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hill to recover the expenses incurred by such city in consequence of the illness from smallpox of two persons whose settlement was in Marlborough. The case was tried without a jury, upon the pleadings and an agreed statement of fact, in the lower court, which disallowed certain items charged by the city of Haverhill against the city of Marlborough. After passing upon certain of the claims which were allowed in the court below and sustaining the decision there rendered, the court says (p. 155):
The other classes of expenses were for services of policemen stationed to enforce the quarantine of the house, and for supplies for other persons not ill, furnished because they were also quarantined in the same building. All these expenses were disallowed by the lower court, and we think rightly. They were not incurred for the persons infected with smallpox, but for the preservation of the public health.
This decision would seem to be decisive upon the first question, and to show, at least in the case of settled persons, that the expenses for which recovery is allowed must be strictly limited to those incurred for or in behalf of the person actually afflicted with a contagious disease. I see no reason to distinguish between those expenses which one city or town may recover from another city or town in the case of settled paupers, and those which a city or town may recover from the Commonwealth in the case of unsettled paupers. It was the evident purpose of the statute to allow a reimbursement for the same expenses in both cases. It follows, therefore, that if the board of health expends money for the support or maintenance of the family of a person infected with a contagious disease who were quarantined with such person, such expenses must be treated as having been incurred for the preservation of the public health, and cannot be recovered either from a city or town where the sick person is settled, or from the Commonwealth in case such person has no settlement.
If, however, the family of a person suffering from such disease but not quarantined are aided for the reason that such family are unable to care for and maintain themselves, and are, therefore, a charge upon the city or town where they are
domiciled the aid rendered should, in my opinion, be rendered by the overseers of the poor, under R. L., c. 81, § 21, the temporary aid law, so called, and subject to the restrictions there established, as would be the case where such family had become poor and unable to support themselves, by reason of the death or injury of the parent whose work it was to provide for them.
With respect to the effect of aid rendered under either of these statutes in cases of contagious diseases dangerous to the public health, I am of opinion that such expenditures as are nade by the board of health, whether in behalf of the person afflicted or of his family, do not pauperize any of the persons who receive such aid. Where the aid is rendered by the overseers of the poor, the question is more difficult; but in that case also, in my opinion, the aid furnished, if it may properly be said that the expense incurred was in consequence of contagious disease dangerous to the public health, does not pauperize the persons aided. This view is confirmed by the fact that the provision of St. 1907, c. 386, § 2, is broad enough in terms to include not only aid furnished by the local board of health for the purpose of preserving the public health, but also aid furnished by the overseers of the poor, and required by the poverty of the family of the person afflicted with such disease.
VETERAN IN THE SERVICE OF THE COMMONWEALTH - SALARY.
In St. 1907, c. 458, § 1, providing that "a veteran of the civil war in the service of the commonwealth, if incapacitated for active duty, shall be retired from active service, with the consent of the governor, at one-half the rate of compensation paid to him when in active service, to be paid out of the treasury of the commonwealth," the word "compensation" is to be limited to salaries the exact amount of which is determined by law, and may not include living expenses or other like advantages, in addition to such salary.
In answer to Your Excellency's letter, enclosing a communi- To the cation from the superintendent of the Medfield Insane Asylum, in regard to the pension case of an employee of said institution, I reply as follows:
Governor. 1908 January 20.
This question depends upon the meaning of section 1 of chapter 458 of the Acts of 1907, which provides that:
A veteran of the civil war in the service of the commonwealth, if incapacitated for active duty, shall be retired from active service, with the consent of the governor, at one-half the rate of compensation paid to him when in active service, to be paid out of the treasury of the commonwealth.
In the case submitted for my consideration, the veteran was paid a salary of $1,500 a year, and in addition received his board and lodging; and he now claims to be entitled to be retired at one-half such salary plus one-half the cash value of the board and lodging he was receiving at the time of his application.
R. L., c. 6, § 58, provides that:—
Salaries payable from the treasury shall, unless otherwise provided, be paid on the first of each month and shall be in full for all services rendered to the commonwealth by the person to whom they are paid.
This section itself, it seems to me, is decisive of the question now under consideration. The living expenses and like advantages which certain employees of the Commonwealth may enjoy are given to them not as salary, but as privileges which the nature or place of their duties require the Commonwealth to grant to them to secure the highest degree of efficiency. Such privileges may at any time be discontinued and the employee required to defray his own living expenses, should such a course be possible without injuring the efficiency of the employee or of any employee who may occupy the same position. It is not probable that the Legislature intended to reduce such items as living expenses to a monetary value without providing some means other than the claims of the employee himself for determining the exact value of such privileges; and it must follow, I think, that the word "compensation" is to be limited to salaries, the exact amount of which is determined by law and may always be speedily ascertained by the Governor and Council.
TAXATION STREET RAILWAY CORPORATION
St. 1906, c. 463, Part III., § 133, requiring a street railway corporation to make a return to the board of assessors of every city and town of the amount of gross receipts for the year ending on the preceding 30th of September, and of the length of track operated, requires a street railway company to make such return, notwithstanding such company has gone into the hands of a receiver, and its franchises and property have been sold prior to September 30, under the provisions of St. 1906, c. 463, Part III., § 144, to another corporation, organized for the purpose owning and operating such road; and the tax provided for by section 134 of Part III. of such statute may be assessed upon it and may be collected from the purchasing company.
Commissioner. 1908 January 27.
You have requested my opinion upon certain facts growing To the Tax out of the sale of the property and franchises of the South Middlesex Street Railway Company to the Middlesex & Boston Street Railway Company. You state that the South Middlesex Street Railway Company went into the hands of a receiver, and that its property and franchises were sold by the receiver in July, 1907; that the Middlesex & Boston Street Railway Company was organized to own and operate said road, and that the former company did not, on Sept. 30, 1907, own or operate any track.
Your questions are, first, whether the South Middlesex Street Railway Company is required to make a return to the local assessors for the year ending Sept. 30, 1907, of the length of track operated by it in public ways and places, and of its gross receipts, in accordance with the provisions of St. 1906, c. 463, Part III., § 133; and, second, whether this company is liable to taxation under the provisions of section 134 of this statute, and, if so, whether the tax may be collected from the purchasing company.
I am of opinion that the original company is required to make a return in accordance with the provisions of section 133 of the statute cited, and is liable to taxation under section 134 thereof.
The statute requires a return of the amount of the gross receipts for the year ending on the preceding thirtieth day of September, and of the length of track operated. It is not necessary that the company making the return should be operating
the road on the thirtieth day of September. The statute requires a statement of the gross receipts for the year ending at that time. Unlike the statute providing for the corporate franchise tax (St. 1906, c. 463, Part III., § 125), it does not require that the length of track operated be taken at any particular time. There is no reason why the original company should not make the return required by statute.
Furthermore, there is no reason why it should not be liable for the tax. This tax is not based upon the value of the franchise at the time of assessment (see Commonwealth v. Lancaster Savings Bank, 123 Mass. 493), but is a payment for the use of the streets and highways. Such a tax may be laid on a corporation in the hands of a receiver as well as a property tax. City National Bank v. Charles Baker Company, 180 Mass. 40.
If the tax is not laid on the original company, it cannot be laid at all. It is a tax imposed in lieu of payment for the care and repair of streets and highways. Springfield v. Springfield Street Railway, 182 Mass. 41, 45; Boston v. Union Freight Railroad Co., 181 Mass. 205; McDonald v. Union Freight Railroad Co., 190 Mass. 123. It is in lieu of payment for the care and repair of streets and highways for the year covered by the gross receipts returned. Since it is based on gross receipts per mile, the cities and towns in which the railway is operated will receive nothing in lieu of payment for care and repairs for the period during which the road was operated by the original company, unless a tax is assessed upon such company. Clearly, the Legislature did not intend that the cities and towns within which a street railway was operated should be required to bear the burden of caring for and repairing streets and highways merely because the franchises and property of the railway company were sold during the tax year.
Though the return must be made by the original company, and the tax assessed upon it, the tax may, in my opinion, be collected from the purchasing company. I assume that the franchises and property of the company were purchased under authority of St. 1906, c. 463, Part III., § 144, which provides that the purchaser shall hold and possess the railway, franchises