidating dividend received by the taxpayer.

Boston Safe Deposit & Trust Co. v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1029)
1233, sustained the validity of a Massachusetts succession tax upon a trust created inter vivos without
the absolute power of revocation; the trust provided for the payment of the income to X during her hfe,
and upon her death the principal of the trust back to the settlors if living, and if not living over to grand-
children of the settlors.

* Commonwealth v. Kresge Co., Mass. Adv. Sh. (1929) 1205, held that St. 1926, c. 321 (regulating sale
of eyeglasses), was constitutional; and upheld conviction for violation thereof.

Bauer v. Civil Service Commission, Mass. Adv. Sh. (1929) 2399, upheld constitutionality of G. L., c. 31,
§ 23 (in the Veteran's Preference Act), and dismissed petition for mandamus to compel the commissioner
to certify the name of a non-veteran who had received the highest examination mark, but whose name had
been given by the commissioner an inferior position on the eligible hst.

' Arthur H. Brooks v. Caroline A. Pierce et als., Mass. Adv. Sh. (1929) 357, sustained the contention of
the Attorney General that under a particular will a charitable gift to a class of unknown persons took
precedence over arrears in annuities to beneficiaries named in the will.

« Selectmen of Topsfield v. Department of Public Utilities, Mass. Adv. Sh. (1929) 945, sustained validity
of an order granting a right to locate transmission lines across certain public ways.

P.D, 12. 13

4, In Other Courts of the Commonwealth.

(a) Eminent Domain Cases.

In eminent domain cases, commonly known as "land damage" cases,
the Commonwealth takes the land of individuals for a public purpose,
such as the construction of highways and state institutions. An award is
always made to the owner of the land for his damage sustained by the
taking. If dissatisfied with the amount of the award, each owner may
appeal to a jury for assessment of damages. In every case assessment
necessarily is against the Commonwealth. However, in a great majority,
satisfactory verdicts were obtained. Many others have been settled upon
terms mutually agreeable to the petitioners and to the Commonwealth.

(b') Other Cases.

In 10 tax cases before the Superior Court, and in numerous hearings in
connection with legacy tax matters before the Probate Court, the depart-
ment was successful in upholding the tax or contention, in major measure.

B. CASES PENDING NOVEMBER 30, 1929.

1. In the United States Supreme Court.

(a) Interstate Controversy.

The State of Connecticut v. the Cofnmonwealth of Massachusetts. For
the purpose of providing an adequate water supply for the Metropolitan
District, St. 1926, c. 375, and St. 1927, c. 321, respectively, authorized
the diversion of a small quantity of water from the Ware and Swift rivers
which otherwise would flow into the Connecticut River through this
Commonwealth and thence into Connecticut.

The State of Connecticut, late in 1927, filed a bill in equity against
•this Commonwealth in the Supreme Court of the United States seeking
to enjoin the diversion, alleging that, in the event this enterprise is car-
ried out, the State of Connecticut and its citizens will suffer serious
injury due to the diminution of the flow of the Connecticut River in

Norton v. Attorney General.

Same v. Secretary of the Commonwealth (decided Dec. 30, 1929, while this report is in press).

Dismissed petitions to quash Attorney General's certificate of an initiative measure and for mandamus
to restrain Secretary of the Commonwealth from transmitting such measure to the General Court.

Brest V. Commissioner of Insurance.

Nichols V. Same,

Casassa v. Same (decided Jan. 8, 1930).

Sustained demurrers of the respondent to each of the bills petitioning review of rates made by the Com-
missioner of Insurance for compulsory motor vehicle insurance.

Wallace, Petitioner, Mass. Adv. Sh. (1928) 2071, denied petition for a writ of habeas corpus and sustained
the executive warrant.

Delia Dwyer v. Keniston et al. (decided Jan. 1930), dismissed petition for mandamus against the Metro-
politan District Commission to grant entrance into premises from a boulevard.

Nine cases, already argued, have not yet been decided.

14 P.D. 12.

that State. This department filed an answer in behalf of the Common-
wealth and the case is now pending in court.

The Secretary of War approved the Ware River project so far as its
effect on navigation was concerned on March 14, 1928. Similar approval
of the Secretary of War was obtained with reference to the diversion
from the Swift River on May 11, 1929. Subsequent to the action upon
the Ware River project, the State of Connecticut filed a motion in the
Supreme Court of the United States seeking to join the Secretary of War
and the Chief of Engineers as parties defendant in the pending case, and
to enjoin them from giving approval to the Swift River diversion, and to
compel them to revoke the action upon the Ware River diversion. A
brief was filed by this Commonwealth in opposition to that motion, and
after consideration by the court the motion was denied.

The State of Connecticut has very recently filed a motion seeking to
have the answer filed by this Commonwealth dismissed, and also a motion
to have certain portions of the answer stricken out in the event that the
entire answer is not dismissed. A brief has been filed by this Common-
wealth in opposition to those motions, and the motions are now pending
before the court. Oral argument upon the motions will take place on
January 20, 1930.

Upon motion of Massachusetts, the court recently appointed Charles W.
Bunn, Esq., of Minnesota as Special Master to hear the case and report
to the court. In the event that the court decides adversely to Connecticut
upon the pending motions, it is expected that hearings before the master
will commence shortly thereafter.

This case is of the utmost importance to this Commonwealth. Upon it
depends an adequate water supply for the Metropolitan District and an
undertaking estimated at $65,000,000. The State of Connecticut has left
no stone unturned to upset this project, and has taken advantage of every
possible legal avenue of attack. Thus the Commonwealth has successfully
opposed the only issue which has been decided by the Supreme Court so
far, and every effort will be made to carry the entire case to a successful
conclusion.

Bentley W. Warren, Esq., who was appointed Special Assistant Attorney
General to conduct the case for the Commonwealth of Massachusetts, is
being assisted by Assistant Attorneys General Callahan and Cutter.

(6) Tax Cases.

In Harold J. Coolidge et al., Trustees, v. Commissioner of Corporations and
Taxation, decided September 13, 1929, the court affirmed the constitu-
tionality of a Massachusetts succession tax on the property passing by a
trust instrument which was executed inter vivos on July 29, 1907, before the
enactment of the taxing statute, and wherein no power of revocation was
reserved, and in a later assignment of which, in 1917, no beneficial interest

P.D. 12. 15

was retained in the settlors. The decision is important in its stressing of
the succession aspect of the Massachusetts tax, and the importance of the
determination of whether or not the succession is dependent in any way
upon the death of the settlors.

Federal questions having been raised in the Massachusetts courts, ap-
peal to the United States Supreme Court is now pending.

Willcutts, Collector of Internal Revenue, v. Bunn (U. S. Sup. Ct., Oct.
Term 1929, No. 535). In this case this department has recently moved
for and obtained leave to file a brief as amicus curiae. The lower Federal
courts decided that the Federal government could not impose an income
tax upon the gain derived from the sale of municipal securities issued by
subdivisions of the State of Minnesota. For many years Massachusetts, by
the provisions of G. L., c. 62, § 5 (c), has imposed an income tax upon the
gain derived from the sale of Federal government bonds. A decision in
the pending United States Supreme Court case will to all intents and pur-
poses decide the validity of a tax long imposed by Massachusetts. At the
request of Commissioner Long, therefore, this Department has by its
brief sought to support the argument to be made by the Solicitor General
of the United States in behalf of the tax imposed by the Federal govern-
ment upon the gain from the sale of the Minnesota bonds.

2. In the Supreme Judicial Court.
Billboard Cases.

The billboard litigation is a consolidation of various bills in equity
brought in the Supreme Judicial Court by the General Outdoor Advertising
Company, the O. J. Gude Company, Edward C. Donnelly and John Brink
against the Commissioners of Public Works, with which has been heard
the bill in equity brought by the General Outdoor Advertising Company
against the selectmen of the town of Concord. The John Brink case
involves the Chevrolet sign on Beacon Hill. All the cases involve the
constitutionality of the 1924 rules and regulations of the Department of
Public Works for the control and restriction of billboards, signs and other
advertising devices, under G. L., c. 93, §§ 29-33, as amended, and under
Amendment L of the Massachusetts Constitution.

The complainants' case was finished in 1928. During the present year
the preparation and presentation of evidence, on behalf of the respondents,
and the rebuttal evidence by the advertising companies consumed almost
the entire time of Assistant Attorney General Eastham, to whom the case
had been assigned. In addition to five days spent on a "view" of the
main highways of the Commonwealth by counsel and the master, there
were forty-nine court days of hearings and seven days of argument. The
record in the case contains 8,564 pages of testimony, between five and six
thousand exhibits, and registers the total number of one hundred and
sixteen court days.

16 P.D. 12.

It is expected that the arguments will be completed before the master,
Frank H. Stewart, Esq., by December 26, 1929, and his report to the
Supreme Judicial Court of the Commonwealth ready during the early part
of 1930.

III. STATUTORY SERVICES OF INTEREST.

1. Settlement of Small Claims against the Commonwealth.

Since the period covered by my last annual report 34 claims have been
presented against the Commonwealth under St. 1924, c. 395; 20 were
approved, with a total expenditure of $2,742.52; 11 were rejected; 3 are
still pending.

Of these claims 58 per cent was for damages occasioned by the operation
of State automobiles.

2. Interstate Rendition.

There is great need for a uniform method of interstate rendition. The
essential elements are now covered by the Constitution of the United
States and Federal statutes enacted thereunder. Except as to certain
minor details, which are left to the States, the Federal law is supreme and
binding upon all States equally, and it is, of course, uniform in its applica-
tion in the entire country. No State may constitutionally enact a statute
which in any way conflicts with, adds to, or modifies the requirements set
forth in the Federal law.

The chief difficulty is lack of thorough understanding of the law by
oflficials charged with its administration. The governor of a State must,
under the law, return to a demanding State a fugitive who is found within
his State provided —

1. That a set of papers is duly received, authenticated by the governor
of the demanding State, containing a copy of an indictment or affidavit,
sworn to before a magistrate, charging the fugitive with having committed
a crime within the demanding State.

2. That the governor of a State in which the fugitive is found is satisfied
that the person is in fact the person so charged with the crime and named
in the papers.

3. That the governor of the State, in which the fugitive is found, is satis-
fied that the person is a fugitive from justice. Under the law a person is a
fugitive from justice if he was in the demanding State at or about the time
the crime is alleged to have been committed, and if he is subsequently
found in the asylum State.

4. That the request for the return of the fugitive is made in good faith
on the part of the officials of the demanding State.

If these elements all appear, a governor, upon whom a request is made,
must, under the law, return the fugitive; and other considerations, however
important they may seem to him, must be entirely disregarded.

In certain cases executives of other States, it would seem, refuse to
honor the request of the Governor of this Commonwealth for the return

P.D. 12. 17

of a prisoner on grounds other than those of law. The law provides no
method of compelling a governor to comply with his duty in these cases,
nor is there any appeal in case he refuses to do so. Although his right to
refuse to honor a requisition is closely limited, nevertheless his power to
do so is supreme and unlimited. There is nothing that the General Court
of Massachusetts may do to correct the faulty administration of this
matter in other States. In this Commonwealth requisitions from other
States are treated in strict conformity with the law.

The weakness in the law of rendition, as pointed out above, is that there
is no method of compeUing a governor to return a fugitive in a proper
case, and many governors, more or less naturally, confuse their legal right
to refuse rendition with their power to refuse. In a proper case the gov-
ernor's duty arises from a clear mandate in the Constitution of the United
States and in the Federal statutes enacted thereunder. The duty is none
the less mandatory even though no method is provided to compel a gov-
ernor to perform his duty. Indeed, the obligation in some respects thereby
becomes greater.

The rendition of fugitives from justice is an important phase of the
administration of law in this country and Commonwealth. A full and
complete understanding of the law by the governors of the States will do
more than any other thing to place its administration on a basis which
conforms to the law.

3. Quo Warranto (at Relation of Insurance Department).

At the relation of the Commissioner of Insurance, under the provisions
of G. L., c. 175, § 6, as amended, a petition was filed against the Bristol
Mutual Liability Insurance Company which the Commissioner believed
to be insolvent. The matter was heard by the Supreme Judicial Court
and a permanent injunction restraining the company from doing business
was almost immediately issued, and a receiver was appointed by the court
to settle its affairs and to protect the interests of policyholders and
creditors.

4. Charitable Trusts.

The duties of the Attorney General to "enforce the due application of
funds given or appropriated to public charities within the commonwealth"
and to prevent "breaches of trust in administration thereof" (G. L., c. 12,
§ 9) both entail, first, supervision of the administration of funds by func-
tioning charities, and second, recommendation to the courts for use of
trust funds, non-functioning because original purposes have become
impracticable or impossible of execution.

The first involves on the part of the Attorney General approval of all
trustees' accounts of all charitable trusts (such approval is now made
prerequisite by the judges of the several probate courts for allowance of
such accounts), and investigation and approval of successors to trustees

18 P.D. 12.

resigned or deceased. Current experience, noting misappropriation of trust
property, suggests that probate courts require all trustees of charitable
funds, or at least the treasurer of each board of trustees, to provide bond
for the faithful performance of duties, and that sole charge and custody
of the funds be not delegated to any one member of a board.

As to the second, there have been many cy pres proceedings. I mention
two or three of interest.

Charles A. Reade Fund.

Experience of a long period of years in effort to carry out literally the
desires of the donor for scientific lectures demonstrated such insufficient
interest and consequent impracticable use of the fund that, through pro-
ceedings initiated by the Attorney General, supported by the officials of
the city of Salem, a decree was entered by the Superior Court of the County
of Essex allowing the income of this fund for free musical concerts, with
scientific features, for the inhabitants of the city of Salem. Radio broad-
cast of the first concert enabled other citizens of Massachusetts to share
the benefits of this gift.

Massachusetts Total Abstinence Society.

Proceedings have been commenced for appHcation of the funds of this
society, a charitable corporation, idle through death of interested leaders
and other incidents.

National Sailors' Home.

The trustees of this home, a charitable corporation, which for sixty years
has maintained a home in Quincy for former members of the United States
Navy, sought permission of the Supreme Judicial Court to discontinue
maintenance of any home and to utilize the funds at their disposal in other
modes. The allowance of this petition was opposed by the Attorney
General in the belief that the need for such an institution in our Common-
wealth had not ceased. Continuance of this home for our sailors, provision
for more suitable facilities, and readjustment of the personnel of the board,
with added representation for naval veterans, are the present endeavors
of the Attorney General.

5. Estates under Public Administration.

As estates wherein there are no heirs are payable to the Treasurer of
the Commonwealth (G. L., c. 190, § 3, cl. 17), the State is a party in
interest, occasioning supervision by the Attorney General over public
administrators in investigation and approval of their accounts and
appearance in courts in determination of genuineness of alleged heirship
of those claiming estates.

P.D. 12. 19

In a current case, through the action of this department, a claimant
to an estate was found guilty of perjury in the jurisdiction in which he
dwelt, with subsequent sentence of imprisonment.

6. Proceedings to enforce the Regulations of the Department of Public

Safety.

G. L., c. 148, § 26, requires the Attorney General to enforce regulations
of the Department of Public Safety relative to blasting with explosives.

Consequent to certain regulations of the Department of Public Safety,
proceeding is now pending in the Superior Court for the County of Essex
for prevention of certain blasting operations alleged to be to the detri-
ment of the inhabitants of the town of Swampscott.

7. Service to Special Recess Commissions: Special Reports.

Assistant Attorney General Cutter assisted the Special Recess Tax
Commission in the legal work connected with its duties, and devoted
much of several months to this work.

At my designation. Assistant Attorney General Callahan served as a
member of the Special Recess Commission to study Laws relating to
Plumbing (Res. 1929, c. 16) and of the Commission to survey and revise
the Game and Inland Fish Laws (Res. 1929, c. 34).

The investigations, requested by the General Court, as to certain claims
(Res. 1929, c. 46) and as to removal, repair and maintenance of bridges
over certain locations of the Southern New England Railroad Corpora-
tion and former location of the Hampden Railroad Corporation (Res.
1929, c. 42) were conducted by Assistant Attorney General Simoneau,
designated by me as authorized in the resolves. " •

8. Industrial Accident Cases; Proceedings against the Commonwealth
under the Provisions of G. L., c. 30; Approval of Contracts and
Titles.

The department represented the Commonwealth at 18 hearings before
the Industrial Accident Board and at 6 conferences in cases arising under
the Workmen's Compensation Act (G. L., c. 152), providing for com-
pensation to laborers, workmen and mechanics employed by the Com-
monwealth, who receive personal injuries arising out of and in the course
of their employment.

The department also prepared or passed upon 475 contracts as to
form; 29 leases, 5 easements; and 185 deeds as to both legal form and
title.

Under G. L., c. 30 § 39, as amended, relating to certain liens against
security for the construction of public works, 10 cases have been concluded
and 12 are still pending.

20 P.D. 12.

9. Corrupt Practices.

Either at the relation of the Secretary of State, for non-observance of
law in the filing with him of returns relative to elections, or upon rep-
resentation of other parties claiming such violations, the activities of
certain persons and organizations with reference to corrupt practices in
elections, other than in cities or towns, were investigated. One investi-
gation, after prosecution, resulted in the imposition of a penalty of $1,000
on a certain company for expenditure of moneys contrary to the law, and
a less penalty on a defendant treasurer of an organization, working in
conjunction with that company, for causing an incorrect return to be
filed.

10. Opinions.

Opinions of interest are annexed.

IV. CERTAIN CONSTITUTIONAL FUNCTIONS REQUIRED OF THE
ATTORNEY GENERAL IN PERSON.

Initiative Measures.

The time for filing initiative measures with the Secretary of State
begins on the first Wednesday of a September and ends with the first
Wednesday of a following December. Before a measure may be so filed
it must first be presented to the Attorney General and be certified by
him as in proper form, as not containing anything excluded from initia-
tives by the Constitution and correct in certain other respects. Upon
presentation to him, petitioners may require him to act, — either to
certify or to refuse to certify, — or, with his permission, withdraw the
measure. Upon a certification, parties opposed to a measure may bring
proceedings in an attempt to quash the Attorney General's certificate
and to prevent the Secretary of State from printing blanks for additional
signatures. Upon a refusal to certify, if petitioners feel refusal is arbi-
trary and that the proposed measure is in fact within the Constitution,
they have equal right to bring proceedings to force him to certify. As the
date for filing measures with the Secretary of State begins the first
Wednesday of a September, it behooves petitioners, if they expect benefit
of the full period of the succeeding ninety days allotted in the Constitu-
tion for the obtaining of signatures, to present proposed initiatives before
and not after the day when the ninety days have begun to run. Sub-
jected, as he may be, to review by the Supreme Judicial Court for any
errors in certification, the responsibility of the Attorney General is too
great for hurried consideration of measures, frequently covering many
typewritten pages.

There were seventeen initiatives presented this year relating to five
different subjects: one to strike out G. L., c. 138, § 2A (the so-called
"Baby Volstead"); one to prohibit certain steel traps; six to set up a

P.D. 12. 21

State fund for automobile insurance; three to add to the Public Bequest
Fund; and six to set up a workmen's compensation fund.

Of the seventeen measures presented, four were certified; four were
withdrawn [three by Mr. Frank A. Goodwin and others to establish a
fund for automobile compulsory insurance and one by the American
Federation of Labor (Massachusetts branch) to establish a workmen's
compensation fund]. The Attorney General refused to certify the other
nine, and assigned reasons therefor.

Measures Certified.

1. The initiative containing the following measure: "Chapter 138 of
the General Laws is hereby amended by striking out section 2A, inserted
by chapter 370 of the Acts of 1923," certified September 4. Section 2A
forbids — unless in each instance with permit or other authority required
therefor by the laws of the United States and the regulations made
thereunder — the (1) manufacture; (2) transportation by (a) air craft,
(h) water craft or (c) vehicle; (3) importation or (4) exportation of spir-
ituous or intoxicating liquor, namely, (1) beverages containing more than
2^ per cent of alcohol by weight at 60° Fahrenheit; (2) distilled spirits;
and (3) certain non-intoxicating beverages, namely, those containing not
less than 3^ and not more than 2% per cent of alcohol by weight at 60°
Fahrenheit.

2. The initiative, presented September 16 and certified September 24,
contained a measure to amend G. L., c. 131, by inserting a new section
numbered 59 A, which related to the use of traps for capture of certain
fur-bearing animals.

3. The fourth petition of Mr. Goodwin and others, presented October
28 and certified November 1. Three preceding petitions, presented by
the same petitioner and others, were withdrawn. The first petition was
presented September 23 and withdrawn October 2; the next, presented
October 7, was withdrawn October 16, and the third, October 23.

4. The fourth petition of the American Federation of Labor, "An Act to
establish a fund for workmen's compensation," presented November 27
and certified November 29. Of its three prior petitions, the Attorney
General refused to certify the first on September 5; on the second, pre-
sented more than seven weeks later (October 29), petitioners requested at
a hearing on November 1 no action be taken; the third, presented two
weeks later (November 19), the Attorney General refused to certify on
November 21, and assigned reasons.

Uncertified Measures.
Two petitions (purporting to contain measures to create a State fund
under the administration of a commission for the compulsory insurance
of motor vehicles registered in the Commonwealth) ; the first (presented

22 P.D. 12.

September 19) was refused September 25; the second (presented October
29), refused October 31; with reasons assigned therefor.

Three (purporting to contain measures to provide "that certain money-
escheating to the Commonwealth shall be added to the so-called Public
Bequest Fund"); the first (presented July 31) was refused September 9;
the second (presented October 17) was refused October 18; the third (pre-
sented October 29) was refused October 30; with reasons assigned therefor.

Two (purporting to establish a workmen's compensation fund) by
petitioners other than the American Federation of Labor were refused,
with reasons.

Descriptions of the measures certified were furnished to the Secretary
of State by the Attorney General after petitioners had filed them with
the Secretary, for, as pointed out in Brooks v. Secretary of State, 257 Mass.
91, a description is "not made until after" a petition is filed.

Petitions for mandamus against the Secretary of State and for certio-
rari to quash the certificate of the Attorney General were brought Novem-
ber 3 to prevent the transmission to the Legislature of the certified initi-
ative measure (the fourth petition of Mr. Goodwin) for the establishment
of a State fund for automobile insurance. ^

V. GENERAL OBSERVATIONS.
1. Power of Attorney General relative to Investigations.

In my last report I pointed out that the Attorney General has no
power in any independent inquiry to summon witnesses and examine
them under oath for the ascertainment of facts to effect thorough in-
vestigation of matters, civil as well as criminal, concerning the public
peace, public safety and public welfare, with responsibility for which he
is popularly charged. I renew recommendation for grant of such power,
if such investigations are desired.

2. Recording Automobile Conditional Sales to avoid Futile Litigation.

I renew my suggestion that conditional sales of motor vehicles be
recorded with the Registrar of Motor Vehicles. I believe that litigation
resulting from disputes with reference to ownership, sales, attachments
and liens, by resort to a central office, can be minimized.

3. Continuation of Commission Studying Proceedings relative to Chil-

dren and Domestic Relations.

In my last report I recommended the appointment of a commission
to make a thorough study of these matters. Such a commission was
appointed. The work has proved too extensive for a final report. I
recommend that it be continued.

■ The Supreme Judicial Court sustained the action of the Attorney General as this report goes to press.

P D. 12. 23

4. Continued Study of General Tax Revision.

The Special Recess Commission on Taxation has prepared an exhaustive
report dealing mainly with the major problems now arising in connection
with State taxation. With the general policies of taxation this depart-
ment has nothing to do, but its work is much affected by provisions in
the structure of the statute law concerning taxation, voluminous, inter-
related and intricate. Comprehensive revision demands long and careful
study. I favor its continuance.

5. For a New Board of Tax Appeals.

One portion of the very comprehensive report of the 1929 Special Recess
Tax Commission has a very definite relation to the work of the Attorney
General as representing the Commissioner of Corporations and Taxation
in litigated matters of taxation. The commission proposes the estab-
lishment of a board of tax appeals, consisting of three members appointed
by the Governor with the consent of the Council, solely on the basis of
their qualification to perform their duties. At present, appeals from the
decisions of the Commissioner of Corporations and Taxation are heard
either by one of the many courts of the Commonwealth (depending upon
the nature of the tax) or by the board of appeals from decisions of the
Commissioner of Corporations and Taxation. That board consists of
three State officers, who have many other heavy administrative duties
to perform for the Commonwealth. A board of tax appeals should be
an impartial body ; there should be no possibility that any citizen seeking
a tax abatement could have any feeling that the board is biased in favor
of the Commonwealth. With State officials, having other duties to per-
form for the Commonwealth, acting as members, this possibility is not
wholly absent, although an examination of the statistics of cases decided
by the present board shows that the board has granted abatements about
as frequently as it has denied them.

The tax laws of Massachusetts are growing in volume and in complexity.
This is probably the inevitable result of the complicated structure of
modern business and of the economic life of the community. Problems
of taxation are now dealt with principally by specialists, and a board of
tax appeals should be composed not only of persons who are tax specialists
but of members who have a very thorough business and legal training.
There is absolutely no certainty that any one of the three gentlemen who
serves upon the present board ex officio will be a lawyer, and even less
certainty that he will have a specialized knowledge of the Massachusetts
tax statutes. I hope this proposal will receive favorable consideration.

24 P.D. 12

6. Just Provisions to relieve Motor Vehicle Owners by Amendment to
the New Motor Vehicle Excise Tax Law.

The administration of the new motor vehicle excise (G. L., c. 60A),
which supplants the old local personal property tax upon motor vehicles,
has resulted in much recourse to this department, particularly with
respect to those provisions relating to persons who transfer motor vehicles
during the calendar year.

This law should be amended —

(1) To make it certain that the year of actual manufacture or assem-
bling of the motor vehicle is taken as the year upon which the value of
the privilege taxes is measured.

(2) To provide a fair abatement of the tax paid early in the year by
one who transfers or turns in his car during the year.

At my direction, such suggestions were presented to the Special Recess
Tax Commission, and I hope such remedial amendments will be favored.

In passing, I must commend Mr. Henry F. Long, Commissioner of
Corporations and Taxation, who, by a very liberal and sensible con-
struction of the provisions of G. L., c. 60A, in his departmental regula-
tions, averted litigation which otherwise would have arisen under this
statute.

7. Readjustment in State Taxation of National Banks.

The 6-3 decision of the Supreme Court of the United States in the Mac-
alien case (supra), in which this office represented the Commonwealth,
was a blow to the method now in force in Massachusetts of taxing na-
tional banks, as well as in the States of California, Oregon and New York.
The case itself did not involve a national bank, but dealt with the taxa-
tion of a domestic business corporation, part of the excise upon which
was measured in much the way that the excise upon national banks is
measured. The court held that the excise was invalid to the extent that
it was measured by the net income derived from tax-exempt Federal and
State obligations.

By a parity of reasoning, the excise levied upon national banks would
likewise be held invalid. Inasmuch as a very large proportion of the
gross income of national banks is derived from tax-exempt bonds, the
loss to the State tax revenue will be materially greater. The situation
will be in part obviated if the Legislature adopts the recommendations
for the taxation of corporations and banks about to be presented to the
General Court by the Special Recess Tax Commission.

Any substantial increase in the amount of revenue obtained by the
States from the taxation of national banks can come only through an
amendment of the act of Congress under the authority of which the
States are permitted to impose excises upon national banks. (U. S. Rev.
Stat. § 5219.)

P.D. 12. 25

It is generally conceded by authorities on constitutional law, and by
tax lawyers who have studied the question, that the solution of the
national bank tax problem by legislation, adopted by Massachusetts in
1925 and by California, New York and Oregon at a later date, is definitely
overturned by the Macallen case. The States must give up any thought of
increasing the amount of revenue received from national banks through
the inclusion of interest from tax-exempt bonds within the gross income
of the banks upon which the net income measure of the excise is computed.
Those who are studying the question are directing their efforts towards
obtaining a new solution of the problem.

It is hoped that some arrangement, agreed to both by the banks and by
the interested States, may be reached for a bill to be presented to Congress
which has the approval of all parties to the controversy. In the mean-
time, and in the event such amendments are presented, the members of
Congress from this Commonwealth should be apprised of the exigency
confronting this State and the attitude of the legislative bodies with
respect thereto solemnly expressed.

8. Vigilance in Safeguarding State Probate Practice and State Banks
from Federal Encroachment.

The decision of the Supreme Court of the United States in the case of
Ex parte Worcester County National Bank, elsewhere referred to in this
report, raises an interesting question of the relation between the powers
of the Federal government to forward the interests of its fiscal agencies,
the national banks, and the powers of the States with respect to the
administration of estates in their probate courts.

It seems altogether likely that, in these days of governmental encourage-
ment of bank consolidations, particularly at a time when the Federal
government is doing all that lies within its power to encourage consolida-
tions under national bank charters, further attempts will be made by
Congress to give trust powers to national banks which will tend to infringe
upon the power of the probate courts of the Commonwealth to control
in every detail the administration, of decedents' estates.

If Congress further relieves national banks, doing trust business, from
the control of State probate courts with respect to such trust business,
it will result not only in an interference with the proper operation of the
probate courts, but will tend to give to national banks a distinct advantage
in competition with State banks and trust companies doing a similar trust
business.

How far Congress has constitutional power to relieve national banks,
acting as trustees under State court appointments, from State court
regulation is still perhaps an open question. The Worcester County
Natio7ial Bank case (279 U. S. 379) leaves the point undecided. It would
seem, however, that the eagerness on the part of national banking author-

26 P.D. 12.

ities that consolidations take place without complicated transfers should
not be allowed to outweigh the important principle, laid down in this
Commonwealth from the earliest times, that the estates of deceased
persons within this Commonwealth are to be administered under the
most rigid court supervision, so that the interests of widows and orphans
in the estates of their relatives may be fully protected from careless,
negligent, or dishonest administration. Consolidations unquestionably
must take place. Banks should be free to consolidate under national
charters under easy and simple provisions of statute law. It is perfectly
possible, however, to permit them to do this and at the same time leave
to the probate courts fully as complete control of the estates in which
banks that are parties to a consolidation are acting in fiduciary capacities
as the court has over any other estate.

I suggest, therefore, that every new legislative proposal introduced
into Congress be carefully inspected to make sure that the powers of the
State over its probate courts are not interfered with in any embarrassing

9. Greater Recourse by the Courts to Commitments for Treatment of

Drug Addicts than Use of Imposition of Penalties.

The disposition of drug addicts has, indeed, as much a medical aspect
as a criminal one. Sentence and fine do not correct offenders; witness,
invariable repetition. I advocate use by the courts of provisions en-
acted in 1909 (c. 504) for commitment for treatment rather than first
use of sentence and fine.

10. Greater Recourse by the Courts to Psychiatric Information in Civil

as well as Criminal Proceedings afforded by Present Provisions
of Law.

G. L., c. 123, § 99, authorizes any court to request the Department of
Mental Diseases to assign a member of a State hospital medical staff to
make a mental examination "of any person coming before any court."
No fee is chargeable under this section. Although, under this provision,
service may be rendered not only to the criminal but to the probate and
civil courts, only 2.3 cases were referred to the Department of Mental
Diseases in 1929. Its purpose was to enable courts to determine the
mental condition of persons coming before them. Recourse to such
service, available and free, would give added assurance against penal
commitment of persons suffering from mental disease or defect, as well
as added assurance of treatment for the mental trouble which caused
the commission of the offense rather than imprisonment for a stated
period of time, effecting no cure. Provision for psychiatrists, designated
to serve the courts in defined districts, is worthy of consideration.

P.D. 12. 27

11. Provision assuring Availability to the Court, before Trial or Dis-

position of Capital Cases and Second Offenses, of Psychiatric
Information now by Law required to be filed in Court by the De-
partment of Mental Diseases.
Whenever a person is indicted by a grand jury for a capital offense, or
for any offense more than once, or has been previously convicted of felony
(G. L., c. 123, § lOOA; St. 1921, c. 415), notice is given to the Depart-
ment of Mental Diseases, which, after examination, — had to determine
mental condition or defect affecting criminal responsibility, — files a report
with the clerk of the trial court. There is no requirement as to time for
making such examination, or for filing such report, or for contingency of
trial and disposition upon such report. About 213^ per cent of the total
number of persons examined under these provisions since 1921 was found
to have mental conditions affecting criminal responsibility. If eight years
of psychiatric examination has shown that penal restraints could not
affect the reform or correction of one-fifth of capital and second offenders,
future dispositions should be aided by a positive requirement that such
examinations should be made and report thereon be available to the court
at the earliest possible moment.

12. Consideration of Measures enabling Property Damage Insurance,

to obviate Claims therefor under the Guise of Claims for Personal
Injuries, and providing Protection for Injured Persons in Cases of
Insolvency of Insurers of Persons Liable to Such Injured Persons.

Irrespective of the extent to which claims for personal injuries are made
as a result of automobile collisions, where no actual personal injuries have
been suffered and the claims are put forward merely for the purpose of
recovering from an insurance company an amount sufficient to cover the
property damage sustained by the claimant's automobile, many such false
claims would be obviated by requiring the statutory form of compulsory
automobile liability policy to cover property damage as well as personal
injury. In so far as this may be accomplished and rates fixed upon an
accurate basis, I suggest its consideration.

The insolvency or bankruptcy of insurance companies carrying com-
pulsory automobile insurance leaves the very persons, who by the statute
were intended to be adequately protected, without protection. I favor
legislation designed to afford protection to such persons, whereby there
may be solvent resources from which they may be indemnified when
injured by automobiles.

13. Regulation of "Overnight" Camps.
I renew my recommendation of last year for general legislation regu-
lating "overnight" camps in registration of guests for identification
purposes.

28 P.D. 12.

14. Literary and Dramatic Censorship.

Last year I called attention to the general unrest within the Common-
wealth over the method of censoring literary and dramatic productions,
and suggested that a special recess commission, with representation from
all groups interested in the subject, be appointed to investigate the whole
situation. In view of the fact that the unrest to which I referred last year
has not in any way diminished, but on the contrary has considerably
increased, I i-enew this recommendation.

The principal change in the law sought by those advocating a modifi-
cation of the so-called censorship provisions of the General Laws deals
with G. L., c. 272, § 28, which reads in part:

Whoever imports, prints, publishes, sells or distributes a book, pamphlet,
ballad, printed paper or other thing containing obscene, indecent or impure
language, . . . shall be punished . . .

A bill has been proposed which recommends that the word "contain-
ing" be changed to "which considered as a whole is."

The idea of any amendment of G. L., c. 272, § 28, is to make sure that
books, for the sale of which persons shall become subject to trial on crim-
inal charges, should be judged not by any isolated passage, as under the
present law, but by the effect and tendency of the book as a whole to
corrupt the morals of the community. I believe that some such change
in the statute should be enacted. The precise wording of any amendment
is purely a legislative problem. I believe that a book which is really
objectionable would be as effectively banned under the proposed amend-
ment, as under the present law.

Anything which savors of censorship calls for a rather nice adjustment
between the desire to have complete freedom of the press, in accordance
with our constitutional traditions, and the desire to protect the morals of
youth from contaminating influences. Probably no statute will ever be
framed which will by its own terms establish a hard and fast definition of
obscenity applicable to all possible cases which may come before the
courts.

All that such a statute can lay down is a standard of reasonable con-
duct. An alleged violation of such standard will be determined in view
of all the circumstances surrounding any particular case. My thought is
that a solution of this perplexing problem, affecting, as it does, literature
and art, publishers, booksellers, the press, the theatre, the public library,
science and medicine, the church and the public, can be appropriately
reached only by a most careful study of the situation, undertaken in an
intelligent spirit of co-operation and forbearance.

P.D. 12. 29

15. Suggestion that "False Swearing" be a Misdemeanor obviating
Necessity of Proof of Materiality of Testimony Necessary in Prose-
cution for Perjury.
G. L., c. 268, § 1, defines perjury. Materiality of the testimony is an
essential element of the crime. It must be proved. Prevarication in
testimony in trials is not easily met by this provision for prosecution of
perjury. Whether or not the testimony be material to the issue, it should
be the truth. I suggest consideration of enactment of a law that ''a
person who in a proceeding in the course of justice, wherein he is lawfully
required to depose the truth, wilfully and knowingly testifies or certifies
falsely in regard to any matter or states in his testimony any matter
to be true which he knows to be false, shall be guilty of a misdemeanor,
namely, false swearing."

16. Enabling Measures for Local Police Forces.

In the enforcement of law, dependent upon many agencies as they relate
to its many aspects, namely, detection, apprehension, prosecution, correc-
tion and prevention of crime, local police are the ''first line."

Criticism should not be hasty until an urban community has itself first
made provision for its competent discharge in meeting increasing exactions
of the day. Voluntary efforts for self improvement and the merit of local
police service call for encouragement, either by legislation or by provision
in municipalities, as may be best designed to effect it; for instruction,
with tests in all phases of modern-day, active police work, either by at-
tendance at a school or by a local or district instructor; for a numerical
force sufficient to protect a community properly, considering population,
territory and incidents; for standardization of pay; for uniformity in
providing personal equipment; for quarters, respectable and dignified;
and for installation of latest devices for intrastate and interstate contacts.

17. New Court House.

I add my solicitation for construction of a new Court House in Boston,
a vital and necessary factor for furtherance of the general administration
of justice.

18. Greater Protection of Poultry Owners against Thieves.

The penalty for breaking and entering, with intent to commit larceny,
or for entering without breaking any building or enclosure kept for poultry
is a fine of not more than $500 or imprisonment in the house of correction
for not more than two years. (G. L., c. 266, § 22.) I advocate the naming
of a specific minimum penalty, and suggest consideration of measures
regulating by license those dealing with poultry owners, and the trans-
portation of poultry over highways between sunset and sunrise. The

30 P.D. 12.

heavy losses, estimated at $40,000, this year, emphasize the urgency of
consideration of measures for greater protection of poultry owners from
thieves.

19. For the Protection of the Commonwealth against Liability for In-

juries or Damages in Construction of Ways, not State Highways,

authorized by Special Acts.
G. L., c. 81, § 18, provides that the Commonwealth shall not be liable for
injuries sustained by travelers caused by State highway defects "during
the construction, reconstruction or repair of a state highway." Occa-
sionally, special acts authorize the Department of Public Works to con-
struct ways not laid out as State highways. To remove all question of
liability of the Commonwealth for injury or damages during such con-
struction, either the special acts should in each case be so worded that the
general provision remains clearly applicable to the particular way, or a
new section in G. L., c. 81, be enacted, to the effect that the Common-
wealth shall not be liable for any injury or damages sustained during the
construction, reconstruction or repair of any way for the construction,
improvement or repair of which money has been appropriated by the
General Court.

20. To minimize Litigation arising out of Petitions for Access, for
Commercial Uses, to Premises abutting Metropolitan Boulevards.

The Metropolitan Parks System was intended to combine the features
of health, recreation and beauty with opportunities for safe and un-
impeded use by the traveling public not inconsistent therewith.

Demands for the development of property abutting the boulevards for
business uses effecting consequences which the Commission deemed in-
consistent with the design of the system, have resulted and will result in
much controversy and litigation for direct access to the boulevards, even
in cases of access already existing from the same properties to the same
boulevards, on side streets.

If the same powers to regulate the use of abutting property, as are en-
joyed by local municipal authorities, were vested in the Commission,
recourse to adjudication by the courts would be minimized, and I suggest
its consideration.

21. Supervision of Foreign Charitable Corporations.

To engage in charity, all one has to do is to start collecting. Any
individual, or group of individuals, or society, or unincorporated organi-
zation may collect for or conduct a charity without any regulation by
law. Any seven or more, if a majority be inhabitants of this Common-
wealth, may petition to become a charitable corporation, under G. L.,
c. 180, § 1. If so incorporated and the personal property of the corpora-

P.D. 12. 31

tion is such as that recited in the statute (G. L., c. 180, § 12), whereby
it is exempt from taxation, written report to the Department of Public
Welfare is required, showing purpose, receipts and expenditures, whole
and average number of beneficiaries, and such other information as the
department may require. This is the State's sole provision for statutory
control over persons conducting charities. If incorporated as a "church,"
even this provision does not apply. An organization, incorporated vmder
the laws of another State, may engage in charity work in this Common-
wealth without any regulation or supervision whatever.

Inquiries by this department into certain "charities" disclosed that
their "workers" or collectors received half the alms and the "cause"
whatever remained after the cost of "support" of the '"organization."
How common this practice may be I do not know. I hesitate to recom-
mend enactment of laws encroaching upon personal freedom to engage in
the relief of humanity, and thus impose upon worthy charities regulations
designed to correct its abuse by unscrupulous persons who themselves
appear to be the principal recipients of "relief." However, there is no
reason why foreign charitable corporations should not be subject to the
same laws as our own, and I recommend legislation effecting this.

22. Determination of Policy as to v/hether Certain Expenses incurred

in Extradition Proceedings shall be borne by the Commonwealth
or by the Particular County in Behalf of which a District Attorney
applies to the Governor that he demand the Executive Authority
of Another State to return Fugitive.

Traveling expenses of district attorneys and their assistants, except in
Suffolk County, are payable by the Commonwealth. (G. L., c. 12, § 23.)
Expenses of any agent appointed, after application for the arrest of a
fugitive is complied with, are payable by the county where the proceed-
ings are pending, or in whole or in part by the Commonwealth, as the
Governor may direct. (G. L., c. 276, § 15.) Frequently an assistant
attorney general furthers the demand of the Governor in proceedings in
other States, both in hearings before Executive authorities and before
courts. Though such service is rendered in presentation of the Gover-
nor's demand, yet in fact it is performed for the county for which demand
was made. It should be determined by the General Court whether
expenses so incurred are hereafter to be paj^able by the county or by the
Commonwealth.

23. Publication of Another Volume of the Opinions of the Attorneys

General.

In my judgment, there is sufficient public interest to warrant the
publication of Volume VIII of the Opinions of the Attorneys General.

I recommend appropriation of a sufficient sum of money for this
purpose.

32 P.D. 12.

24. Uniform Laws.

I favor earnest consideration of all measures proposed by the Commis-
sion for Uniform State Laws, especially those with regard to crime and
extradition.

CONCLUSION.

The foregoing record notes but a few of the varied and comprehensive
services of this department, too numerous even to list, which statutes
yearly supplement. And as to such services, only those particular matters
are mentioned as are thought informative.

To the zeal, assiduity and ability of the Assistant Attorneys General,
individually and collectively, and to the competency and fidelity of all
the members of the office staff, the Attorney General acknowledges the
accomplishments of the administration of the department.

Respectfully submitted,

JOSEPH E. WARNER,

Attorney General.

P.D. 12. 33

DETAILS.

1. Disposition of indictments pending Nov. 30, 1928:

Northern District (in charge of District Attorney Robert T.

Bushnell).

Frederick Hinman Knowlton, Jr.

Indicted in Middlesex County, April, 1928, for murder of Marguerite Isabelle
Stewart, at Concord, on March 30, 1928; arraif^ned April 11, 1928, and
pleaded not guilty; trial June, 1928; verdict of guilty of murder in the first
degree; motions for new trial denied and exceptions overruled; sentence
thereupon; carried out May 14, 1929.

Eastern District (Essex County cases: in charge of District
Attorney WiUiam G. Clark).

George Metaxatos.

Indicted September, 1927, for murder of Hassen Abrams, at Peabody, on Feb.
17, 1927; arraigned Oct. 4, 1927, and pleaded not guilty; trial February,
1928; verdict of guilty of murder in the second degree; motiojj for new trial
filed and allowed Feb. 28, 1928; nolle prosequi Dec. 3, 1928.

George Elmer Harrison Taylor, alias.

Indicted September, 1927, for the murder of Stella Pomkala, at SaUsbury, on
June 5, 1927; arraigned Oct. 4, 1927, and pleaded not guilty; trial October,
1927; verdict of guilty of murder in the first degree; motions for new trial,
claim of appeal and assignments of error denied; sentenced on Jan. 25, 1929;
carried out March 6, 1929.

Suffolk District (Suffolk County cases: in charge of District
Attorney William J. Foley).

Mary E. Fitzgibbons.

Indicted May, 1928, for the murder of Eleazar G. Saunders on April 21, 1928;
arraigned Dec. 4, 1928, and pleaded not guilty; trial February, 1929; verdict
of not guilty by reason of insanity; committed to the Boston State Hospital
for Ufe.

Harry Lamb and Ung Hong Yen, alias.

Indicted November, 1928, for the murder of Ley Wey Kin on Oct. 16, 1928;
arraigned Jan. 7, 1929, and pleaded not guilty; trial February, 1929; verdict
of not guilty as to each defendant.

Antonio Selvitella.

Indicted June, 1928, for the murder of Santa Zona on April 20, 1928; arraigned
Feb. 4, 1929, and pleaded not guilty; trial February, 1929, during which he
retracted former plea and pleaded guilty to murder in the second degree,
which was accepted; defendant thereupon sentenced to State Prison for life.

34 P.D. 12.

Charles Trippi, alias.

Indicted November, 1928, for the murder of Frederick Pfluger on Nov. 11, 1928;
arraigned Nov. 15, 1928, and pleaded not guilty; trial January, 1929; verdict
of guilty of murder in the first degree; defendant's claim of appeal and assign-
ments of error denied July 1, 1929; sentenced Sept. 13, 1929; Nov. 14, 1929,
respite of execution of sentence to and including Nov. 29, 1929, granted by
the Governor and Council; sentence carried out Dec. 3, 1929.

Middle District (in charge of District Attorney Charles B. Rugg).
Joseph R. Dogil.

Indicted in Worcester County, October, 1928, for the murder of Cosimo Milyaro,
at Clinton, on Dec. 1, 1928; placed on file by order of the court May 28, 1929,
as defendant then serving sentence of not less than eighteen years nor more
than twenty-five years for robbery.

Southern District (in charge of District Attorney William C.

Crossley).
Henri LeBrun, alias.

Indicted in Bristol County, November, 1928, for the murder of Thomas
Campeau; arraigned Nov. 21, 1928, and pleaded not guilty; retraction of
former plea, and plea of guilty to manslaughter accepted by the Common-
wealth Feb. 13, 1929; sentence thereupon to State Prison for not less than
seven years nor more than ten years.

2. Indictments found and dispositions since Nov. 30, 1928:

Northern District (Middlesex County cases: in charge of District
Attorney Robert T. Bushnell).

Arthur J. Manning.

Indicted January, 1929, for the murder of Mary A. Lee, at Somerville, on
Dec. 23, 1928; arraigned Jan. 11, 1929, and pleaded not guilty; defendant
retracted former plea and pleaded guilty to simple assault, April 15, 1929;
plea accepted; sentence thereupon to the house of correction at Cambridge
for the term of fifteen months.

John Onashuck.

Indicted June, 1929, for the murder of Walter Popluski, at Cambridge, on
May 30, 1929; arraigned June 5, 1929, and pleaded not guilty; defendant
retracted former plea and pleaded guilty to simple assault, June 12, 1929;
plea accepted; sentence thereupon to the house of correction at Cambridge
for the term of one year.

Thomas J. Panetta.

Indicted June, 1929, for the murder of Dominick Simonetti, at Cambridge, on
May 30, 1929; arraigned June 5, 1929, and pleaded not guilty; retracted
former plea and })leaded guilty to manslaughter, June 19, 1929; plea ac-
cepted; sentence thereupon to State Prison for a term of not less than twelve
years and not more than twenty years.

P.D. 12. 35

John J. Sheehan.

Indicted September, 1929, for the murder of Patrick McGagh, at Lowell, oa
July 22, 1929; arraigned Sept. 5, 1929, and pleaded not guilty; trial Decem-
ber, 1929, verdict of not guilty by reason of insanity; thereupon committed
to the Danvers State Hospital for life.

Suffolk District (in charge of District Attorney Wilham J. Foley).
George W. Taylor.

Indicted in Suffolk County, May, 1929, for the murder of James Talbot on
April 7, 1929; arraigned May 29, 1929, and pleaded not guilty; retracted
former plea and pleaded guilty to manslaughter, Oct. 15, 1929; plea accepted;
sentence thereupon to State Prison for not more than ten years and not less
than seven years.

Southeastern District (Norfolk County cases: in charge of Dis-
trict Attorney Winfield M. Wilbar).

Joseph Bellamo and Jerry Bellamo, alias.

Indicted April, 1929, for the murder of Peter Terrazzini, at Needham, on Jan.
29, 1929; Joseph Bellamo arraigned Dec. 13, 1929, and pleaded guilty to
manslaughter; plea accepted; sentence thereupon to State Prison for a
term of not less than twelve years and not more than fifteen years; Jerry
Bellamo discharged by the court at the suggestion of the District Attorney,
Dec. 13, 1929.

Octave Robillard.

Indicted December, 1928, for the murder of Loretta Froment, at Bellingham,
on Sept. 21, 1928; arraigned April 1, 1929, and pleaded not guilty; retracted
former plea and pleaded guilty to murder in the second degree, April 25, 1929;
plea accepted; sentence thereupon to State Prison for life.

Middle District (Worcester County cases: in charge of District
Attorney Charles B. Rugg).
Thomas Cooper.

Indicted May, 1929, for the murder of Eliza Jane Brown, at Lunenburg, on
Sept. 4, 1928, and for the murder of WilUam Stuart, at said Lunenburg, on
Oct. 11, 1928; arraigned Aug, 26, 1929, and pleaded not guilty to both counts;
retracted former plea and pleaded guilty to manslaughter on both counts,
Nov. 6, 1929; plea accepted; thereupon sentence on each count to two years
in the house of correction at Worcester.

Annie Kondrot, alias.

Indicted October, 1929, for the murder of Ellen Kondrot and Lillian Japalowski,
at Worcester, on Sept. 28, 1929; found insane by the court Nov. 5, 1929;
thereupon committed to the Worcester State Hospital.

36 PD. 12.

3. Pending indictments and status:

Northwestern District (in charge of District Attorney Charles

Fairhurst).
Charles Macules, alias.

Indicted in Hampshire County, February, 1929, for the murder of George
Chepules, at Amherst, on Dec. 20, 1928; arraigned Feb. 25, 1929, and pleaded
not guilty; committed to the Bridgewater State Hospital for observation,
May 1, 1929.

Eastern District (in charge of District Attorney William G. Clark).
George Breton.

Indicted in Essex County, June, 1929, for the murder of Caroline Breton, at
Methuen, on June 7, 1929; arraigned Jime 17, 1929, and pleaded not guilty;
committed to the Danvers State Hospital for observation, Oct. 7, 1929.

Suffolk District (Suffolk County cases: in charge of District
Attorney William J. Foley).
Rocco Cassaro, and Carmelo Garufo as accessory before the
fact.

Indicted November, 1929, for the murder of Salvatore Alabiso on Oct. 27, 1929;
not yet arraigned; defendants' motions pending.

Gangi Cero.

Indicted June, 1927, for the murder of Joseph Fantasia on June 11, 1927;
arraigned July 6, 1927, and pleaded not guilty; trial November, 1927; verdict
of guilty of murder in the first degree; motion for new trial and assignments
of error, and claim of appeal and assignments of error denied; thereupon
sentenced to death by electrocution during the week beginning Nov. 4, 1928;
respites of execution of sentence to Dec. 9, 1928, Jan. 8, 1929, Feb. 7, 1929,
and April 8, 1929, granted by the Governor and Council; motion for new
trial on the ground of newly discovered evidence allowed March 22, 1929.

James F. Doyle.

Indicted March, 1929, for the murder of Mary F. Doyle on Feb. 11, 1929;
adjudged insane and committed to the Bridgewater State Hospital.

Samuel Gallo.

Indicted January, 1929, for the murder of Joseph Fantasia on June 11, 1927;
arraigned Jan. 11, 1929, and pleaded not guilty; trial February, 1929; verdict
of guilty of murder in the first degree; motion for new trial allowed March 22,
1929.

Leong Sang, alias, and Ung Hong Yun, alias, as accessory
before the fact.

Indicted August, 1929, for the murder of Yee Toon Wah on Aug. .5, 1929,
Sang arraigned Sept. 5, 1929, and pleaded not guilty; Yun arraigned Aug. 12;
1929, and pleaded not guilty.

P.D. 12. 37

Southeastern District (in charge of District Attorney Winfield M.

Wilbar).
Wallace Allan Graham.

Indicted in Norfolk County, December, 1928, for the murder of Janet Graham,
at Quincy, on Sept. 9, 1928; arraigned April 16, 1929, and pleaded not guilty;
committed to the Bridgewater State Hospital for observation, April 16, 1929.

Christopher E. Cullen.

Indicted in Plymouth County, February, 1929, for the murder of Cora J. Cullen,
at Hingham, on Jan. 25, 1929; arraigned March 14, 1929, and pleaded not
guilty; committed to the Bridgewater State Hospital for observation, April 17,
1929.

3S P.D. 12.

OPINIONS.

Voting — Public Policy Act — Instructions to Legislators.

A vote upon a question of public policy relating to the repeal of the
Eighteenth Amendment to the Constitution of the United States is
governed by G. L., c. 53, §§ 19-22, as amended.
If such a question receives a majority of all the ballots cast at the elec-
tion in which it is voted upon, and a majority of the ballots actually
cast in relation to the particular question are in the affirmative, the
result is to be construed as an instruction to a member of the
Legislature.

Dec. 1, 1928.
His Excellency the Governor, and the Honorable Council.

Gentlemen: — From your recent communication to me I gather the
following facts: At the State election held in November there was sub-
mitted to the voters in a senatorial district of this Commonwealth a
question of public policy relating to the repeal of the Eighteenth Amend-
ment to the Constitution of the United States. The vote thereon in that
district resulted as follows: Affirmative votes, 18,242; negative votes,
11,320; other ballots cast by voters who did not vote on that particular
question, 10,339 — making the total number of ballots cast in that dis-
trict 39,901. You ask me whether G. L., c. 53, §§ 19-22, inclusive, apply
to that particular question, and if so, whether the vote above described
constitutes an instruction to the senator from that district.
Mass. Const., pt. 1st, art. XIX, is as follows: —

"The people have a right, in an orderly and peaceable manner, to
assemble to consult upon the common good; give instructions to their
representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them,
and of the grievances they suffer."

G. L., c. 53, § 19, as amended by St. 1925, c. 97, so far as material, is as
follows : —

"On an application signed by twelve hundred voters in any senatorial
district, . . . asking for the submission to the voters of that senatorial
. . . district of any question of instructions to the senator . . . from
that district, and stating the substance thereof, the attorney general
shall upon request of the state secretary determine whether or not such
question is one of public policy, and if such question is determined to
be one of public policy, the state secretary and the attorney general shall
draft it in such simple, unequivocal and adequate form as shall be deemed
best suited for presentation upon the ballot. Upon the fulfilment of the
requirements of this and the two following sections the state secretary
shall place such question on the official ballot to be used in that sena-
torial . . . district at the next state election."

G. L., c. 53, §§ 20 and 21, deal only with the signing and fifing of appli-
cations by registered voters, and have no bearing on the question asked
by you.

G. L., c. 53, § 22, is as follows: —

"No vote under the three preceding sections shall be regarded as an
instruction under article nineteen of the bill of rights of the constitution

P.D. 12. 39

of the commonwealth, unless the question submitted receives a majority
of all the votes cast at that election."

The question of public policy relating to the repeal of the Eighteenth
Amendment to the United States Constitution, which question is referred
to in your letter, was the subject of litigation in our Supreme Judicial
Court recently, and that court held, in the case of Thompson v. Secretary
of the Commonwealth, 265 Mass. 16, in substance, that it was a question
of instructions under G. L., c. 53, § 19, as amended by St. 1925, c. 97.
In answer to the first part of your question, therefore, I am constrained
to advise you that G. L., c. 53, §§ 19-22, inclusive, apply.

The next part of your question is, in substance, whether the result of
the vote shown above is such as to constitute an instruction to the senator
from the district in which the vote was had.

It is necessary under G. L., c. 53, § 22, in order that a vote shall be
regarded as an instruction, that "the question submitted" shall receive
a majority of all the votes cast at that election. I am of the opinion
that by the phrase "a majority of all the votes cast at that election" the
Legislature meant to say "a majority of all the ballots cast at that elec-
tion." If the word "votes" were to be interpreted as meaning simply
votes actually cast for or against the particular question, the section
would be almost meaningless, because, except in the case of an actual
tie vote, there would always be a majority one way or the other on the
question submitted. I believe that the Legislature intended that a vote
on a question of public policy should not be deemed an instruction to
the senator unless at least fifty per cent of the voters who went to the
polls in that district cast votes for or against the question. The number
of voters who went to the polls in the senatorial district in question, as
shown by the total number of ballots cast, was 39,901, and fifty per cent
of that figure is 19,951. The total number of votes in that district, both
affirmative and negative, which were cast on the question submitted,
was 29,562, or more than a majority of all the ballots cast at the election.
I am therefore of opinion that the vote in that district is to be "regarded as
an instruction under article nineteen of the bill of rights of the consti-
tution of the commonwealth," and inasmuch as the affirmative votes on
the question were 18,242 and the negative votes were 11,320, I am of
the opinion that the senator from that district was instructed to vote
in favor of a resolution seeking the repeal of the Eighteenth Amendment
to the Constitution of the United States.

Yours very truly,

Joseph E. Warner, Attorney General.

Public Health — Consent of Department — Taking by Local Authorities —
Water Supply.

The Department of Public Health is not limited to approving or dis-
approving a proposed taking as a whole, under G. L., c. 40, § 41,
but it does not possess authority to limit such a taking to a specified
time.

Dec. 3, 1928.

Dr. George H. Bigelow, Commissioner of Public Health.

Dear Sir: — You have requested my advice relative to proposed ac-
tion by your Department under the provisions of G. L., c. 40, § 41.
You state in your letter to me as follows : —

40 P.D. 12.

"The water commissioners of the town of Weymouth, acting under the
provisions of G. L., c. 40, § 41, have requested the approval by this De-
partment of the purchase or taking by right of eminent domain, for the
protection of the waters of Weymouth Great Pond, which is the water
supply of the town of Weymouth, of certain parcels of land described in
a vote taken at the annual town, meeting held March 5, 1928.

The Department, in accordance with the requirements of G. L., c. 40,
§ 41, gave a hearing upon the proposed taking, at its office, on November
20th, after notice.

It appears that, while the town has given the water commissioners
authority to secure all of the lands in question, it is not the intention of
the town authorities to acquire all of this land at the present time but
to acquire only those lots which are hkely soon to be developed for build-
ing or upon which buildings or structures exist which are a menace to
the water supply or likely to become so. The region about Great Pond
contains already a considerable number of dwelling houses, and it seems
likely that the population will increase more or less rapidly in the future,
the effect of which will inevitably cause deterioration in the quality of
the water of Great Pond.

Considering the circumstances, the Department would probably be
justified in approving the taking of the lands in question if they were to
be taken at the present time. The question arises whether it is reasonable
under the circumstances for the Department to approve the taking of
these lands after having been advised that the takings may extend over
a period of ten years, more or less.

A second question is: Has the Department authority to limit the tak-
ings to a specified date or within a specified period of years?

There is a third question, and that is: Whether the owner of a piece
of land, the taking of which has been approved by this Department but
not carried out by the town, can recover damages for injury to the land
for the purposes of sale, provided damage can be proven?"

G. L., c. 40, § 41, is as follows: —

"Towns and water supply and fire districts duly established by law
may, with the consent and approval of the department of public health,
given after due notice and a hearing, take by eminent domain under chap-
ter seventy-nine, or acquire by purchase or otherwise, and hold, lands,
buildings, rights of way and easements within the watershed of any pond,
stream, reservoir, well or other water used by them as a source of water
supply, which said department may deem necessary to protect and pre-
serve the purity of the water supply. All lands taken, purchased or other-
wise acquired under this section shall be under the control of the board
of water commissioners of the town or district acquiring the same, who
shall manage and improve them in such manner as they shall deem for
the best interest of the town or district. All damages to be paid by a
town or district by reason of any act done under authority hereof may
be paid out of the proceeds of the sale of any bonds authorized by law
to be issued by such town or district for water supply purposes or from
any surplus income of the water works available therefor. A town may
also make a contract to contribute to the cost of building, by any other
town situated in the watershed of its water supply, a sewer or system of
sewers to aid in protecting such water supply from pollution."

P.D. 12. 41

The matter of giving consent and approval to the proposed taking is
one which rests solely in the exercise of sound discretion by your Depart-
ment. It may give or withhold its consent and approval upon a consider-
ation of any facts which are before it. It may give its approval to the
taking of any part of the realty which is proposed to be taken, and may,
if it deems proper, withhold such approval from the taking of any part
which it deems not necessary for the protection or preservation of the
water supply. The Department is not limited to approving or disapprov-
ing of the proposed taking as a whole. It lies within the authority of
the Department to withhold its approval from the proposed taking if it
is satisfied that the same is to be made at a subsequent period and it is
not satisfied that a taking, at a later period than the present time, can
be determined by it now to be necessary for the protection and preser-
vation of the water supply as indicated in the statute.

I am of the opinion that the Department does not possess authority
under the statute "to limit the takings to a specified date or within a
specified period of years."

In view of the opinions which I have already expressed, an answer to
your third question is not required.

Very truly yours,

Joseph E, Warner, Attorney General.

Constitution — Treasurer and Receiver General — Vacancy in Office.

When a Treasurer and Receiver General who has been elected Lieutenant-
Governor takes the oath qualifying him for the latter office, he auto-
matically vacates the former office.

Dec. 5, 1928.

Hon. William S. Youngman, Treasurer and Receiver General.

Dear Sir: — You ask my opinion as to whether you cease to be Treas-
urer and Receiver General on taking the oath of office as Lieutenant-
Governor on Wednesday, January 2, 1929.

So much of Mass. Const. Amend. LXIV, § 1, as is material is as follows: —

"The governor, lieutenant-governor, councillors, secretary, treasurer
and receiver-general, attorney-general, auditor, senators and represen-
tatives, shall be elected biennially. The governor, lieutenant-governor and
councillors shall hold their respective offices from the first Wednesday in
January succeeding their election to and including the first Wednesday in
January in the third year following their election and until their successors
are chosen and qualified. . . . The terms of the secretary, treasurer and
receiver-general, attorney-general and auditor, shall begin with the third
Wednesday in January succeeding their election, and shall extend to the
third Wednesday in January in the third year following their election and
until their successors are chosen and qualified."

Mass. Const., pt. 2nd, c. VI, art. II, in so far as material to the question
asked by you, is as follows: —

"No governor, lieutenant-governor, or judge of the supreme judicial
court, shall hold any other office or place, under the authority of this
commonwealth, except such as by this constitution they are admitted to
hold, . . ."

42 P.D. 12.

The third Wednesday in January, 1929, which marks the end of your
term of office as Treasurer and Receiver General, falls on January 16th.
The first Wednesday in January, 1929, which will mark the first day of
your term of office as Lieutenant-Governor, falls on January 2nd.

I find nothing in the Constitution of Massachusetts, or in the amend-
ments thereto, which permits the Lieutenant-Governor to hold the office
of Treasurer and Receiver General, and I am therefore of the opinion that
under Mass. Const., pt. 2nd, c. VI, art. II, you wall, on taking the oath
of office as Lieutenant-Governor on January 2, 1929, automatically cease
to be Treasurer and Receiver General.

I am confirmed in this opinion by the reasoning adopted by one of my
predecessors in an opinion rendered on February 19, 1917, to the Joint
Committee on Constitutional Amendments (V Op. Atty. Gen. 20, 22-23),
to the effect that the Governor, Lieutenant-Governor and justices of the
Supreme Judicial Court could not, while occupying their respective offices,
also sit as delegates in the Constitutional Convention, because the position
of delegate to said convention was a place under the authority of the
Commonwealth.

Yours very truly,

Joseph E. Warner, Attorney General.

Metropolitan District Water Supply Commission — Taxes — Payments.

Under St. 1926, c. 375, the Commonwealth should pay to a town wherein
lands have been purchased for the purpose of protecting the purity
of the Ware River an amount equal to that which the town would
receive for taxes upon the average of the assessed value of the lands,
exclusive of structures, for the three years last preceding the purchase,
reduced by prior abatements.

Dec. 6, 1928.
Metropolitan District Water Supply Commission.

Gentlemen : — You have informed me that the Metropolitan Dis-
trict Water Supply Commission has acquired by purchase certain lands,
together with the structures thereon, in the town of Rutland for the
purpose of protecting the purity of the waters of the Ware River, to be
diverted for a water supply under the provisions of St. 1926, c. 375. You
have asked my opinion as to whether, under the provisions of G. L.,
c. 59, § 6, the Metropolitan District Water Supply Commission should
pay to the town of Rutland an amount equal to that which the town
would receive upon the average of the assessed values of such land,
including buildings or other structures thereon.
G. L., c. 59, § 6, provides as follows: —

"Property held by a city, town or district, including the metropolitan
water district, in another city or town for the purpose of a water supply,
the protection of its sources, or of sewage disposal, if yielding no rent,
shall not be liable to taxation therein; but the city, town or district so
holding it shall, annually in September, pay to the city or town where it
lies an amount equal to that which such city or town would receive for
taxes upon the average of the assessed values of the land, which shall
not include buildings or other structures except in the case of land taken
for the purpose of protecting the sources of an existing water supply, for
the three years last preceding the acquisition thereof, the valuation for
each year being reduced by all abatements thereon. Any part of such

P.D. 12. 43

land or buildings from which any revenue in the nature of rent is received
shall be subject to taxation.

If such land is part of a larger tract which has been assessed as a whole,
its assessed valuation in any year shall be taken to be that proportional
part of the valuation of the whole tract which the value of the land so
acquired, exclusive of buildings, bore in that year to the value of the
entire estate."

The above section expressly applies to property held bj'- the jNIetro-
politan Water District. G. L., c. 4, § 7, par. 36, provides that "water
district" shall include "water supply district." It follows that section 6
apphes to property held by the Metropohtan Water Supply District.

It is provided that property held by a district in another city or town
for the purpose of a water supply or for the protection of its sources
shall not be liable to taxation if it yields no rent. I am informed that
the property in question yields no rent. The property is held for the
purpose of a water supply and to protect the sources thereof, it having
been acquired in connection with the Ware River project for the purpose
of furnishing an adequate water supply for the metropolitan district.
It follows, therefore, that the property is not liable to taxation in the
city or town where it lies.

Said section 6 further provides that if no taxes are payable on the
property the district shall pay to the city or town where it lies a certain
amount defin?d by said section, based upon the average of the assessed
values of the land, which shall not include buildings or structures except
in the case of land taken for the purpose of protecting the sources of an
existing water supply. As to the land itself, clearly this method of pay-
ment applies in the present case. Buildings and other structures are not
to be included in the assessed value of the land, unless the land is taken
for the purpose of protecting an existing water supply. There is at pres-
ent no existing water supply at this place, and it follows, therefore, that
buildings and structures in this area are not to be included in the assessed
value which forms the basis for the payment to the city or town in lieu
of taxes.

The result is that the Commission should pay to the town of Rutland
an amount equal to that which the town would receive for taxes upon
the average of the assessed values of the land, not including buildings
or other structures thereon, for the three years last preceding the acqui-
sition thereof, the valuation for each year being reduced by all abate-
ments thereon.

Very truly yours,

Joseph E. Warner, Attorney General.

Registration — Certified Public Accountant — Change of Business Name.

The addition of the words "& Co." to that of a duly certified public ac-
countant, where the accountant has not in fact created a partnership
or a corporation, does not violate the provisions of G. L., c. 112,
§ 87E, relative to registration.

Dec. 6, 1928.

Mr. W. F. Craig, Director of Registration.

Dear Sir : — You have asked my opinion as to whether an individual
named John Jones, duly certified as a certified public accountant under

44 P.D. 12.

the laws of Massachusetts, may do business under the name of "John
Jones & Co., Certified Pubhc Accountants."

G. L., c. 112, § 87E, provides as follows: —

"No person, not registered under the provisions of section eighty-seven C
or corresponding provisions of earlier laws, shall designate himself or
hold himself out as a certified public accountant. No partnership unless
all of its members are registered under said provisions, and no corporation,
shall use the words 'certified public accountant' in describing the part-
nership or corporation or the business thereof; . . ."

As long as there is no corporation or partnership, there can be no ob-
jection to John Jones doing business under the above name. The use of
the words "& Co." does not constitute John Jones, who is the sole owner,
a partnership. These words do not necessarily imply that a partnership
exists, as it is perfectly proper for an individual to use the words "& Co."
after his name. See Crompton v. Williams, 216 Mass. 184. There is no
violation of the provisions of section 87E disclosed, although it may well
be that the individual should file with the city or town clerk the business
certificate required by G. L., c. 110, § 5.

Very truly yours,

Joseph E. Warner, Attorney General.

Division of Metropolitan Planning — Jurisdiction.

The jurisdiction of the Division of Metropohtan Planning under St. 1923,
c. 399, as amended, extends to any town added by the Legislature to
the north or south metropolitan district.

Dec. 7, 1928.

Hon. Henry I. Harriman, Chairman, Division of Metropolitan Planning.

Dear Sir: — You have asked my opinion as to whether St. 1928, c. 384,
adds the towns of Norwood, Stoughton and Walpole to the district to be
covered by your Division with respect to the investigations and recom-
mendations provided for in St. 1923, c. 399, as amended by St. 1924, c. 354,

At the time of the passage of St. 1923, c. 399, it was, obviously, the
intent of the Legislature to make the jurisdiction of the Division of Met-
ropolitan Planning, with respect to transportation service and facilities,
co-extensive with the jurisdiction exercised by the Metropolitan District
Commission over the north and south metropoHtan sewer districts and the
metropolitan parks district.

I am of the opinion that the jurisdiction of your Division extends auto-
matically to any town which is added by the Legislature to either the
north or south metropolitan sewer district, and that, consequently, the
towns of Norwood, Stoughton and Walpole are now a part of the district
to be covered by your investigations and recommendations under the
statutes above mentioned.

Yours very truly,

Joseph E. Warner, Attorney General.

Department of Conservation — Governor — Killing Deer.

Neither the Governor nor the Commissioner of Conservation has the
power to restrict or prohibit the killing of deer during the open season ;
except that the Governor may so act when it shall appear to him
that by reason of extreme drouth there is danger of forest fires.

P.D. 12. 45

Dec. 10, 1928.
Hon. William A. L. Bazeley, Commissioner oj Conservation.

Dear Sir: — You have asked my opinion as to whether or not the
Governor of the Commonwealth, the Commissioner of Conservation or
any other official has the right to restrict or prohibit the shooting of deer
within the open season prescribed by G. L., c. 131, § 63, as amended by
St. 1928, c. 215, other than on reservations held by and under the con-
trol of the Commonwealth.

Said section 63 provides as follows : —

"Any person duly authorized to hunt in the commonwealth may, be-
tween sunrise of the first Monday of December and sunset of the second
following Saturday, hunt, pursue, take or kill by the use of a shotgun, a
wild deer, subject to the following restrictions and provisions: No person
shall, except as provided in the preceding section, kill or have in possession
more than one deer. No deer shall be hunted, taken or killed on land
posted in accordance with section seventy-nine, or on land under control
of the metropolitan district commission, or in violation of any city or-
dinance or town by-law, or in any state reservation subject to section
sixty-eight except as provided therein. No person shall make, set or use
any trap, salt lick or other device for the purpose of ensnaring, enticing,
taking, injuring or kilHng a deer. Whoever wounds or kills a deer shall
make a written report, signed by him, and send it within twenty-four hours
of such wounding or killing, to the director, stating the facts relative to
the wounding or killing. Violations of this section shall be punished
by a fine of not more than one hundred dollars."

Assuming that a person qualifies, he is entitled to a sporting license
which permits him to take and kill deer within the open season as described
in said section 63. Section 63 provides that no deer shall be hunted, taken
or killed on land posted in accordance with section 79, or on land under
control of the Metropolitan District Commission, or in violation of any
city ordinance or town by-law, or in any State reservation subject to
section 68, except as provided therein. Every person properly holding
a sporting hcense has the right, under the section, to hunt and kill deer
on all other lands, provided it is not in violation of any city ordinance or
town by-law. The Commissioner has no power to modify or to limit the
right to hunt on such other lands.

G. L., c. 131, § 29, as amended by St. 1925, c. 249, provides that the
Governor, with the advice and consent of the Council, may suspend the
continuance of any or all open seasons established by this chapter when-
ever it shall appear to him that by reason of extreme drouth there is danger
of forest fires resulting from hunting, trapping, fishing or other cause. It
will be seen that the power of the Governor under this section is limited
to cases in which it appears to him that such danger exists, and it is, of
course, for him to decide whether in any given instance there is such
danger.

A city or town may by ordinance or by-law prohibit the taking and
kiUing of deer during this season, but if this is not done a person holding
a license as above stated may exercise the rights conferred by section 63.
If it is deemed advisable to confer upon the Governor or the Commissioner
the power to suspend the open season on deer, such power should be given
by the Legislature.

I therefore advise you that the Commissioner has no power to prohibit

46 P.D. 12.

the taking and killing of deer during the open season established by the
Legislature. I further advise you that the Governor has no power to
suspend the continuance of said open season except as indicated above.
The open season may be suspended by no other body except a city council
or board of selectmen in any given city or town.
Very truly yours,

Joseph E. Warner, Attorney General.

Constitution — Treasurer and Receiver General — Vacancy in Office.

When a Treasurer and Receiver General who has been elected Lieutenant-
Governor takes the oath qualifying him for the latter office, he auto-
matically vacates the former office.

Two suitable persons are to be appointed in such a contingency to take
custody of valuables in the treasury.

Dec. 11, 1928.

His Excellency Alvan T. Fuller, Governor of the Commonwealth.

Sir : — You desire the opinion of this Department with respect to
certain questions which may arise incident to the ending of Mr. Young-
man's term as Treasurer and Receiver General on the beginning of his
term as Lieutenant-Governor.

Under Mass. Const. Amend. LXIV it is provided that "the governor,
lieutenant-governor and councillors shall hold their respective offices from
the first Wednesday in January succeeding their election to and includ-
ing the first Wednesday in January in the third year following their
election and until their successors are chosen and qualified."

I am advised by the Secretary of the Commonwealth that the practice
is for the new Governor and Lieutenant-Governor to take their respective
oaths of office on the Thursday next following the first Wednesday in Jan-
uary, which this year will be January 3rd. Under the same amendment the
term of the Treasurer and Receiver General and the term of certain
other State officers ''shall begin with the third Wednesday in January
succeeding their election and shall extend to the third Wednesday in
January in the third year following their election and until their suc-
cessors are chosen and qualified." Mr. Youngman's term as Treasurer
and Receiver General would normally end, therefore, on the third Wednes-
day of January, 1929, which will be January 16th; but Mr. Youngman
has been elected to the office of Lieutenant-Governor, and in the normal
course of events would take the oath of office as Lieutenant-Governor
on Thursday, January 3rd, thus creating a vacancy in the office of
Treasurer and Receiver General.

Mass. Const. Amend. XVII provides, in part, that, "in case the office
... of treasurer and receiver-general . . . shall become vacant, from
any cause, during an annual or special session of the general court, such
vacancy shall in like manner be filled by choice from the people at
large." The words "in like manner" refer to an election by joint ballot
of the senators and representatives in one room.

Mass. Const. Amend. LXIV further provides that "the terms of sen-
ators and representatives shall begin with the first Wednesday in January
succeeding their election and shall extend to the first Wednesday in
January in the third year following their election and until their suc-
cessors are chosen and qualified." The incoming Legislature, therefore,
comes in on Wednesday, January 2nd, and on that day the Senate and

P.D. 12. 47

House organize, and the annual session referred to in Mass. Const. Amend.
XVII thereupon begins on that day. Therefore, at the time Mr. Young-
man, on Thursday, January 3rd, takes the oath of office as Lieutenant-
Governor, and thereafter automatically ceases to be Treasurer and
Receiver General, the filling of that vacancy in the office of Treasurer
and Receiver General is one that must, under Amendment XVII, above
quoted, be filled by an election by the two houses of the Legislature on a
joint ballot.

G. L., c. 10, § 12, provides as follows: —

"Upon a vacancy in the office of state treasurer, the state secretary,
with two suitable persons appointed by warrant of the governor, shall,
after notice to the former treasurer, . . . and to his sureties or one of
them, or to such of them as are within the commonwealth, seal up and
secure, in their presence if they attend, all money, papers and other
things supposed to be the property of the commonwealth ..."

And the same chapter contains further provisions as to what the Secre-
tary of the Commonwealth and the two suitable persons shall thereafter
do by way of making an inventory of money and securities and other
things and for the exchanging of receipts with the new Treasurer and
Receiver General.

My conclusions are that Mr. Youngman, b}- taking the oath of office
as Lieutenant-Governor on January 3rd, will thereby automatically vacate
the office of Treasurer and Receiver General; that the Legislature will
then be in session, and, under the Constitution, will have the power of
filling the office of Treasurer and Receiver General by an election, and
that, pending such election, it will be the duty of the Secretary of the
Commonwealth and two suitable persons to be appointed by Your Ex-
cellency to take custody, after certain formalities, of all the money,
papers and other things supposed to be the property of the Common-
wealth in the office of the Treasurer and Receiver General, and to retain
them until a new Treasurer and Receiver General shall have been quali-
fied. Your Excellency should be prepared, therefore, to appoint under
your warrant two suitable persons to act seasonably with the Secretary
of the Commonwealth.

Very truly yours,

Joseph E. Warner, Attorney General.

Insurance — Stock Company — Dividends.

Policyholders may participate in dividends of stock companies of insurance
other than life insurance.

Jan. 2, 1929.
Hon. Merton L. Brown, Commissioner of Instance.

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

"Is it lawful for a stock insurance company, other than a life com-
pany, to pay or allow dividends to policyholders under policies issued in
this commonwealth, or is the payment or allowance thereof prohibited
by G. L., c. 175, §§ 182 and 184?"

I assunie from the facts stated in your letter that the privilege or right
to participate in dividends declared by the stock insurance company to
whom you refer is set forth in the policy itself.

48 P.D. 12.

That general participation by policyholders in dividends of stock com-
panies is not a violation of the prohibitions against rebates and consid-
erations, contained in sections of the statutes regulating insurance (now
embodied in G. L., c. 175, §§ 182-184, as amended), was held in an
opinion of one of my predecessors in office (IV Op. Atty. Gen. 503), with
which I concur. The amendments made in the various statutes regu-
lating the insurance business since such opinion was written do not evi-
dence any legislative intent to make such participation unlawful. The
particular reference to participation in the savings, earnings or surplus
of mutual insurance companies without specification in the policy, in-
serted in the statutes since the writing of said opinion (G. L., c. 175,
§ 184, as amended), does not, in my opinion, affect the legality of par-
ticipation in the dividends of a stock company specified in the poHcy
when such participation is not in its nature a "special advantage" with
regard to any particular policyholder or holders, as the words "special
advantage" are construed in said opinion of one of my predecessors in
office.

Very truly yours,

Joseph E. Warner, Attorney General.

Police Commissioner for the City of Boston — Traffic Sig7is — Expense.

Expenses of erection and maintenance of traffic signs in Boston fall upon
the police department.

Jan. 3, 1929.

Hon. Herbert A. Wilson, Police Commissioner for the City of Boston.

Dear Sir: — You have asked me to advise you upon the following: —

"The exact question in issue is whether in Boston the Police Com-
missioner or the Board of Street Commissioners or the Department of
Public Works of the Commonwealth has the authority and duty to place
signs, markings, etc., after they have been authorized by ordinance or
by-law and approved by the Department of Public Works."

Traffic signs and markings made necessary by ordinance regulation or
by law of the city of Boston or its officials, and approved by the Depart-
ment of Public Works of the Commonwealth, are not required by law
to be placed or paid for by said Department. St. 1928, c. 357, authorizes
the said Department to erect and maintain such signs and markings on
certain highways, and if these be in fact erected and maintained by said
Department the expense thereof should be borne by it, but the expense
of such signs and markings upon such highways, or upon other highways,
erected or maintained thereon by any city or town with the approval of
the said Department, is not required to be borne by the said Department.

As to the allocation of the expense of the erection and maintenance of
signs and traffic markings to be erected by the city of Boston, with the
approval of the said Department, as between the Police Commissioner
and the Street Commissioners of Boston, I am of the opinion that such
expense should be paid as expenses of the police department, and that
the Police Commissioner has the authority and duty of placing such
signs and markings as are necessary to enforce the regulations, ordinances
and by-laws which have been made and approved with relation to street
traffic. St. 1908, c. 447.

I am not unaware of the limitations to the extent to which opinions
and advice should be given to the Police Commissioner for the city of

P.D. 12. 49

Boston by the Attorney General (see VII Op. Atty. Gen. 735), but I
consider that your question so far involves a consideration of the duties
of the Commissioner under the statutes governing his office as to require
an expression of my opinion thereon.

Very truly yours,

Joseph E. Warner, Attorney General.

Department of Labor and Industries — Common Drinking Cups and Towels

— Rules.

The Department of Labor and Industries may make rules and regula-
tions relative to common drinking cups and towels in certain places,
under G. L., c. 149, § 113, but not under § 6.

Jan. 5, 1929.

Gen. E. Leroy Sweetser, Commissioner of Labor and Industries.

Dear Sir: — You have asked my opinion as to whether the Depart-
ment of Labor and Industries has the legal power, under G. L., c. 149,
§ 6, to make rules and regulations prohibiting the use of a common drink-
ing cup and a common towel in factories, workshops and mercantile
establishments. Said section 6 provides as follows: —

"It shall investigate from time to time employments and places of
employment, and determine what suitable safety devices or other reason-
able means or requirements for the prevention of accidents shall be
adopted or followed in any or all such employments or places of employ-
ment; and also shall determine what suitable devices or other reasonable
means or requirements for the prevention of industrial or occupational
diseases shall be adopted or followed in any or all such employments
or places of employment; and shall make reasonable rules, regulations
and orders applicable to either employers or employees or both for the
prevention of accidents and the prevention of industrial or occupational
diseases."

Section 1 of said chapter 149 contains the following definition: —

'"Industrial disease' or 'occupational disease', any ailment or disease
caused by the nature or circumstances of the employment."

Industrial or occupational diseases, as defined above, are those arising
from the pecuhar nature of the employment, and do not include diseases
that are communicable to other persons by reason of the use of a common
drinking cup or common towel. Diseases communicated to others by
the use of such cup or towel are not incidental or peculiar to the employ-
ment but are of a nature that may be communicated by such use without
reference to the nature or circumstances of the employment. It follows
that, under section 6, the Department has no power to make the rules
and regulations under consideration.

However, I am of the opinion that the Department, under the author-
ity of G. L., c. 149, § 113, may make reasonable rules and regulations
prohibiting the use of the common drinking cup or common towel in any
factory, workshop, manufacturing, mechanical or mercantile establish-
ment. Said section 113 provides as follows: —

"Every factory, workshop, manufacturing, mechanical and mercantile
establishment shall be well hghted, well ventilated and kept clean and

50 P.D. 12.

free from unsanitary conditions, according to reasonable rules and regu-
lations adopted by the department with reference thereto."

In order to keep such places clean and free from unsanitary conditions,
it is clearly reasonable to prohibit the common drinking cup and common
towel, both of which are universally recognized to be unsanitary and
dangerous to public health. The Department will be acting well within
the scope of this section if it makes the rules and regulations under
consideration.

Section 106 of said chapter 149 provides as follows: —

"All industrial establishments shall provide fresh and pure drinking
water to which their employees shall have access during working hours.
Any person owning, in whole or in part, managing, controlling or super-
intending any industrial establishment in which this section is violated
shall, on the complaint of the local board of health, the selectmen of a
town or an inspector, be punished by a fine of one hundred dollars."

This section, contained in the chapter dealing with Labor and Indus-
tries, indicates that the question of supplying fresh and pure drinking
water to employees in any industrial establishment is clearly one for the
attention of the Department of Labor and Industries, and adds weight
to the conclusion that the Department may make the rules and regula-
tions above referred to.

Very truly yours,

Joseph E. Warner, Attorney General.

Department of Public Safety — Forfeited Automobiles — Sales.

The Department of Public Safety may sell automobiles forfeited and
forwarded to it under an order of court.

Jan. 9, 1929.

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

Dear Sir: — You have asked me to advise you on the following mat-
ter:—

"Inquiry has been made regarding the status of cases concerning two
automobiles forfeited to the Commonwealth but with suits brought
against the State to recover. One concerns a Ford coupe forfeited July 6,
1927; the other concerns a Ford coupe forfeited on October 28, 1927.

We have these cars in our possession and desire to dispose of them, our
facilities for storage being very limited and the cars not improved by not
being used."

I am unable to find any provision of law permitting actions against the
Commonwealth to recover, after forfeiture bj^ "authority of the court or
trial justice," implements of sale or furniture used or kept and provided
to be used in the illegal keeping or sale of intoxicating liquor.

"Under our system of jurisprudence the Commonwealth cannot be
impleaded in its own courts except with its consent." Glickman v. Co7n-
monwealth, 244 Mass. 148.

Suits brought to recover automobiles forfeited would be futile gestures
on the part of the petitioners.

In the case of E. J. FitzwiUiam Co., Inc. v. Commonwealth, 258 Mass.
103, 107, the court said : —

P.D. 12. 51

"Proceedings for the forfeiture of an automobile, because of its con-
nection with the illegal sale or keeping for sale of intoxicating liquor under
statutes already cited, are proceedings in rem. The principle of the
statute is that the container of the intoxicating hquor or the implements
of sale used or kept to be used in connection with the illegal sale or keeping
for sale of such liquor, themselves constitute a subject liable to offend
against the public welfare notwithstanding the innocence of the owner.
The things themselves are primarily treated as the offender. The intent
of the person in actual control may in some circumstances be enough to
determine the guilt of the articles against which the complaint for for-
feiture is pending."

G. L., c. 138, § 71, provides that implements of sale and furniture seized
and forfeited shall be disposed of in the manner prescribed in G. L., c.
138, § 69, for the disposition of intoxicating liquor. Said section 69, as
amended by St. 1923, c. 329, provides, in part, that if, "in the judgment
of the commissioner it is for the best interests of the commonwealth to
sell the same, he shall cause the same to be sold."

I am of the opinion that you may sell automobiles forfeited and for-
warded to the Department of Public Safety by an order of court, if you
deem a sale to be for the best interests of the Commonwealth.
Yours very truly,

Joseph E. Warner, Attorney General.

Board of Retirement — State Employees — Age.

A member of the State Retirement Association, sLxty years of age, who
has been in the service of the Commonwealth over fifteen years
immediately preceding request for retirement, and whose retirement
is requested by the head of his department, has an absolute right to
retire, and must retire at seventy. Between those ages the Board
of Retirement has the right to exercise its discretion relative to such
retirement.

Jan. 9, 1929.

State Board of Retirement.

Gentlemen : — I have been requested by the former Treasurer and
Receiver General, while Chairman of the State Board of Retirement, to
advise you in relation to your powers and duties under G. L., c. 32, § 2
(4), as amended, upon the following matter in connection with an
employee of a State department : —

"The Board of Retirement wishes your opinion as to whether it is the
meaning and intent of the law that this Board is obliged to retire a State
employee when demand is made by the head of the department for his
retirement, as it is in this case, and when it is insisted upon by the head of
the department despite the objection of the employee, as it is in this case."

That portion of the said section applicable to your inquiry reads as
follows : —

"Any member who reaches the age of sixty and has been in the con-
tinuous service of the commonwealth for a period of fifteen years imme-
diately preceding may retire or be retired by the board upon recommen-
dation of the head of the department in which he is employed, or, in case

52 P.D. 12.

of members appointed by the governor, upon recommendation of the
governor and council, and any member who reaches the age of seventy
must so retire."

The jurisdiction of your Board under said subsection to deal with the
retirement of a member employed in a department exists (1) when the
member has reached the age of sixty and has been in the continuous serv-
ice of the Commonwealth for a period of fifteen years immediately pre-
ceding an application for retirement, and (2) when a recommendation
for the member's retirement is presented to you by one who is in fact the
head of a department in which such member is employed. See IV Op.
Atty. Gen. 105. Such a member, after attaining the age of sixty, has an
absolute right to retire, if he desires to do so, without the necessity for any
action on the part of your Board, and must retire at seventy.

Between the ages of sixty and seventy such a member may bd retired by
your Board when it has jurisdiction over the matter by reason of the
existence of the facts already referred to, irrespective of the desire of the
member. A decision relative thereto rests with your Board, and I am of
the opinion that your Board is not obliged to retire such a member merely
because a recommendation for retirement is transmitted to it by the
proper official, but that the instant statute gives to the Board authority
to act in its sound discretion upon such recommendation.
Very truly yours,

Joseph E. Warner, Attorney General.

Insurance — S7nall Loans Law — Installment Notes.

Plans for the payment of insurance upon notes payable by the purchasers
do not relate to loans under G. L., c. 140, §§ 96-114.

Jan. 17, 1929.
Hon. Roy A. Hovey, Commissioner of Banks.

Dear Sir: — You have requested my opinion in the following com-
munication : —

"The opinion of your Department is respectfully requested as to
whether two plans for financing automobile and fire insurance premiums,
where the amounts are $300 or under, come under the scope of G. L.,
c. 140, §§ 96-114, inclusive.

The plan marked ' A ' has to do with the financing of automobile liability
insurance premiums, and the plan marked 'B' has to do with fire insur-
ance premiums."

The plans referred to in your letter as "A" and "B" appear to be,
respectively, (a) a promissory note, payable in the installments indicated
on its face, to secure payment of premium upon a policy or policies of
automobile insurance issued through the office of the payee by insurance
companies for which the payee is an agent, with authority to the payee
to cancel the policy or policies in the name of the maker if default is
made in any of the specified payments in the note; and (b) a similar note
to secure payment of premium upon a policy or policies of fire insurance.

I am of the opinion that the plans to which you refer, as evidenced by
the face of the notes which you have submitted, do not relate to "loans,"
within the meaning of G. L., c. 140, §§ 96-114, but are in the nature of

P.D. 12. 53

agreements for the extension of credit for policies of insurance actually
purchased by the maker of the notes, and as such are not within the
purview of said G. L., c. 140, §§ 96-114.

Very truly yours,

Joseph E. Warner, Attorney General.

Acceptance of Statute by a Town — Vote of Inhabitants.

Acceptance of an act by vote of the inhabitants of a town is made by a
vote at a town meeting.

Jan. 19, 1929.

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

Dear Sir: — You have asked my opinion in the following communi-
cation : —

"St. 1928, c. 406, entitled 'An Act to permit certain sports and games
on the Lord's Day,' by section 2 amends G. L., c. 136, § 21, and provides
as follows : —

'In any city which accepts sections twenty-one to twenty-five, inclu-
sive, by vote of its city council and in any town which accepts said sec-
tions by vote of its inhabitants, it shall be lawful to take part in or wit-
ness any athletic outdoor sport or game on the Lord's day between the
hours of two and six in the afternoon as hereinafter provided.'

Your opinion is respectfully requested as to whether the phrase *by
vote of its inhabitants' means the vote of a town on an official ballot or
in open town meeting.

In a town which has a representative form of town government does it
mean that the representatives will represent the inhabitants so far as to
permit them to vote on the question, or should the question appear on
the official ballot to be voted on by the inhabitants?"

G. L., c. 4, § 4, reads as follows: —

"Wherever it is provided that a statute shall take effect upon its
acceptance by a city or town, such acceptance shall, except as otherwise
provided in such statute, be, in a city, by vote of the city council or, in
a town, by vote of the inhabitants thereof at a town meeting."

The phrase used in St. 1928, c. 406, as to its acceptance in any town
"by vote of its inhabitants" does not indicate an intention that the vote
shall be taken in a manner other than that set forth in G. L., c. 4, § 4,
which provides for a "vote of the inhabitants ... at a town meeting."

G. L., c. 54, § 104, is not apphcable to a vote upon the acceptance of
statutory provisions, for reasons set forth in Moloney v. Selectmen of
Milford, 253 Mass. 400, 403-404.

The adoption of a representative form of town government does not,
in my opinion, so alter the relations of the inhabitants of a town to its
town meeting as to make necessary a construction of the words "by vote
of its inhabitants," as used in the instant statute, as expressing a legis-
lative intent that the requisite vote should be by official ballot at the
polls and not by the town meeting.

Very truly yours,

Joseph E. Warner, Attorney General.

54 P.D. 12.

Trust Company — Trust Funds — Commercial Funds — Mingling.

An investment of a group of trust funds by the trust department of a
trust company in a mortgage loan or group of loans, in which the
funds of the commercial department of the trust company are also
invested, is improper.

Jan. 21, 1929.

Hon. Roy A. Hovey, Commissioner of Banks.

Dear Sir : — You have requested my opinion as to the propriety of
the investment of certain trust funds by trust companies authorized to
act in a fiduciary capacity. You state the following facts : —

A trust company suggests that it proposes to have all real estate mort-
gages owned by the company transferred to the trust department to form a
pool of mortgages. Thereupon participation certificates in such pool or
fund would be issued to the various trust estates in which the trust com-
pany, by its trust department, was acting in a fiduciary capacity. Any
excess interests in the pool not absorbed by the trust department for its
trust estates would be held by the commercial department of the bank.
The result of such an arrangement would be a constant participation by
the commercial department of the trust company in the fund or pool
through the ownership by the commercial department of trust participation
certificates.

You state that under the proposed scheme this form of investment
would be used not onlj^ for small amounts of trust estates which could not
otherwise be advantageously invested, but would also be made the primary
form of investment for the funds of all trust estates held by the bank.
The propriety of such investment of trust funds by trust companies and
national banks doing business as fiduciaries within Massachusetts must
be considered in two aspects : —

1. How far does the statute law applicable to trust companies and to
national banks acting as fiduciaries, respectively, permit or prohibit such
investment?

2. How far may any fiduciary acting under appointment by a court of
equity or subject to the control of a court of equity make such an invest-
ment properly under the principles of equity applicable to the adminis-
tration of trust estates?

A. Statute Law Relating to Trust Companies.
G. L., c. 172, §§ 49, 52-54 and 59, read as follows: —

"Section 49. Every such corporation acting under any pro\asion of
the following section or section fifty-two shall have a trust department in
which all business authorized by said sections shall be kept separate and
distinct from its general business.

Section 52. Such corporation may be appointed executor of a will,
codicil or writing testamentar}^, administrator with the will annexed, ad-
ministrator of the estate of any person, receiver, assignee, guardian,
conservator or trustee under a will or instrument creating a trust for the
care and management of property, under the same circumstances, in the
same manner, and subject to the same control by the court having juris-
diction of the same, as a legally qualified individual. Any such appoint-

P.D. 12. 55

ment as guardian shall apply to the estate and not to the person of the ward.
Such corporation shall not be required to receive or hold property or money
or assume or execute a trust under this section or of section fifty without
its assent.

Section 53. Every such corporation may invest the funds or assets
which it may receive and hold under the preceding section in the same way,
to the same extent, and under the same restrictions as an individual hold-
ing a similar position may invest such funds or assets.

Section 54. Money, property or securities received, invested or loaned
under the provisions of sections fifty to fifty-two, inclusive, shall be a
special deposit in such corporation, and the accounts thereof, shall be
kept separate. Such funds and the investment or loans thereof shall be
specially appropriated to the security and payment of such deposits, shall
not be mingled with the investments of the capital stock or other money
or property belonging to such corporation, or be liable for the debts or
obligations thereof.

Section 59. A person creating a trust may direct whether money or
property deposited under it shall be held and invested separately or in-
vested in the general trust fund of the corporation; and such corpora-
tion acting as trustee shall be governed by directions contained in the will
or instrument under which it acts."

In my opinion, sections 53 and 54, above quoted, effectually prohibit
such an investment as that suggested in your request for an opinion, and
I respectfully advise you that such an investment of trust funds by the
trust department of a Massachusetts trust company in a mortgage loan
or group of such loans, in which the funds of the commercial department
of the bank are also invested, would be manifestly improper. The situa-
tion which you suggest, when analyzed, amounts to little more than this:
A trust company desires to pool the real estate mortgage loans made by
it and to issue against such loans participation certificates to the trust
accounts held by it, in the proportion in which funds of such trusts are
used in making such loans. At the same time the commercial department
will receive participation certificates in the pool mortgage loans in pro-
portion to its interest in those loans. The participation certificate device
is really, in substance, not different from a bookkeeping arrangement by
which the bank indicates upon its own records the proportion in which
its trust accounts and its commercial department have made a loan to
strangers in the name of the bank upon the security of real estate mort-
gages. In my opinion, such an investment of trust funds was intended to
be prohibited by the sections to which I have referred, and this conclusion
is to some extent reenforced by the language of the Supreme Judicial
Court in the cases in which it has construed the sections quoted. Com-
monwealth-Atlantic National Bank, petitioner, 249 Mass. 440, 447^48,
approved Atlantic National Bank, petitioner, 261 Mass. 217, 219; Worcester
County National Batik, petitioner, 263 Mass. 444; cf. Campbell v. Commis-
sioner of Banks, 241 Mass. 262, 265.

56 P.D. 12.

B. The Situation with Resided to National Banks acting as Fiduciaries in
Massachusetts in accordance with a License granted by the Federal
Reserve Board under the Provisions of Code of Laws of the U. S.,
Title 12, § 2J^8 (k).

(Act of Dec. 23, 1923, chap. 6, § 11, 38 Stat, et al. 264, as amended by Act of Sept. 26,
1918, chap. 177, § 2, 40 Stat, et al. 968.)

In view of the length of the statute above referred to it is not here
quoted, but therein it is provided, in part, as follows: —

"National banks exercising any or all of the powers enumerated in this
subsection {k) shall segregate all assets held in any fiduciary capacity
from the general assets of the bank . . .

Funds deposited or held in trust by the bank awaiting investment shall
be carried in a separate account and shall not be used by the bank in the
conduct of its business unless it shall first set aside in the trust department
United States bonds or other securities approved by the Federal Reserve
Board."

The section generally gives to national banks holding the permit
authorized by the section the power to act as trustee, or in other fidu-
ciary capacities, in competition with state banks and trust companies,
where such power is granted to state banks. There is no indication in
the section that a national bank performing the duties of a fiduciary,
under appointment of a state court or subject to the provisions of state
law as to the administration of trusts, is not in every respect as fully
subject to the control of the court or to the provisions of the state law in
the administration of such trusts as a trust company or an individual
acting in a similar fiduciary capacity. This question was expressly left
undecided b}^ the Supreme Judicial Court in the case of Commonwealth-
Atlantic National Barik, petitioner, 249 Mass. 440, 447. The reasoning
of Worcester County National Bank, petitioner, 263 Mass. 444, and the
cases therein cited, however, is clearly to the effect that a national bank
acting as a fiduciary appointed by a state court is, with respect to the
administration of the estate and trust committed to it, subject to the
control of the court in the same way that an individual or state trust
company would be if carrying out the same trust. It therefore becomes
pertinent to discover whether the general principles of equity governing
the administration of trust estates would permit such an investment by
a trustee administering a trust or other fiduciary obligation subject to
the control of a court of this Commonwealth.

C. The General Principles of Equity Applicable to Such Investments.

It is well settled that it is the duty of trustees holding distinct trust
funds to segregate them. They cannot ordinarily be invested together
and the net income prorated to the beneficiaries. Lannin v. Buckley,
256 Mass. 78, 82. The situation now under consideration even more
strongly calls for the application of the rule requiring the complete sep-
aration of trust funds from funds owned by the trustee individually,
because of the fundamental principle that a trustee, apart from his proper
compensation as such trustee, should not in any respect have any pecu-
niary interest in the administration of his trust. See, for example,
Buliivant v. First National Bank of Boston, 246 Mass. 324, 334. Wither-
ington v. Nickerson, 256 Mass. 351, 357.

P.D. 12. 57

The arrangement concerning which you have requested this opinion
clearly involves the minghng of trust assets and commercial assets of
the trust company in such a way as to create a very decided intermingling
of personal interest with that of the bank as fiduciary. In the absence
of clear authorization in the trust instrument under which the fiduciary
is acting, such a mingling of interest would not, in my opinion, be proper
for a trustee, whether an individual or a corporation acting by appoint-
ment from a Massachusetts court or subject to the general control of a
Massachusetts court of equity.

Nothing in this opinion should be construed as advising that it is im-
proper for a trust department of a trust company to permit two or more
of the trust estates held by it to participate in the whole of a single loan
secured by mortgage, by use of the participation certificate device. That
question has not been considered and no opinion is hereby expressed
thereon.

Very truly yours,

Joseph E. Warner, Attorney General.

Banking — Deposits in Two Names — Joint Accounts.

A joint account in which the word "and" joins the names of the de-
positors falls within the provisions of G. L., c. 167, § 14.

An account in a savings bank doing life insurance business, payable to
the insured and after his death to a beneficiary, is not a joint account.

Jan. 22, 1929.
Hon. Roy A. Hovey, Commissioner of Banks.

Dear Sir: — You have requested my advice upon certain questions
relative to deposits made in the names of two persons.

The apphcable statute, G. L., c. 167, § 14, reads as follows: —

"When a deposit is made in any bank, in the names of two persons,
payable to either, or payable to either or the survivor, such deposit, or
any part thereof, or interest or dividend thereon, if not then attached
at law or in equity in a suit against either of said persons, may be paid to
either of said persons, whether the other be living or not, and such pay-
ment shall discharge the bank making such payment from its obligation,
if any, to such other person or to his legal representatives for or on
account of such deposit."

You state that deposits such as are referred to in the statute are some-
times made in the following form : —

"John Doe or Mary Doe
Payable to either or the survivor."

And at other times are written as follows : —

"John Doe and Mary Doe
Payable to either or the survivor."

Your first question, which relates to such forms, is: —

"Can the joint account in which the word 'and' joins the names of
the depositors be construed as a joint account within the meaning of
G. L., c. 167, § 14?"

58 P.D. 12.

I answer this question in the affirmative.

Inasmuch as in each instance which you cite the words "payable to
either or the survivor" appear, it is immaterial whether the word "or"
be used with the two names or the word "and." In each instance the
form used sufficiently expresses an intention to make a deposit of the
kind which falls within the meaning of the statute, and to which all the
terms of the statute are applicable. Were the phrase "payable to either
or the survivor" not employed in the second form, the two forms which
you have set forth would not have a precisely synonymous meaning.

You have set forth a form said to be used in designating deposits in
savings banks which act as agents for savings bank life insurance. This
form reads : —

"John Doe or Mary Doe

Payable to the insured during his

or her life.

Payable to the survivor in the event

of death."

Your question with relation to this form is: —

" Can this account be construed as a joint account within the meaning of
section 14, since it is not payable to either except on the death of one?"

I answer your question in the negative, inasmuch as the deposit is
payable to the insured depositor alone during his life.

Your third question with relation to the form of deposit last mentioned
is: —

"Can the bank, upon the death of the insured, pay this account to other
than his or her estate?"

A deposit made in the said form is not such a deposit as is governed
by said G. L., c. 167, § 14, and the provisions thereof have no application
to it. The question, as between the bank and its depositors with relation
to a construction of the precise character of the ownership of the deposit,
created by the said form, would seem to be one primarily for judicial
determination. In the absence of such a determination I do not express
an opinion upon this question, which is not one which relates directly to
the discharge of your functions as Commissioner.

Your fourth question is : —

"Can the bank loan to one of the parties of a so-called joint account
(John Doe or Mary Doe, payable to either or the survivor) without the
consent of the other?"

G. L., c. 168, as pointed out in your letter, provides in some of its sec-
tions that a savings bank may loan money to a depositor upon the pass
book as collateral security.

In Marble v. Treasurer and Receiver General, 245 Mass. 504, the court
stated that a deposit such as you describe in your fourth question is not
strictly a joint tenancy nor is it an estate by the entirety, where the de-
positors are husband and wife, because of the express terms of the deposit
that either one of the depositors may withdraw any part or the whole of
the fund on his single receipt or order, and thereby terminate the tenancy
without the consent of the other. This right violates the essential char-
acter of a true joint tenancy. The estate created by such a deposit is at
most analogous to a joint tenancy but is not a joint tenancy in the ac-
curate meaning of those words.

P.D. 12. 59

There exists a contract between the bank and the depositors that the
bank will pay the whole or any part of the deposit as agreed upon.

Whether an implied contract by the bank to loan to one of the depositors
also exists, under the peculiar circumstances surrounding such a deposit,
has not been considered by our Supreme Judicial Court. If there were a
true joint tenancy in the deposit, no one of the owners might cumber the
same by pledging it. Such a pledging would amount to a severance of
the joint tenancy, and it would therefore be improper for a savings bank
to make such a loan. Whether or not such a deposit is so analogous to
a joint tenancy that a pledge by one of the depositors would be improper
as against the other, has not been passed upon by the court. These ques-
tions are primarily for judicial determination, and relate particularly to
the relations between a savings bank and its depositors, under the terms
of a contractual arrangement between them. In the absence of judicial
determination of the points which I have noted, I do not express an opinion
upon your fourth question, which, like the third, is not one relating
directly to the discharge of your functions as Commissioner.
Very truly yours,

Joseph E. Warner, Attorney General.

Taxation — Life Insurance Policy — Change of Beneficiary.

The proceeds of a life insurance policy in which the insured reserves the
right to change the beneficiary, and which is payable after the death
of the insured to a beneficiary named in the policy, are not subject
to an inheritance tax.

Nor are the proceeds of such a policy subject to tax if the insured has not
reserved the right to change the beneficiary.

Jan. 22, 1929.

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

Dear Sir : — You have requested my opinion on the following ques-
tions : —

"Are the proceeds of a life insurance policy in which the insured has
reserved the right to change the beneficiar}^, which policy is payable after
the death of the insured to a beneficiary named in the policy, subject to
inheritance tax in Massachusetts under the laws now in effect?

Are the proceeds of a life insurance policy subject to tax if the insured
has not reserved the right to change the beneficiary?"

Our Massachusetts succession tax statute does not mention life insurance
policies specifically. The only words of the statute which might be said
to include life insurance pohcies taken out by the insured upon his life
and payable to other beneficiaries than his own estate are the words in
G. L., c. 65, § 1, as amended, — ''property . . . which shall pass . . .
by . . . gift . . . made or intended to take effect in possession or enjoyment
after his death (the death of the donor)." The Massachusetts Supreme
Judicial Court has held that these words of the succession tax statute,
properly construed, do not include life insurance policies, and that the
proceeds of life insurance policies are not subject to an inheritance tax in
Massachusetts. Tyler v. Treasurer and Receiver General, 226 Mass. 306.

It is my opinion that the recent United States Supreme Court decision
in Chase National Bank v. United States, 278 U. S. 327, may be distin-
guished from the decision in Tyler v. Treasurer and Receiver General, 226
Mass. 306.

60 P.D. 12.

In the Chase National Bank case the United States Supreme Court
was considering the Federal estate tax law, which specifically provides that
the gross estate of the decedent, for taxation purposes, shall include life
insurance policies taken out by the decedent upon his own life and made
payable to other beneficiaries than his own estate. The United States
Supreme Court was thus considering a tax upon the right to transfer, and
held that the reserved power in the insured to change the beneficiary gave
the insured a power of control which might properly be made the subject
of a transfer tax. By inference it would seem that even in the United
States Supreme Court, in a case where the Federal estate tax is involved,
the proceeds of a life insurance policy would not be subject to a transfer
tax if the insured has not reserved the right to change the beneficiary.
The language of the decision strongly suggests that a life insurance policy
payable to a beneficiary other than the estate of the insured may properly
be considered a gift to take effect in possession or enjoyment after the
death of the insured, and to hold that a life insurance policy is a gift
from the insured to the beneficiary.

The Tyler case was decided in 1917. It is a case which turns upon the
construction of a State statute. The Massachusetts court is not bound
by the opinion of the United States Supreme Court as to the construction
of a State statute. A State court construction of a State statute is final.
In this case the court said that a life insurance policy made payable by
the insured to a beneficiary other than his estate "does not by fair in-
tendment come within the descriptive words of the statute as 'property
. . . which shall pass . . . by . . . gift . . . made or intended to take
effect in possession or enjoyment after the death of the grantor.'"

It seems clear, therefore, that the cases can be distinguished by reason
of the construction of the statutes involved; and until the Massachusetts
succession tax statute specifically includes life insurance policies of this
nature within its terms, it is my opinion that a succession tax upon such
insurance policies will not be sustained by our Massachusetts court.

The answer to the first question must therefore be in the negative, and,
a fortiori, the answer to the second question must also be in the negative.
Very truly yours,

Joseph E. Warner, Attorney General.

Constitutional Law — Stock of Trust Company held by Other Banking
Organizations.

A proposed law penahzing a trust company, by liquidation, for the hold-
ing of more than a certain per cent of its stock by certain organiza-
tions, would, if enacted, be unconstitutional as drawn.

Feb. 13, 1929.

Hon. Henry L. Kincaide, Senate Chairman, Committee on Banks and

Banking.

Dear Sir: — Your committee has asked my opinion relative to the
constitutionality, if enacted into law, of House Bill No. 613, which reads
as follows : ^

"Chapter one hundred and sixty-seven of the General Laws is hereby
amended by inserting after section twenty-two the following new section: —

P.D. 12. 61

Section 22A. Whenever it shall appear to the commissioner of banks
that more than ten per cent of the capital stock of any trust company is
held, owned, or controlled, directly or indirectly, by any other trust
company or by any banking association organized under the laws of
the United States of America, or by any corporation, association, or
trust directly or indirectly owned, controlled, or affiliated with such other
trust company or banking association, the commissioner of banks shall
notify the holder of such capital stock to divest itself thereof within
thirty days from the date of such notice, and in the event of failure so to
do, the commissioner of banks shall take possession forthwith of the
property and business of such trust company more than ten per cent
of the capital stock of which is so held, owned, or controlled, and retain
possession of such trust company and liquidate its affairs in the manner
herein provided."

The proposed act in effect penalizes a trust company, by the drastic
measure of enforced liquidation, not for anj^ unlawful or improper action
of such company but solely because of the failure of some other body
(not under the control of the trust companjO to comply with an order of
the Commissioner of Banks. Such a provision, on its face, is so arbi-
trary and unfair as to give rise to grave doubts as to its validity, if en-
acted, under the due process clause of the Fourteenth Amendment to the
Constitution of the United States. Whether the main objects of the
proposed act could be accomplished by legislation which would consti-
tute a valid exercise of the police power by the General Court, and more
particularly of the reserved right to amend and repeal the charters of
domestic corporations, I do not need to advise. The act, as printed
above, is so indefinite, uncertain and vague in the standards of conduct
which it lays down, either for the guidance of individuals investing in the
stock of a trust company or for the direction of the activities of the Com-
missioner of Banks, that it would certainly be, for that reason alone, in
contravention of the due process clause of the Fourteenth Amendment to
the Federal Constitution. What constitutes control "directly or indi-
rectly," within the meaning of the act, is in no way definitely set forth.
A corporate purchaser of stock of a Massachusetts trust company, if this
bill were enacted, would have no basis for determining whether its pur-
chase (if it involved more than ten per cent of the stock of the trust
company) would cause the eventual dissolution of the trust company,
thereby endangering the purchase as an investment. The only criterion
by which the vahdity of the purchase could be gauged would be a guess as
to the way in which the Commissioner of Banks would regard the corpo-
ration's relations with all or any of its banking connections. Because of
the absence of any standard which an ordinary man could by his general
knowledge apply with reasonable certainty to his proposed conduct, the
proposed bill is, in my opinion, unconstitutional. Connolly v. General
Construction Co., 269 U. S. 385, 391, and cases there cited; Cline v. Frink
Dairy Co., 274 U. S. 445, 457; cj. Nash v. United States, 229 U. S. 373, 376.
Despite grave doubts upon other grounds as to the validity of the whole
method provided by the proposed bill for carrying out its purpose, I limit
my opinion to the single ground of unconstitutional indefiniteness.
Very truly yours,

Joseph E. Warner, Attorney General.

62 P.D. 12.

Motor Vehicles — Compulsory Motor Vehicle Insurance — Express
Business.

Motor vehicles owned by express companies are excepted from the appli-
cation of the compulsory insurance act.

Feb. 16, 1929.

Hon. Frank E. Lyman, Commissioner of Public Works.

Dear Sir: — You request my opinion as to whether motor vehicles
owned by a corporation engaged in the express business, and, so far as
the statutes provide, under the supervision of the Department of PubKc
Utilities, are outside of the application of the compulsory insurance act.

That act provides (G. L., c. 90, § lA): —

"No motor vehicle or trailer, except one owned by a person, firm or
corporation for the operation of which security is required to be furnished
under section forty-six of chapter one hundred and fifty-nine, or one
owned by any other corporation subject to the supervision and control
of the department of public utilities or by a street railway company
under public control, or by the commonwealth or any political subdivi-
sion thereof, shall be registered under sections two to five, inclusive,
unless the application therefor is accompanied by a certificate as defined
in section thirty-four A."

The question is whether the fact that the jurisdiction of the Department
of Public Utilities over express companies appears to be somewhat limited
takes the case out of the words of the statute above quoted.

The provisions conferring jurisdiction upon the Department of Public
Utilities are contained in G. L., c. 159, § 12, which reads as follows: —

"The department shall, so far as may be necessary for the purpose of
carrying out the provisions of law relative thereto, have general supervision
and regulation of, and jurisdiction and control over, the followiug services,
when furnished or rendered for public use within the commonwealth,
and all persons, firms, corporations, associations and joint stock associ-
ations or companies furnishing or rendering any such service or services,
in sections ten to forty-four, inclusive, collectively called common carriers
and severally called a common carrier:

(a) The transportation or carriage of persons or property, or both,
between points within the commonwealth by railroads, street railways,
in this chapter called railways, electric railroads, trackless trolleys and
steamships, including express service and car service carried on upon or
rendered in connection with such railroads, railways, electric railroads,
trackless trolleys or steamships.

(6) The carriage of passengers for hire upon motor vehicles as provided
in sections forty-five to forty-nine, inclusive, of this chapter and section
forty-four of chapter one hundred apd sixty-one, but only to the extent
provided in said sections.

(c) The operation of all conveniences, appliances, facilities or equip-
ment utilized in connection with, or appertaining to, such transportation
or carriage of persons or property or such express service or car service,
by whomsoever owned or provided, whether the service be common
carriage or merely in facilitation of common carriage.

(d) The transmission of intelligence within the commonwealth by
electricity, by means of telephone lines or telegraph Unes or any other

P.D. 12. 63

method or system of communication, including the operation of all con-
veniences, appliances, instrumentalities, or equipment appertaining
thereto, or utiHzed in connection therewith."

G. L., c. 159, § 33, provides: —

"Every person doing an express business upon either a railroad or
railway in the commonwealth shall annually transmit to the department
a return on oath of his doings setting forth copies of all contracts made
during the year with other persons doing a transportation or express
business upon any railroad or railway in the commonwealth, and shall
give complete information in reply to the questions presented in the form
for such return which shall be prescribed by the department. A person
neglecting to make such return or, if defective or erroneous, to amend it
within fifteen days after a request so to do shall forfeit twenty-five dollars
for each day during which such neglect continues."

Even if it were assumed that the Department, under chapter 159, has
no supei^vision and control over express service except so far as it is ren-
dered upon railroads or steamships, it would be difficult to say that the
words of section lA of chapter 90 are inapplicable, for those words apply
to the corporation and not to the service. But, in fact, it seems that the
supervision and control of the Department over express companies is
not so confined [see G. L., c. 159, §§ 12 (c) and 33], and, in practice, the
Department requires companies rendering returns under section 33 to
give such information as cost and repairs of motor trucks.

In my opinion, the motor vehicles in question are excepted from the
application of the insurance act by the express terms of section lA.
Youns very truly,

Joseph E. Warxer, Attorney General.

Constitutional Law — Savings Bank Life Insurance — Statutory Limitations.

The Legislature may, without violating constitutional provisions, limit
the amount of the hazard which savings banks as an entire group
may venture upon lives of insureds.

Feb. 21, 1929.

Hon. C. Wesley Hale, Senate Chairman, Committee on Insurance.

Dear Sir: — The Committee on Insurance, through you, has asked
my opinion upon the following matter relating to savings bank life
insurance : —

"Would the limitations, as proposed in document known as Senate
132, if enacted into law, violate any constitutional right of the citizens
of this Commonwealth, and how, if at all, would your opinion differ if
the life insurance limitation were changed from five thousand dollars to
ten thousand dollars, the amount available at the present time?"

The proposed bill. Senate No. 132, is entitled "An Act relative to the
amount of insurance which savings and insurance banks may pay upon
the death of the insured," and reads as follows: —

"Section 1. Section ten of chapter one hundred and seventy-eight
of the General Laws is hereby amended by adding at the end thereof the
following: — Provided, that the maximum amount of insurance which
may be issued to any one person by five or more such banks shall not

64 P.D. 12.

exceed in the aggregate five thousand dollars, exclusive of dividends or
profits, and the maximum yearly payments to any one person under
annuity contracts issued by five or more such banks shall not exceed
four hundred dollars.

Section 2. This act shall take effect upon its passage."

The writing of policies of insurance and annuity contracts is a business
so clothed with pubhc interest that it may be regulated by the Legis-
lature for the public welfare, under its general police power, in a wide
variety of ways. Almost all such reasonable regulations interfere with
perfect freedom of the exercise of the right to make contracts, both as
to the individual insured and the insurer, but as a proper exercise of the
police power such interference does not violate the constitutional guaran-
tees of State constitutions or of the Federal Constitution. Such regula-
tions, to be constitutional, must not be arbitrary or unreasonable.

The doing of an insurance business by savings banks was first author-
ized by the Legislature in 1907, and the manner and mode of conducting
such business by these banks is regulated and Hmited in a wide variety
of ways by enactments now embodied in G. L., c. 178, as amended. The
system laid down by the Legislature heretofore for the conduct of the
business by these banks differs in many particulars from that under
which insurance companies are permitted to carry on business under
the provisions of G. L., c. 175, as amended.

Among other regulations provided in G. L., c. 178, as amended, for
the conduct of the business by savings banks, section 10 of said chapter
now provides the following : —

"No savings and insurance bank shall write any policy binding it to
pay more than one thousand dollars, exclusive of dividends or profits,
upon the death of any one person, except for such amount, if any, as it
may be bound to pay upon the death of such person under an employees'
group policy, nor any annuity contract binding it to pay in any one year
more than two hundred dollars, exclusive of dividends or profits."

The existing law thus limits the amount which any savings bank may
hazard upon a single risk, either by way of a policy of insurance or a
contract of annuity. The proposed bill limits the amount of the hazard
which the savings banks engaged in this business, as an entire group,
may venture upon a single risk. If such limitation be necessary to pro-
tect the interests of those seeking this particular form of insurance, as
well as the insurers, as a provision making for the solvency of the in-
surers and the safety of the funds to which the insureds are to look for
payment upon their contracts, it could not well be said that a legislative
measure establishing such a hmitation was unreasonable or arbitrary.
The determination of the amount of such hmitation best adapted to
secure such solvency, if fixed by the sound judgment of the Legislature
at either of the figures mentioned in your communication, could not, in
view of the exercise of the judgment of the Legislature, be said to be
arbitrary or unreasonable.

Whether such limitations as are created by the proposed bill are reason-
able for accompHshing the purpose which I have above referred to is for
the determination of the General Court. If it so determines, I cannot
say that such a bill, if enacted into law, would be unconstitutional.
Very truly yours,

Joseph E. Warner, Attorney General

P.D. 12. 65

Retirement System — Penal Institutions Officer — Duration of Service.

The Commissioner of Correction may retire and place on the pension
roll a penal institutions officer entitled to such retirement under
G. L., c. 32, § 46.

Feb. 23, 1929.

Mr. Edward C. R. Bagley, Deputy Commissioner of Correction.

Dear Sir: — You have sent me the following communication: —

"I respectfully refer you to an opinion rendered by a former Attorney
General, dated May 12, 1919, relative to the retirement status of a man
employed at the Massachusetts Reformatory. This man will attain the
age of seventy on January 27, 1929, and has been advised by the Board
of Retirement that he must leave the service of the Commonwealth on
that date.

In the light of the opinion above referred to will j^ou be kind enough to
advise me whether this man is entitled to be retired under the prison
officers' retirement law, G. L., c. 32, § 46, or is ineligible to any retire-
ment allowance, as assumed by the Board of Retirement."

You have also submitted to me certain correspondence, from which I
assume the facts to be that the person referred to in your letter was first
employed at one of the State penal institutions from June 1, 1890, until
January 5, 1907 ; that he then resigned and was absent from the service
until re-employed in such an institution on May 10, 1915, and that when
so re-employed in 1915 he was over fifty-five j'^ears of age.

There can be no question but that the person referred to has been,
since attaining the age of sixty-five, eligible to retirement from the service
and to have his name placed upon a pension roll, with the approval of
the Governor and Council, under the provisions of G. L., c. 32, §§ 46^8,
as amended, which relate peculiar^ to prison employees. It is specifi-
cally provided in section 47 that in computing the twenty 3-ears of service
for the Commonwealth, which render a prison employee eligible to the
pension mentioned in section 46, all the time which he has served in the
penal institutions of the State shall be counted, irrespective of whether
such service was continuous or not. An opinion of one of my prede-
cessors in office, rendered to you May 12, 1919 (not published), relative
to a similar case, makes this plain; but such opinion did not hold that
because an employee or officer of a penal institution was eligible for re-
tirement under the particular provisions now embodied in G. L., c. 32,
_§§ 46-48 • (formerly St. 1908, c. 601, as amended), he was also entitled,
in addition to such pension, to receive a retiring allowance, or that he
was eHgible to be a member of the State Retirement Association if over
fifty-five years of age at the time of his last re-entry into the service of
the Commonwealth. Moreover, it has been held in an opinion of a
former Attorney General (V Op; Atty. Gen. 456) that where an em-
ployee has ceased by voluntary retirement to hold a position in the serv-
ice of the State and subsequently re-enters it, his term of service, for the
purposes of obtaining the benefits of the retirement system, begins with
the date of his re-employment, and that, as the continuity of his service
has been broken by his resignation, the term of his prior employment is
to be disregarded by the Board of Retirement.

The first plan for a comprehensive retirement system for the em-

66 P.D. 12.

ployees of the Commonwealth was enacted by St. 1911, c. 532, and after
a series of amendments it was consohdated in G. L., c. 32, with other
provisions relative to pension systems for certain classes of employees,
enacted by other statutes, among which were the provisions for em-
ployees in penal institutions, contained in St. 1908, c. 601, as amended.
Employees such as those in penal institutions, as the law now stands,
are, when eligible to the benefits of the State retirement law, given the
advantage of an option between retiring under the general provisions of
the retirement law or under those applicable to their particular class.
V Op. Atty. Gen. 634. Their eligibility to the advantages of the general
retirement system is governed by the provisions applicable directly
thereto, and particular provisions of those sections of the statutes which
relate to ehgibility to special pension funds do not control or govern
their eligibility to the benefits of the general retirement system.

The person to whom you refer in your letter re-entered the service of
the Commonwealth in its penal institutions in 1915. He was then over
fifty-five years of age. Having attained such age he was not then ehgible
to membership in the State Retirement Association or entitled to the
benefits of the retirement system in that respect. St. 1911, c. 532, § 3 (2),
as amended, now G. L., c. 32, § 2 (2) and (3). He was, however, as I
have pointed out, eligible to the benefits of the pension provided for
penal institution employees by St. 1911, c. 608, now G. L., c. 32, §§ 46-48.

He was also subject to the provisions of St. 1911, c. 532, § 3, as
amended, now G. L., c. 32, § 2 (2), to the effect that "no such person
(employee) shall remain in the service of the Commonwealth after reach-
ing the age of seventy."

This provision of chapter 32 applies, as part of the comprehensive
scheme for the regulation of the retirement of persons in the service of
the Commonwealth, to all such persons ahke, irrespective of whether or
not they are entitled to the advantage of a pension.

The provisions of G. L., c. 32, are intended to, and do, forbid a person
employed by the Commonwealth from remaining in the service after
reaching the age of seventy (see opinion rendered the Commissioner of
Pubhc Works March 19, 1921, not published), with the exception of
those persons mentioned in G. L., c. 32, § 2 (3), namely, an "officer
elected by popular vote" or "any employee who is or will be entitled to
a non-contributory pension from the commonwealth." Admittedly, the
person in question does not fall within the exception extended to elective
officers nor does he fall within the second exception. It cannot be said
that under the provisions of G. L., c. 32, §§ 46-48, "he is or will be
entitled to a non-contributory pension." The pension provided for by
section 46 is non-contributory, but it cannot presently be said that he
"either is or will be entitled" thereto within the meaning of said
chapter 32, section 2 (3). It is optional with the Commissioner of Cor-
rection to retire him from service and place him upon a pension roll,
and the act of the Commissioner in this respect is subject to the approval
of the Governor and Council (see V Op. Atty. Gen. 634).
Very truly yours,

Joseph E. Warner, Attorney General.

P.D. 12. 67

Motor Vehicles and Trailers — Length — Permits.

No commercial motor vehicle with an extreme over-all length of twenty-
eight feet may be operated upon a State highway without a special
permit.

Groups of vehicles having altogether an over-all length of twenty-eight
feet do not require a special permit.

Feb. 23, 1929.
Hon. Frank E. Lyman, Commissioner of Public Works.

Dear Sir: — You have directed my attention to G. L., c. 90, § 19,
which, as finally amended by St. 1927, c. 72, reads as follows: —

''No commercial motor vehicle, motor truck or trailer, the outside
width of which is more than ninety-six inches or the extreme over-all
length of which exceeds twenty-eight feet, shall be operated on any way
without a special permit so to operate from the board or officer having
charge of such way, or, in case of a state highway or a way determined
by the department of pubhc works to be a through route, from the com-
missioner of pubhc works. The aforesaid dimensions of width and length
shall be inclusive of the load."

You have asked my opinion as to its interpretation in connection with
the issuing of the special permits.

Gen. St. 1919, c. 252, §§2 and 3, which was the original act deahng
with the subject matter of said section 19; was as follows: —

"Section 2. The Massachusetts highway commission, as to state
highways, and the county commissioners, as to county highways, may
likewise grant permits under this act.

Section 3. Any person violating any provision of this act, or of the
terms of any permit granted hereunder, shall be punished by a fine of
not more than one hundred dollars for each offence."

The provisions of said Gen. St. 1919, c. 252, were originally embraced
in G. L., c. 90, § 19, in substantially the same terms, in the following
words : —

"No commercial motor vehicle, motor truck or trailer, the outside
width of which is more than ninety-six inches or the extreme over-all
length of which exceeds twenty-eight feet, shall be operated on any way,
except that such a vehicle exceeding twenty-eight feet may be operated
when a special permit so to operate is secured from the superintendent
of streets, selectmen, or local authorities, having charge of the repair
and maintenance of highways in the several cities and towns, or in the
case of state highways, from the commissioner of pubhc works, and in
the case of other highways, from the county commissioners having juris-
diction thereof; provided, that the combined length of such a vehicle
and trailer or trailers, or of two or more such vehicles fastened together
in series, with or without trailers, may exceed twenty-eight feet, but in
no event shall such combined length exceed sixty-five feet. All of the
aforesaid dimensions shall be inclusive of the load."

The words of the proviso as contained in said section 19 were omitted
when it was amended by St. 1925, c. 180, § 1, which read as follows: —

"Section 1. Chapter ninety of the General Laws is hereby amended
by striking out section nineteen and inserting in place thereof the fol-

68 P.D. 12.

lowing: — Section 19. No commercial motor vehicle, motor truck or
trailer, the outside width of which is more than ninety-six inches, shall
be operated on any Avay. No commercial motor vehicle, motor truck or
trailer, the extreme over-all length of which exceeds twenty-eight feet,
shall be operated on any way without a special permit so to operate
from the board or officer having charge of such way, or, in case of a way
determined by the department of public works to be a through route,
from the commissioner of public works. The aforesaid dimensions of
width and length shall be inclusive of the load."

Nor have the words of the proviso been restored by subsequent
legislation.

It follows, then, from the wording of G. L., c. 90, § 19, as it noAv stands
amended, that any commercial motor vehicle, motor truck or trailer, the
extreme over-all length of which exceeds twenty-eight feet, may not be
operated, without a special permit from you as Commissioner of Pubhc
Works, upon a State highway or a way determined to be a through
route, and the necessity for such a permit is not removed by the fact
that such a vehicle is fastened together with others, irrespective of what
the combined length of all the vehicles may be. Nor does a single vehicle,
of the types mentioned in the statute, which is not itself over twenty-
eight feet in length require a special permit for operation even if it be
fastened together with other vehicles, all of which together have a
length of over twenty-eight feet. Nor does a group of vehicles fastened
together, none of the units of which exceeds twenty-eight feet in length,
require a special permit.

Very truly yours,

Joseph E. Waener, Attorney General.

Fire Marshal — Licenses and Permits — City Council.

Licenses and permits under G. L., c. 148, § 31, as amended, and Hcenses
under G. L., c. 148, § 14, as amended, may be issued by a head of
the fire department and a city council, jointly, if they have been
designated for that purpose by the Fire Marshal.

Feb. 25, 1929.

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

Dear Sir : — You have asked my opinion relative to delegation of
authority by the Fire Marshal to issue hcenses and permits under G. L.,
c. 148, § 31, as amended, and to issue Hcenses under G. L., c. 148, § 14,
as amended. Your question reads as follows: —

"The question upon which your opinion is desired is: Can a designation
be made by the Marshal including the city council and the head of the
fire department to grant such licenses, so that one document only will be
required?"

Section 14 provides for the issuance of permits by the Marshal "or by
some official designated by him for that purpose." Section 31 provides
for delegation by the Marshal to "the head of the fire department or to
any other designated officer" in a city or town in the metropolitan
district.

The terms "official" and "officer," as used in these two sections, are,
in my opinion, to be construed as including the plural. See G. L., c. 4,

P.D. 12. 69

§ 6, cl. 4th. In Foss v. Wexler, 242 Mass. 277, the delegation was to the
mayor and the board of street commissioners, and no question was raised
on this point.

Nor do I think that the use of the word "or" in section 31 exckides
the possibihty of delegation to a head of the fire department and some
other official jointly. The word "or" may be given a conjunctive as
well as disjunctive meaning, and should be so construed here, for cer-
tainly it was not intended that, although a delegation might be made
to any two other officials jointly, the head of the fire department could
be designated only in the event that he should, act alone. Nor could it
have been intended that the power to make a joint delegation, including
the head of the fire department, should be different under section 31
from what it is under section 14.

I am not certain what is meant by the last part of your question, viz. :
"so that one document only will be required." If by "document" you
refer to notice of the designation, I would say that written notice of the
designation must be given to the head of the fire department and also
to the city council. If you refer to the license or permit issued by the
officials designated, there not only may be, but should be, only one docu-
ment issued by the head of the fire department and the city council
jointly.

Yours very truly,

Joseph E. Warner, Attorney General.

Food — Fish — Cold Storage — Adveriisinq.

The provisions of G. L., c. 94, § 78, as to advertisements, do not require
that cold storage fish shall be designated as such, but they do forbid
representation of the commodity as fresh fish.

The word "fish," as used in St. 1928, c. 40, § 1, includes all forms of
fish and shellfish and Crustacea.

Feb. 25, 1929.

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

Dear Sir: — You have asked my opinion as to whether or not, in
advertising or other forms of publicity, cold storage fish must be so
designated as to distinguish it from fresh fish.

G. L., c. 94, § 78, is as follows: —

"No person shall sell, offer or expose for sale fish which have been held
in cold storage, without notice to purchasers that such fish have been so
held, nor without the conspicuous display of a sign marked ' Cold Storage
Fish'; nor shall any person represent or advertise or sell cold storage
fish as fresh fish."

G. L., c. 94, § 74, as amended by St. 1922, c. 17, § 1, provides, in part,
as follows : —

"All fresh food fish before being offered for sale or placed in cold storage
shall be graded as follows : —

No person shall represent, sell, offer for sale or advertise fresh or frozen
fish of any grade under any but the truthful and correct name and grade
or corresponding term for such fish."

The words "advertising or other forms of publicity," as used in your
question, may be somewhat ambiguous, and you may mean to include in

70 P.D. 12.

these words some specific case in which it would be possible to construe
the form of publicity as an offer; in which case, of course, notice that the
fish offered has been held in cold storage is required by the statute. An
advertisement, however, in the sense in which that word is commonly
used, will usually be construed by the courts, not as an offer, but as an
invitation for offers. See Williston on Contracts, § 27. And, in anj^ event,
it is clear that the word "advertise," as used in the two sections of ther
statute above quoted, is used as distinct from "offer." Assuming, then,
as I must, that your question refers only to advertisements or forms of
publicity which are not in law offers, I answer your question in the
negative.

The requirement of section 78 as to advertisements is merely that cold
storage fish shall not be represented as fresh fish. An advertisement of
fish, without more, is not a representation that it is fresh fish', as dis-
tinguished from cold storage fish. Nor is there anything in section 74
which leads to a different result. The words "name" and "grade" have
no reference, as the preceding part of section 74 clearly shows, to any
distinction between fresh and cold storage fish.

You also ask my opinion as to whether or not the word "fish," as used
in St. 1928, c. 40, § 1, includes all forms of fish, such as fresh, frozen,
cold storage, salted, pickled or otherwise preserved, and all shellfish and
Crustacea. Said section, amending G. L., c. 94, § 82, makes it criminal
to sell for food purposes fish which is unwholesome or unfit for food. I
think that shellfish and Crustacea were intended to be, and well may be,
included under the term "fish" as used in this statute. Provisions relat-
ing to these types are contained in G. L., c. 130, entitled "Fisheries."

See also Weston v. Sam.psoji, 8 Gush. 347. Nor do I think that this
statute makes any distinction as between fresh fish and fish that is salted,
pickled or preserved. The purpose of the statute, namely, to guard against
the sale of impure food, applies to all equally. According!}^, I answer
your second question in the affirmative.

Very truly yours,

Joseph E. Warner, Attorney General.

Trust Company — Increase of Capital Stock — Stockholder.

Stockholders of trust companies may, under G. L., c. 172, § 18, as
amended, and G. L., c. 156, §§ 41 and 44, authorize an increase of
capital stock under such terms and in such manner as the directors
or officers may determine.

^Iarch 22, 1929.

Hon. Roy A. Hovey, Commissioner of Banks.

Dear Sir: — You have asked my opinion as to whether stockholders
of a trust company have power under the terms of G. L., c. 172, § 18, as
amended, to authorize its board of directors or officers to dispose of an
increase of capital stock under such terms and in such manner as the
board or officers may determine.

G. L., c. 172, § 18, as amended by St. 1926, c. 239, as it relates to the
increase of capital stock by trust companies, reads as follows: —

"Any such corporation maj^, subject to the approval of the commis-
sioner, increase its capital stock in the manner provided by sections
forty-one and forty-four of chapter one hundred and fifty-six."

P.D. 12. 71

G. L., c. 156, §§ 41 and 44, read as follows: —

"Section 41. Every corporation may, at a meeting diil}^ called for
the purpose, by the vote of a majority of all its stock, or, if two or more
classes of stock have been issued, of a majority of each class outstanding
and entitled to vote, authorize an increase or a reduction of its capital
-stock and determine the terms and manner of the disposition of such
increased stock, or authorize such terms and manner of disposition to be
determined in whole or in part by the board of directors or officers of
the corporation, may authorize a change of the location of its principal
office or place of business in this commonwealth or a change of the par
value of the shares of its capital stock, or may authorize proceedings for
its dissolution under section fifty of chapter one hundred and fifty-five.
Such injcreased stock may in whole or in part be disposed of without
being offered to the stockholders. Any corporation having authorized
shares with par value may, at a meeting duly called for the purpose, by
the vote of a majority of all its stock, or, if two or more classes of stock
have been issued, of a majority of each class outstanding and entitled
to vote, including in any event a majorit}^ of the outstanding stock of
each class affected, change such shares or any class thereof into an equal
or greater number of shares without par value, or provide for the ex-
change thereof pro rata for an equal or greater number of shares without
par value ; provided, that the preferences, voting powers, restrictions and
qualifications of the outstanding shares so changed or exchanged shall
not be otherwise impaired or diminished without the consent of the
holders thereof.

Section 44. If an increase in the total number of the capital stock
of any corporation shall have been authorized by vote of its stockholders
in accordance with section forty-one, the articles of amendment shall
also set forth — (a) the total amount of capital stock already authorized ;
(6) the amount of stock already issued for cash payable bj^ instalments
and the amount paid thereon; and the amount of full paid stock already
issued for cash, property, services or expenses; (c) the amount of addi-
tional stock authorized; (d) the amount of such stock to be issued for
cash, property, services or expenses, respectively; (e) a description of
said property and a statement of the nature of said services or expenses,
in the manner required by section ten."

The statute which first provided for increase of capital stock of trust com-
panies, St. 1905, c. 189, was couched in the following language: —

" A trust companj^ maj^ subject to the approval of the board of com-
missioners of savings banks, increase its capital stock to the maximum
amount allowed by section five of chapter one hundred and sixteen of the
Revised Laws, in the manner provided for the increase of capital stock
of business corporations under the provisions of chapter four hundred
and thirty-seven of the acts of the year nineteen hundred and three,
and of acts in amendment thereof, relative to the increase of capital
stock; provided, hoivever, that no such stock shall be issued by anj^ trust
compan}^ until the par value thereof shall be fully paid in in cash."

Provision is made in the General Laws for a mode of disposition of
increased capital stock with reference to corporations not subject to
G. L., c. 156, when no other provision is made by law with relation
thereto. This is contained in G. L., c. 155, § 20, and reads as follows: —

72 P.D. 12.

"If a corporation, not subject to chapter one hundred and fifty-six,
increases its capital stock and no other provision therefor is made by law,
its directors shall forthwith give written notice thereof to each stock-
holder who was such at the date of the vote to increase, stating the
amount of the increase, the number of shares or fractions of shares of
the new stock which such stockholder is entitled to take, and the time,
not less than thirty daj's after the date of such vote, within which such
new stock shall be taken; and, within said time, each stockholder may
take at par his proportion of such new shares, according to the number of
his shares at the date of such vote to increase. If, at the expiration of
said time, any shares remain untaken, the directors shall sell them by
public auction for the benefit of the corporation at not less than the par
value thereof."

I am of the opinion that it was the intent of the Legislature, in pro-
viding by G. L., c. 172, § 18, as amended, that a trust company might
increase its capital stock "in the manner provided by" G. L., c. 156,
§§ 41 and 44, to make applicable to such company the provisions of said
sections 41 and 44, not only as they refer directly to the method of in-
creasing stock but as they refer to the manner of distributing or disposing
of the same. The terms and manner of disposition are such an integral
part of an increase of stock that a reference to increase of capital stock
in the "manner provided" in sections 41 and 44 would seem, in the ordi-
nary use of words, to include both, as set out in the designated sections.
It follows that the terms of G. L., c. 155, § 20, are not applicable to in-
crease of stock by a trust company, for which provision is made by law
under said G. L., c. 156, §§ 41 and 44, incorporated by reference in G. L.,
c. 172, § 18, as amended.

Very truly yours,

Joseph E. Warner, Attorney General.

Division of Animal Industry — Rules — Poultry — Animals.

G. L., c. 129, § 2, does not give authority to the Division of Animal
Industry to make rules as to giving certificates as to the condition
of poultry or animals.

March 27, 1929.

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

Dear Sir: — You ask my opinion as to the validity of certain pro-
posed rules of the Division of Animal Industry, one set relating to a
disease of poultry known as salmonella pullorum, and the other to a
disease of cattle known as Bang bacillus.

The proposed rules provide, in substance, that if an owner elects to
submit his flock or herd to certain blood tests in a laboratory approved
by the Director, and if such tests show freedom from the disease in ques-
tion, and if the owner further observes certain requirements as to care
and maintenance, the Division will issue to him a certificate that his
flock or herd is free of the disease in question.

The power of the Division to make rules is set forth in G. L., c. 129,
§ 2, as follows : —

"The director may make and enforce reasonable orders, rules and
regulations relative to the following: the sanitary condition of neat cat-
tle, other ruminants and swine and of places where such animals are kept;

P.D. 12. 73

the prevention, suppression and extirpation of contagious diseases of
domestic animals; the inspection, examination, quarantine, care and
treatment or destruction of domestic animals affected with or which have
been exposed to contagious disease, the burial or other disposal of their
carcasses, and the cleansing and disinfection of places where contagion
exists or has existed. No rules or regulations shall take effect until
approved by the governor and council."

Nothing therein confers power to issue certificates, and such power
cannot, in my opinion, be implied. The Legislature has specifically pro-
vided in section 20 that inspectors shall issue certificates in certain cases,
but section 20 gives no authority for the procedure proposed. Moreover,
it would appear that under the proposed rules the Division would have
no first-hand knowledge of the fact which it undertook to certify. The
blood tests are not made by the Division, nor is any provision made for
the Division to ascertain the existence of the other facts which are sup-
posed to exist in order to make a certificate proper.

As to the proposed set of rules relating to poultry, there is, in my
opinion, an additional reason why they are invalid. The words "domes-
tic animals," as used in G. L., c. 129, § 2, do not, I think, include poultry.
The Division of Animal Industrj^ succeeded to the powers of the Depart-
ment of Animal Industry (Gen. St. 1919, c. 350, § 40), which succeeded
to the powers of the Board of Cattle Commissioners and the Cattle
Bureau (St. 1912, c. 608). The Cattle Bureau was given the powers of
the Board of Cattle Commissioners (St. 1902, c. 116). The power of the
Board of Cattle Commissioners to make rules is expressed in P. S., c. 90,
§ 13, as follows: —

"When such commissioners make and pubhsh any regulations con-
cerning the extirpation, cure, or treatment of animals infected with or
which have been exposed to any contagious disease, such regulations shall
supersede those made by mayors and aldermen and selectmen; and
mayors and aldermen and selectmen shall carry out and enforce all orders
and directions of the commissioners to them directed."

The authority here given to the Cattle Commissioners is over the same
subject matter referred to in section 1 of said chapter 90, in the following
words: "The mayor and aldermen of cities and the selectmen of towns,
in case of the existence in this commonwealth of the disease called pleuro-
pneumonia among cattle, or farcy or glanders among horses, or any other
contagious or infectious disease among domestic animals, shall cause"
the animals to be segregated, etc. It would seem that the term "domestic
animals," as here used, was not intended to include poultry. This view
is confirmed by the words of section 7, which provide that "they may
cause every animal infected with any such disease, or which has been
exposed thereto, to be forthwith branded upon the rump with the letter P ".
There is nothing in subsequent statutes tending to show that the term
"domestic animals" was intended to be given a new meaning which
might confer on the Cattle Commissioners the power or duty of passing
rules affecting poultry. This is further confirmed, moreover, by the
failure to include any poultry disease in the list of contagious diseases
enumerated in R. L., c. 90, § 28 (St. 1911, c. 6).

Furthermore, it is to be noted that in a number of instances the Legis-
lature has used the term "birds or poultry" in addition to "animals," so
indicating that the word "animals" is not sufficiently inclusive. Thus in
G. L., c. 180, § 2, "for encouraging the raising of choice breeds of domes-

74 P.D. 12.

tic animals and poultry"; in G. L., c. 131, § 2, ''preservation of birds
and animals"; in G. L., c. 130, § 2, "the laws relating to fish, birds,
mammals and game." I do not mean to intimate that there may not
be statutes in which the word "animals" may be construed as including
birds or poultry; but, in my opinion, it is not so to be construed in G. L.,
c. 129, § 2.

Yours very truly,

Joseph E. Warner, Attorney General.

Public Safety — Compressed Air Tank — Operation of Pneumatic
Machinery.

A compressed air tank used merely for starting in initial motion one
piston of a Diesel engine is comprehended within the meaning of
G. L., c. 146, § 34, relative to tanks for the storing of compressed
air.

March 28, 1929.
Gen. Alfred F. Foote, Commissioner of Public Safety.

Dear Sir: — You have asked my opinion upon the following matter: —

"Whether a compressed air tank setting in initial motion one piston
of a Diesel engine may be considered as operating pneumatic machinery
as specified in the law."

You have advised me of the following facts in connection therewith : —

"The method of using the compressed air contained in the tank is as
follows :

For the purpose of starting the engine in the first instance, the com-
pressed air contained in the tank is applied to a cylinder of the engine,
compressing the air therein to a temperature of approximately 500 de-
grees Fahrenheit. A portion of oil at this instant is injected into the
cylinder, the heat igniting the oil and causing combustion and explosion.
The expansion of this cylinder compresses the next in a similar manner,
and so on. The tank is used for the sole purpose of starting the engine.
This method has been used for more than twenty-five years, but not to
any considerable extent until about 1914, since which time these engines
and tanks have been gradually coming into considerable use in place of
steam engines."

The pertinent provisions of the statutes are as follows, G. L., c. 146,
§34:-

"No person shall install or use, or cause to be installed or used, any
tank or other receptacle, except when attached to locomotives, street or
railway cars, vessels or motor vehicles, for the storing of compressed air
at any pressure exceeding fifty pounds per square inch, for use in operat-
ing pneumatic machinery, unless the owner or user thereof shall hold a
certificate of inspection issued by the division, certifying that the said
tank or other receptacle has duly been inspected within two years, or
unless the owner or user shall hold a pohcy of insurance upon the said
tank or other receptacle issued by an insurance companj^ authorized to
insure air tanks within the commonwealth, together with a certificate of
inspection from an insurance inspector who holds a certificate of com-
petency described in section sixty-two."

P.D. 12. 75

The Attorney General does not pass upon questions of fact, but if, as
would appear from the statements in your letter, the motive power of
the Diesel engine is not compressed air, the mere fact that compressed
air from tanks is used in the initial process of starting the engine would,
in my opinion, not be sufficient so that it could be said that a tank em-
ployed solely for the purpose of furnishing compressed air for such start-
ing purposes was a tank for the storing of compressed air "for use in
operating pneumatic machinery," within the meaning of the statute.
The mere starting of machinery whose motive power thereafter is not
pneumatic cannot fairly be said to be comprehended bj'' the employment
of the words "use in operating pneumatic machinery. ^^ The words "oper-
ating" and "starting," as the former is used in the statute, are not synon-
ymous. The intent of the Legislature, as expressed in the words of the
statute, appears to be to provide for the adequate safeguarding of tanks
storing compressed air which were to be used for something more than
brief periods.

Yours very truly,

Joseph E. Warner, Attorney General.

Constitutional Law — Water Supply — Cities.

The Legislature may constitutionally redistribute the burdens assumed
under an agreement between different cities relative to a water
supply.

April 11, 1929.

Committee on Water Supply.

Gentlemen: — You request my opinion as to whether House Bill No.
932, entitled "An Act relative to water supply for the cities of Salem and
Beverly," would, if enacted, be constitutional.

St. 1913, c. 700, § 3, provides that the payment of certain expenses
incurred in connection with a joint water supply for Salem and Beverly
should be apportioned two-thirds and one-third. The proposed bill
amends this section by changing the apportionment to three-fourths for
Salem and one-fourth for Beverly.

The argument that this proposed change is unconstitutional is based
upon the contention, made in behalf of the city of Salem, that by action
taken by the two cities under earlier statutes, which permitted Beverly
to acquire a one-third interest in the water supply of Wenham Lake, a
contract was created between the two cities which binds Beverly to
bear one-third of the burden of providing and maintaining a joint water
supply, and that the change proposed in the present bill impairs the
obligation of that contract.

By St. 1864, c. 268, Salem was authorized to take, and did take, for the
purpose of a water supply, Wenham Pond, in Wenham and Beverly, and
certain lands and water rights in connection therewith. By section 15
of said act towns upon the line of works, including Beverly, were entitled
to a reasonable use of the water upon paying an equitable compensation
therefor. See also St. 1869, c. 380; St. 1877, c. 144.

By St. 1885, c. 294, Beverly was authorized to supply itself with water,
and for that purpose to draw directly from Wenham Pond so much of
the waters thereof and of the waters which flow into and from the same
"as it may require." By section 10 it was provided that upon the estab-
hshment of independent works by Beverly, the town should pay to Salem

76 P.D. 12.

on(>-third of the expense theretofore sustained by Salem in connection with
securing and preserving the water supply in Wenham Pond and also one-
third of the expenses thereafter incurred by Salem at Beverly's request
in securing and preserving the purity of the waters of said pond ; and upon
the payment by Beverly of one-third of the expense theretofore incurred,
Salem should record a declaration of trust in or concerning "said lands,
water rights and easements," declaring that "one undivided third part
of the same is held in trust" for Beverly, and that Beverly is entitled
"to the beneficial enjoyment of said one undivided third part thereof."
Beverly paid the one-third, and Salem in 1888 recorded the declaration
of trust, as provided for by the statute (Essex Deeds, book 1217, page 128).

By section 11 of said act of 1885, it was further provided that the town
of Beverty may draw from said pond "such water as it may require,"
without compensation to the city of Salem; but that if for any reason
the supply in said pond were "insufficient to supply the needs of said
city and its inhabitants and of said town and its inhabitants," there-
after, "so long as the supply remains insufficient as aforesaid, said town
shall take from said pond only so much water as shall bear the same
proportion to the water taken by said city from said pond as the number
of inhabitants of said town bears to the number of the inhabitants of
said city."

By St. 1893, c. 364, Salem was authorized, for the purpose of providing
an additional water supply for Salem and Beverly, to take certain addi-
tional waters and to convey them into Wenham Lake; and by section 10
it was provided that upon payment by Beverly of one-third of the ex-
pense, Salem should record a declaration of trust, declaring that one
undivided third thereof was held in trust for Beverly and that Beverly
is entitled to the beneficial enjoyment of the same. It is my understand-
ing that such taking was made, that Beverly made the payment and that
Salem filed the declaration of trust.

St. 1913, c. 700, created the Salem and Beverly Water Supply Board.
By section 4 said board was authorized, for the purpose of providing for
the supply for Salem and Beverly, to acquire waters from the Ipswich
River, and to construct works and acquire other rights in connection
therewith; and section 5 provided that such propertj^ and rights should
vest in Salem and Beverly "as tenants in common in the proportion
named in section three hereof" — i.e., in the proportion of two-thirds
and one-third. Payment of expenses so incurred by the board was to be
made from a fund, established by section 16, which was created from
the proceeds of the issuance of bonds and notes by Salem and by Beverly
as requested by the board, "provided, that at no time shall said city
(Beverly) be requested to issue said bonds or notes to an amount greater
or less than one-half the amount so requested in the case of the city of
Salem" (§14).

As to expenses incurred by the board in maintenance, care and opera-
tion, it is provided by section 19 that these shall be paid by the respec-
tive cities from current revenues derived from water rates or taxation, in
the proportion named in section 3 — i.e., two-thirds and one-third, for a
term of five years; but that every five years thereafter the board shall
determine the proportion, subject to right of appeal to the Superior Court.

Section 3 of said act of 1913, which the present bill aims to amend by
changing the proportion from two-thirds and one-third to three-fourths
and one-fourth, reads as follows: —

P.D. 12. 77

"All expenses, liabilities and damages incurred by said board in carry-
ing out the purposes of this act shall be paid, except as hereinafter pro-
vided, by said cities in the proportion of one third by the city of Beverly
and two thirds by the city of Salem, and payment shall be made in the
manner provided in section seventeen from the fund established by
section sixteen hereof."

The proposed amendment effects no change in the proportion of owner-
ship in any property heretofore acquired, nor does it involve any read-
justment of payments already made. Neither does it affect in an}^ way
the existing liability of the two cities for care and maintenance, either of
property now owned in common or hereafter to be acquired, for that is
determined by section 19 of the act. The sole effect, therefore, of the
proposed change would be to impose a different allocation of the expense
in the event that the board shall hereafter acquire additional property
or construct additional works, as, for instance, a new reservoir at Put-
namville, to which you refer.

If the Legislature decides that, as to this, justice requires a different
apportionment of expense from that which has previously been applied
in connection with the joint water supply of the two cities, I can see no
constitutional objection to the enactment of a law to that effect. The
fact that in the case of this proposed reservoir at Putnamville the water
will presumably be drawn from there into Wenham Lake, does not, in
my opinion, alter the case, especially since the right of the respective
cities to draw water from Wenham Lake is not fixed by any apportion-
ment, except in the unusual event of a shortage. (St. 1885, c. 294, § 11.)
Under ordinary circumstances the right of the city of Beverly is to draw
such water "as it may require" (St. 1885, c. 294, §§ 2 and 11), and the
right of the city of Salem is no doubt the same.

Moreover, the Legislature has very broad powers in making read-
justments of the rights and property of municipal corporations. In
Mount Hope Cemetery v. Boston, 158 Mass. 509, 521, the court said: —
"Upon the division of counties, towns, school districts, public property
with the public duty connected with it is often transferred from one
public corporation to another public corporation." As the court in this
case and in manj^ others points out, the question is very different from
that involved where the rights of individuals or quasi-pubhc corporations
are concerned.

In Scituate v. Weymouth, 108 Mass. 126, 131, the court said: — "It was
an exercise of the authority of the legislature to distribute public burdens
and duties. It is clear that, under the same constitutional power, it had
the right to change the law and redistribute these public burdens, if from
a change of circumstances or other reason it deemed it just and proper
so to do."

See also Cambridge v. Lexington, 17 Pick. 222; Attorney General v.
Cambridge, 16 Gray, 247; Turners Falls Fire District v. Millers Falls Water
Supply District, 189 Mass. 265; City of Boston, petitioner, 221 Mass. 468;
Opinion of the Justices, 234 Mass. 612, 616; Selectmen of Brookline,
petitioners, 236 Mass. 260.

Indeed, the Legislature, by the act of 1913 here under consideration,
has by section 19 apparently made provision for changing the distribu-
tion of the burden of care and maintenance from two-thirds and one-
third to such proportion as the board should, after a five-year term,

78 P.D. 12.

decide to be proper; and the constitutionality of that provision seems
not to have been questioned.

I would suggest, however, that House Bill No. 932 seems inadequate
to effect the change intended, for the reason that payments are to be
made from the fund, and section 14 of said act of 1913 would still pro-
vide that Beverly's contribution to the fund should be one-half that of
Salem. If, therefore, the Legislature desires to change the allocation,
section 14 and perhaps other sections of the act should be amended, in
addition to section 3.

You also ask whether the city of Salem now has the legal right to take
an unlimited quantity of water from Wenham Lake, which would prevent
the city of Beverly from taking one-third of the water of said lake for
water supply purposes. The answer to this question depends upon
whether Beverly requires one-third of the water. As already stated,
either city has the right to take as much as it requires, except in the event
of a shortage, when the right is limited as provided in St. 1885, c. 294, § 11.
Very truly yours,

Joseph E. Warner, Attorney General.

Constitutional Law — Charitable Trust Funds — Cy Pres.

An act is an unconstitutional invasion by the Legislature of the judicial
function if it attempts to alter a trust agreement relative to the appli-
cation of funds for a charitable purpose.

April 11, 1929.

J\Ir. Elmer L. McCulloch, House Chairman, Committee on Towns.

Dear Sir : — You have asked my opinion as to whether House Bill
No. 737 would, if enacted into law, be constitutional. The act authorizes
the Trustees of the School Fund in the Town of Hopkinton, a corporation
organized under the provisions of an act approved June 17, 1820, to
transfer and convey all its property to the town of Hopkinton, which,
acting through its school committee, shall receive and apply said funds
upon the same trusts as those upon which said trust funds and property
are now held. The act further provides that the corporation shall there-
upon be dissolved.

The act of 1820 creates the present trustees as a corporation for the
purpose of holding and applying certain funds for school purposes. Those
funds were apparently originally provided by certain public spirited in-
habitants interested in the schools of the town, and the act of 1820
created a method of administering the fund, which method I assume to
have been in conformity with the donors' wishes. The persons interested
in the present act were not able definitely to trace the original source
and history of this fund, and a somewhat limited investigation by this
office has not aided materially. The question is therefore treated as if
there was, prior to 1820, a gift for charitable uses to be administered for
the purposes and in the manner described by the act of 1820.

If the act is unconstitutional, it is because of one or more of the following
reasons : —

1. It impairs the obligation of the contract between the State and the
corporation.

2. It impairs the obligation of the contract between the corporation
and the donor or donors of the fund.

3. It is an attempted exercise of the judicial power by the Legislature.

P.D. 12. 79

1. The Legislature may not alter or repeal the charter of a corporation
issued prior to 1831 without' its consent. The present act, however, is
dependent upon the assent of the corporation, and therefore cannot be
said to be objectionable on the first ground.

2. It has repeatedly been held that a gift to a charitable corporation
constitutes a contract between the corporation and the donor, and that
any act impairing this agreement violates the Constitution of the United
States. It is very probable that this act, dissolving the corporation by
whom the trust is administered and causing the funds to be turned over
to the town, may be contrary to the wishes and intent of the donor. It
is not unlikely that the donor intended and desired that the management
of the fund should be left in the hands of private persons rather than
public officers, who might be influenced by political and personal motives.
Assuming that the act of 1820 expresses the intent of the donor or donors
of this fund, I am of the opinion that the constitutionalit}^ of this act
would be open to grave doubt upon this ground.

3. Any material change in the objects of a charity or the agents by
whom it is to be administered must be made by the courts, and then
only if the original purposes are impossible or impracticable; further,
the court must also find a dominant or general charitable intent on the
part of the donor which is consistent with the contemplated changes.
This action on the part of the court is generally referred to as the applica-
tion of the cy-pres doctrine, and is exclusively a judicial function. Gary
Library v. Bliss, 151 Mass. 364; Opinion of the Justices, 237 Mass.
613, 617.

The Legislature has a somewhat vaguely defined power over charitable
trusts held by municipalities, and may authorize the conversion of real
estate into personalty in certain cases, but beyond this, action in any
given case which alters the original gift must be had by the judicial de-
partment. The court, in the case of Ware v. Fitchburg, 200 ]\Iass. 61,
decided that the Legislature had power to determine by statute who
should be the agent of the city to administer a charitable fund left to it ;
the case does not hold that the Legislature may change the trustee or
terminate a charitable corporation, and no case has come to my attention
where this was properly done by the Legislature.

It follows that the act, in so far as it attempts to alter the trust agree-
ment, is an unconstitutional invasion by the Legislature of an exclusively
judicial function.

Very truly yours,

Joseph E. Warner, Attorney General.

Public Health — Local Board of Health — Inspector — Appointment.

A city manager, in lieu of a mayor, has the duty to nominate an inspector
of slaughtering to the Department of Public Health, but the approval
of such nomination by the Department alone constitutes the appoint-
ment of the person so nominated.

April 18, 1929.

Dr. George H. Bigelow, Commissioner of Public Health.

Dear Sir : — You have asked my opinion upon the following ques-
tion : —

"Will you kindly inform me whether or not the city charter of Fall
River removes from the board of health of Fall River the right to make a

so P.D. 12.

iiouiination to tliis Department of a person for the position of slaughter-
ing inspector, and, after such nominee has been approved, the right to
make the appointment?"

You have advised me in connection with your inquiry that you have
received the following communication from the city manager of Fall
River: —

"April 6, 1929.

George H. Bigelow^ M.D., Commissioner of Public Health, State House,
Boston, Massachusetts.

Dear Sir : — The local board of health has recommended the appoint-
ment of Edward F. Carey, V.S.. as inspector of slaughtering for the city
of Fall River.

I do hereby notify you that under the present cit}^ charter it is manda-
tory for all appointments to be made by the city manager. Therefore I
have on this date appointed Edward F. Carey, V.S., to said position.
Respectfully yours,

Edward F. Harrington,

City Manager J'

The government of the city of Fall River is now carried on under
Plan D, as set forth in G. L., c. 43, §§ 79-92. Under this plan it is pro-
vided that there shall be a "city manager" (§ 89), and he is given the
authorit3% among other things, to "appoint and remove all heads of
departments, superintendents and other employees of the city" (§ 90).

G. L., c. 43, §§ 79-92, providing for a special plan of city government,
were not intended by the Legislature to override other existing provisions
of the General Laws relative to appointments.

G. L., c. 129, § 15, provides as follows: —

"The mayor in cities, except Boston, and the selectmen in towns shall
annually, in March, nominate one or more inspectors of animals, and
before April first shall send to the director the name, address and occu-
pation of each nominee. Such nominee shall not be appointed until
approved by the director. In cities at least one such inspector shall be
a registered veterinary surgeon."

As has been said with relation to animal inspectors generally, in an
opinion given to the Commissioner of Conservation by my immediate
predecessor in office (Attorney General's Report, 1928, pp. 69, 70): —

"Section 15 places an affirmative duty upon mayors and selectmen to
nominate inspectors, and provides that the nominee shall not be appointed
until approved by the Director of Animal Industry."

Approval of nominations of such inspectors as are termed inspectors of
slaughtering rests with the Department of Pubhc Health instead of with
the said Director, by virtue of the terms of G. L., c. 94, § 128, which are
as follows : —

"For the purposes of sections one hundred and nineteen, one hundred
and twenty-five to one hundred and twenty-seven, inclusive, and one
hundred and forty-seven, said inspectors shall be appointed and com-
pensated, and may be removed, in the manner provided for inspectors
of animals, under sections fifteen to seventeen, inclusive, of chapter one
hundred and twenty-nine, except that in respect to such first named
inspectors, local boards of health and the department of public health

P.D. 12. SI

shall perform the duties and exercise the authority imposed by said
sections upon the aldermen or selectmen and upon the director of animal
industry, respectively, as to inspectors of animals."

"First named inspectors," in said section, as appears by reference to
the earlier sections of the same statute, are what are commonly termed
inspectors of slaughtering, and as to them the Department of Public
Health exercises a power of approving their nominations similar to that
given to the Director with relation to other inspectors.

G. L., c. 94, § 126, refers to "an inspector appointed by the local board
of health" as one who performs duties with relation to slaughtering.
This may give rise to some confusion, which appears to result from the
codification of the General Laws in 1921. Prior to such codification
R. L., c. 90, § 12, had provided that "the mayor and aldermen in cities"
should nominate inspectors of slaughtering. As the local boards of
health were given authority to perform the duties of aldermen, they
exercised a part, at least, in the power to appoint such inspectors. As
the laws stand since the enactment of the General Laws, the power to
nominate such inspectors is vested by said G. L., c. 129, § 15, in the
mayors of cities.

Although the power of appointing the employees of cities under Plan D
(G. L., c. 43, §§ 90, 91), has been taken from the mayor and vested in
the city manager, there is not such repugnancy between G. L., c. 43,
§§ 90 and 91, and G. L., c. 129, § 15, as works an implied repeal of the
latter section or renders it inapplicable to the cities operating under said
plan.

Although it is true that the mode of appointing inspectors has been
transferred by said Plan D from the mayor to the manager, yet this
difference does not involve a material variation from the procedure out-
lined in G. L., c. 129, § 15. The duty now rests upon a city manager, in
lieu of a mayor, to make a nomination of an inspector of slaughtering to
the Department of Public Health. Even though the naming of a person
for such a position be called an appointment by the city manager, it is in
effect only a nomination and is to be treated as such, and is subject to
the approval of the Department. When the Department's approval has
been given to the appointment of the person named, then, and not before
then, the appointment msiy be validly made by the city manager. See
Attorney General's Report, 1927, p. 155.

Very truly yours,

Joseph E. Warner, Attorney General.

Civil Service — Labor Service — Rules.

The Commissioner of Civil Service is bound to provide rules for the
registration and certification of laborers in Springfield, and these
rules do not need to be approved by the municipality.

April 18, 1929.

Hon. Elliot H. Goodwin, Commissioner of Civil Service.

Dear Sir: — You have asked my opinion upon the three following
questions : —

" (a) Is the application of the rules governing the laboi- service, as

82 P.D. 12.

established by the Commission, with the approval of the Governor and
Council, mandatory for the city of Springfield?

(6) If not, is action required by the Civil Service Commission in fram-
ing a new rule to be submitted to the Governor and Council?

(c) Is such action in any way subject to consideration or approval by
the authorities of the city of Springfield? "

G. L., c. 31, § 3, provides: —

"The board shall, subject to the approval of the governor and council,
from time to time make rules and regulations which shall regulate the
selection of persons to fill appointive positions . . . and, except as other-
wise provided in section forty-seven, the selection of persons to be em-
ployed as laborers or otherwise in the service of the commonwealth and
said cities and towns. Such rules shall be of general or limited applica-
tion, shall be consistent with law ..."

Said section 47 referred to in section 3 is as follows : —

"This chapter shall continue in force in all the cities of the common-
wealth and in all towns of more than twelve thousand inhabitants which
have accepted corresponding provisions of earlier laws, and shall be in
force in all such towns which hereafter accept it by vote at a town meet-
ing. The provisions of this chapter and the rules established under it
relative to employment of laborers designated as the 'labor service' shall
not be in force in any city of less than one hundred thousand inhabitants,
which has not heretofore accepted the corresponding provisions of earlier
laws, until said provisions are accepted by the city council."

The provision in section 47 above quoted, that rules relative to em-
ployment of laborers shall not be in force in any city of less than 100,000
inhabitants is not intended to grant perpetual exemption from the rule
making power, under said section 3, to any city which had such a popula-
tion at the time of the enactment either of the General Laws or of the
original statute containing a similar provision in 1896 (St. 1896, c. 449,
amending St. 1884, c. 320). All cities in the Commonwealth have been
at all times since the passage of said St. 1896, c. 449, subject to the gen-
eral terms now embodied in said section 3, and when any one of them
reaches a population of 100,000 the provisions and rules established under
said section 3, relative to employment of laborers, become applicable
to such a city. See St. 1884, c. 320, § 2.

Civil Service Rule 32, section 3, provides as follows: —

"The Commissioner shall provide for the registration and certification
of laborers in the service of the Metropolitan District Commission and
the city of Boston, and in other cities to which the labor rules are or
may become applicable. The Commissioner may appoint persons to be
registration clerks in such other cities."

Inasmuch as the city of Springfield now has a population in excess of
100,000, said Rule 32, section 3, is now applicable thereto, and from the
terms of said Rule 32, section 3, it appears that it is mandatory upon
the Commissioner to provide for the registration and certification of
laborers in said city.

I therefore answer your question (a) in the affirmative.

This answer precludes the necessity of making a specific reply to your
question (6).

P.D. 12. 83

The approval and acceptance of any particular laws is not made by
the statutes a prerequisite to the establishment of rules relative to the
employment of laborers in cities of over 100,000 inhabitants. I therefore
answer your question (c) in the negative.

Yours very truly,

Joseph E. Warner, Attorney General.

Governor and Council — State House — Radio Equipment.

The Governor and Council have the authority to approve the erection
of a part of a radio equipment used by the Department of Public
Safety upon the roof of the State House.

April 29, 1929.

To His Excellency the Governor and the Honorable Council.^

Gentlemen : — You have requested to be advised as to the authority
of the Governor and Council to grant their approval to the erection of a
steel tower to support an antenna, which is a part of the radio equipment
used in the pohce work of the Department of Public Safety, upon the
roof of the rear of the State House, such erection having been asked for
by the Commissioner of said Department.

I am of the opinion that such an erection ma}'^ properly be made if it
meets with the approval of the Governor and Council.

G. L., c. 8, § 6, as amended by St. 1923, c. 362, § 10, provides, with
relation to the authority of the Superintendent of Buildings, as follows : —

''He shall direct the making of all repairs and improvements in the
state house and on the state house grounds. All executive and adminis-
trative departments and officers shall make requisition upon him for any
repairs or improvements necessary in the state house or in other buildings
or parts thereof owned by or leased to the commonwealth and occupied
by said departments or officers. Such repairs or improvements shall be
made only upon such requisition signed by the head of the department
or office. This section shall not apply to state institutions or officers
thereof."

G. L., c. 8, § 9, is, in part, as follows: —

"The superintendent shall, under the supervision of the governor and
council, have charge of the care and operation of the state house and its
appurtenances."

The erection of the steel tower may be said to fall within the terms of
section 6 as an improvement in the State House, and I assume from
the communication which you sent me that a requisition for the same,
signed by the Department of Public Safety, has been made upon the
Superintendent.

Inasmuch as the intent of the Legislature in enacting said section 9
was, obviously, to provide that the Governor and Council should have
direct charge of the State House and its appurtenances, their approval
should be given to the making of this contemplated improvement under
the direction of the Superintendent of Buildings.
Yours very truly,

Joseph E. Warner, Attorney General.

S4 P.D. 12.

Motor Vehicles — ^^ Right to operate" — Revocation.

The right to operate a motor vehicle without ever having received a hcense,
allowed by G. L., c. 90, § 10, as amended, maj^ be revoked by the
Registrar of Motor Vehicles, and any unlicensed operation thereafter
may be punished.

May 8, 1929.

Hon. Frank E. Lyman, Commissioner of Public Works.

Dear Sir : — You have asked my opinion as to the interpretation of
certain portions of the statutes concerning the operation of motor vehicles
in the following communication : —

"I am requested by the Registrar of Motor Vehicles to secure an
opinion as to the exact meaning or effect of the suspension of the right
of any person to operate motor vehicles in the Commonwealth of Massa-
chusetts, under G. L., c. 90, § 22, and whether that person may be prose-
cuted under section 23 of said chapter."

The pertinent portions of the statutes are quoted below.

G. L., c. 90, § 10, as amended by St. 1923, c. 464, § 4, provides: —

"No person shall operate a motor vehicle upon any way unless licensed
under this chapter, except as is otherwise herein provided ; but this section
shall not prevent the operation of motor vehicles by unlicensed persons if
riding xoith or accompanied by a licensed operator, excepting only persons
who have been licensed and whose licenses are not in force because of
revocation or suspension, persons whose right to operate has been sus-
pended by the registrar, and persons less than sixteen years of age; but
such licensed operator shall be liable for the violation of any provision
of this chapter, or of any regulation made in accordance herewith, com-
mitted by such unlicensed operator; provided, that the examiners of
operators, in the employ of the registrar, when engaged in their official
duty, shall not be liable for the acts of any person who is being examined.
During the period within which a motor vehicle of a non-resident may be
operated on the ways of the commonwealth in accordance with section
three, such vehicle may be operated by its owner or by his chauffeur or
employee without a license from the registrar if the operator is duly
licensed under the laws of the state in which he resides, or has complied
fully with the laws of the state of his residence respecting the licensing
of operators of motor vehicles; but if any such non-resident or his chauf-
feur or employee be convicted by any court or trial justice of violating
any provision of the laws of the commonwealth relating to motor vehicles
or to the operation thereof, whether or not he appeals, he shall be there-
after subject to and required to comply with all the provisions of this
chapter relating to the registration of motor vehicles owned by residents
of the commonwealth and the licensing of the operators thereof. A record
of the trial shall be sent forthwith by the court or trial justice to the
registrar. This section shall apply to the operation of all vehicles pro-
pelled by power other than muscular power, except railroad and railway
cars, road rollers, and motor vehicles running only upon rails or tracks."

G. L., c. 90, § 22, as amended by St. 1923, c. 464, § 6, provides: —

"The registrar may suspend or revoke any certificate of registration
or any license issued under this chapter, after due hearing, for any cause
which he may deem sufficient, and he may suspend the license of any

P.D. 12. 85

operator or fhe certificate of registration of any motor cycle in his dis-
cretion and without a hearing, and may order the Hcense or registration
certificate to be dehvered to him, whenever he has reason to beheve that
the holder thereof is an improper or incompetent person to operate motor
vehicles, or is operating improperly or- so as to endanger the public : and
neither the certificate of registration nor the license shall be reissued
unless, upon examination or investigation, or after a hearing, the registrar
determines that the operator should again be permitted to operate. The
registrar, under the same conditions and for the same causes, may also sus-
pend the right of any person to operate motor vehicles in the commonwealth
under section ten until he shall have received a license from the registrar."

G. L., c. 90, § 23, as finally amended by St. 1927, c. 267, § 2, provides: —

"Any person convicted of operating a motor vehicle after his license to
operate has been suspended or revoked or after notice of the suspension
of his right to operate a motor vehicle without a license has been issued by
the registrar and received by such person or by his agent or employer
and, prior to the restoration of such license or right to operate or to the issuance
to him of a new license to operate, and any person convicted of operating
or causing or permitting any other person to operate a motor vehicle
after the certificate of registration for such vehicle has been suspended
or revoked and prior to the restoration of such registration or to the
issuance of a new certificate of registration for such vehicle, shall, except
as provided by section twenty-eight of chapter two hundred and sixty-
six, be punished for a first offence by a fine of not less than fifty nor more
than one hundred dollars or by imprisonment for not more than ten
days, or both, and for any subsequent offence by imprisonment for not
less than ten days nor more than one year, and any person who attaches
or permits to be attached to a motor vehicle a number plate assigned by
the registrar to another vehicle, or who obscures or permits to be obscured
the figures on any number plate attached to any motor vehicle, or who
fails to display on a motor vehicle the number plate and the register
number duly issued therefor, with intent to conceal the identity of such
motor vehicle, shall be punished by a fine of not more than one hundred
dollars or by imprisonment for not more than ten days, or both."

The proper construction of the statutes with relation to the subject
matter of your inquiry will ultimately be one for judicial determination,
but for your guidance and that of the Registrar of Motor Vehicles I state
that my opinion is that "the right of any person to operate motor vehicles
in the Commonwealth under section ten until he shall have received a
license from the registrar," mentioned in the last sentence of G. L., c. 90,
§ 22, refers to the right to operate accorded by G. L., c. 90, § 10, to (1)
unlicensed persons riding with or accompanied by a licensed operator
who are not within the classes of persons specifically excepted from the
enjoyment of such right by said section, and (2) non-residents, unlicensed
in this Commonwealth, under certain circumstances set forth in said
section. Any of such persons who operates a motor vehicle after his right
to operate, as defined above, is suspended by the action of the Registrar,
under said section 22, may be prosecuted under the provisions of said
section 23.

In other words, the right to operate, referred to in the last sentence of
said section 22, is the right to operate without ever having received a
license, and when such right is lost by the action of the Registrar further

86 P.D. 12.

unlicensed operation of any sort, whether the specific kind enjoyed under
the particular "right" or not, pending restoration of such right, subjects
the person to the penalties appropriate for such offence set forth in said
section 23. A similar interpretation is to be applied to the words "after
his right to operate without a license has been suspended," as used in
G. L., c. 266, § 28, as amended by St. 1926, c. 267, § 1, reading as follows: —

"Whoever steals an automobile or motor cycle, or receives or buys an
automobile or motor cycle knowing the same to have been stolen, or
conceals any automobile or motor cycle thief knowing him to be such,
or conceals any automobile or motor cycle knowing the same to have
been stolen, or takes an automobile or motor cycle without the authority
of the owner and steals from it any of its parts or accessories, or without
the authority of the owner operates an automobile or motor cycle after his
right to operate without a license has been suspended or after his license to
operate has been suspended or revoked and prior to the restoration of
such right or license to operate or to the issuance to him of a new license
to operate, shall be punished by imprisonment in the state prison for not
more than ten years or imprisonment in jail or house of correction for
not more than two and one half years."

Very truly yours,

Joseph E. Warner, Attorney General.

Commissioner of Correction — Officer — Pension.

With relation to certain employees of the Department of Correction
only "officers" may be retired on a pension, and a prehminary de-
termination as to whether an applicant for a pension is an officer
must be made by the Commissioner.

May 17, 1929.
Hon. Sanford Bates, Commissioner of Correction.

Dear Sir: — You ask my opinion on the following question: —

"A man, employed at the Reformatory for Women since January, 1894,
under various titles but doing practically the same kind of work, largely
disciplinary cases with the inmates, has asked for a ruling as to whether
or not he is eligible for retirement under the prison officers' retirement
act, G. L., c. 32, § 46. He contends that while he has not been hsted as
an officer of the institution he has in fact been the only disciplinary officer
there since his appointment, and therefore should be eligible for retire-
ment as an officer."

G. L., c. 32, § 46, as amended by St. 1921, c. 403, and St. 1926, c. 343,
§ 7, provides: —

"The commissioner of correction may, with the approval of the gov-
ernor and council, retire from active service and place upon a pension
roll any officer of the state prison, the Massachusetts reformatory, the
prison camp and hospital, the state farm, the reformatory for women or
any jail or house of correction, or any person employed to instruct the
prisoners in any prison or reformatory, as provided in section fifty-two
of chapter one hundred and twenty-seven, or any other employee of the
state prison, the Massachusetts reformatory or the prison camp and
hospital, who has attained the age of sixty-five and who has been em-
ployed in prison service in the commonwealth, with a good record, for
not less than twenty years; or who, without fault of his own, has become

P.D. 12. 87

permanently disabled by injuries sustained in the performance of his
duty; or who has performed faithful prison service for not less than
thirty years; . . . and provided, that no such officer, instructor or em-
ployee shall be retired unless he began employment as such in one of the
above named institutions, or as an officer or instructor in one of those
named in the following section, on or before June seventh, nineteen hun-
dred and eleven. The word 'officer', as used in this and the two follow-
ing sections, shall extend to and include prison officer, correction officer
and matron."

It is clear that the only employees of the Reformatory for Women
eligible for a pension under the foregoing statute are officers, which term
includes "prison officer, correction officer and matron," and instructors.

In an opinion of a former Attorney General, dated February 24, 1914
(not published), in which he had occasion to consider St. 1908, c. 601, as
amended by St. 1911, c. 673 (the original statute providing for the retire-
ment and pensioning of officers and instructors and other employees in
penal institutions of the Commonwealth), he defined the word "officer,"
as used therein, to mean "those persons who are employed to, and who as
a regular part of their duties do, have charge either of all or a definite
number of persons committed to prison, jail or reformatory by legal
process."

St. 1921, c. 403, enlarged the scope of the law relative to retiring and
pensioning all prison officers by defining the word "officer" to include
"prison officer, watchman and matron." The term "watchman" was
stricken out by St. 1926, c. 343, § 7, and the words "correction officer"
were substituted. The additions and elisions made by these statutes do
not, in my opinion, alter the definition quoted above.

In a later opinion of another Attorne}^ General (V Op. Atty. Gen: 227)
it was said, in speaking of said definition: —

"This seems to me to be an appropriate definition of the term, and, in
my opinion, it should be emploj^ed in determining who are officers in the
prison service, within the meaning of the statute under consideration. . . .

If an employee is appointed and carried on the pay roll as an officer,
that fact may, pri7na facie, entitle him to the benefits of this statute,
though it is not conclusive. Calling a clerk an officer, of course, cannot
make him such. Nor does the fact that an employee may occasionally,
as an incidental part of his work, have some supervision over a few of
the prisoners who are assigned to work in his department make him an
officer. It must be a regular and substantial part of his duty to have
charge and control of prisoners in order to bring him within the definition
of prison officers to which I have referred. Thus, the engineers, assistant
engineers and stewards or cooks cannot, in my opinion, be regarded as
officers merely because prisoners are from time to time assigned to work
in their departments under their direction. Again, persons appointed as,
and in the main performing the duties of, clerks are not officers unless in
addition they perform substantial duties of the character indicated in
this definition of prison officers."

It would seem, therefore, that this resolves itself into a question of
fact in each individual case, and whether or not a person is an officer
must be determined b}- the Commissioner of Correction before such
person can be pensioned.

Yours very truly,

Joseph E. Warner, Attorney General.

88 P.D. 12.

Marriage and Divorce — Records — Corrections.

City or town clerks' records of marriages may not be expunged but may

be corrected.
The validity of a marriage is not determined by the records of a city or

town clerk.
Decrees of nullity as to marriages are not required to be filed with city

or town clerks.

May 23, 1929.
Hon. Frederic W. Cook, Secretary of the Conwionwealth.

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

"1. Can the record of a marriage which is subsequently annulled by
decree of court, or voided without a decree of divorce or other legal proc-
ess as provided in G. L., c. 207, § 8, be expunged from the record books
of a city or town clerk or registrar?

2. If such record cannot be expunged and such marriage stands as a
matter of record, must either party to such marriage, in making written
notice of intention of another marriage, state that such subsequent mar-
riage is his or her second marriage?

3. Must a copy of the decree, if any, be filed with the notice of intention
of marriage?"

1. There do not appear to be any provisions of the statutes which
provide for the expunging of records of a marriage kept by city or town
clerks. Correction of such records may be accomplished, however, in
the manner described in G. L., c. 46, § 13, as amended by St. 1925, c. 281,
§ 2, which reads 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. If a person
shall have acquired the status of a legitimate child by the intermarriage
of his parents and the acknowledgment of his father, as provided in sec-
tion seven of chapter one hundred and ninety, the record of his birth
may be amended or supplemented hereunder so as to read, in all respects,
as if such person had been reported for record as born to such parents in
lawful wedlock. For such purpose, the town clerk shall, if satisfied as
to the identity of the persons and the facts, receive an affidavit executed
by the parents or by either if the other is dead, setting forth the material
facts. Unless the marriage is recorded in the records in the custody of
such clerk, such affidavit shall be accompanied by a certified copy of the
record thereof. He shall file any affidavit submitted under this section
and record it in a separate book kept therefor, with the name and resi-
dence of the deponent and the date of the original record, and shall there-
upon draw a line through any incorrect statement, or statements, sought
to be amended in the original record, without erasing them, shall enter
upon the original record the facts required to correct, amend or supple-
ment the same and forthwith, if a copy of the record has been sent to
the state seci-etary, shall forward to the state secretary a certified copy
of the corrected, amended or supplemented record upon blanks to be

P.D. 12. 89

provided by him, and the state secretary shall thereupon correct, amend
or supplement the record in his office. Reference to the record of the
affidavit shall be made by the clerk on the margin of the original record.
If the clerk furnishes a copy of such record, he shall certify to the facts
contained therein as corrected, amended or supplemented, and shall
state that the certificate is issued under this section, a copy of which shall
be printed on every such certificate. Such affidavit, or a certified copy
of the record of any other town or of a written statement made at the
time by any person since deceased required by law to furnish evidence
thereof, may, in the discretion of the clerk, be made the basis for the
record of a birth, marriage or death not previously recorded, and such
copy of record may also be made the basis for completing the record of
a birth, marriage or death not containing all the required facts."

Under the foregoing provisions the city or town clerk is not required
to initiate action for the correction of marriage records, nor are there
any special requirements relative to such corrections in relation to mar-
riages which have been recorded but which are void.

With relation to the facts which are required to be recorded by said
clerks to make up such marriage records, it is provided by G. L., c. 46, § 1,
as follows : —

"Each town clerk shall receive or obtain and record in separate col-
umns the following facts relative to births, marriages and deaths in his
town :

In the record of marriages, date of record, date of marriage, place of
marriage, name, residence and official station of the person by whom
solemnized, names and places of birth of the parties married, residence
of each, age and color of each, the number of the marriage (as first or
second) and if previously married, whether widowed or divorced, the
occupation of each and the names of their parents, and the maiden names
of the mothers. If the woman is a widow or divorced, her maiden name
shall also be given."

If a marriage which has been recorded under the terms of said chapter
46, section 1, is a void marriage, an affidavit containing facts showing
that it is void, accompanied by a certified copy of a decree of nullity
entered by a court of competent jurisdiction under the provisions of
G. L., c. 207, § 14, if any such there be, although not required, might well
be 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," and the clerk would be required to re-
ceive it. Such affidavit would then be filed bj^ the clerk in the manner
described in said G. L., c. 46, § 13, as amended. The clerk would then
make such corrections, amendments, references and supplements on and
in the original records as said section 13 requires.

If this be done the void character of the marriage will appear of record,
and confusion with relation thereto in the future will be obviated. A
city or town clerk, however, as I have said, has no authority to "ex-
punge" the record of a marriage.

2. I answer j^our second question in the negative. The validity or
invalidity of a marriage is not determined by the records of a city or
town clerk relating to such a marriage. If a ceremony has not resulted in
a valid marriage, a subsequent marriage of either of the parties to such

90 P.D. 12.

ceremony is a first marriage as to him or her, irrespective of what appears
upon the records of a city or town clerk concerning the facts connected
with the first ceremony. See in this connection VII Op. Atty. Gen. 728.

3. I answer your third question in the negative. The fihng of a copy
of a decree of nulhty, either in connection with a correction of a record
of a marriage subsequently shown to have been void, or with a notice
of intention of marriage subsequent thereto, would tend to make records
in the offices of city and town clerks more accurate, but such filing is not
required by the terms of any statute.

Very truly yours,

Joseph E. Warner, Attorney General.

Milk — Misbranding — Prosecution.

Misbranding of milk by the use of the word "Guernsey" on a container
when the milk is not from Guernsey cattle and is inferior to the
product known as Guernsey, mav be prosecuted.

May 23, 1929.

Dr. George H. Bigelow, Commissioner of Public Health.

Dear Sir : — You have asked my opinion as to whether misbranding
of milk by the use upon the container of the word "Guernsey" in con-
nection with milk, when the milk is inferior to the product known as
Guernsey milk and not in fact obtained from Guernsey cattle, may be
prosecuted under the provisions of G. L., c. 94, § 187. I am of the
opinion that it may be so prosecuted.

The general definition of food, in section 1 of said chapter 94, is broad
enough to cover milk. The specific sections of chapter 94, which deal
with improperly labeling milk, such as sections 18 and 19, relate to mis-
leading names applied to grades and qualities of milk different in char-
acter from those comprehended in the definition of "misbranded," as
used in said section 187.

As originally enacted, that portion of G. L., c. 94, entitled "Adultera-
tion and misbranding of food and drugs," contained in section 185 an
exclusion from the operation of the ten following sections of various
commodities, including milk and cream.

By St. 1921, c. 486, § 26, section 185 was repealed, and there is now
no specific statutory limitation of the words "article of food" or "food"
as used generally in section 187. Of course, the ultimate decision of
your question is one for judicial determination in relation to any par-
ticular prosecution which may be started.

Yours very truly,

Joseph E. Warner, Attorney General.

Laborers — Contracts — Public Works — Payments.

Contractors engaged in the construction or repair of any water or electric
light works, pipes or lines may not contract with their workmen to
pay less often than once a week.

May 24, 1929.

Gen. E. Leroy Sweetser, Commissioner of Labor and Industries.

Dear Sir: — You have asked my opinion as to whether it is legal for
a contractor who is doing work for the Commonwealth to pay less often
than weekly such of his employees as may request in writing to be paid
in a different manner.

P.D. 12. 91

The law pertinent to the question is contained in G. L., c. 149, § 148,
as most recently amended by St. 1925, c. 165. There is no restriction
in this respect upon contractors doing work for the Commonwealth as
such. The section, however, does apply to contractors engaged in certain
enumerated types of work, among which is ''the construction or repair
of any . . . water or electric light works, pipes or lines." The company
to which your letter refers is apparently engaged in the construction of
the works in connection with the taking of the Swift and Ware rivers,
and therefore would come under the prohibition contained in the statute.

In my opinion, a company engaged in any of the types of work enu-
merated in the statute must pay its employees weekly, and may not
avoid this duty by contract with the employee or otherwise. That part
of the section which permits payment to be made in a different manner,
if the employee in writing so requests, applies only to cases involving
employment by the Commonwealth or a county, city or town, and cannot
be construed to apply to employees of private companies, whether they
are or are not doing work for the Commonwealth. It follows, therefore,
that your question should be answered in the negative.
Very truly yours,

Joseph E. Warner, Attorney General.

Dejpartment of Public Health — Investigation — Barbers.

Under a resolve of the Legislature the Department of Public Health has
authority to investigate barbering wherever practiced.

June 10, 1929.

Dr. George H. Bigelow, Commissioner of Public Health.

Dear Sir: — You have asked my opinion relative to the duties of
your Department under Resolves of 1929, chapter 43, in the follovv'ing
language : —

"Chapter 43 of the Resolves of 1929, recently passed, directs this De-
partment to investigate the matter of barbering in the Commonwealth.
In defining what constitutes 'barbering,' singeing, dj^eing and various
manipulations of and applications to the face are mentioned. Such pro-
cedures are practiced in so-called beauty parlors. I should like to know
whether, in your opinion, this definition of 'barbering' extends the scope
of our investigation to this latter type of establishment."

Resolves of 1929, chapter 43, reads as follows: —

^'Resolved, That the department of public health is hereby authorized
and directed to investigate the need, as a health measure, for establishing
a board of registration of barbers or otherwise regulating the practice of
barbering. For the purposes of the investigation, a barber shall be con-
strued to be an}^ person who, for hire, shaves or trims the beard, cuts the
hair, gives facial or scalp massage or facial or scalp treatment with oils,
creams or other preparations, or singes or shampoos the hair or applies
any hair tonics or dyes to the hair of any person and who is not a regis-
tered physician or a registered embalmer; and the performance of any
such service shall be construed as practising barbering. In connection
with its investigation the department shall consider the subject matter of
house document numbered one hundred and eighty-one of the current
year, and shall make such examination of the sanitary condition of bar-
bering establishments and the practices of barbers as it deems necessary.

92 P.D. 12.

Said department shall report to the general court its findings and its recom-
mendations, if any, together with drafts of such legislation as may be
necessary to carry its recommendations into effect, by filing the same
with the clerk of the house of representatives not later than the first
Wednesday of December in the current year. Said department may ex-
pend for the aforesaid purpose such sum, not exceeding three thousand
dollars, as may hereafter be appropriated by the general court."

Bj^ the terms of this resolve your investigation is to be directed to a
determination of the need, as a health measure, for establishing a board
of registration of barbers, or otherwise regulating the practice of barber-
ing, and j^ou are also directed to consider the subject matter of House
Document No. 181, dealing with the same subject, and in connection
therewith to make such examination of the sanitary condition of barber-
ing establishments and the practices of barbers as your Department may
deem necessary. A definition of "barber," for the purpose of the investi-
gation, is set forth in the resolve. There is no definition of "barbershop"
or of "beauty parlor" contained in the resolve.

You have authority, and it is your duty under this resolve, to investi-
gate the practice of barbering, as defined in the resolve, in whatever place
such barbering may be practiced. In so far as it may be carried on in
beauty parlors, the practice of barbering there is properly subject to your
investigation; and it is possible that the relation of the general type of
business conducted in the beauty parlor to barbering, as this affects the
sanitary condition of the latter, may require your investigation.

You have no authority under this resolve to investigate beauty parlors
as such, but whenever the practice of barbering, as defined in the resolve,
is carried on therein that practice and the surroundings which affect it
may well be considered by you.

Yours very truly,

Joseph E. Warner, Attorney General.

Corporations — Fee — Certificate of Change in Stock.

The fee under G. L., c. 156, § 54, as amended, is to be figured at one cent
per share for additional shares without par value.

June 11, 1929.

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

Dear Sir: — You request my opinion as to the fee to be charged for
filing a certain certificate relating to a change in authorized stock of a
certain corporation.

The certificate, or articles of amendment, in question provides for the
issuance of 6,000 shares of common stock without par value, in addition
to 6,000 shares without par value originally authorized and now outstand-
ing, and also provides for the retirement of 3,000 shares of preferred stock,
which you state to have a par value of $100.

G. L., c. 156, § 54, as amended by St. 1928, c. 360, § 2, reads as
follows : —

"The fees for filing and recording the following certificates shall be as
follows:

For filing and recording a certificate providing for an increase of capital
stock with par value, one twentieth of one per cent of the amount by which
the capital is increased; but not in any case less than twenty-five dollars.

P.D. 12. 93

For filing and recording a certificate providing for a change of shares
with par value to shares without par value, whether or not the capital is
changed thereby, one cent for each share without par value resulting from
such change, less an amount equal to one twentieth of one per cent of the
total par value of the shares so changed; but not in any case less than
twenty-five dollars.

For filing and recording a certificate providing for an increase in the
number of shares without par value, whether or not the capital is changed
thereby, one cent for each additional share; but not in any case less than
twenty-five dollars."

You state that the attorney for the corporation contends that the net
result of the transaction in question is a reduction of capitalization, and
that therefore the fee should be $10.00, as provided in section 55 for cer-
tificates other than those covered by section 54.

But in determining whether an increase of capitalization is effected,
shares without par value are to be treated as having a par value of $100
(see V Op. Atty. Gen. 570), and therefore the present transaction results
in a net increase rather than in a reduction.

Furthermore, under the amendment of 1928, above quoted, the fee in
the case of additional shares without par value does not appear to be
dependent upon a net increase in capitalization being effected. In the
case of shares without par value the law as it previously existed (see
Commonwealth v. United States Worsted Co., 220 Mass. 183; G. L., c.
156, § 54) has been changed by the amendment of 1928. The reduced
fee of one cent per share is expressly made independent of the question
"whether or not the capital is changed thereby." It is clear that the
transaction in question, involving, as it does, the issuance of additional
shares without par value, comes within the provisions of section 54, as
amended.

It might be questioned whether the certificate comes under the provisions
of paragraph 3 or of paragraph 4 of section 54, as amended. You assume
in your letter that it comes under the fourth paragraph, if under either,
and I think that that assumption is correct. Paragraph 3 refers to "a
change of shares with par value to shares without par value"; and it can-
not be said of the present transaction that any outstanding stock of par
value is being changed to stock without par value. The new stock is to be
issued for cash; it is not to be exchanged for the preferred, which is retired.

The present certificate provides for an increase in the number of shares
"without par value," and therefore comes within paragraph 4. It may
seem that the corporation should receive a deduction on account of the
preferred stock retired, and that the fee should be figured only upon net
increase of capitalization, as would have been done under section 54 be-
fore the amendment. That would make the fee $30.00. Or perhaps it
may be thought that a deduction should be given at the rate of five cents
per share upon the stock retired, as is provided in paragraph 3. That
would make the deduction $150, and therefore make the fee the mini-
mum of $25.00. But, in my opinion, under the words of paragraph 4
the fact that the preferred stock is being retired can have no bearing upon
the amount of the fee, which is to be figured upon the increase in the
number of shares without par value. If the Legislature had intended the
fee under paragraph 4 to be based upon the amount by which the capital
is increased, it would have said so, as it did in connection with paragraph
2; or if it had intended to give a deduction because of a retirement of
other stock, it would have said so, as it did in connection with paragraph 3.

94 P.D. 12.

In my opinion, therefore, the fee in the present case must be figured
at one cent per share for the additional 6,000 shares without par value,
that is, $60.00.

Yours very truly,

Joseph E. Warner, Attorney General.

Agriculture — Retailer of Seeds — Name.

The name of the retailer of agricultural seeds must appear on every
package of seeds, however put up.

June 12, 1929.

Dr. Arthur W. Gilbert, Commissioner of Agriculture.

Dear Sir: — You ask my opinion on certain questions relative to
G. L., c. 94, as amended by St. 1927, c. 274, in the following language: —

"G. L., c. 94, §§ 261A, 261B, 261C and 261E. require that the name and
address of the vendor be shown on containers of agricultural seeds or
mixtures of agricultural seeds. The question arises as to who the vendor
of the agricultural seeds is when there has been a sale of such seeds in the
Commonwealth. Many of the seeds that are sold have the name and
address of the wholesaler on the package, and a large amount of seeds
that are sold have the name and address of the wholesaler on the tag
fastened to the large container from which the seeds are sold in smaller
packages.

It is the contention of many of those who have been requested to ap-
pear with reference to reported violations of our seed law that the name
and address of the wholesaler satisfies the law as to the requirement for
the name and address of the vendor of such seeds or mixtures. Your
opinion is therefore requested as to who is the vendor in the sale of agri-
cultural seeds or mixtures thereof in the State of Massachusetts.

Sections 261A, 261B and 261C indicate that agricultural seeds or mix-
tures of agricultural seeds shall have affixed thereto in a conspicuous
place on the exterior of the container of such seeds or mixtures a plainly
written or printed tag or label with a statement in the English language
of certain required information. The question has arisen as to the inter-
pretation of the word 'container.' . . .

This Department is interested in the interpretation of the word 'con-
tainer.' . . . The question of importance, therefore, is whether or not
the word ' container ' refers to the package that is handed over the counter
to the vendee in a sale of agricultural seeds or mixtures thereof."

G. L., c. 94, as amended by St. 1927, c. 274, § 2, provides: —

"Section 261A. Every lot of agricultural seeds of ten pounds or more,
except as otherwise provided in sections two hundred and sixty-one B to
two hundred and sixty-one L, inclusive, shall have affixed thereto, in a
conspicuous place, on the exterior of the container of such agricultural
seeds, a plainly written or printed tag or label in the English language,
stating:

(f) Name and address of the vendor of such agricultural seed."

Sections 261B, 261C and 261E, added to G. L., c. 94, by St. 1927,
c. 274, § 2, contain similar provisions with reference to the information
to be written or printed on the tag or label to be affixed to the container.

Section 261L, added to said chapter 94 by the 1927 statute, provides: —

P.D. 12. 95

"Whoever sells, offers or exposes for sale, any lot of agricultural seeds,
or mixtures of agricultural seeds, without complying with the require-
ments of sections two hundred and sixty-one A to two hundred and sixty-
one K, inclusive, or falsely marks or labels such agricultural seeds or
mixtures thereof or vegetable seeds, or impedes, obstructs or hinders the
commissioner of agriculture or any of his duly authorized agents in the
discharge of the authority or duties conferred or imposed by any pro-
vision of said sections, shall be punished by a fine of not more than five
hundred dollars."

G. L., c. 4, § 6, provides: —

"In construing statutes the following rules shall be observed, unless
their observance would involve a construction inconsistent with the mani-
fest intent of the law-making body or repugnant to the context of the
same statute:

Third, Words and phrases shall be construed according to the common
and approved usage of the language; but technical words and phrases
and such others as may have acquired a peculiar and appropriate mean-
ing in law shall be construed and understood according to such meaning."

I am of the opinion that the words "container" and "vendor," as
used in the statute above quoted, are to be given their ordinary meaning.
The word "container" means a package of any description capable of
holding the various seeds described in the statute. Said package may be
in the form of a box made of wood, tin, cardboard, fibre, etc., or it may
consist of a paper bag ordinarily used in retail stores. The word "vendor,"
as used in said statute, must be construed to mean a person, firm or cor-
poration which actually sells within the Commonwealth the seeds de-
scribed in the statute.

The statute applies equally to producer, wholesaler or distributor and
retailer of agricultural seeds if he engages in business in this Common-
wealth. The tag or label required to be affixed to the container must
have written or printed thereon all of the information required by this
statute. This applies to the retailer who sells the seeds within the Com-
monwealth, notwithstanding the fact that the seeds which he sells may
have been put up in packages by the producer, wholesaler or distributor
doing business within or without the Commonwealth, and that tags or
labels bearing the name and address of such wholesaler, producer or dis-
tributor are plainly printed in the English language and affixed to said
containers. In other words, the name of the retailer must appear on
every package of seeds whether the seeds are contained in packages put
up by the producer, wholesaler or distributor or put up in a "paper bag
package." This contention is clearly supported bv the last paragraph of
St. 1927, c. 274, § 2 (G. L., c. 94, § 261L).
Yours very truly,

Joseph E. Warner, Attorney General.

96 P.D. 12.

Election Commission of Lowell — Appointment of Clerk — Civil Service.

An appointment of a clerk by the election commission of Lowell is not
under the Civil Service Rules.

June 24, 1929.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.

Dear Sir: — You request my opinion as to whether the appointment
of a clerk by the election commission of the city of Lowell is within the
civil service.

The appointment is made under St. 1920, c. 154, § 4, which provides
that the election commission ''may employ such persons as they may
deem necessary in the performance of their duties: provided, however,
that among the persons so employed after the passage of this act, the
two dominant political parties shall at all times be equally represented."

In my opinion, the provision which makes party affiliation a qualifica-
tion leads to the conclusion that the appointment was not intended to be
within the civil service. G. L., c. 31, § 10, provides:

"No question in any examination shall relate to political or religious
opinions or affiliations, and no appointment to a position or selection for
employment shall be affected by them."

The Civil Service Commission, therefore, has no official means of know-
ing which, if any, of the persons whose names appear upon its list are
eligible for the appointment. Moreover, even if it did know, it could
not make a selection for certification, for it is required to certify names
in the order of standing upon the eligible hst. G. L., c. 31, §§ 15 and 23;
Civil Service Rule 16. The civil service laws and rules do not fit the case
in question.

This conclusion is confirmed by the fact that the appointment of assist-
ant registrars by the election commission of Boston, under St. 1913,
c. 835, § 80, which provided, similarly to the statute now in question,
that the two leading political parties should be equally represented in
appointments, was recognized as not within the civil service; and also
by the fact that when the Legislature, by St. 1920, c. 305, placed such
appointments by the Boston commission within the civil service it was
thought necessary at the same time to alter the civil service law to fit
the situation, which was done by providing in section 2 of the 1920 statute
that an applicant must file with the Civil Service Commission a certificate
of party enrollment.

Yours very truly,

Joseph E. Warner, Attorney General.

Medical Examiner — Absence — Associate.

Absence of a medical examiner sufficient to authorize an associate examiner
to perform his duties is not restricted to absence from the Common-
wealth of the former official.

June 25, 1929.

Hon. Charles R. Clason, District Attorney for the Western District.

Dear Sir: — It was held by one of my predecessors in office, in an
opinion given to the medical examiner in the Third Bristol District, dated
April 11, 1917 (not published), that actual absence of a medical examiner

P.D. 12. 97

from his district was not required in order to authorize associate medical
examiners to act. It was pointed out that "the administration of the law
in relation to medical examiners ordinarily requires prompt action, and
therefore the determination of when the associate medical examiner should
act in place of the medical examiner must depend upon the facts arising
in each case."

G. L., c. 38, § 2, reads: —

"Associate examiners in the other counties" (exclusive of Suffolk)
"shall, in the absence of the medical examiners or in case of their in-
ability to act, perform in their respective districts all the duties of medical
examiners."

Apparently my predecessor, in construing the Revised Laws, where
similar language was used, felt, as I do, that there might be situations,
other than the actual absence of the medical examiner from the district,
in which the associate was authorized to perform the former's duties. I
think that section 16 of said chapter 38, with relation to the duties of the
associate examiners, should be construed, in the light of section 2, with
the meaning which I have indicated.

Yours very truly,

Joseph E. Warner, Attorney General.

Supervisor of Public Records — Custody — Rules.

The Supervisor of Public Records has authority to approve specifications
of a safe for the preservation of records, and may make rules relative
thereto.

June 27, 1929.
Hon. Frederic W. Cook, Secretary of the Commonwealth.

Dear Sir : — You have asked my opinion as to whether or not the
Supervisor of Pubhc Records is authorized to establish or approve speci-
fications of fireproof safes or vaults to be used for the safe-keeping of
public records, and also to promulgate rules and regulations for the manu-
facture, construction and use of such fireproof safes or vaults.

G. L., c. 66, § 1, provides as follows: —

"The supervisor of public records . . . shall take necessary measures
to put the records of the commonwealth, counties, cities or towns in the
custody and condition required by law and to secure their preserva-
tion. . . ."

Section 1 1 of said chapter 66 provides as follows : —

"Officers in charge of a state department, county commissioners, city
councils and selectmen shall, at the expense of the commonwealth, county,
city or town, respectively, provide and maintain fireproof rooms, safes
or vaults for the safe-keeping of the public records of their department,
county, city or town, other than the records in the custody of teachers of
the public schools, and shall furnish such rooms with fittings of non-
combustible materials only."

While this last section imposes a duty upon the various officers to keep
pubhc records in fireproof safes or vaults, I am of the opinion that under
section 1 the Supervisor of Public Records has authority to determine what
is a proper fireproof safe or vault, and that such safe or vault must cor-

98 P.D. 12.

respond with specifications which he may approve. Section 1 gives him
the power to secure the preservation of such records and to see to it that
they are kept in the custody and condition required by law. This duty
imposed by this section cannot be successfully carried out unless the
Supervisor has the power to decide and determine the specifications of
such a safe or vault. If, in his opinion, a safe or a vault is not fireproof
or otherwise proper, it is my opinion that it may not be used for the
keeping of public records. I do not believe that the Supervisor may
approve specifications of manufacturers or can in any way determine
questions arising out of the manufacture of these safes or vaults, as his
only concern is their use as a container for public records.

Under section 1 he also has the power to promulgate reasonable rules
and regulations concerning the use and construction of such safes or vaults,
as this obviously is one of the ''necessary measures" to secure the preser-
vation of the records.

Very truly yours,

Joseph E. Warner, Attorney General.

Sentence — State Farm — Indeterminate Sentence.

A prisoner committed to the State Farm may be held in custody for
two years under an indeterminate sentence.

June 28, 1929.
Dr. A. Warren Stearns, Cornmissioner of Correction.

Dear Sir: — You have addressed the following communication to me,
setting forth certain facts relative to a person committed to the State
Farm :

"A person was committed to the State Farm May 8, 1929, from the Dis-
trict Court in Maiden, for the offence of 'refusing to work while an inmate
of a city home,' under G. L., c. 117, § 22, which specifically states that
the sentence shall be for one year.

G. L., c. 279, § 36, states: 'In imposing a sentence of imprisonment at
the state farm, the court or trial justice shall not fix or limit the duration
thereof.'

Said section 36 also states : ' Whoever is sentenced to the state farm for
drunkenness may be there held in custody for not more than one year,
and if so sentenced for any other offence may be there held in custody
for not more than two years.'

In view of the above two apparent inconsistencies in the law, and in
view of the ruling of the Supreme Court in Piatt v. Commonwealth, 256
Mass. 539, I write to ask you for an opinion as to whether this man's
maximum sentence should be one year or two years for the above offence."

I assume, for the purposes of this opinion, although you do not defi-
nitely so state, that the sentence of the judge in the District Court was a
sentence for an indefinite period to the State Farm, and that the judge
did not himself in the sentence attempt to fix a definite period for such
confinement. I gather from your communication that the sentence was
imposed under the provisions of G. L., c. 117, § 22, which reads as fol-
lows: —

"Whoever refuses or neglects to perform any labor required of him under
the two preceding sections, or who, while performing such labor, wilfully

P.D. 12. 99

damages any property of the town requiring the same, shall be punished,
in Suffolk county by imprisonment in the house of correction for not more
than one year, and in other counties, in the house of correction or at the
state farm for a like term."

The original enactment, which is now embodied in said section 22, is
St. 1895, c. 445, § 3, which reads as follows: —

"Whoever refuses or neglects to perform any labor required of him as
aforesaid, or while performing such labor wilfully damages any property
of the city or town requiring the performance of such labor, shall on con-
viction thereof by any court or magistrate having jurisdiction of the offence
be punished by imprisonment not exceeding one year in the house of cor-
rection or at the state farm, or, in the county of Suffolk, in the house of
correction or house of industry."

This statute of 1895 was incorporated in the Revised Laws as section
24 of chapter 81, as follows: —

"Whoever refuses or neglects to perform any labor required of him
under the provisions of the two preceding sections, or while performing
such labor wilfully damages any property of the city or town requiring
the same, shall be punished, in the county of Suffolk, by imprisonment
in the house of correction for not more than one year, and in other counties,
in the house of correction for a hke term, or at the state farm."

Subsequent to the enactment of said statute of 1895, St. 1898, c. 443,
was enacted, which, in section 1, reads as follows: —

"When a convict is sentenced to the state farm the court or trial jus-
tice imposing the sentence shall not fix or hmit the duration thereof.
Whoever is so sentenced for drunkenness may be held in the custody of
said state farm for a term not exceeding one year, and whoever is so sen-
tenced for any other offence may be held in such custody for a term not
exceeding two years."

Section 4 of said chapter 443 provides as follows : —

"All acts and parts of acts inconsistent with this act are hereby
repealed."

Said St. 1898, c. 443, § 1, is now embodied in G. L., c. 279, § 36, which
is as follows : —

"In imposing a sentence of imprisonment at the state farm, the court
or trial justice shall not fix or limit the duration thereof. Whoever is sen-
tenced to the state farm for drunkenness may be there held in custody
for not more than one year, and if so sentenced for any other offence may
be there held in custody for not more than two years."

At the time of the imposition of the sentence to which you refer in your
communication, under the terms of said G. L., c. 279, § 36, the judge
could not impose any sentence to the State Farm except an indeterminate
one, under which a person convicted of a crime other than drunkenness
might be held in custody for a term not exceeding two years. The judge
might have adopted the alternative course of a sentence to the house of
correction for one year, but if he elected to sentence to the State Farm
the sentence was governed by the provisions of said G. L., c. 279, § 36,
the original terms of which were enacted in 1898, and which in that year

100 P.D. 12.

superseded the terms of St. 1895, c. 445, § 3, which contained the original
of the provisions of said section 22.

It is provided in G. L., c. 281, § 2, that: —

"The provisions of the General Laws, so far as they are the same as
those of existing statutes, shall be construed as a continuation thereof and
not as new enactments."

The provisions of R. L., c. 81, § 24, and of G. L., c. 117, § 22, above
referred to, indicate that they were clearly intended as a continuation of
the original enactment of the statute of 1895, and the effect of the statute
of 1895 had long since been altered by the enactment of said St. 1898,
c. 443, already referred to, wherein the provisions for indefinite sentence
to the State Farm were incorporated and all earlier acts repugnant thereto
were repealed. The present provisions of the General Laws (c. 117,
§ 22) continue the effect of the provisions of the statute of 1895 as they
existed subsequent to the passage of St. 1898, c. 443, and are to be read
with a consideration of the language used in both of such statutes.

It was said by the Supreme Court in Moulton v. Commonwealth, 215
Mass. 525, 527: —

"If, however, an earlier statute is repugnant to the subsequent act the
presumption is, that the latter statute is intended as the final expression
of the legislative will, and the former statute is necessarily repealed by
implication."

Moreover, it is a general principle of statutory interpretation that a
body of laws enacted at one time, as were the General Laws, is to be con-
strued so as to constitute, so far as practicable, an harmonious entity.
Brooks V. Fitchburg & Leominster St. Ry. Co., 200 Mass. 8. And the
Supreme Judicial Court, in Piatt v. Commonwealth, 256 Mass. 539, 543,
has said : —

"The history of legislation shows that the General Court in compara-
tively recent years has established the indeterminate sentence to exist
alongside the definite sentence as to many offences. The underlying
design of the indeterminate sentence is to subject the offender to reforma-
tive influences, to rescue for useful citizenship one started on a criminal
career and thus enable him to assume right relations with society. It is
manifest that the bringing back to upright conduct of one embarked
upon evil courses cannot commonly be easily or quickly accomplished.
Time is required for the operation of physical, industrial, mental and moral
training and education essential to the work of reclamation of human
beings.

There have been superimposed by the Legislature, upon its statutes
requiring sentences for specifically defined terms of incarceration upon a
finding or verdict of guilty as to misdemeanors like the present, the newer
statutes relative to the indeterminate sentence. These several provisions
are not contradictory and incompatible, but constitute a consistent frame
of law. It has been left to the court to determine on the evidence in each
case whether the purely punitive sentence for a specified period, or the
indefinite sentence with a reformative purpose even though invoking
longer restraint, is better for the common welfare."

If, as I have said, the trial judge in pronouncing sentence had desired
to avail himself of that portion of the law which permitted a definite
sentence of one year, he might have done it by a sentence to the house of

P.D. 12. 101

correction. If he elected to adopt the use of the indefinite sentence, as
he apparently did, he could not set the term thereof (G. L., c. 279, § 36),
and by the provisions of said G. L., c. 279, § 36, which control the limits
of the indeterminate sentence, the prisoner committed thereunder may be
held in custody for not more than two years.
Yours very truly,

Joseph E. Warner, Attorney General.

Marriage Records — Certificate — Death Records — Diseases.

The date of a certificate of the filing of intention of marriage should be

the date of its issue.
Diseases which are the cause of a death should be entered upon the death

records of municipal clerks and the Secretary of the Commonwealth.

June 28, 1929.
Hon. Frederic W. Cook, Secretary of the Commonwealth.

Dear Sir: — You have asked my opinion upon certain questions of
law relative to various sets of facts which you have set forth in a letter
to me.

Your first question is as follows : —

"G. L., c. 207, § 28, provides that 'on or after the fifth day from the
filing of notice of intention of marriage . . . the clerk or registrar shall
deliver to the parties a certificate,' and that 'if such certificate is not
used it shall be returned to the office issuing it within six months after
it is issued.'

Some clerks mail the certificate on the fifth day after the intention has
been filed, dating the certificate on that date. Other clerks do not date
the certificate until it is called for, in some cases several months (possibly
years) after the date of filing the notice of intention.

What is to be considered the date a certificate is issued?"

G. L., c. 207, § 28, reads as follows: —

"On or after the fifth day from the fifing of notice of intention of mar-
riage, except as otherwise provided, the clerk or registrar shall deliver
to the parties a certificate signed by him, specifying the date when notice
was filed with him and all facts relative to the marriage which are required
by law to be ascertained and recorded, except those relative to the person
by whom the marriage is to be solemnized. Such certificate shall be
delivered to the minister or magistrate before whom the marriage is to be
contracted, before he proceeds to solemnize the same. If such certificate
is not used, it shall be returned to the office issuing it within six months
after it is issued."

I am of the opinion that the date on which a certificate is issued is the
date of its delivery to the parties referred to in the said section. The
date written upon the certificate by the clerk may well be considered
prima facie evidence of the date of such delivery, but it would appear
to be the proper course for the clerk or registrar to follow to date the
certificate upon the day of delivery.

Your second question is as follows : —

"If a city or town clerk or the Secretary of the Commonwealth has
received facts relative to a death, giving gonorrhoea or syphilis as the

102 P.D. 12.

disease or cause of death, is he prohibited from entering such facts in
the record of death and from subsequently issuing a certificate containing
said facts?"

G. L., c. 46, § 1, relative to facts to be recorded by city and town clerks,
in its pertinent parts reads 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 deaths, date of record, date of death, name of deceased,
sex, color, condition (whether single, widowed, married or divorced),
supposed age, residence, occupation, place of death, place of birth, names
and places of birth of the parents, maiden name of the mother, disease or
cause of death, defined so that it can be classified under the international
classification of causes of death ..."

The provisions of G. L., c. Ill, § 119, are as follows: —

"Hospital, dispensary, laboratory and morbidity reports and records
pertaining to gonorrha?a or syphilis shall not be public records, and the
contents thereof shall not be divulged by any person having charge of
or access to the same, except upon proper judicial order or to a person
whose official duties, in the opinion of the commissioner, entitle him to
receive information contained therein. Violations of this section shall
for the first offence be punished by a fine of not more than fifty dollars,
and for a subsequent offence by a fine of not more than one hundred
dollars."

These provisions do not relate to the public records relative to deaths
which are required to be kept by city and town clerks, under G. L., c. 46,
or by the Secretary of the Commonwealth, and their prohibitions have
no application to such records.

I therefore answer your second question in the negative.
Yours very truly,

Joseph E. Warner, Attorney General.

Massachusetts Agricultural College — Trustees — Expenditures —
Committee.

No person not a member of the board of trustees of the Massachusetts
Agricultural College may be appointed to serve on a committee of
that body to deal with expenditures.

June 29, 1929.

Mr. R. W. Thatcher, President, Massachusetts Agricultural College.

Dear Sir: — You ask my opinion on the question of whether or not
G. L., c. 75, § 5, "gives the trustees of the Massachusetts Agricultural
College the right to appoint a committee to authorize expenditures con-
sisting of others than members of this Board."

G. L., c. 75, § 5, provides: —

"Expenditures for maintenance shall be authorized by the trustees or
by their duly appointed committee. The expenditure of special appropri-
ations shall be directed by such trustees, and shall be authorized and
accounted for as are appropriations for maintenance."

Prior to May 31, 1918, the Massachusetts Agricultural College was a
public charitable corporation organized for educational purposes by vir-

P.D. 12. 103

tue of St. 1863, c. 220, and amendments thereof. By said statute the
Legislature reserved certain rights, among which was the right to alter,
limit, annul or restrain the powers vested in said corporation. See III
Op. Atty. Gen. 308; 460.

By Gen. St. 1918, c. 262, the Legislature exercised the right reserved
in said St. 1863, c. 220, and dissolved the corporation, and the Com-
monwealth took over said college, thenceforth to be maintained as a
State institution under the name of "Massachusetts Agricultural College."
Gen. St. 1918, c. 262, also prescribed the powers and duties of the trustees,
and in section 4 provided : —

"All expenditures for the maintenance of the institution shall be
authorized by a majority of the trustees, or by a majority of a duly
appointed committee of the trustees. . . . The expenditure of special
appropriations shall be under the direction and control of the trustees,
and shall be accounted for in the same manner as appropriations for
maintenance."

In the rearrangement and consolidation of the General Laws the present
language of the statute was adopted, but the elisions made by the com-
missioners in charge of said rearrangement do not affect the original
intent of the Legislature.

I am of the opinion that the words "or by their duly appointed com-
mittee" are to be construed to mean "or by a majority of a duly ap-
pointed committee of the trustees," and that the trustees of the Massa-
chusetts Agricultural College have not "the right to appoint a committee
to authorize expenditures consisting of others than members" of the
board of trustees.

Yours very truly,

Joseph E. Warner, Attorney General.

Auditor — Civil Service — Veteran.

A veteran appointed to the Auditor's office under St. 1920, c. 428, and
St. 1921, c. 380, when not, as a matter of fact, employed under the
civil service law, may be removed without a hearing.

July 1, 1929.
Hon. Alonzo B. Cook, Auditor of the Commonwealth.

Dear Sir: — You request my opinion as to whether a veteran appointed
and employed in your Department under St. 1920, c. 428, and St. 1921,
c. 380, is entitled to a hearing in the event of your discontinuing his
employment.

In my opinion, he is not. Said chapter 380 provides for the continued
employment of the employee in question "notwithstanding any civil
service rules to the contrary." Moreover, it is my understanding that
the employee in question was not originally appointed and never has
been employed under the civil service law. This being so, he cannot
avail himself of G. L., c. 31, § 26, which provides that no veteran shall
be reinoved except after hearing, for that statute has been construed as
applying only to veterans appointed under the civil service law. Ayers v.
Hatch, 175 Mass. 489; Bates v. Selectmen of Westjield, 222 Mass. 296; VII
Op. Atty. Gen. 90.

Yours very truly,

Joseph E. Warner, Attorney General.

104 P.D. 12.

Joint Special Committee — Clerk of a Senate Committee — Wages or

Salary.

The clerk of the Senate Committee on Rules and assistant to the Presi-
dent of the Senate may not, while drawing his salary for such posi-
tion, receive compensation for work as secretary of a joint special
committee.

July 2, 1929.

His Honor William S. Youngman, Chairman, Committee of the Executive
Council on Finance, Accounts and Warrants.

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

"Eugene W. Mason was employed as clerk of the Senate Committee
on Rules and assistant to the President of the Senate for the year 1929,
at an annual salary of $3,000. The joint special committee created by
order of the Legislature to investigate civil service laws, rules, etc., under
date of June 25, 1929, have advised His Excellency the Governor and the
Honorable Council that they desire to employ Eugene W. Mason for
special legislative work as secretary of their committee, at a compensation
not to exceed $1,000, payable at the rate of $150 a month, dating from
July 1, 1929.

The Committee desires to know whether the Council may legally
approve the proposed payments to Eugene W. Mason for the special
legislative work above described."

I am advised that Mr. Mason's duties as clerk of the Senate Committee
on Rules and assistant to the President of the Senate do not cease with
the prorogation of the annual session of the Legislature, but that he is
still discharging the same and will be required to continue to do so, espe-
cially in relation to those pertaining to his work as assistant to the Presi-
dent of the Senate, throughout the current year, although they are not
sufficient in amount fully to occupy his time during regular working hours,
at least between i\i\y 1st and December 1st; and that Mr. Mason's
salary is an annual salary, paid to him monthly throughout the year,
and not in full at the close of the regular annual session of the General
Court. Mr. Mason's situation in these respects does not resemble that of
a member of the General Court, and the considerations relative to the
latter in regard to a salary paid for services in another official capacity
rendered after prorogation, as set forth in VI Op. Atty. Gen. 220, are not
applicable to him.

Both sums which Mr. Mason would receive for his various forms of
work, if the compensation as secretary of the joint special committee,
referred to in your communication, were allowed him, would be payable
out of the treasury of the Commonwealth.

G. L., c. 30, § 21, provides: —

' ' A person shall not at the same time receive more than one salary
from the treasury of the Commonwealth."

There is undoubtedly sometimes a distinction between a salary and
compensation, as when the latter word is used as a synonym for wages.
This difference has been pointed out and defined in an opinion of one of
my predecessors in office (V Op. Atty. Gen. 700), in which I concur, and
from which I quote as follows: — '

P.D. 12. 105

"It is not necessary to quote authorities in defining what is meant by
the word 'salary' other than to point out that it is Hmited to compensa-
tion estabhshed on an annual or periodical basis and paid usually in
installments, at stated intervals, upon the stipulated per annum com-
pensation. It differs from the payment of a wage in that in the usual
case wages are established upon the basis of employment for a shorter
term, usually by the day or week, or on the so-called 'piece work' basis,
and are more frequently subject to deductions for loss of time."

Under this definition the payment which Mr. Mason would receive
as secretary of the said joint special committee, as described in your
communication, would be a salary. It would not be compensation on a
per diem basis paid for the limited time in which he was engaged on the
special work of said committee. There can be no doubt but that the sum
of S3, 000 which Mr. Mason receives as clerk of the Senate Committee on
Rules and assistant to the President of the Senate is a salary.

The facts as you have set them forth in your communication and as
you have advised me regarding them do not appear to bring this matter
within the principles relative to overtime work, as set forth in V Op.
Atty. Gen. 697 and 699. See also II Op. Atty. Gen. 309.

Accordingly, I am constrained to advise you that the proposed pay-
ment to Mr. Mason for work for the said joint special committee, in the
form in which it is now presented, should not, as a matter of law, be
approved by your Committee.

Very truly yours,

Joseph E. Warner, Attorney General.

Teachers^ Retirement Law — Assessments — Failure to deduct Assessments

seasonably.

Teachers must pay back assessments and interest thereon before being
granted a retiring allowance.

July 2, 1929.
Dr. Payson Smith, Commissioner of Education.

Dear Sir: — You have asked my opinion as to four questions, which
are listed below: —

"1. If the assessments required by section 9 (2) of the retirement law
(G. L., c. 32) are not deducted from the salary of a teacher who is subject
to the law, is it necessary that the omitted assessments be paid by the
teacher if the teacher is in the service of the public schools of Massachu-
setts, serving either in the city or town where the deductions were not
made or in some other city or town?

2. If it is necessary that a teacher pay assessments in error omitted,
is it also necessary that the teacher pay the interest which would have
been credited on the omitted assessments, so that the teacher will have to
his credit in the retirement fund the same amount which he would have
had if the assessments had been paid in the regular manner as provided
by section 12 (5) ; or, if the payment of interest is not required, is the
payment of interest permissible?

3. If it is necessary that a teacher pay assessments in error omitted,
either with or without the interest on said assessments, can the teacher
be granted a retiring allowance before the amount due the retirement
fund has been paid in full?

106 P.D. 12.

4. Is the following rule adopted by the Retirement Board at a meeting
held September 29, 1925, in accordance with the provisions of the retire-
ment law:

'If a school committee shall neglect to deduct from the salary of a
teacher the assessments required by law, the amount due the annuity
fund shall be paid in one sum by the teacher, or in equal monthly install-
ments over a period of not exceeding five years, provided that the monthly
installments shall not be less than the regular monthly assessment and
they shall be deducted from the salary of the member by the employing
school committee as directed by the Retirement Board.'"

1. In my opinion, a teacher who is subject to the law must pay into
the retirement fund all payments required b}^ law which have not been
deducted by the proper authorities. G. L., c. 32, § 7, defines who are
members of the Teachers' Retirement Association, and makes member-
ship in certain cases mandatory. Your question assumes that the teacher
under consideration is subject to the law, and the teacher must therefore
become a member of this Association. Section 9 of said chapter 32
requires that each member shall pay into the annuity fund certain assess-
ments, which are to be deducted from his salary. Section 12 (5) of said
chapter 32 provides that the school committee of each town shall, as
directed by the Board, deduct from the amount of the salary due each
teacher employed in the public schools of such town such amounts as are
due as contributions to the annuity fund, as prescribed in section 9.

I am informed that in certain cases deductions have not been made
and that several teachers who, under the law, are required to be mem-
bers of the Association have not paid, either by deduction or otherwise,
any sums into the annuity fund. In view of the fact that both member-
ship and payments are mandatory under the statute, I am of the opinion
that it is necessary that such teachers pay into the fund an amount equal
to that which they would have paid had the deductions been properly
made.

2. I am of the opinion that such a teacher must pay the interest which
would have been credited on the unpaid assessments, so that he will
have to his credit in the fund the same amount which he would have had
if he had regularly paid the assessments as provided by law. It is to be
noted that section 7 (3) of said chapter 32, as amended by St. 1927,
c. 173, provides that in certain cases a teacher may become a member of
the Association by paying an amount equal to the total assessments,
together with regular interest thereon, which he would have paid if he
had joined on September 30, 1914. This section is dealing with the case
of a teacher who, as far as unpaid assessments are concerned, is in exactly
the same position as the teacher about whom you inquire in your second
question; and if the law requires that a teacher described in said section
7 (3) must pay regular interest, it would seem to follow logically that a
teacher of the type about whom you inquire should also pay that interest.
Further, it is only equitable that a teacher who has during the past years
had the use of the money should pay a fair rate of interest upon it, so that
he will be in approximately the same position as the teacher who has
complied with the law and from whose salary installments have been
deducted.

3. In my opinion, a teacher may not be granted a retiring allowance
before the amount due the retirement fund has been paid in full. The
law contemplates that only teachers who have complied with the law

P.D. 12. • 107

relative to the payment of installments shall receive the retiring allow-
ance. Section 7 (3) of said chapter 32, as amended, provides that certain
teachers who are not compelled to become members of the Association
may become such members if they so wish. With reference to the pay-
ment by such teachers of back installments, the paragraph provides that
the teacher shall become a member of the Association when the total
amount due on account of back assessments and interest has been accumu-
lated in the annuity fund. Such a person is not enrolled as a member
until the entire amount of back assessments is paid. Logically, the situ-
ation would seem to be similar in the case of a teacher who is compelled
to become a member of the Association with reference to the right to
receive the benefits thereof. There is no statute covering the exact point
at issue, and the law most nearly applicable is that above cited. The
whole theory and purpose of the law, as indicated throughout, is to confer
its benefits upon teachers only when they have completely complied with
its provisions, and if a teacher has not paid the full amount due at a
given time it does not seem consistent with the purpose of the law that
he should be permitted to receive its benefits. The mere fact that a
school board or committee has failed to deduct from a teacher's salary
the amounts due from time to time, as required by law, does not in any
way alter the situation. The amounts are due regardless of whether or
not the school board performs the mechanical details of deducting them.
4. In my opinion, the rule adopted on September 29, 1925, is within
the power of the Board. Section 8 (2) of said chapter 32 provides that
"the board may make by-laws and regulations consistent with law."
In my opinion, it is well within the scope of the power of the Board to
enact the rule referred to, although as to its desirability I, of course,
make no comment.

Very truly yours,

Joseph E. Warner, Attorney General.

Insurance — Fraternal Organizations — Certificates.

A final certificate may not be granted to a fraternal organization, under
G. L., c. 176, which has already made contracts for the payment of
death or disability benefits or has made such contracts or payments
for death before the provisions of G. L., c. 176, § 8, have been
complied with.

July 3, 1929.
Hon. Merton L. Brown, Commissioner of Insurance.

Dear Sir: — You have sent me a letter which, in part, is as follows: —

"G. L., c. 176, §§ 6-9, inclusive, regulate the formation and author-
ization of domestic fraternal benefit societies. Section 8 provides, in part,
that no such society shall incur any liability except for advance payments
made by applicants for membership, nor pay or allow any death or dis-
ability benefits until it has performed certain acts, and that upon the
presentation of satisfactory evidence that the society has complied with
all the provisions of said chapter, the Commissioner shall issue to the
society a certificate to that effect.

A certain society in the process of formation has received a preliminary
certificate under said section 8 but has not received the final certificate
required under said section. It has complied with all the requirements of
section 8 but it or its incorporators have in fact made contracts for the

108 P.D. 12.

payment of death or disability benefits or have paid such benefits contrary
to the foregoing prohibition of said section. It now apphes for a final
certificate."

You request my opinion upon the two following questions relative to
the matters which you have set forth: —

"1. Is the Commissioner precluded as a matter of law from granting
a final certificate to a society, under said section 8, which has fulfilled
all the requirements of said section 8 but which has admittedly made
contracts for the payment of, or has paid, death or disabihty benefits
contrary to said section, on the ground that the society has not complied
with all the provisions of said chapter 176?

2. If you answer the preceding question in the negative, is the society
as a matter of right entitled, on the facts set forth in the preceding ques-
tion, to receive a final certificate in such circumstances, or is the issue
thereof discretionary with the Commissioner?"

I answer your first question in the affirmative.

G. L., c. 176, § 8, provides, with relation to an unincorporated fraternal
benefit society, the incorporators of which have held their first meeting,
that —

"The commissioner shall then furnish the incorporators of any such
society, if on the lodge plan, with a preliminary license, authorizing
it to solicit members for the purpose of completing its organization. It
shall collect from each applicant the amount of not more than one peri-
odical benefit assessment or payment, in accordance with its tables of
rates as provided by its constitution and by-laws, and shall issue to every
such applicant a receipt for the amount so collected. But no such society
shall incur any liability other than for such advance payments, nor issue
any benefit certificate, nor pay or allow, or offer or promise to pay or
allow, to any person any death or disability benefit until actual bona fide
applications for death or disability benefit certificates, as the case may
be, have been secured from at least five hundred persons, and all such
applicants for death benefits shall have been regularly examined by
legally qualified practicing physicians, and certificates of such examina-
tions have been duly filed and approved by the chief medical examiner
of the society; nor until there shall be established ten subordinate lodges
or branches, in which said five hundred apphcants have been initiated;
nor until there has been submitted to the commissioner, on oath of the
president and secretary or corresponding oflacers of such society, a list
of the said applicants, giving their names, addresses, date of examina-
tion, date of approval, date of initiation, name and number of the
subordinate branch of which each applicant is a member, amount of
benefits to be granted, and rate of regular payments or assessments,
which for societies offering death benefits shall not be lower for death
benefits than those required by the National Fraternal Congress Table
of Mortality as adopted by the National Fraternal Congress August
twenty-third, eighteen hundred and ninety-nine, or any higher standard
at the option of the society, with an interest assumption not higher
than four per cent per annum; nor until it shall be shown to the
commissioner, by the sworn statement of the treasurer or corresponding
officer of such society, that at least five hundred applicants for death
benefits have each paid in cash one regular payment or assessment as
herein provided, and the payments in the aggregate shall amount to at

P.D. 12. 109

least twenty-five hundred dollars, all of which shall be credited to the
mortuary or disability fund on account of the applicants, and no part of
which may be used for expenses. Such advance payments shall, during
the period of organization, be held in trust for the applicants, and if the
organization is not completed within one year as hereinafter provided,
shall be returned to them. The commissioner may make such examina-
tion and require such further information as he deems advisable; and
upon presentation of satisfactory evidence that the society has complied
with all the provisions of this chapter, he shall issue to the society a
certificate to that effect."

In addition to the information contained in your letter, you have
advised me that the incorporators of the society as to which your inquiries
are particularly addressed have both made promises to pay death and
disability benefits and have paid such benefits before actual bona fide
applications for certificates had been secured from at least five hundred
persons, and have actually in fact paid death benefits before the medical
examinations required by the said statute had been made and certificates
thereof filed.

If the explicit provisions of said section 8 have been violated in the
ways above described, it cannot be said that the society has complied
with all the provisions of chapter 176, and, accordingly, satisfactory
evidence of comphance with the provisions of said chapter, upon which
the issuance of the certificate mentioned in said section 8 is predicated,
cannot be before the Commissioner so as to require him to issue such
certificate.

Moreover, payment of benefits before receipt of the Commissioner's
certificate, which can from the nature of the case be made only from
''advance payments," as those words are used in said section 8, has
prevented the society from a compliance with that provision of section 8
which requires that advance payments "shall, during the period of organ-
ization, be held in trust for the applicants," to be returned if the organ-
ization is not completed.

My answer to your first inquiry precludes the necessity of answering
your second question.

Very truly yours,

Joseph E. Warner, Attorney General.

Public Welfare — Minor Children — Settlements.

After a divorce, when the children of a marriage have a settlement within
the Commonwealth, derived from their mother, they will not lose it
if the father has no settlement in the Commonwealth.

July 11, 1929.

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

Dear Sir: — You have asked my opinion in a communication which
reads as follows : —

" I respectfully request your opinion whether or not three minor children,
who now live in Athol, have a legal settlement within the Commonwealth.
The father of the children was granted a decree of divorce which becomes
absolute on July 21, 1929, and the court awarded the custody of the three
children to him. He was born in Wisconsin May 8, 1894, and has never
resided in any town in Massachusetts long enough to gain a legal settle-

no P.D. 12.

ment. The mother of the three children was born in Erving, Massachu-
setts, February 4, 1902, and she admittedly has a legal settlement in that
town."

I assume that your question relates to the settlement as of the time,
July 21st, when the decree of divorce becomes absolute. G. L., c. 116, § 1,
cl. Third, reads: —

"Legitimate children shall follow and have the settlement of their father
if he has one within the commonwealth, otherwise they shall follow and
have the settlement of their mother if she has one; if the father dies during
the minority of his children they shall thereafter follow and have the
settlement of the mother. Upon the divorce of the parents the minor
children shall follow and have the settlement of the parent to whom the
court awards their custody.""

The provision in the above-quoted section in regard to divorce was
added by St. 1911, c. 669. Under R. L., c. 80, § 1, cl. Second, which con-
tained only what is now the first part of the section of the General Laws
above quoted, the children in the case in question would clearly, because
of the divorce, not lose their settlement in the town of Erving. In my
opinion, the terms used in the provision added by the act of 1911 cannot
properly be construed as changing the result. The word "settlement"
must mean settlement within this Commonwealth; and since in the case
in question the father, to whom custody is given, has no settlement within
the Commonwealth, the provision has, by its terms, no application. The
provision does not purport in terms to change the law in a case where the
parent to whom custody is given does not have a settlement, and, in my
opinion, no such meaning can be read into it.
Very truly yours,

Joseph E. Warner, Attorney General.

Physician — Certificate of Registration — Town.

A physician must present his certificate of registration to the city or town
clerk of each city or town in which he establishes an office.

July 16, 1929.
Mr. William F. Craig, Director of Registration.

Dear Sir: — You request my opinion as to whether it is necessary,
under G. L., c. 112, § 8, for a physician to record his certificate of regis-
tration with the city or town clerk "each time he establishes a new business
address."

Said section 8 provides, in part: —

"No person shall enter upon, or continue in, the practice of medicine
within the commonwealth until he has presented to the clerk of the town
where he has, or intends to have, an office or his usual place of business,
his certificate of registration as a physician in the commonwealth."

I assume that your question refers to a case where a physician, who has
recorded his certificate in one town, moves to or opens an office in another
town. There seems to be nothing in the statute to require a new record
where the physician takes a new business address within the same town.
The statute, in my opinion, requires the certificate to be recorded in
each town in which the physician establishes an office.
Very truly yours,

Joseph E. Warner, Attorney General.

P.D. 12. Ill

Insurance — Life Policies — Incontestability — Forms.

A clause eliminating hazards of aviation from the coverage of a life policy
may not be disapproved upon that ground alone.

Aug. 8, 1929.
Hon. Merton L. Brown, Commissioner of Insurance.

Dear Sir: — You have asked my opinion, in the first portion of a
written communication, upon several questions relative to the interpre-
tation and application of the incontestability provision concerning policies
of life insurance embodied in G. L., c. 175, § 132, cl. 2. You have directed
my attention particularly to certain forms of riders or endorsements in-
tended to be attached to life policies, as to which your approval has been
requested and which are before you for consideration.

The first two questions which you have propounded in relation to this
portion of your communication are not limited in their scope to the forms
of riders as to which you are now required to act, but are general in their
nature and deal with possible and hypothetical states of fact which may
or may not be called to your attention in the future and which are not
necessarily governed by precisely the same principles of law as are appli-
cable to the specific problems which arise upon the matters now actually
before you for determination. I therefore do not at the present time deem
it incumbent upon me to answer your questions numbered I, 1 and 2.

I.

You advise me in your communication as follows : —

''I. Certain life insurance companies have filed with me, and have
requested me to approve, under said section 132 and section 192 of said
chapter 175, certain forms of riders or endorsements which they propose
to attach to forms of life or endowment policies to be issued in this Com-
monwealth, said policy forms having been duly approved by the Commis-
sioner under said section 132 and containing the provision required by
clause 2 of said section 132.

These forms of riders or endorsements read as follows : —

'(1) Death as a result of service, travel or flight in any species of air-
craft, except as a fare-paying passenger, is a risk not assumed under this
contract; but, if the Insured shall die as a result, directly or indirectly,
of such service, travel or flight, the Company will pay to the beneficiary
the reserve on this contract.

(2) Death or disability resulting directly or indirectly from being in,
on or about or operating or handling any vehicle or mechanical device for
aerial navigation or in falling therefrom or therewith is a loss not assumed
under any of the terms of this Policy ; but in the event of such death the
Company will pay to the beneficiary the amount of the reserve on this
Policy.

(3) In the event of the death of the Insured within a period of ten years
from the date of issue of this policy resulting directly or indirectly from
travel, service or flight in any species of aircraft, the Company's liability
under this contract shall be limited to the reserve guaranteed by the
policy.' "

With relation to the foregoing you have asked me the following ques-
tions: —

112 P.D. 12.

"3. May the Commissioner, under G. L., c. 175, §§ 132 and 192, as
amended, lawfully approve any form of policy of life or endowment in-
surance, except an industrial policy, containing in substance the provisions
required by clause 2 of said section 132 and the provisions of the forms of
riders or endorsements set forth in I, supra, and numbered (1) and (2),
or the form of the said riders or endorsements for attachment to the afore-
said forms of poHcies?

4. May the Commissioner, as aforesaid, lawfully approve any such form
of policy containing in substance the provisions required by said clause
2 and the provisions of the form of rider or endorsement set forth in I,
swpra, and numbered (3), or the form of the said rider or endorsement for
attachment to the aforesaid forms of policies?"

I am also advised that one of your predecessors in office has at some
time in the past approved riders similar to one of the three forms described
in your letter, so that there would not appear to be an established depart-
mental interpretation of the incontestable clause of G. L., c. 175, § 132,
cl. 2, adverse to the approval of such riders.

G. L., c. 175, § 132, cl. 2, as amended, reads as follows: —

"A provision that the policy shall be incontestable after it has been in
force during the lifetime of the insured for a period of two years from its
date of issue except for non-payment of premiums or violation of the con-
ditions of the policy relating to military or naval service in time of war and
except, if the company so elects, for the purpose of contesting claims for
total and permanent disability benefits or additional benefits specifically
granted in case of death by accident."

G. L., c. 175, § 192, as amended, in its pertinent parts is as follows: —

"All provisions of law relative to the filing of policy forms with, and the
approval of such forms by, the commissioner shall also apply to all forms
of riders, endorsements and applications designed to be attached to such
policy forms and when so attached to constitute a part of the contract."

The incontestabilit}^ of the policy as provided for in said section 132,
clause 2, precludes a defense that the contract made between the parties
is not vahd and binding. It does not preclude a defense that the subject
matter of a claim is outside the scope of the contract as written. It does
not enlarge the coverage of the contract, neither does it of itself determine
the risk or hazard which the parties to the contract elect to include therein.

The policy with its rider or endorsement constitutes the contract of
insurance made between the parties, and where the risk of aviation haz-
ards is limited in, or eliminated from, such contract the fact that the con-
tract as made is incontestable in no way tends to make illegal the terms
of the agreement as written by the mutual consent of the parties in the
policy and endorsement.

It cannot fairly be said that because the statute sets forth certain ex-
ceptions to incontestability of a policy no contract may be made which
by the mutual agreement of insured and insurer lessens the extent of the
coverage by removing those connected with aviation from the scope of
coverage.

The riders or endorsements with relation to aviation, set forth above as
(1), (2) and (3), do not appear to be contrary to any provisions of law, and
I answer your questions I, 3 and 4, in the affirmative.

P.D. 12. 113

11.

You have advised me in your communication as follows : —

"II. Certain life insurance companies are issuing in this Common-
wealth a form of industrial life policy which contains a provision that the
policy —

'shall be incontestable after it has been in force during the lifetime of
the Insured, for a period of two years from the date of issue, except for
nonpayment of premiums, fraud or misstatement of age';

and further provisions which read as follows : —

'If, (1) the Insured is not alive or is not in sound health on the date
hereof; or if (2) before the date hereof, the Insured has been rejected for
insurance by this or by any other company, order or association, or has,
within two years before the date hereof, been attended by a phj'sician for
any serious disease or complaint, or, before said date, has had any pul-
monary disease, or chronic bronchitis or cancer, or disease of the heart,
liver or kidneys, unless such rejection, medical attention or previous dis-
ease is specifically recited in the "Space for Endorsements" on page 4 in a
waiver signed by the Secretary; or if (3) any Policy on the life of the In-
sured hereunder has been previously issued by this Company and is in
force at the date hereof, unless the number of such prior Policy has been
endorsed by the Company in the "Space for Endorsements" on page 4
hereof (it being expressly agreed that the Company shall not, in the ab-
sence of such endorsement, be assumed or held to know or to have known
of the existence of such prior Policy, and that the issuance of this Pohcy
shall not be deemed a waiver of such last mentioned condition), then, in
any such case, the Company may declare this Policy void and the liability
of the Company in the case of any such declaration or in the case of any
claim under this Policy, shall be limited to the return of premiums paid
on the Policy, except in the case of fraud, in which case all premiums will
be forfeited to the Company.' "

In relation thereto you have asked me this question : —

"5. May the Commissioner, under said section 132, as amended, law-
fully approve a form of industrial life policy containing the provision for
incontestability and the other provisions set forth in II, supra, or should
such a form of policy be disapproved, as a matter of law, on the ground
that any condition, a violation of which, existing prior to the expiration
of the period of time specified in said provision for incontestability and
continuing or occurring, thereafter, relieves the company from liability,
is repugnant to the provision for incontestabilitj^?"

G. L., c. 175, § 132, does not require the insertion of a clause as to in-
contestability in a policy of industrial insurance.

An incontestable clause is a part of the industrial life policy under
consideration, but various provisions are introduced into the contract by
which the insurer may avoid liability. In each instance the exceptions
to the incontestability of the contract, introduced into the policy, relate
to facts, circumstances or events prior to, and in some instances leading
up to, the making of the contract. Such exceptions would be plainly repug-
nant to a statutory requirement that such policies should contain an in-
contestable clause, such as is required for the life policies, which have
previously been considered. In this instance, however, the incontestable

114 P.D. 12.

clause, modified by the exceptions, constitutes, when read in connection
with each other, a term of the pohcy fixed by agreement of the insured
and insurer which is not contrary to any provision of law governing the
form of industrial policies.

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

Joseph E. Warner, Attorney General.

State Hospital — Gardner State Colony — Superintendent — Inmates.

A superintendent of a State hospital or colony has authority to allow
patients to leave the grounds, under proper supervision, for short
periods, under conditions beneficial to their health.

Sept. 7, 1929.

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

Dear Sir : — You have asked my opinion relative to the authority
and liability of the superintendent of the Gardner State Colony in a
communication as follows : —

"Your opinion is respectfully requested on certain questions raised by
Dr. Charles E. Thompson, Superintendent of the Gardner State Colony.

He states that a short while ago after sending a number of patients to
attend a circus at Fitchburg he became concerned as to possible legal
liability should injuries occur to them. Inasmuch as this procedure is
one that might arise in any institution, the Department feels that the
subject is of sufficient importance to ask for an opinion on certain specific
questions.

(1) Has the superintendent authority legally to allow a group of pa-
tients to leave the confines of an institution temporarily for recreation,
entertainment or similar purpose?

(2) What liability, if any, attends a superintendent or other oflficial in
authority sending a patient or group of patients temporarily away from
the confines of an institution for recreation, entertainment or similar
purpose should injury occur to them, or should such patients injure
persons or property?

(3) Is the State liable legally in such a case?"

1. I answer your first question in the affirmative. The Gardner State
Colony is an institution under the control of your Department, listed
under G. L., c. 123, as a State hospital to which insane persons may be
committed. The authority to act, in the exercise of a wise discretion,
for the benefit of such insane persons, vested in the Department and in
its superintendents of State hospitals, is necessarily very broad. I cannot
say, as a matter of law, that such a superintendent is not acting within his
implied authority in allowing a group of patients, whose condition is such
that they may reasonably be expected to receive benefit therefrom, to
leave the confines of a State hospital for a short period of recreation or
entertainment, when properly supervised and guarded. Of course, in
any given instance the facts connected with each individual patient's
well-being and safety must be considered by a superintendent.

2. Your second question asks for a somewhat general statement of law
without reference to any specific facts. Speaking broadly, an official in
charge of patients of a State hospital may be liable individually for acts

P.D. 12. 115

of negligence on his part which are the direct cause of injury to such
patients or to the person or property of others. In taking action in rela-
tion to the care of his patients such official is bound to exercise such
reasonable care as may properly be expected of a person occupying such
a position of responsibility, having regard especially to the mental
characteristics of those under his care.

3. The Commonwealth cannot be sued in its own courts for injuries
or damages sustained by persons through the negligence of officials such
as you describe in your letter. Claims with relation to such injuries or
damages might, under certain circumstances, which it is not necessary
for me to attempt to describe in detail, require the disbursement of money
by the Commonwealth.

Very truly yours,

Joseph E. Warner, Attorney General.

Citizenship — Registration of Voters.

The burden of proving citizenship is upon a person applying for registra-
tion as a voter.
The registrars of voters are to determine the question of citizenship upon
such proof.

Sept. 23, 1929.
Hon. Frederic W. Cook, Secretary of the Commonwealth.

Dear Sir: — You ask my opinion on the following question: —

"Have registrars of voters or election commissioners authority to
register as a voter in this Commonwealth a person whose only right to
citizenship is derived through naturalization of husband or father, upon
presentation of certificate of naturalization of such husband or father, or
must such person present a certificate obtained after application of said
section 33 (45 Stat, at L., pt. I, p. 1512)?"

You state in your communication that —

"In the case of a wife, or a child who was a minor at the time of natu-
ralization of his parent, and who is otherwise qualified to register, it is
the present practice, I believe, of registrars of voters and election com-
missioners to require the production for inspection of the papers of the
husband or parent. Such papers in late years bear the names of wife and
minor children"; and that "the new form to be used for certificate of
naturalization does not contain any blank for statement of wife or minor
children, and election officials are apprehensive and in disagreement
concerning proof of citizenship to be required."

The laws of the United States conferring citizenship upon minor chil-
dren of naturalized parents are found in the United States Code, Title 8,
chapter 1, sections 7 and 8, as follows: —

"Section 7. The children of persons who have been duly naturahzed
under any law of the United States, or who, previous to the passing of
any law on that subject, by the Government of the United States, may
have become citizens of any one of the States, under the laws thereof,
being under the age of twenty-one years at the time of the naturalization
of their parents, shall, if dwelling in the United States, be considered as
citizens thereof; and the children of persons who now are, or have been,
citizens of the United States, shall, though born out of the limits and

116 P.D. 12.

jurisdiction of the United States, be considered as citizens thereof.
(R. S. § 2172.)

Section 8. A child born without the United States of ahen parents
shall be deemed a citizen of the United States by virtue of the naturaliza-
tion of or resumption of American citizenship by the parent, where such
naturalization or resumption takes place during the minority of such
child. The citizenship of such minor child shall begin at the time such
minor child begins to reside permanently in the United States. (Mar. 2,
1907, c. 2534, § 5, 34 Stat. 1229.)"

In passing upon these statutes the Circuit Court of Appeals, Second
Circuit, in United States ex rel. Patton v. Tod, 297 Fed. 385, said: —

"We have a simple sj^stem under which each statute confers rights in
two different situations. Under R. S. U. S. § 2172 (U. S. C, Title 8,
c. 1, § 7, above quoted), a foreign-born minor child dwelling in the United
States at the time of the naturalization of the parent automatically
becomes an American citizen. Under section 5 of the Act of March 2,
1907 (U. S. C, Title 8, c. 1, § 8, above quoted), a foreign-born child, not
in the United States when the parent is naturalized, becomes a citizen
only from such time as, while still a minor, it begins to reside perma-
nently in the United States."

A person claiming to be a citizen by virtue of the naturalization of his
parent can establish that fact, it seems to me, by producing substantial
proof of his minority at the time of naturalization of the parent and that
he was either dwelling in this country at that time or that he began to
reside permanently in the United States during his minority.

The law^ relative to citizenship of a wife of a naturalized person, prior
to Act of Congress approved September 22, 1922, provided (Rev. Stat.
1874, § 1994) : —

"Any woman who is now or may hereafter be married to a citizen of
the United States and who might herself be lawfully naturalized, shall be
deemed a citizen."

A similar act has been construed in Kelly v. Owen, 7 Wall. 496, 498, to
confer —

"The privileges of citizenship upon women married to citizens of the
United States, if they are of the class of persons for whose naturali-
zation the previous acts of Congress provide. The terms 'married,' or
'who shall be married,' do not refer, in our judgment, to the time when
the ceremony of marriage is celebrated, but to a state of marriage. They
mean that, whenever a woman, who under previous acts might be natu-
ralized, is in a state of marriage to a citizen, whether his citizenship existed
at the passage of the act or subsequently, or before or after marriage, she
becomes, by that fact, a citizen also."

Rev. Stat. 1874, § 1994, was repealed by Act of Congress approved
September 22, 1922. The repealing statute expressly provides that
citizenship acquired thereunder "shall not terminate." See U. S. C,
Title 8, c. 9, § 368.

G. L., c. 51, § 44, provides, in part: —

"The registrars shall examine on oath an applicant for registration
relative to his qualifications as a voter."

This statute places the burden of proving citizenship upon the person

P.D. 12. 117

applying for registration. It does not prescribe the manner in which the
proof shall be established. The sufficiency of such proof is to be deter-
mined by the registrars in each individual case.

The prevailing practice of the registrars, in cases where applicants for
registration claim citizenship by virtue of the naturalization of a parent
or husband, of requiring the production by the appUcant of the naturaliza-
tion certificate of the parent or husband, is one way in which the question
of citizenship of the applicant may be determined.

Another way in which the question may be determined is by the produc-
tion by the applicant of a "certificate of citizenship" issued by the Com-
missioner of Naturahzation under section 9 of the Act of March 2, 1929
(45 Stat, at L., pt. I, p. 1512), which section provides as follows: —

"Any individual over twenty-one years of age who claims to have
derived United States citizenship through the naturalization of a parent,
or a husband, may, upon the payment of a fee of $10, make apphcation
to the Commissioner of Naturalization, accompanied by two photographs
of the applicant, for a certificate of citizenship. Upon obtaining a certifi-
cate from the Secretary of Labor showing the date, place, and manner of
arrival in the United States, upon proof to the satisfaction of the com-
missioner that the applicant is a citizen and that the alleged citizenship
was derived as claimed, and upon taking and subscribing to, before a
designated representative of the Bureau of Naturalization within the
United States, the oath of allegiance required by the naturalization laws
of a petitioner for citizenship, such individual shall be furnished a certifi-
cate of citizenship by the commissioner, but only if such individual is at
the time within the United States. In all courts, tribunals, and public
offices of the United States, at home and abroad, of the District of Colum-
bia, and of each State, Territory, or insular possession of the United
States, the certificate of citizenship issued under this section shall have
the same effect as a certificate of citizenship issued by a court having
naturahzation jurisdiction."

An examination of the legislative history of the Act of March 2, 1929
(45 Stat, at L., pt. I, p. 1512), leads me to believe that Congress did not
intend that all persons claiming citizenship through the naturalization of
a parent or husband should be required to secure a "certificate of citizen-
ship" to entitle them to the privileges of native born or naturalized
Americans. I believe that until and unless the Legislature of the Com-
monwealth, by legislative act, requires the production of a "certificate
of citizenship" issued under said Act of March 2, 1929, to establish
citizenship for the purposes of registration as voters, the registrars of
voters or election commissioners cannot require an applicant for registra-
tion to procure such a "certificate of citizenship" if the citizenship of
such applicant can be proved in any other manner. I am therefore of
the opinion that registrars of voters or election commissioners have
authority to register as a voter in this Commonwealth a person whose
only right to citizenship is derived from naturalization of husband or
parent, upon presentation of a certificate of the naturahzation of such
husband or parent, if they are satisfied that citizenship was derived in
that manner; and if, in their judgment, the proof offered is not sufficient,
they may require a "certificate of citizenship," but they cannot arbi-
trarily require the production of such certificate in all cases.
Yours very truly,

Joseph E. Warner, Attorney General.

118 P.D. 12.

Fire Marshal — Rules — Enforcement.

It is the duty of both the State Fire Marshal and the local authorities to
prosecute violations of regulations made under G. L., c. 148.

Oct. 3, 1929.
Gen. Alfred F. Foote, Commissioner of Public Safety.

Dear Sir: — You state that certain persons in the city of Lynn are
violating the regulations of the State Fire Marshal relative to the use of
inflammable fluids and compounds in the manufacture of shoes, that the
Marshal has delegated to the head of the fire department of said city "the
carrying out of any lawful rule, order or regulation established by the Fire
Marshal," that the city officials have taken the position that it is not their
duty but the duty of the Fire Marshal to enforce the regulations, and
that accordingly they are not prosecuting said violations. You request
my opinion as to "whether it is the duty of the State Fire Marshal to
execute and enforce" these regulations, "or whether it is incumbent upon
the Lynn authorities to execute and enforce these regulations under the
authority vested in them by the aforesaid delegation of power."

The regulations in question are made under authority of G. L., c. 148,
§ 30, which authorizes the Marshal, among other things, to inspect or
regulate the keeping or use of inflammable fluids and compounds. Section
31 of said chapter provides: —

"The marshal may delegate the granting and issuing of any licenses or
permits authorized by sections thirty to fifty-one, inclusive, or the carrying
out of any lawful rule, order or regulation of the department, or any in-
spection required under said sections, to the head of the fire department
or to any other designated officer in any city or town in the metropolitan
district."

Acting under said section 31 the Marshal has delegated to the head of
the fire department of the city of Lynn —

"The right to issue any permit authorized by G. L., c. 148, §§ 30-51,
inclusive, the carrying out of any lawful rule, order or regulation estab-
lished by the Fire Marshal, and the right to make any inspection required
under said sections."

Section 51 of said chapter 148 imposes the penalty of a fine for violation
of rules made under section 30.

The regulations in question "have the force and effect of law." Guinan
V. Famous Players-Lashj Corporation, Mass. Adv. Sh. (1929) 1297, 1305.

In my opinion, it is the duty of both the State Fire Marshal and the local
authorities to see to it that these violations of law are prosecuted. If it
appears to the Marshal that the local authorities are failing to prosecute
violations of law, it is his duty as a pubhc official to cause such violations
to be prosecuted. The fact that the Marshal has delegated the carrying
out of these regulations to local authorities does not deprive him of the
power or free him from the duty of acting in cases where it becomes known
to him that the local authorities are failing to act.
Very truly yours,

Joseph E. Warner, Attorney General.

P.D. 12. 119

Fire Marshal — Municipalities — Ordinances — Fire Prevention.

Cities and towns have no power to make ordinances regulating storage
and use of explosives and inflammable fluids within the Metropolitan
Fire Prevention District, but may regulate by ordinances for fire
prevention in connection with the construction of buildings.

Oct. 8, 1929.

Special Commission for Investigation of the Laivs, Rules and Regulations
relating to Fire Prevention..

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

"1. Ha,ve municipalities within the Metropolitan Fire Prevention Dis-
trict authority to adopt ordinances, in addition to the rules of the State
Fire Marshal and the Department of Public Safety, relating to fires and to
fire prevention?

2. Have municipalities outside the Metropolitan Fire Prevention Dis-
trict authority to adopt ordinances, in addition to the rules of the State
Fire Marshal and the Department of Public Safety, relating to fires and
to fire prevention?"

Under G. L., c. 143, § 3, everj^ city, except Boston, and every town
accepting the statute is authorized, "for the prevention of fire," among
other things, to regulate by ordinance or by-law "the inspection, materials,
construction, alteration, repair, height, area, location and use of buildings
and other structures."

By G. L., c. 148, § 39, the Fire Marshal is given certain limited powers
to make rules within the metropolitan district "relating to fires, fire pro-
tection and fire hazard." By section 42 the Fire Marshal may require
reports from heads of fire departments of violations "of ordinances, by-
laws, rules or orders made by the various cities and towns, or by the Mar-
shal, relating to fires, fire hazard and fire protection." The statute first
cited, giving to cities and towns power to regulate as therein stated, is
in full force and effect. It has not been abrogated by any delegation of
authority to regulate given to the State Fire Marshal or to the Depart-
ment of Public Safety, either within or without the metropolitan district.
See Storer v. Downeij, 215 Mass. 273; Kilgour v. Gratfo, 224 Mass. 78.

As to any ordinances or by-laws relating to the storage or use of ex-
plosives or inflammable compounds, assuming that such ordinances or
by-laws cannot be brought within the scope of G. L., c. 143, § 3, above
referred to, a different question is presented. Under the Revised Laws
cities and towns, in addition to the power given them to regulate, for the
prevention of fire, the inspection, materials, construction, alteration and
use of buildings and other structures (R. L., c. 104, § 1, now G. L., c. 143,
§ 3), were authorized to adopt ordinances, by-laws and regulations rela-
tive to the storage and sale of camphine or any similar explosive or in-
flammable fluid (R. L., c. 102, § 94), and also to make certain orders rela-
tive to storage of gunpowder and use of certain explosives (R. L., c. 102,
§§ 89 and 91).

But by St. 1904, c. 370, § 1, it was provided that —

"The powers conferred on city councils of cities and selectmen of towns
by chapter one hundred and two of the Revised Laws, to regulate the
keeping, storage, use, manufacture or sale of gunpowder, dynamite or

120 P.D. 12.

other explosives and inflammable fluids, shall hereafter be exercised by the
fire marshal's department of the district police."

By section 5 it was provided that —

"So much of chapter one hundred and two of the Revised Laws as is
inconsistent herewith is hereby repealed."

By St. 1914, c. 795, which created the office of Fire Prevention Com-
missioner for the Metropolitan District, it was provided in section 3 that —

"All existing powers, in whatever officers, councils, bodies, boards or
persons, other than the general court and the judicial courts of the com-
monwealth, they may be vested, to license persons or premises, or to grant
permits for or to inspect or regulate or restrain the keeping, storage, use,
manufacture, sale, handling, transportation or other disposition of gun-
powder, dynamite, nitroglycerine, camphine or any similar fluids or com-
pounds, crude petroleum or any of its products, or any explosive or in-
flammable fluids or compounds, tablets, torpedoes, rockets, toy pistols,
fireworks, firecrackers, or any other explosives, and the use of engines and
furnaces described in section seventy-three of chapter one hundred and
two of the Revised Laws, are hereby transferred to and vested in the
commissioner."

The power of the Department of Public Safety, as now constituted, to
make rules, applicable outside of the metropolitan district, governing the
storage or use of explosives or inflammable fluids or compounds is found
in G. L., c. 148, § 10, which reads as follows: —

"The department may make rules and regulations for the keeping,
storage, use, manufacture, sale, handling, transportation or other dis-
position of gunpowder, dynamite, crude petroleum or any of its products,
or explosive or inflammable fluids or compounds, tablets, torpedoes or any
explosives of a like nature, or any other explosives, and may prescribe the
materials and construction of buildings to be used for any of the said
purposes, except that cities and towns may by ordinances or by-laws
prohibit the sale or use of fireworks or firecrackers within the city or town,
or may limit the time within which firecrackers and torpedoes may be
used."

The power of the Marshal to make rules governing the storage or use of
explosives or inflammable fluids and compounds within the metropolitan
district is found in G. L., c. 148, § 30, in the following words: —

"The marshal shall have within the metropolitan district the powers
given by sections ten, thirteen, fourteen, twenty, twenty-one and twenty-
two to license persons or premises, or to grant permits for, or to inspect or
regulate, the keeping, storage, use, manufacture, sale, handhng, transpor-
tation or other disposition of gunpowder, dynamite, nitroglycerine,
camphine or any similar fluids or compounds, crude petroleum or any of
its products, or any explosive or inflammable fluids or compounds, tab-
lets, torpedoes, rockets, toy pistols, fireworks, firecrackers, or any other
explosives, and the use of engines and furnaces as described in section one
hundred and fifteen of chapter one hundred and forty; provided, that the
city council of a city or the selectmen of a town may disapprove the grant-
ing of such a license or permit, and upon such disapproval the permit or
license shall be refused. In Boston certificates of renewal of licenses as

P.D. 12. 121

provided in section fourteen shall be filed annually for registration with
the fire commissioner, accompanied by a fee of one dollar."

In my opinion, the terms of these statutes must be construed as divesting
cities and towns of any power which they previously had to regulate the
storage and use of explosives or inflammable fluids as such. Such powers
to make rules and regulations became vested in the Fire Marshal's de-
partment of the District Police, or afterwards, within the metropolitan
district, in the Fire Prevention Commissioner; and to these powers the
Department of Public Safety (or the State Fire Marshal) has succeeded.
Gen. St. 1919, c. 350, § 99.

As before stated, however, cities and towns may still, under G. L.,
c. 143, § 3, by ordinances or by-laws regulate, for the prevention of fire,
the construction and use of buildings and other structures. (It will also
be noted that under G. L., c. 148, § 30, the power of the Fire Marshal to
license within the metropolitan district is subject to the approval of the
local authorities.)

Very truly yours,

Joseph E. Warner, Attorney General.

Motor Vehicles — Length — Ways.

Motor vehicles and trailers when used for transportation of poles, and
various single units having an over-all length, inclusive of load,
of not more than 60 feet, may operate on any public way.

Oct. 14, 1929.
Hon. Frank E. Lyman, Commissioner of Public Works.

Dear Sir: — You have asked my opinion concerning the interpreta-
tion of G. L., c. 90, § 19, as amended, with relation to two questions
which you have set forth as follows : —

" (1) If the Department should decide to designate localities or ways,
as provided in this act, will it be possible to limit any such way to a 33-
foot vehicle, or will the act of designation automatically carry with it
authority for the use of such ways by vehicles which, when loaded with
poles, have an over-all length of 60 feet?

(2) If no designation is made by the Department under the provisions
of this act, can motor vehicles loaded with poles, having an over-all
length of 60 feet, be legally operated on any way without the 'special
permit' mentioned in the tenth line of this act?"

G. L., c. 90, § 19, as amended by St. 1929, c. 313, reads: —

"No motor vehicle or trailer, the outside width of which is more than
ninety-six inches or the extreme over-all length of which is more than
twenty-eight feet, shall be operated on any way without a special permit
so to operate from the board or officer having charge of such way or, in
case of a state highway or a way determined by the department of public
works to be a through route, from said department; provided, that such
width may be exceeded by the lateral projection of pneumatic tires bej^ond
the rims of the wheels for such distance on either side of the vehicle or
trailer as will not increase its outside width above one hundred and two
inches; and provided, further, that the extreme over-all length of such a
vehicle or trailer when used in localities or on ways designated by the said
department may exceed twenty-eight feet but not thirty-three feet, and

122 P.D. 12.

that, when used for the transportation of poles or single units of lumber or
metal, such length may exceed twenty-eight feet but not sixty feet, except
as authorized by a special permit granted as aforesaid. The aforesaid
dimensions of width and length shall be inclusive of the load."

Before the enactment of the amending act, St. 1929, c. 313, G. L., c. 90,
§ 19, as then amended by St. 1927, c. 72, was as follows: —

"No commercial motor vehicle, motor truck or trailer, the outside
width of which is more than ninety-six inches or the extreme over-all
length of which exceeds twenty-eight feet, shall be operated on any way
without a special permit so to operate from the board or officer having
charge of such way, or, in case of a state highway or a way determined by
the department of public works to be a through route, from the commis-
sioner of public works. The aforesaid dimensions of width and length
shall be inclusive of the load."

Accordingly, the law as it stood before the passage of St. 1929, c. 313,
prohibited the operation on any way of a commercial motor vehicle or
trailer having an over-all length, inclusive of its load, of more than 28
feet, without a special permit.

The amendment of section 19 by St. 1929, c. 313, in its first clause
establishes precisely the same general prohibition as to over-all length of
all motor vehicles and trailers as had been set forth for commercial motor
vehicles and trailers immediately prior thereto, and then sets up certain
exceptions to the general prohibition of an over-all length, inclusive of
load, in excess of 28 feet, and these exceptions are: First, as to such
vehicles when used in localities or on ways designated by the Departm.ent
of Public Works, in which instance the maximum length may be 33 feet;
and second, as to such vehicles "when used for the transportation of poles
or single units of lumber or metal," in which latter instance the maximum
length may be 60 feet.

I am of the opinion that the second exception noted above, in favor of
such vehicles as are used for the designated transportation purposes, is
not limited to such vehicles so used when run upon designated ways or in
designated localities, but applies to them wherever used upon the ways
throughout the Commonwealth. I am constrained to think that such
w\as the intent of the Legislature as expressed by the words of St. 1929,
c. 313, by reason of the fact that the word "that" immediately follows
the word "and," in the twenty-second line of said chapter, indicating, in
connection with the context, a separation of the provisions which immedi-
ately follow it from those employed just before in relation to designated
ways and localities. I am confirmed in this view by the further fact that
the provisions of the exceptions concerning motor vehicles on "designated"
ways state that their length "may exceed twenty-eight feet but not
thirty-three feet," and that the language with relation to motor vehicles
engaged in the designated transportation is that their length "may
exceed twenty-eight feet but not sixty feet." If the exception with rela-
tion to the last-named class of vehicles had been intended by the Legisla-
ture to be limited by the provisions connected with use on designated
ways, the wording used would not have been as above quoted but would
naturally have been, — "may exceed thirty-three feet but not sixty
feet."

In accordance with the foregoing considerations I answer your first
question to the effect that, irrespective of a designation of localities or

P.D. 12. 123

ways by your Department, motor vehicles and trailers, "when used for
the transportation of poles and single units of lumber or metal," having
an over-all length, inclusive of load, of not more than 60 feet, may oper-
ate in any locality and upon any public way, designated or undesignated;
and that you have no authority to limit the use of any public way what-
soever to 33-foot vehicles to the exclusion of those not over 60 feet, used
in said transportation.

I answer your second question in the afhrmative.
Very truly yours,

Joseph E. Warner, Attorney General.

Civil Service — Chief of Police of Leominster.
The chief of police of Leominster is within the civil service law and rules.

Oct. 23, 1929.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You have asked me the two following questions: —

"1. Did the passage of Gen. St. 1918, c. 291, § 22, legahze the act of
the town of Leominster in accepting St. 1911, c. 468, and place the chief
of police of that town within the civil service classification?

2. If the answer to question number one is in the affirmative, does the
fact that Leominster became a city on January 3, 1916, prior to the passage
of the 1918 amendment, affect the situation?"

You advise me that on March 3, 1915, the town of Leominster voted to
accept the provisions of R. L., c. 19, § 37, and "at the same time," but I
assume somewhat thereafter, the town voted to accept the provisions of
St. 1911, c. 468, which in effect classified the chief of pohce of the town
under the civil service.

An opinion of one of my predecessors in office, to which you refer in your
communication and with which I agree, was given the Civil Service Com-
mission under date of March 21, 1917 (not published), and was to the
effect that the town of Leominster did not by its votes of March 3,. 1915,
so accept St. 1911, c. 468, as to place its chief of police within the classified
service.

The reason for the result arrived at by the opinion was that the town,
by its first vote of March 3, 1915, accepted only the provisions of R. L.,
c. 19, § 37, and not the whole of said chapter 19, and that since by the
terms of St. 1911, c. 468, as it then read, the acceptance b}^ a town of
St. 1911, c. 468, was not effective unless it had previously accepted all the
provisions of R. L., c. 19, the action of the town did not in the then existing
state of the law constitute a valid acceptance of St. 1911, c. 468.

After the said opinion was rendered, the Legislature enacted in 1918
an amendment to said St. 1911, c. 468, namely. Gen. St. 1918, c. 291, § 22,
which reads as follows : —

"Section one of chapter four hundred and sixty-eight of the acts of
nineteen hundred and eleven is hereby amended by inserting after the
word 'of in the ninth line the words — section thirty-seven of, — and by
inserting at the end thereof the words — as applied to the police force
thereof, — so as to read as follows : — Section 1 . The provisions of chap-
ter nineteen of the Revised Laws, entitled 'Of the Civil Service', and all
acts in amendment thereof and in addition thereto, and the civil service

124 P.D. 12.

rules made thereunder, and all acts now or hereafter in force relating to
the appointment and removal of police officers, shall apply to the super-
intendent, chief of pohce or city marshal in all cities except Boston, and
in all towns that have accepted, or may hereafter accept, the provisions
of section thirty-seven of said chapter nineteen as applied to the police
force thereof."

This statute made applicable to cities and towns which had accepted
said section 37 only, all acts then or thereafter in force relative to chiefs
of police upon acceptance of the statute of 1911. The town had pre-
viously voted to accept St. 1911, c. 468, but its vote was ineffectual as an
acceptance only because said statute as it then stood required the accept-
ance of the whole of R. L., c. 19, as a prerequisite to the acceptance of
St. 1911, c. 468. The town had in fact prior to its vote on the accept-
ance of the statute of 1911, voted to accept said section 37 of R. L., c. 19.
The effect of the amendment of the statute of 1911 by Gen. St. 1918,
c. 291, § 22, was to make effective the vote of the town accepting said
statute of 1911, by reason of its acceptance of said section 37. In my
opinion, the intent of the Legislature in amending St. 1911, c. 468, was
to give to the amended section a retroactive effect to the e.xtent above
set forth.

You advise me that Leominster became a city January 3, 1916, that is,
prior to the passage of Gen. St. 1918, c. 291, § 22. The fact that it was so
incorporated prior to the enactment of Gen. St. 1918, c. 291, § 22, is im-
material. The city of Leominster is the same municipal corporation as
the inhabitants of the town of Leominster were. By being incorporated
as a city the identity of the municipal corporation is not lost {Higginson v.
Turner, 171 Mass. 586, 591), and the acceptance of R. L., c. 19, § 37, and
of St. 1911, c. 468, by the town in 1915 is an acceptance of said chapters
by the city of Leominster, within the meaning thereof, in view of the
effect of Gen. St. 1918, c. 291, already noted.

I answer your first question to the effect that the passage of Gen. St.
1918, c. 291, § 22, had the effect of making R. L., c. 19, and all acts in
amendment thereof and in addition thereto, and the civil service rules
made thereunder, and all acts in force at the effective date of said chapter
291 and thereafter enacted, relating to the appointment and removal of
police officers, applicable to the chief of police of Leominster.

I answer your second question in the negative.
Very truly yours,

Joseph E. Warner, Attorney General.

IncompatihilUy of Offices.

The positions of register of probate of Hampden County and special
justice of the District Court at Holyoke may both be held by one
person.

Nov. 4, 1929.

His Excellency Frank G. Allen, Governor of the Commonwealth.

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

"On October 30, 1929, the name of Russell L. Davenport, Esquire, of
Holyoke, was submitted for the position of register of probate for the
County of Hampden. For your information Mr. Davenport at the

P.D. 12. 125

present time is special justice of the District Court at Holyoke. If
the Executive Council confirms the nomination of Mr. Davenport for the
position of register of probate on November 6th, will it be constitutional
for him to hold the two offices mentioned at the same time?"

Mass. Const., pt. 2nd, c. VI, art. II, and Mass. Const. Amend. VIII
set forth certain offices not more than one of which may be held by a single
individual, and certain other offices not more than two of which may be
held by a single individual. Certain other offices are described which
may not be held by members of the General Court.

The positions of register of probate for Hampden Count}^ and special
justice of the District Court at Holyoke are not so designated in the
Constitution but that they may be held by one individual. There
appears to be no provision of statutor}- law making it illegal for one
person to hold both of these offices, and I consequently advise you that
it will be constitutional for the person whom you name in j^our letter to
retain his office as said special justice while holding also the position of
said register of probate.

Ver}^ truly yours,

Joseph E. Warner, Attorney General.

Director — Two Positions — Text Books.

A person may not hold the position of principal of the Massachusetts
School of Art and State Director of Art Education if he has a direct
or indirect pecuniary interest in the books or school supplies used
in public schools.

Nov. 15, 1929.
Dr. Payson Smith, Commissioner of Education.

.Dear Sir: — You have asked my opinion as to the application of
G. L., c. 15, § 5, as it affects the services of a person employed as principal
of the Massachusetts School of Art and State Director of Art Education,
in so far as such person may have a pecuniary interest in books or supplies
used in the public schools.

G. L., c. 15, § 5, in its pertinent parts, reads as follows: —

"Except in the case of the teachers' retirement board, the division of
public libraries, the division of the blind and institutions under the
department, the commissioner may appoint such agents, clerks and other
assistants as the work of the department may require, may assign them
to divisions, transfer and remove them and fix their compensation, but
none of such employees shall have any direct or indirect pecuniary interest
in the publication or sale of any text or school book, or article of school
supply used in the public schools of the commonwealth."

You have advised me that a single person is employed by your Depart-
ment under one title or description but with two distinct lines of work,
with dissimilar duties: namely, first, as principal of the State school of
art, which you tell me corresponds in general scope of administration to
that of a State normal school, and, second, as Director of Art Education;
and I am informed that the duties of this latter position are not unlike
the functions usually discharged by the agents appointed under the
provisions of said section 5, except that they are confined to promotion
of a single branch of education only, — that of art. In your letter to me

126 PD. 12.

you have described the duties which such person performs as Director
of Art Education as follows : —

"He visits the various towns and cities of the Commonwealth for the
purpose of conferring with art supervisors and school officials on their
art programs in the public schools; addresses groups of people on art
subjects; confers with art supervisors and school officials; and conducts
regional conferences of art supervisors."

If the duties of the person who bears the title of principal of the Massa-
chusetts School of Art and State Director of Art Education were confined
to the administration of the School of Art, the prohibition of said section
5 would not be applicable to such a person, for the reasons set forth in
an opinion of one of my predecessors in office rendered to you August 5,
1924 (VII Op. Atty. Gen. 495), inasmuch as it appears plain that in the
capacity of such a principal alone he would not be an agent of the Depart-
ment appointed under the authority of said section 5, but rather would
be appointed by virtue of G. L., c. 73, § 1, as amended by St. 1926, c. 6.
But the duties of the person who bears the said title embrace also duties
such as visiting cities and towns and doing other acts particularly pre-
scribed for agents of the Board under earlier statutes, now embodied in
said section 5 (P. S., c. 41, § 9; R. L., c. 39, § 9).

It would seem that in his capacity as State Director of Art Education
he is acting as an agent of the Department, within the meaning of said
section 5, and, though called a director, his appointment would appear
to be that of an agent, made by virtue of the provisions of said section 5,
especially as no specific statutory authority exists relative to the director-
ship of art education, and no division of art education which would require
a director as its head appears, from what you have advised me, to be in
existence.

Since, then, the position in question is, in part at least, that of an
agent appointed under G. L., c. 1.5, § 5, the incumbent is subject to the
terms of said section relative to pecuniar}^ interest in books and supplies.

Consequently, I am constrained to advise you that a person may
not lawfully hold the position called principal of the Massachusetts
School of Art and State Director of Art Education if he has "any direct
or indirect pecuniary interest in the publication or sale of any text or
school book or article of school supply used in the public schools of the
Commonwealth." If, as a matter of fact, the two employments con-
stitute one position, such a pecuniary interest would debar a person
from holding the same.

Yours very truly,

Joseph E. Warnek, Attorney General.

State Board of Retirement — Members — Probation.

The Board has authority to make a by-law that an employee shall not
be a member during a probationary period of employment nor until
ninety days thereafter, and an employee has not the right to apply
for retirement during such periods.

Service of members is to be computed alone from the beginning of non-
probationary employment by the Commonwealth.

P.D. 12. 127

Nov. 16, 1929.
Hon. John W. Haigis, Chairman, Board of Retirement.

Dear Sir: — You have asked my opinion upon the following ques-
tions relating to the authority of the Board of Retii-ement : —

"(1) Has the Board exceeded its authority in establishing a by-law
that an employee shall not become a member during a period of proba-
tionary employment?

(2) Is it correct for the Board not to enroll a person until ninety daj's
after he has completed a period of probationary employment?

(3) Is it correct after the enrollment of an employee to include the
probationary plus additional ninety days of service when computing his
total period of continuous service for retirement benefits under the law?

(4) Has an employee any rights under G. L., c. 32, § 2 (9), to apply
to the Board for retirement during a probationary period of employment
and the additional ninety days specified by the law?"

G. L., c. 32, § 2, provides that —

"There shall be a retirement association for the employees of the
commonwealth."

Section 1, as amended by St. 1922, c. 341, § 1, defines "employees," as
the word is used in said chapter 32, as —

"Persons permanently and regularly employed in the direct service of
the commonwealth . . . whose sole or principal employment is in such
service."

G. L., c. 31, § 3, provides that the Civil Service Commissioners may
make rules and regulations which shall regulate "the selection of persons
to fill appointive positions in the government of the commonwealth,"
and that such regulations shall include — " {e) A period of probation
before an appointment or employment is made permanent." You advise
me that the Civil Service Commissioners have duly made a regulation
providing a probationary period of six months in the classified service
before an appointment or employment is made permanent. It is plain
that a person while employed during a probationary period, whether
his employment is under civil service or not, is not, from the very nature
of such employment, a "permanent" employee of the Commonwealth;
and that he was not, if under civil service, intended by the Legislature
to be considered as one follows from the language of G. L., c. 31, § 3 (e),
above quoted.

The provision of G. L., c. 32, § 2 (2), that "persons who enter the
service of the commonwealth hereafter shall, upon completing ninety
days of service, become thereby members of the association," would seem
to apply only to persons who enter the service of the Commonwealth
as permanent employees, for such alone are eligible to membership in
the association. It would therefore follow that a period of ninety days
from the expiration of a probationary period of employment should
elapse before an employee could be said to be a member of the association
and entitled to the benefits thereof.

Accordingly, I answer your first and second questions in the affirma-
tive, and your fourth in the negative.

The answer to your third question involves a consideration of other
factors in addition to those affecting the answers to your other queries.

G. L., c. 32, § 2 (4), as amended by St. 1925, c. 12, provides that —

128 P.D. 12.

"Any member who reaches the age of sixty and has been in the con-
tinuous service of the commonwealth for a period of fifteen years immedi-
ately preceding may retire."

Paragraphs (5) and (8) contain similar references to "continuous" service
with relation to periods entitling a member to retire.

I am informed that it has been the practice of your Board to include
the time of a probationary employment and the ninety days of employ-
ment before a person gains membership in the association as parts of the
period of continuous service mentioned in said paragraphs (4), (5) and
(8). I am of the opinion that your departmental practice in this respect
is correct. It appears from the definition of "continuous service" set
forth in said section 1, above quoted, and from the absence of any pro-
visions in said chapter 32 indicating an intention on the part of the Legis-
lature to make the "continuous service" essential to retirement coinci-
dent with continuous membership in the association, that continuous
service is to be computed from the beginning of employment of a mem-
ber by the Commonwealth and not from the beginning of his membership
in the association.

Ver}^ truly yours,

Joseph E. Warner, Attorney General.

Secretary of the Conimonwealth — Initiative Petition — Transmission to
General Court.

The Secretary of the Commonwealth must transmit a certified initiative
petition, having the required number of signatures, to the General
Court upon and not before its assembling.

Nov. 26, 1929.

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

Dear Sir: — You have asked my opinion as to your duty with rela-
tion to the transmission to the General Court of an initiative petition,
duly signed by the required number of qualified voters, which has been
filed with you. Your request reads as follows: —

"Will you kindly give me your opinion whether such petition must be
transmitted to the Clerk of the House of Representatives upon the exact
date of assembling of the General Court or whether it may be transmitted
prior to that date?"

The meaning of the applicable provision of the Constitution seems
clear upon this matter. Mass. Const. Amend. XLVHI, The Initiative,
//. Initiative Petitions, § 4, is as follows: —

" Transmission to the General Court. — If an initiative petition, signed
by the required number of qualified voters, has been filed as aforesaid,
the secretary of the commonwealth shall, upon the assembling of the
general court, transmit it to the clerk of the house of representatives,
and the proposed measure shall then be deemed to be introduced and
pending."

This section of the Constitution places upon you the duty to transmit
to the Clerk of the House of Representatives such an initiative petition
at a fixed time, namely, "upon the assembhng of the General Court."

P.D. 12. 129

The time of such transmission is not left to your discretion, and I am
of the opinion that you are not authorized to transmit the petition before
the time designated in section 4.

Very truly yours,

Joseph E. Warner, Attorney General.

Commissioner of Correction — Life Prisoner — Removal to State Prison

Colony.

The Commissioner of Correction may, in his reasonable discretion, remove
a life prisoner from the State Prison to the State Prison Colony.

Nov. 30, 1929.
Dr. A. W. Stearns, Commissioner of Correction.

Dear Sir: — In a recent communication to me you state: —

"St. 1927, c. 289, § 1, states that 'the commissioner may remove to
the state prison colony any prisoner held in the state prison,' etc.

G. L., c. 265, § 2, provides that 'whoever is guilty of murder in the
second degree shall be punished by imprisonment in the state prison for
life.''

Before this Department orders the transfer of any life prisoners from
the State Prison to the State Prison Colony I desire to ask your opinion
as to the legality of the same."

G. L., c. 265, § 2, provides: —

"Whoever is guilty of murder in the first degree shall suffer the punish-
ment of death, and whoever is guilty of murder in the second degree shall
be punished by imprisonment in the state prison for life."

G. L., c. 125, § 41B (St. 1927, c. 289, § 1), provides: —

"The commissioner may remove to the state prison colon}'" any pris-
oner held in the state prison who, in his judgment, may properly be so
removed and may at any time return such prisoner to the state prison.
Prisoners so removed shall be subject to the terms of their original sen-
tence and the provisions of law governing parole from the state prison."

The provisions of G. L., c. 265, § 2, standing alone, are mandatory,
and the judge of the court in which a prisoner has been convicted of mur-
der in the second degree must impose upon such person the sentence of
imprisonment for life in the State Prison, and a sentence, so imposed,
with certain exceptions, is required to be executed in the State Prison.

St. 1927, c. 289, § 1, in my opinion, constitutes an exception to the
mandatory provisions of G. L., c. 265, § 2. The words "any prisoner,"
as used in St. 1927, c. 289, § 1, are sufficiently broad to include prisoners
serving life sentences. If the Legislature had intended to limit the re-
moval of prisoners from the State Prison to the State Prison Colony to
only those prisoners sentenced to that institution for a term of years,
it would have used appropriate language to express that intent, as it did
in the passage of St. 1898, c. 393, §§ 5 and 7, now G. L., c. 125, § 39, where
it specifically provided that "such male prisoners, except those serving
sentences for life in the state prison, . . . maj^ be removed from the state
prison" to "the prison camp ... at West Rutland."

The words "may properly be so removed" are to be construed to mean
that any prisoner in the State Prison, except such prisonei's confined

130 P.D. 12.

therein in the manner and for the purposes provided by G. L., e. 279,
§ 44, may be removed to the State Prison Colony if, in the judgment of
the Commissioner, such prisoner, by his disposition and previous eon-
duct, has shown that he will be amenable to the discipline at said State
Prison Colony and will benefit by his removal thereto.

I am of opinion that the Commissioner of Correction may remove a
prisoner serving a life sentence in the State Prison to the State Prison
Colony, provided that he is of the opinion that such prisoner may "prop-
erly be so removed."

Yours very truly,

Joseph E, Warner, Attorney General.

P.D. 12. 131

INDEX TO OPINIONS.

PAGE

Agricultural seeds; retailer; name on package 94

Animal Industry, Division of; rules; poultry; animals 72

Banking; deposits in two names; joint accounts 57

Barbers; investigation by Department of Public Health 91

Certified public accountant; change of business name; registration . . 43

Charitable trust funds; cy-pres doctrine 78

Citizenship; registration of voters 115

Civil service; chief of police of Leominster 123

Clerk of election commission of Lowell; appointment 96

Labor service; rules 81

Veteran; Auditor of the Commonwealth 103

Clerk of a Senate conomittee; secretary of a joint special commission; wages

or salary 104

Common drinking cups and towels; rules; Department of Labor and In-
dustries 49

Compressed air tank; operation of pneumatic machinery .... 74
Constitution; Treasurer and Receiver General; vacancy in office . 41, 46

Constitutional law; charitable trust funds; cy-pres doctrine .... 78

Savings bank life insurance; statutory limitations 63

Stock of a trust company held by other banking organizations ... 60

Water supply; cities 75

Corporations; certificate of change in stock; fee 92

Correction, Commissioner of; life prisoner; removal to State Prison Colony . 129
Deer, killing of, during open season; restriction by Governor or Commissioner

of Conservation 44

Education, Department of; employees; pecuniary interest in text books . 125
Eighteenth Amendment; instructions by voters to legislators under public

policy act 38

Fish; cold storage; fresh; advertising 69

Forfeited automobiles; sales by Department of Public Safety .... 50
Governor and Council; approval of erection of radio equipment upon the

roof of the State House 83

Incompatibility of offices 124

Initiative petition; transmission to the General Court by the Secretary of

the Commonwealth 128

Inspector of slaughtering; appointment by local board of health ... 79

Insurance; fraternal organizations; certificates 107

Installment notes; small loans law 52

Life policies; incontestability; forms Ill

Stock company; dividends 47

Labor and Industries, Department of; rules as to common drinking cups and

towels 49

Laborers; contracts; public works; payments 90

Lowell, election commission of; clerk; civil service 96

Marriage and divorce; records; corrections 88

Massachusetts Agricultural College; committee of trustees to authorize ex-
penditures 102

Medical examiner; absence; associate 96

Metropolitan Planning, Division of; jurisdiction 44

Milk; misbranding; prosecution 90

132 P.D. 12.

PAGE

Motor vehicles; compulsory insurance act; express business .... 62

Interpretation of "right to operate"; revocation 84

Over-all length; trailers; permits; public ways 67, 121

Physician; certificate of registration; presentation to city or town clerk . 110
PubHc Health, Department of; inspector of slaughtering; appointment;

local board of health 79

Investigation of barbering 91

Taking of land by local authorities for protection of water supply; consent

of department 39

Public policy act; instructions by voters to legislators; Eighteenth Amend-
ment 38

Public records; corrections by city and town clerks; marriage and divorce . 88

Death records; diseases 101

Marriage records; certificate of filing of intention 101

Public Records, Supervisor of; rules; custody 97

Public welfare; minor children; settlement 109

Retirement system; certain employees of the Department of Correction;

"officers" 86

Members; probationary period 126

Penal institutions officer; duration of service 65

State employees; retirement ages 51

Sentence; State Farm; indeterminate sentence 98

State Fire Marshal; delegation of authority to a city council and the head of

the fire department, jointly, to issue licenses and permits ... 68

Enforcement of rules; local authorities 118

Municipalities; ordinances; storage and use of e.xplosives and inflam-
mable fluids; fire prevention 119

State hospital; authority of superintendent to allow inmates to leave grounds 114

Statute, acceptance of by a town; vote of inhabitants 53

Taxation; assessments on land taken for protection of water supply; pay-
ment by Metropolitan District Water Supply Commission ... 42
Inheritance tax; life insurance policy; change of beneficiary ... 59
Teachers' retirement law; assessments; failure to deduct assessments sea-
sonably 105

Traffic signs in Boston; expense 48

Treasurer and Receiver General; vacancy in office 41, 46

Trust company; increase of capital stock; stockholders 70

Stock held by other banking organizations 60

Trust funds; commercial funds; mingling ' 54

P.D. 12. 133

RULES OF PRACTICE

In Interstate Rendition.

Every application to the Governor for a requisition upon the executive
authority of any other State or Territory, for the delivery up and return of
any offender who has fled from the justice of this Commonwealth, must be made
by the district or prosecuting attorney for the county or district in which the
offence was committed, and must be in duplicate original papers, or certified
copies thereof.

The following must appear by the certificate of the district or prosecuting
attorney : • —

(a) The full name of the person for whom extradition is asked, together with
the name of the agent proposed, to be properly spelled.

(6) That, in his opinion, the ends of public justice require that the alleged
criminal be brought to this Commonwealth for trial, at the public expense.

(c) That he believes he has sufficient evidence to secure the conviction of
the fugitive.

(d) That the person named as agent is a proper person, and that he has no
private interest in the arrest of the fugitive.

(e) If there has been any former application for a requisition 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 fiigilive is known to be under either civil or criminal arrest in the
State or Territory to which he is alleged to have fled, the fact of such arrest
and the nature of the proceedings on which it is based must be stated.

ig) That the application is not made for the purpose of enforcing the collec-
tion of a debt, or for any private purpose whatever; and that, if the requi-
sition applied for be granted, the criminal proceedings shall not be used for any
of said objects.

(/i) 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 satisfactory reason
must be given for the delay in making the application.

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 witness 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 directly 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 justice of the State, and is in the State
on whose Executive the demand is requested to be made, must be gfiven. 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 duplicate, must accom-
pany the application.

4. If an indictment has not been found by a grand jury, the facts and cir-
cumstances showing the commission of the crime charged, and that the accused
perpetrated the same, must be shown by affidavits taken before a magistrate.

134 P.D. 12.

(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.

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 sentence, the application may be made by
the jailer, sheriff, or other officer having him in custody, and shall be accom-
panied by certified copies of the indictment or information, record of conviction
and sentence upon which the person is held, with the affidavit of such person
having him in custody, showing such escape, with the circumstances attending
the same.

8. No requisition will be made for the extradition of any fugitive except
in compliance with these rules.

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