under the Constitution authorize cities and towns to buy coal and wood for the purpose of sale to their inhabitants for fuel; and in an Opinion of the Justices to the House of Representatives, reported in 182 Mass. 605, the justices were unanimously of the opinion that in the absence of an extraordinary emergency it was not within the constitutional power of the Legislature to enact a law conferring upon cities and towns authority to establish and maintain municipal fuel or coal yards or to purchase coal and wood for the purpose of selling it generally to their inhabitants or others.

The line of distinction between these two classes of cases was pointed out in the opinion last referred to. It was there said (p. 608):

The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmental function, as does the distribution of water, gas and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise with supplies emanating from a single source, as is required for the economical management of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary

means.

To my mind this language is as applicable to the business of selling ice to the inhabitants of a city or town generally as to the business of selling fuel to such inhabitants, and indicates that the conducting of such a business is not a public purpose, for which money may be raised by taxation. Moreover, when it is considered that the bill authorizes the sale of ice at wholesale only, it is even more apparent that the purpose is not public.

My conclusion, therefore, is that the bill concerning which you request my opinion, authorizing, as it does, the raising of money by taxation to provide directly for the cost of carrying on the business of harvesting and selling ice or for the repayment of loans made to provide therefor, is unconstitutional, as authorizing the raising of money by taxation for a purpose not public in its nature.

ATTORNEY-GENERAL

LEGISLATIVE

COMMITTEE PREPARA

TION AND DRAFT OF PROPOSED LEGISLATION.

It is not within the scope of the duties of the Attorney-General to draft proposed legislation, or to advise a committee of the Legislature except upon bills actually pending before it; but if so requested he may, in his discretion and as matter of courtesy, submit a draft of a bill for the consideration and assistance of such committee.

Committee 1907

Certain questions have been orally and informally referred To the to me with respect to a so-called merger of the Boston & Maine on Railroads. Railroad with the New York, New Haven & Hartford Railroad June 18. Company, and certain legislation designed to prohibit or control such merger has been submitted for my consideration.

I desire to point out to your committee that there is at present before me no evidence whatever of the actual and existing relations of the two companies above mentioned, except the statement of President Mellen that "certain interests identified with my company have placed the control of the Boston & Maine Railroad where my company can have it when they get the power to take it," and therefore that the use of the word "merger" in connection with such transactions as may have taken place between such corporations or the individual stockholders thereof is as yet unwarranted.

It would appear, however, that at present the effect of the action of the New York, New Haven & Hartford Railroad Company in the premises, and the object which that corporation is now seeking to attain, is to establish a control of the Boston & Maine Railroad through interests friendly to the New York, New Haven & Hartford Railroad Company by means of the purchase of the stock of the Boston & Maine Railroad sufficient to enable the New York, New Haven & Hartford Railroad Company to elect such directors as it may desire to place in office, who might manage and operate the Boston & Maine Railroad in the interest of the corporation by whose stock they were elected, and to the possible disadvantage of the corporation of which they are officers and of the people of the Commonwealth.

St. 1906, c. 463, part II., § 57, provides in part that “a rail

road corporation . . . shall not directly or indirectly subscribe for, take or hold the stock or bonds of or guarantee the bonds or dividends of any other corporation;" and actions brought under this section against the New York, New Haven & Hartford Railroad Company to test the legality of the means by which that corporation controls the stock in certain Massachusetts street railway companies are now pending before the Supreme Judicial Court. No evidence has come to my attention of any violation of this section of the statute, arising out of the attempted control of the Boston & Maine Railroad, nor is there such evidence in the report of the hearing before your committee.

Further legislation drawn by me and based upon the suggestions contained in His Excellency's message of June 5, 1907, now before your committee, is submitted herewith, as containing in proper legal form the views of His Excellency in the premises. In response to a vote of the committee, I also annex hereto a draft of a bill which in my judgment is sufficient, by reason of its provisions, to prevent the control of a corporation chartered by the Commonwealth from passing, through the purchase of its stock, into the hands of corporations or individuals less directly within and subject to the jurisdiction of the Commonwealth, and which in my opinion is a constitutional exercise of the powers of the Commonwealth in the premises.

Strictly, it is not within the scope of the duties of the Attorney-General to draft proposed legislation, nor, indeed, to advise a committee of the Legislature except upon such bills as may be actually pending before it. In the present situation, however, I have prepared a draft of a bill for your consideration, not only as a matter of courtesy, but because I desire to render to your committee such assistance as is in my power in safeguarding the interests of the Commonwealth. Should the Legislature, or either branch of it, or your committee, by a formal inquiry in writing, seek my opinion and advice upon any question presented by or relating to any legislation, it will then become my duty to reply thereto as fully as circumstances may require.

STATE HIGHWAY-ALTERATION OF LOCATION-ABANDONMENT.

A portion of an existing State highway which, under a proposed plan for alteration of location under R. L., c. 47, §§ 7 and 8, does not fall within the limits of such highway as established by such alteration, may be abandoned.

Massachusetts

Commission.

June 25.

The Massachusetts Highway Commission requests my opinion To the as to whether a portion of the State highway in the town of Highway Brimfield may be abandoned by the commission, in view of the 1907 proposed laying out and taking charge of a new State highway running substantially parallel to the portion proposed to be abandoned.

The statute in question is R. L., c. 47, §§ 7 and 8, which provide as follows:

SECTION 7. Said commission may, with the concurrence of the mayor and aldermen of a city or the selectmen of a town, alter the location of a state highway in such city or town by filing a plan thereof and a certificate that said commission has laid out and taken charge of said state highway, as altered in accordance with said plan, in the office of the county commissioners for the county in which said highway is situated, and by filing a copy of the plan or location as altered in the office of the clerk of such city or town.

SECTION 8. Said commission may, with the concurrence of the mayor and aldermen of a city or the selectmen of a town, abandon any land or part thereof, or rights in land which have been taken or acquired by it in such city or town by executing, acknowledging and recording a deed thereof accompanied by a plan of survey which shall be recorded therewith. Said abandonment shall revest the title to the land or rights abandoned in the persons, their heirs and assigns, in whom it was vested at the time of the taking, and may be pleaded in reduction of damages in any suit therefor on account of such taking.

These sections were originally Acts of 1900, c. 475, §§ 1 and 2. It is obvious that the two sections must be read together, and together provide for the alteration of an existing location and the abandonment of that portion thereof which is not to be subjected to the easement in favor of the public in the new location. If this be so, the only question to determine is whether or not the proposed action by the commissioners will or may be an alteration of the location within the meaning of section 7.

To the Super

intendent of
State Adult
Poor.
1907

July 2.

If the proposed plan contemplates the laying out and taking charge of a wholly new piece of State highway, I think the existing one cannot lawfully be abandoned. But it seems to me that the plan can be properly carried out as an alteration of the existing highway. The proposed new highway will apparently run for a substantial distance along a route which, though entirely distinct from the present highway, will render its use superfluous.

I think these facts are sufficient to make the new location an alteration as defined by Knowlton, C.J., in Bennett v. Wellesley, 189 Mass. 308, at pp. 318, 319.

An opinion of my predecessor, dated Sept. 6, 1902, and referred to by your commission, was in answer to the question whether or not a State highway might be wholly abandoned by the commissioners and surrendered to a town to be under the sole control of the town, and has therefore no relation to the question of alteration now under discussion.

I am therefore of opinion that the portion of the location of the present State highway which will not fall within the limit established by the new plan may be abandoned by the Highway Commission, provided that the new portion be laid out and taken charge of as an alteration of the location of the existing highway, in accordance with the provisions of sections 7 and 8 of chapter 47.

Under the provisions of R. L., c. 80, § 1, cl. 5, providing that "A person of the age of twenty-one years who resides in any place within this Commonwealth for five consecutive years and within that time pays all state, county, city or town taxes duly assessed on his poll or estate for any three years within that time shall thereby acquire a settlement in such place," it is necessary not only that the required taxes should be paid but also that the assessments thereof should be made within such period.

You request my opinion as to whether Robert S. Chute, a pauper, has acquired a legal settlement in Lynn under the provisions of R. L., c. 80, § 1, cl. 5, which is as follows:

A person of the age of twenty-one years who resides in any place within this commonwealth for five consecutive years and within that