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I have to advise you that in my opinion a veteran so employed is engaged in the service of the Commonwealth, within the meaning of the statute above quoted, and may be retired as therein provided. If the veteran in question is so retired, however, there seems to be no existing legislation which would authorize the assessment of the pension to which he would become entitled upon the metropolitan parks district, and the expense of such pension would therefore have to be borne by the Commonwealth, requiring a special appropriation therefor by the Legislature.
CORPORATION - AGREEMENT OF ASSOCIATION PARTIES
A husband and wife may legally enter into the contract represented by an agreement of association for the purpose of forming a corporation under the general laws.
In reply to your communication dated Aug. 1, 1907, I advise you that in my opinion a husband and wife may legally enter into the contract represented by an agreement of association for the formation of a corporation.
Under the laws of this Commonwealth a married woman may undoubtedly enter into the contract represented by an agree ment of association for the formation of a corporation. R. L., c. 153, § 2. She may enter into such a contract even if her husband is also a party thereto, unless by so doing she is making a contract with him. If the contract is not between the husband and wife, the fact that they are both parties to it is not objectionable. Major v. Holmes, 124 Mass. 108.
In my opinion a married woman is not contracting with her husband when she and he enter into the contract represented by an agreement of association for the formation of a corporation. The agreement of association constitutes an offer which must be accepted by the corporation before it can become binding. The formation of the corporation constitutes an acceptance of the offer made by the persons signing the agreement of association. The parties to the contract thereby formed are the corporation on the one hand and the subscribers on the other.
That this is the true nature and effect of the agreement of association appears from the decisions of the court in the cases of Athol Music Hall Co. v. Carey, 116 Mass. 471, and Hudson Real Estate Co. v. Tower, 156 Mass. 82. In the former case it was said (p. 473) that:
The promise of each subscriber "to and with each other," is not a contract capable of being enforced, or intended to operate literally as a contract to be enforced between each subscriber and each other who may have signed previously, or who should sign afterwards, nor between each subscriber and all the others collectively as individuals. The undertaking is inchoate and incomplete as a contract until the contemplated organization is effected, or the mutual agent constituted to represent the association of individual rights in accepting and acting upon the propositions offered by the several subscriptions. When thus accepted, the promise may be construed to have legal effect according to its purpose and intent, and the practical necessity of the case; to wit, as a contract with the common representative of the several associates.
In advising you as above I am not unmindful of the opinion of a former Attorney-General,'1 in which he said that he saw no sufficient reason for changing what he understood
to have been the uniform practice of your department, to decline to accept a husband and wife toward making up the necessary number of associates, on the ground that the agreement is a contract between each subscriber and all the others, and that a husband and wife cannot lawfully make such a contract with each other.
With deference to the opinion of my predecessor, I cannot, in view of the decisions cited, agree with 'his conclusion upon the question which you submit.
11 Op. Atty.-Gen. 47.
1907 October 25.
PUBLIC RECORDS RETURNS OF COMPANIES ENGAGED IN THE
By St. 1906, c. 433, the Massachusetts Highway Commission is required to receive and file the annual returns made by companies engaged in the transmission of intelligence by electricity within the Commonwealth, and such returns are therefore public records, under R. L., c. 35, § 6, which defines public records to be "any written or printed book or paper. . . which any officer or employee of the Commonwealth . . has received or is required to receive for filing."
The Massachusetts Highway Commission asks my opinion as to whether or not the annual returns made by companies engaged in the transmission of intelligence by electricity within the Commonwealth, which are filed with the commission in accordance with the provisions of St. 1906, c. 433, § 8, are to be considered as public records, to the extent that they are to be open to the inspection of the public.
St. 1906, c. 433, § 8, is as follows:
Every company engaged in the business of the transmission of intelligence by electricity within the Commonwealth shall annually, on or before the first day of October in each year after the year nineteen hundred and six, submit to said commission a report of its doings for the year ending on such date or dates preceding as said commission may designate, which report shall be in such form and detail as the commission may from time to time prescribe, and shall be called the "Annual Return". Such return shall be sworn to by the treasurer and by the chief accounting officer of such company, and shall include a statement of its business, receipts and expenditures within the Commonwealth during the year, its dividends paid out and declared, the amount of its authorized capital and its indebtedness and financial condition, on such date or dates as said commission may designate.
Section 9 provides for a penalty for failure to make the annual return required by the preceding section.
R. L., c. 35, § 5, provides that:
In construing the provisions of this chapter and other statutes, the words "public records" shall, unless a contrary intention clearly appears, mean any written or printed book or paper . . . which any officer or employee of the commonwealth or of a county, city or town has received or is required to receive for filing.
Section 17 of the same chapter provides that:
Every person who has the custody of any public records shall, at reasonable times, permit them to be inspected and examined by any person, under his supervision, and shall furnish copies thereof on the payment of a reasonable fee.
The provisions of R. L., c. 35, § 5, above quoted, were considered in an opinion of the Attorney-General, dated Sept. 22, 1902, and addressed to the Insurance Commissioner, which dealt with the annual returns required to be filed by insurance companies under the provisions of R. L., c. 118, § 96. It is there stated that:
This legislative definition cannot be held to include within its intention every paper which an officer of the Commonwealth receives and files. It must be limited to such as he is required by law to so receive for filing. Any other construction must be prejudicial to the rights and interests of the Commonwealth or its officers, and, indeed, of parties or persons making communications with such officers.
The original act for which the provision of the Revised Laws is a substitute, St. 1897, c. 439, § 1, called a public record any paper which a public officer is required by law to receive, or in pursuance of any such requirement has received for filing. The compilers of the Revised Laws have not preserved the distinction between a paper which an officer is required by law to receive and one which he receives for his own convenience. The existing qualification for the purpose of definition makes a test of the requirement to receive for filing, and any paper so received falls within the definition of a public record. (2 Op. Atty.-Gen. 381.)
I can see no distinction, for the purposes of this inquiry, between the returns filed with the Insurance Commissioner by insurance companies and those filed with the Massachusetts Highway Commission by telephone companies; and, since it appears that the Massachusetts Highway Commission is required to receive and file the returns provided for in section 8, such returns must, in my opinion, be deemed to be public records, and as such open to the inspection of the public.
To the State Board of Charity.
1907 November 13.
STATE BOARD OF CHARITY-MINOR CHILD RELIGIOUS
St. 1905, c. 464, § 1, which in part provides that "No minor child in the care, or
The State Board of Charity informs me that it has received from Jesse M. Purinton and Clara F. Purinton "a petition for the discharge of one Kate Jamrock to their care;" and I am requested to give my opinion as to the bearing of the provisions of chapter 464 of the Acts of 1905 on the powers of the Board with respect to the granting of the petition in question. I am further asked whether there is any other law affecting its action and power of discharge in said case.
Section 1 of chapter 464 of the Acts of 1905 reads as follows:
No parents, or surviving parent, of any minor child in the care or under the supervision of the state board of charity, or of any state commission, or of any state board of trustees, shall be denied the right of any child of theirs to the free exercise of the religious belief of his parents and the liberty of worshipping God according to the religion of his parents, or surviving parent, or of the religion which his parents professed, if they are both deceased; and no minor child in the care, or under the supervision of any state board of charity, or of any state commission, or state board of trustees, shall be denied the free exercise of the religion of his parents, or of his surviving parent, or of his parents if they are both deceased, nor the liberty of worshipping God according to the religion of his parents, whether living or deceased.
I regard the question as to this statute as settled by the case of Purinton et al. v. Jamrock, 195 Mass. 187, 199, in which the court say:
It is undoubtedly the general policy of the Commonwealth to secure to those of its wards who are children of tender years the right to be