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council to be, so far as is practicable in such works, faithfully and accurately prepared and historically correct, to contain matter not previously published or accessible to the general historian, to be of sufficient reliability and importance to justify the purchase of copies as herein provided for, and to contain a complete roster of the organization, corrected to the date of publication, the secretary of the commonwealth, with the approval of the governor and council, and at a price fixed by them, shall purchase five hundred copies of such history. Said history shall be in one volume, and the price thereof shall not exceed two dollars for a volume of four hundred octavo pages.
The provisions of the statute above quoted were, by St. 1899, c. 388, made applicable to histories of organizations of Massachusetts volunteers which saw active service in the field during the Spanish war.
The specific inquiry presented by your communication is whether or not the certificate of approval which you submitted is a sufficient compliance with the provision of St. 1893, c. 413, § 1, requiring that such publication should be under the sanction and authority of the proper veteran association of the military organization whose history is in question. The undoubted purpose of such provision was to secure the approval of such veteran association, if any, to the publication of any history of the organization which it represents. In the present instance it is true that there was in existence no regular association of veterans of the Spanish war who had served in the Eighth Massachusetts Volunteer Infantry; but if, as I assume, the members of such regiment who would be eligible to membership in a veteran association associated themselves together and duly selected a committee to represent them, which committee examined the publication and duly sanctioned and authorized the same, as appears from the certificate of approval above referred to, I am of opinion that the terms of the statute have been substantially complied with in the premises, and that the Secretary of the Commonwealth is authorized to deal with the publication already referred to as directed in St. 1893, c. 413, § 1.
LIABILITY OF COMMONWEALTH FOR ACT OF INSANE
The Commonwealth is not liable for any act of or injury caused by an insane person released from a public asylum on parole, by authority of St. 1905, c. 435, § 1; and an appropriation for the purpose of compensating the widow of a member of an unpaid commission in the service of the Commonwealth, who was killed by an insane person so released on parole, is not for a public purpose, and is, therefore, unconstitutional.
You ask my opinion on the following questions:
1. Is the responsibility of the Commonwealth, if any, for injury caused by an insane person released from a public asylum on parole, such as may constitutionally be recognized by the Legislature through a compensatory appropriation.
Chapter 435 of the Acts of 1905 provides in section 1 that:
The superintendent or keeper of any institution, public or private, used wholly or in part for the care of the insane, may permit any inmate thereof temporarily to leave such institution in charge of his guardian, relatives, friends or by himself, for a period not exceeding six months, and may receive him when returned by any such guardian, relatives, friends or upon his own application within such period, without any further order of commitment. The expense of such return of a pauper may be paid by the state board of insanity, if, in its opinion, a new commitment would otherwise be necessary.
It is therefore clear that an insane person may be released from a public asylum on parole. Even if the superintendent acted improperly, no government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents. In the language of Judge Story, "it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it in all its operations in endless embarassments and difficulties and losses which would be subversive of the public interests." Gibbons v. United States, 8 Wall. 274. Therefore, whether the insane person was properly released or
To the House
not, no liability attached on the part of the Commonwealth. If an appropriation of money to be raised by taxation is contemplated in a case of this kind, it would be by way of gift, and would clearly be an excess of legislative power.
I am of opinion, therefore, that such appropriation cannot be constitutionally made.
2. Would an appropriation to the widow of a member of an unpaid commission be an appropriation for a public purpose?
The power of the government to affect the individual in his private rights of property is confined to purposes and objects alone which the government was established to promote, public uses and the public service.
I am informed that the appropriation suggested is to the widow of one of the five members of the Commission on Commerce and Industry, appointed pursuant to chapter 104 of the Resolves of 1907. This commission had been appointed about six months, and had not made its report when Edward Cohen, one of the members, was shot in an anteroom of the Executive Chamber at the State House.
The power to give rewards after the event for conspicuous public service, if it exists at all, is limited to cases where a man has deserved greatly of the Commonwealth by military or civil services in which the public advantage of recognizing his merit should be the strong element, and "the public welfare alone must be the ground, as it is the only legal justification for this kind of payment." Opinion of Justices, 175 Mass. 602. Can it be fairly said that a member of a commission, paid or unpaid, who had been in the service of the Commonwealth only for a few months, whose report had not been made, has deserved greatly of the Commonwealth by conspicuous service which would be entitled to a reward by way of gift? It seems to me that it cannot be fairly thought that the public good will be served by such a grant, and that in such a case the only public advantage is such as may be incident and collateral to the relief of a private citizen.
I am of opinion that an appropriation to the widow of such a person is not for a public purpose, and cannot be made under the Constitution.
3. Would an appropriation to the widow of one not in the service of the Commonwealth, injured while in a public building, whether or not through the negligence of any servant of the Commonwealth, be an appropriation for a public purpose?
I understand that this question refers to the shooting by an insane person of Dennis D. Driscoll, who was not in the employ of the Commonwealth, but who was waiting in the anteroom of the Executive Chamber with Edward Cohen for the purpose of interviewing His Excellency the Governor on the question of the pardon of a prisoner in the State Prison at Charlestown. I am of opinion that a payment by the Commonwealth, to the widow of a person shot as aforesaid, of any sum of money merely by reason of his happening to be at the State House on an unofficial matter when he received his injury, would not be for a public purpose within the meaning of the law; and that there is no more reason for such payment than there would be if the person were elsewhere upon the streets or in any building when he was shot, and that such an appropriation would not be for a public purpose.
CONSTITUTIONAL LAW-TAXATION - APPROPRIATION OF PUB-
A society, school or institution which is under direct ecclesiastical or sectarian control, and is designed solely or even principally for the benefit of persons of a particular sect or denomination, cannot be held to be maintained for a public purpose such as would justify an expenditure of money raised by taxation; and an appropriation for the benefit of such society, school or institution from the public funds raised by taxation would be unconstitutional.
I have the honor to acknowledge the receipt of an order To the House adopted by the Honorable House of Representatives on the sentatives. twenty-eighth day of February, 1908, requiring my opinion, April 6. as follows:
Ordered, That the Attorney-General be requested to submit to the House of Representatives his opinion in writing upon the following question: Under the Constitution and laws of the Commonwealth, can a State, county, city, town, village or other civil division use its property or credit; or any money raised by taxation or otherwise, or authorize either to be used, for the purpose of founding, maintaining or aiding by appropriation or in any other manner any church, religious denomination or religious society, or any institution, school, society or undertaking which is under sectarian or ecclesiastical control?
The question is a somewhat broad one, but for the purposes of this inquiry I assume that the Honorable House of Representatives in substance desires my opinion on the question whether or not public moneys raised by taxation may, under the constitutional provisions, be expended by the Commonwealth or by any county, city or town thereof for the purpose of founding, maintaining or otherwise aiding any church, religious denomination or religious society or any institution, school, society or undertaking which is under sectarian or ecclesiastical control. On this assumption I submit the following conclusions:
The right to appropriate public funds for specific purposes is no more extensive than the power to levy taxes for such specific purposes. The power of taxation has been defined and limited by the Constitution of the Commonwealth. Article IV. of section I. of chapter I., part second, declares that the purposes for which the power of taxation in its various forms may be exercised by the Legislature are "for the public service, in the necessary defence and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof." Article XI. of section I. of chapter II. restricts the issuing of moneys from the treasury to purposes of "the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court."
In Lowell v. Boston, 111 Mass. 454, 460, it is said that:
The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To justify any exercise of the