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A. That was some time last year.
Q. Well, did they ever correct that statement ?
A. No, sir.
Q. And that remains the law up to to-day, so far as you are concerned?
A. Yes, sir.
Q And they gave you directions, therefore, that you had no right to enforce in any way.
A. That I couldn't punish them, but that if they didn't work to discharge them.
Q. But then, if you discharged them, that they had a right to come right back wasn't that so.
A. That was the practice; yes, sir.
Q. And that consequently your discharging them was merely giving them an opportunity to take a free ride to the city and an opportunity to get drunk there and then come back. Wasn't that the fact ?
It turned out so, sometimes.
Q. Yes, very frequently, didn't it? And that is the reason you didn't enforce the penalty more frequently, more regularly, wasn't it ?
A. Well, I enforced it every time, whether they went up and got drunk or didn't. If they wouldn't work I let them go.
Q. And that you are still doing now?
A. Yes, sir.
Q. And there isn't any change in regard to the condition of things? A. Well, I made another rule that if a man is discharged for cause once and comes back he gets no tobacco. That is all I can do.
Q. Other than that there has been no change whatsoever ?
That is all.
Q. And the Commissioners haven't in any way changed the directions which they gave you in regard to work ?
4. No, sir.
Q. Did the Commissioners ever say that there had an opinion been given to them as to the right to compel work?
4. I can't say as to that, because I don't remember. The only recollection I have, of course, of those interviews, is a general recollection as to what took place, without any specific dates or any exact conversation.
Q. But they have never submitted to you a copy of any opinion at any time?
A. No, sir. All I have seen is what has appeared here in the testimony, I believe. I have seen that.
Q. You mean that Mr. Reed read in his argument?
A. No, there is an opinion of the Corporation Counsel, if I remember correctly, printed in the testimony of these hearings.
A. Which says, I believe, that you could punish them.
Q. Well, what is the date of that opinion in which the Corporation Counsel says you could punish them and could enforce your orders and regulations in regard to them?
You mean this last one?
4. I don't know, sir.
Q. Well, how long ago was it?
I couldn't tell you that, because I don't remember. It was since this investigation began.
Q. It was in May, was it?
4. I don't know; since the investigation began.
Q. It was six months ago or more, wasn't it?
4. I couldn't say as to that my impression was three or four months ago.
Q. Now, have you ever seen or known that the Corporation Counsel has given an opinion directly to Dr. Jenks, as chairman of the Commissioners of Public Institutions, that you had full authority to enforce your regulations?
No, sir. I didn't know that such was the case.
Q. Well, has Dr. Jenks ever referred to the fact that he has received such an opinion?
A. I don't think that he has. I don't remember.
Q. Now, see whether you have ever heard of this opinion:
CITY OF BOSTON.
OFFICE OF THE CORPORATION COUNSEL, May 15, 1894. THOMAS L. JENKS, ESQ., Chairman of Commissioners of Public Institutions: DEAR SIR: I would reply to your questions contained in your letter of the 7th inst. as follows:
By Chapter 111 of the Acts of the year 1826, approved March 5, 1827, the directors of the House of Industry in the city of Boston were to have and exercise all the powers and perform all the duties relative to paupers, and the binding out of children and other persons committed to said House of Industry for support, as the Overseers of the Poor of the several towns in this Commonwealth now have and exercise in relation to paupers, and the binding out of children and other persons under and by virtue of the several laws of this Commonwealth. I am of the opinion that under this statute the directors of the House of Industry in the city of Boston had all the powers relative to paupers under their charge that the Overseers of the Poor in the several towns of the Commonwealth then had, and that the power given to the directors of the House of Industry under said Act are now vested in the Commissioners of Public Institutions. It is necessary, therefore, to ascertain what were the powers of Overseers of the Poor in the Commonwealth of Massachusetts, March 5, 1827. Section 21, of Chapter 33, of the Public Statutes, enacts that every person committed to a work-house shall, if able to work, be kept diligently employed in labor during the term of his commitment. If he is idle and does not perform such reasonable task as is assigned, or if he is stubborn or disorderly, he shall be punished according to the orders and regulation established by the directors. This statute was originally passed in 1788, and was in effect March, 1827. By Section 5 of Chapter 84 of the Public Statutes, the Overseers of the Poor have the same power and authority over persons placed under their care which directors or masters of workhouses have over the persons committed thereto. This statute was originally passed in 1828, but is substantially a reënactment of the statute passed by the province in the third year of George the Second. I am of opinion, therefore, that in 1827, when the directors of the House of Industry in the city of Boston were given the same power as Overseers of the Poor over paupers placed under their care, Overseers of the Poor had the authority given to directors of work-houses by Section 21 of Chapter 33 of the Public Statutes.
To return to your questions. My answer to the first question would be that the Commissioners of Public Institutions have a right to establish orders and regulations concerning the conduct of the paupers in the institutions enumerated in the question, and empower the superintendent by such regulations to punish the paupers who are idle or disobey such regulations.
Has Dr. Jenks or have any of the Commissioners ever reported to you the fact that as early as May 15, 1894, they had that opinion from the Corporation Counsel?
A. No, sir.
Q. Have they communicated to you in any way that they, and you under them, have power to punish those who disobey your directions in regard to labor ?
A. No, sir; I don't think they have.
Q. Have they communicated in any way that you had any right to enforce regulations of any kind down at your institution ?
A. I don't think that they have.
Q. Have they reported to you that the Corporation Counsel, in answer to their inquiry, has told them this:
I think the Commissioners of Public Institutions have authority under existing laws to pass such rules and regulations concerning the almshouse at Long Island as would separate those able to work and those unable to work, and in that way a work-house department could be created?
Has any such communication been made to you?
A. No, sir; there has not.
Q. And therefore during these more than six months since that opinion was given by the Corporation Counsel to the Commissioners, in which he set forth in the fullest way the powers of the Commissioners to enforce obedience, to create rules and regulations, and to make the men work, they have never even communicated that fact to you?
A. Well, I suppose, perhaps, they had in mind his previous opinion. Q. Well, isn't it a fact that he never gave Dr. Jenks any other opinion whatsoever on the subject?
A. I don't know, sir, I am sure. I had an impression that there was another one.
Q. Well, it is a fact, however, that Dr. Jenks or any of the Commismissioners have never even communicated to you the fact that they had power to enforce rules and regulations governing the people at Long Ísland by which this work which you deemed to be necessary, and which you told them that you deemed to be necessary, could be enforced? That is a fact, is it not?
A. They never did.
Mr. REED. Is that an opinion of 1894?
Mr. BRANDEIS. -Six months ago.
Mr. REED. — Is that an opinion given in answer to questions asked by the Commissioners at the request of somebody here during this hearing?
Mr. BRANDEIS. I don't know.
Mr. REED. It is must be the same.
Mr. BRANDEIS. This is an opinion of May 15, 1894, addressed to "Thos. L. Jenks, Esq., Chairman of Commissioners of Public Institutions."
Mr. REED. Yes, that is it.
Mr. BRANDEIS. I would reply to your questions contained in your letter of the 7th inst. as follows," that is, the letter must have been written the 7th of May, and this is the opinion of Mr. Babson, the Corporation Counsel, of May 15.
Mr. REED. — Yes, I understand. That is the opinion given in response to an inquiry suggested here at this hearing after Mr. Hale testified.
Mr. BRANDEIS. Now, I was asking this witness whether, although he had repeatedly discussed with Dr. Jenks and the other Commissioners the importance of enforcing rules and regulations to compel work, whether in spite of that fact and in spite of the opinion of the Corporation Counsel that the Commissioners possessed full power to do, that they had allowed six months to elapse without taking any step whatsoever towards even so far as communicating the existence of the power to the superintendent.
Mr. REED. Why do you disregard the former opinion, where he said they didn't have the power?
Mr. BRANDEIS. — He never gave any such opinion whatsoever to the
Mr. REED. You know better than that. It is in evidence here.
Mr. BRANDEIS. He gave no informal opinion to Mr. Morison.
Mr. BRANDEIS. Yes, but it was perfectly informal, and he has here set forth fully all his reasons and has corrected the hasty opinion he gave before.
Mr. REED. You know that isn't fair.
He didn't refer to his former
opinion at all. He gave answer to questions, and the last opinion is in answer to questions, and you know it. The two opinions are entirely distinct, and you know it.
Mr. BRANDEIS. - This is the only opinion ever asked for by Mr. Jenks and the only opinion that Dr. Jenks ever had.
Well, the other opinion is in evidence here. We had the original opinion and put it in evidence. Mr. BRANDEIS. Let us see it.
Mr. REED. Mr. Farmer put it in evidence. We haven't it, as it has been put in evidence.
Mr. BRANDEIS. Was it given to Dr. Jenks?
Mr. REED. It wasn't given to Mr. Morison any more than to Dr. Jenks.
Mr. BRANDEIS. Well, the fact is, that Dr. Jenks has power to do and does, whether he has power or not, everything he pleases, and he never does anything he doesn't want to do.
Mr. REED. — You know you are not fair.
Mr. BRANDEIS. He didn't have power to accept rocking-chairs, but he had power to get some and put them on the island last summer and he did it.
Please go on with the witness.
Mr. BRANDEIS. — I don't think the witness answered the last question, and I will ask the stenographer to read it.
(The stenographer read the last question.)
A. I answered that I think, before, that they never have communicated to me that I had any power to punish inmates down there.
Q. (By Mr. BRANDEIS.) Or that they had received from the Corporation Counsel an opinion to the effect that they had full power so to do?
4. I don't remember as to that. I couldn't say.
Mr. REED. There is a copy of the other opinion here. It has been put in evidence.
Mr. BRANDeis. That is not addressed to Dr. Jenks.
Mr. REED. No, addressed to Mr. Morison, the chairman of the visiting committee. But Dr. Jenks and that committee acted together. Mr. BRANDEIS. There isn't any evidence of that.
Mr. REED. — Oh, yes, there is, the evidence in the book there.
Nr. BRANDEIS. - Dr. Jenks didn't even have interest enough to ask for an opinion from the Corporation Counsel until this investigation was brought about.
Mr. REED. - That is not so.
Mr. BRANDEIS. He had no interest in the matter of asking for an opinion on the subject of compelling them to work. That is just what we complain of.
Mr. REED. That is not a fair statement in view of the testimony, and you know it.
Mr. BRANDEIS. - Isn't it a fact that Dr. Jenks has been Commissioner since 1889 and that he never has asked until May 7, 1894, for an opinion -five years?
What is the date of that first opinion?
Mr. BRANDEIS That is April 30, 1892 — that is three years less eleven days after he was appointed Commissioner.
Mr. REED. He had an opinion then?
Mr. BRANDEIS. - No, but Frank Morison was interested enough, the same as the Board of Commissioners have been since, to find out.
Was that opinion addressed to Mr. Morison ?
Mr. BRANDEIS. - Yes, and three years after Dr. Jenks was appointed and after this visiting committee had been appointed, which committee considered that a very important subject.
Mr. RILEY. And you will notice in reading that that he says nothing about the laws under George the Second, either.
Ald. LEE. I noticed that.
Mr. RILEY. — I thought you would.
(The hearing was adjourned at 10.01 o'clock P.M. to Tuesday, December 4, at 4 o'clock P.M.)