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Your communication then proceeds as follows:
The question is, whether the language of section 4 of chapter 409 of the Acts of 1904, "subject to the approval of governor and council," has the same legal meaning as the language in section 9 of chapter 19 of the Revised Laws, exempting from civil service classification officers, "whose appointment is subject to confirmation by the executive council."
Persons exempt from the classified civil service are stated by R. L., c. 19, § 9, to be in part, "judicial officers and officers elected by the people or by a city council, or whose appointment is subject to confirmation by the executive council or city council of any city." The expression used in the above statute, subject to confirmation by the executive council," is inartificial and inexact, since there appears to be no case under the statutes of the Commonwealth where an appointment is confirmed by the Council. I am, however, aware that the word "confirmation" is now very generally used in connection with the function of the Council, which, under the Constitution and under numerous statutes, is to advise with the Executive upon the matter of appointments, and to consent to such appointments when made. The Constitution of Massachusetts, in referring to the powers of the Executive Council, speaks as follows (part 2, c. 2, § 1, art. 9): "All judicial officers, the solicitor-general and coroners shall be nominated and appointed by the governor by and with the advice and consent of the council; and every such nomination shall be made by the governor, and made at least seven days prior to such appointment." It is obviously to this important power and duty of the Council that R. L., c. 19, 9, has reference.
I am of opinion that the approval of the employment and compensation of clerks in the several departments of the Commonwealth is not an exercise of this function, even as designated in R. L., c. 19, § 9, and is rather an approval by the Council, acting with the Executive, of a scheme for proposed appointments and expenditures, than a confirmation of the particular appointment to be made. In the present instance the approval of the Governor and Council is an approval of such plans as are
contemplated by the State Forester and such expenditures as may result therefrom, and not a confirmation of the particular persons to be appointed to clerkships by such officer.
Assuming that no other valid ground for objection exists, therefore, I must advise you that in my opinion a clerk in the office of the State Forester is not exempt from the civil service law or rules, and must be held to fall within the classified civil service.
TRUST COMPANY BRANCH OFFICE CITY OR TOWN.
St. 1902, c. 355, § 2, providing that the Board of Commissioners of Savings Banks might authorize any trust company to maintain "a branch office in the city or town in which its main office is located," does not permit the authorization of more than one branch office in such city or town.
You ask my opinion as to the right of trust companies to To the Bank maintain more than one branch office under chapter 355 of the Acts of 1902. This act reads as follows:
Commissioner. 1907 November 29
SECTION 1. No trust company shall hereafter maintain a branch office except as hereinafter provided.
SECTION 2. The board of commissioners of savings banks may authorize in writing any trust company to maintain a branch office in the city or town in which its main office is located, for the sole purpose of receiving deposits, paying checks and transacting a safe deposit business. SECTION 3. This act shall take effect upon its passage.
I find that the matter was suggested to the Legislature by the Savings Bank Commissioners in their report of Jan. 13, 1902, in which occurs the following:
Another matter on which legislation may be required arises in the fact that within a few days one trust company has established, at some distance from its main offices, an office for the receipt of deposits and payment of checks, a course which does not meet the approval of this Board, and for which the Board claims there is no legal authority, and which is contrary to the policy of the Commonwealth as evidenced in its banking laws.
I am further informed by you that the matter of authorizing more than one branch office was called to the attention of the Legislature of 1907, but no action was taken thereon.
To the State
From the facts so presented to me, and from a consideration of the statute in question, I am of opinion that the Legislature contemplated the authorization of a single branch office only, and that the act does not authorize a trust company to maintain more than one branch office. I understand that the Worcester Trust Company now has three branch offices, which have been authorized by the Savings Bank Commissioners. Under these circumstances, it seems to me proper that you should call the situation to the attention of the Legislature in your annual report, although, as I have stated, it is my opinion that it was not the intention of the Legislature to permit the authorization of more than a single branch office.
INSANE PERSON PROPERTY IN POSSESSION OF OFFICERS OF
The receipt of money belonging to public charges supported in institutions for the insane or in private families under the supervision of the State Board of Insanity, by such Board or by the officers of such institutions, for safe keeping because such public charges are not competent to care for it, is not authorized by any provision of law.
Money so received may not legally be deposited in a bank or trust company, with other funds, to the account of any State Board or institution for the insane. Such money may not be applied by the Commonwealth to the payment of the expense of supporting any such public charge, during his lifetime, without the appointment of a guardian; it may, however, be received in payment for such support, upon an order by the insane person entitled thereto, given after his discharge from custody as unrecovered, although even in this case it is advisable that a guardian should be appointed.
Money left in the possession of the treasurers of the several State institutions for the insane by patients who were supported prior to Jan. 1, 1904, as town charges, and who died before that date, should be paid to the overseers of the poor of the places to which such patients were chargeable, if claimed by them on account of charges for the support of such patients; or, if no such claim is made, should be paid to the public administrator of the county in which the institution is situated. Money so retained which belonged to deceased patients who were supported as State charges may be covered into the treasury of the Commonwealth.
You request my opinion with reference to the care and disposition of money belonging to public charges supported in institutions or in the care of private families under the super
vision of the State Board of Insanity, and passing into the possession of the officers of such institutions or of such State Board for safe keeping, because such public charges are not competent to care for it. Your specific questions I will answer in order:
1. May such money be legally deposited in a bank or trust company on the same account as other funds of the institution?
No. There is no provision of law authorizing the officers of such institution or Board to receive such money. The practice is apparently one adopted wholly for the benefit of the patient, without legal authority; and funds should consequently be held, if at all, in trust for the beneficiary, and not mingled with other funds.
2. May it be legally deposited in a bank or trust company on a separate account?
If there is no guardian, and the person in charge of the money is of the opinion that the bank or trust company is a safe depository, it may be deposited, but only as an act of kindness to the patient; there is no legal authority therefor.
3. May it be claimed by the State in payment for support of such public charge, without the appointment of a guardian? If so, by what method?
No; not prior to the death of the insane person. Although R. L., c. 87, §§ 78, 79, provide for the payment of the charges for the support of insane persons by such persons if of sufficient ability, it would not be proper for the Commonwealth or for any institution to appropriate the money of an insane person for this purpose. A guardian should be appointed, to protect the interest of the patient.
4. May it be taken by the State in payment of his support on his order, given after his discharge as unrecovered from custody as an insane person?
Yes; after a patient is discharged from the hospital he may be treated and dealt with as an ordinary person of sound mind, irrespective of whether or not he has been discharged as "unrecovered." It would seem, however, that money should not be received by the State, even on a discharged person's order,
without the appointment of a guardian, if the superintendent of the institution or other person receiving the money is of opinion that the discharged person is unable to look after his affairs with reasonable prudence.
5. The treasurers of the State insane hospitals and asylums have in their possession money left by patients who were supported prior to Jan. 1, 1904, as town charges, and who died previous to that date. . . . You ask what disposition should be made of this money. Must it be returned to the towns or can it be covered into the State treasury?
By the provisions of R. L., c. 87, § 37, the overseers of the poor of the place to which the deceased was actually chargeable are entitled to take possession of all his real and personal property. Consequently, such sums should be paid to the overseers of the poor of the places to which the patients were respectively chargeable, if the said overseers desire to be reimbursed for the expenses incurred for the pauper. If there are no such charges for expenses as aforesaid, and if the person in charge of the institution, or the Board, has no knowledge of any husband, widow or heir of the deceased who should be notified, the money, if less than twenty dollars in all, should be delivered to a public administrator for the county in which the institution is. See R. L., c. 138, § 18, and 1 Op. Atty.-Gen. 536. If the amount exceeds twenty dollars, and the overseers of the poor of the city or town make no claim upon it, the public administrator of the county in which the institution is situated should be notified of the facts. See R. L., c. 138, § 2. If the public administrator neglects or declines to act, the district attorney of the district in which the institution is situated should be notified. See R. L., c. 138, § 17.
6. The treasurers also have $772.47 which belonged to deceased patients who were always supported as State charges. Is it legal for this Board to receive that money, under the provisions of section 9, chapter 87, and section 27, chapter 81, of the Revised Laws, and how shall it proceed to do so?
Yes. Section 9 of chapter 87 of the Revised Laws provides, in part: