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power of disposition over the stock; but when a transfer by one who has the full power to transfer it is presented, the corporation has the right to act upon it, and it is not its duty to inquire into the purposes of the parties or to investigate the question whether that transaction is in good faith or is fraudulent. Crocker v. Old Colony R.R. Co., 137 Mass. 417.
In the case of an executor I think it would be wise, although not absolutely necessary, to satisfy yourself that there is nothing in the will restricting his general authority as executor. In the absence of any such restriction upon the authority of an executor, and in any case without investigating the authority of an administrator, you may properly transfer bonds duly endorsed, without regard to the person to whom the endorsement
CIVIL SERVICE - - VENDOR OF INTOXICATING LIQUORS
The words, "vendor of intoxicating liquors," as used in R. L., c. 19, § 16, relating to the civil service, which provides in part that "no vendor of intoxicating liquors shall be appointed to or retained in any office, appointment or employment to which the provisions of this chapter apply," are applicable to one who either as principal or agent sells intoxicating liquor, and would include persons who drive about among the customers of their employers and deliver intoxicating liquors and collect money from such customers, and who make sales upon their routes, as well as persons who are employed as bartenders.
You request me to define the words "vendor of intoxicating To the liquors," as used in section 16 of chapter 19 of the Revised Commission. Laws, relating to the civil service. That section is as follows: May 24.
No person habitually using intoxicating liquors to excess and no vendor of intoxicating liquors shall be appointed to or retained in any office, appointment or employment to which the provisions of this chapter apply.
The only real question as to the meaning of the word as used in this statute is whether or not it includes an agent as well as a principal. A vendor is "the seller; one who disposes of a thing in consideration of money." (Bouvier's Law Dictionary.) The vendor of land, as distinguished from the grantor, is he who
negotiates the sale and becomes the recipient of the consideration, though the title comes to the vendee from another source and not from the vendor. Rutland v. Brister, 53 Miss. 683, 685. Thus, one who contracts to sell land which he does not own is a vendor. Of course the vendor is not in such case necessarily the agent of the grantor. The important thing is, however, that the vendor sells that to which he has no title.
An early draft of the civil service bill used the words "person who holds a license for the sale," instead of the word "vendor." The bill as enacted contained the word "vendor," as at present. This clearly indicates an intention on the part of the Legislature to enlarge the restriction, and I am of opinion that the restriction so enlarged includes agents for the sale of intoxicating liquor, as well as principals.
A vendor of intoxicating liquor would be, therefore, one who, either as principal or agent, sells intoxicating liquor. Persons, therefore, who in driving around among the customers of their employers and delivering beer, ale or other intoxicating liquors, collect money from these customers to whom the goods have been sold, and also sell to any on their routes who may wish to be supplied, and collect money on such sales, also persons who are employed as bartenders but who are not owners of liquor businesses, are, in my opinion, vendors of intoxicating liquors within the meaning of section 16 of chapter 19 of the Revised Laws.
CLERKS OF COURTS FEES FOR NATURALIZATION - COUNTY
Clerks of courts having jurisdiction to naturalize aliens as citizens of the United States, under the act of Congress of June 29, 1906, are not entitled to retain for their own use one-half of the naturalization fees received by them under such act, and all such fees should be paid over to the treasurer of the county for which such court is constituted.
You ask my opinion as to whether clerks of courts can retain for their own use and benefit one-half of the naturalization fees under the naturalization law of the United States and the laws of this Commonwealth.
R. L., c. 165, § 37, provides:
The annual salaries of clerks (of courts) shall be in full compensation for all services rendered by them in the civil or criminal courts, to the county commissioners, in making any returns required by law or in the performance of any other official duty except for such clerical assistance as may be allowed under the provisions of the following section.
Section 31 of said chapter is as follows:
The clerks of the courts in the several counties, and of the supreme judicial court and the superior court in the county of Suffolk, shall keep a cash book, which shall be county property and shall be and remain a part of the records of the courts, in which they shall keep accounts of all fees received by them for their official acts and services, including fees for copies which they are not required by law to furnish, fees and money in proceedings relative to naturalization or for naturalization certificates, and all fees and money of whatever description or character received by them, or by any assistant or other person in their offices or employment, for any acts done or services rendered in connection with their said offices, and shall on or before the tenth day of each month pay over to the treasurer of the county, or to such other officer as is entitled to receive them, all fees received during the preceding calendar month, and shall render to him an account thereof under oath.
The United States Naturalization Act of June 29, 1906 (34 U. S. St. at Large, 596), provided in section 3 as follows:
That exclusive jurisdiction to naturalize aliens as citizens of the United States is hereby conferred upon the following specified courts: United States Circuit and District Courts now existing .. ; also all courts of record in any state or territory now existing, or which may hereafter be created, having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited.
It is further provided in section 13 of said act, as follows:
That the clerk of each and every court exercising jurisdiction in naturalization cases shall charge, collect, and account for the following fees in each proceeding... . . The clerk of any court collecting such fees is hereby authorized to retain one half of the naturalization fees collected by him in such naturalization proceeding; the remaining one half of the naturalization fees in each case collected by such clerks, respectively, shall be accounted for in their quarterly accounts which they are hereby required
to render the Bureau of Immigration and Naturalization, and paid over to such bureau within thirty days from the close of each quarter in each and every fiscal year In addition to the fees herein required, the petitioner shall deposit with and pay to the clerk of the court a sum of money . . ; provided that the clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one half of the fees in any fiscal year up to the sum of three thousand dollars.
1. Have the clerks of courts heretofore referred to the right to retain for their own use one-half the naturalization fees received by them under the naturalization laws of the United States?
2. If they have not such right, to whom should said one-half be paid by said clerks?
You will observe that section 37 of chapter 165 of the Revised Laws provides that salaries of clerks shall be in full compensation for all services rendered by them in the civil or criminal courts; and that section 31 of said chapter provides that the clerks of courts in the several counties shall keep a cash book in which they shall keep accounts of all fees received by them for their official acts and services, including fees and money in proceedings relative to naturalization or for naturalization certificates, and all fees and money of whatever description or character received by them, etc., and shall on or before the tenth day of each month pay over to the treasury of the county all fees received during the preceding calendar month, and shall render to him an account thereof under oath.
It seems to me clear, therefore, that the clerks of courts cannot retain for their own use one-half of said naturalization fees received by them under the naturalization laws of the United States, as their duties and powers are prescribed by the laws of this Commonwealth, and they perform the duties required by the United States naturalization act by virtue of their offices as clerks of courts of this Commonwealth and not through appointment by the United States, and our law specially requires that all naturalization fees be paid over to the treasurer of the county.1
1 But see County of Hampden, 207 Mass. 167.
CONSTITUTIONAL LAW CITIES AND TOWNS HARVEST AND
A proposed bill, entitled "An Act to authorize the city of Holyoke to harvest and sell ice at wholesale," which in part provides for the raising of money by taxation to directly defray the cost of the carrying on by such city of the business of harvesting and selling ice, or for the repayment of loans made for such purpose, is unconstitutional, as authorizing the raising of money by taxation for a purpose not public in its nature.
You request my opinion as to the constitutionality of a bill To the which has passed the Senate and the House of Representa- June 12. tives, entitled "An Act to authorize the city of Holyoke to harvest and sell ice at wholesale:" This bill authorizes the city of Holyoke to "cut and harvest ice from any great pond or river in its limits and from any ponds or reservoirs used by the municipality as a water supply, and to store and sell the same at wholesale to the inhabitants of the city." It authorizes the taking of land or easements and the raising of money by taxation or by loan for the purpose of carrying out its provisions.
The principal question raised by your inquiry is whether or not the cutting and harvesting of ice and the storing and sale of the same at wholesale to the inhabitants of a municipality is a public purpose, for which money may be raised by taxation. The precise question has not been passed upon by our courts, nor, so far as I can discover, by the courts of any other State. The justices of the Supreme Judicial Court, however, have been called upon to pass upon analogous questions. In the Opinion of the Justices, reported in 150 Mass. 592, the justices advised the House of Representatives that under the Constitution the Legislature has power to authorize cities and towns to manufacture and distribute gas or electric light for use in their public streets and buildings and for sale to their inhabitants. Long before that opinion was given it was held that the "supplying of a large number of inhabitants with pure water is a public purpose." Lumbard v. Stearns, 4 Cush. 60.
On the other hand, in an Opinion of the Justices to the House of Representatives, reported in 155 Mass. 598, a majority of the justices expressed the opinion that the Legislature could not