ployee, or before the mayor of the city or selectmen of the town of which he is an employee, and the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, lowering in rank or compensation, or such abolition of an office, shall be made only upon a written order stating fully and specifically the cause or causes therefor, and signed by said board, mayor or selectmen, after a hearing as aforesaid. In my opinion, none of the provisions of the act cited curtail the authority which the commission had under its general powers to impose upon a police officer, who is a veteran and has been found guilty of an offence, a punishment not amounting to a transfer of his office or employment, an abolition of his office or a lowering of his rank or compensation without a hearing before the State Board of Conciliation and Arbitration. I therefore answer your third question in the affirmative. The fourth question I answer in the negative. The transfer of a police officer who is a veteran, from a reservation or parkway in one town to a reservation or parkway in another city or town within the jurisdiction of the commission, assuming that his service is that of police duty in each place, is not a transfer of office or employment within the meaning of St. 1905, c. 150, above cited. His office under the transfer is still that of a police officer, and his employment is still that of police duty; the officer himself has been transferred from one locality to another, but there cannot be said to have been a transfer either of office or employment, within the meaning of the act, the obvious purpose of which is to prevent changes of grade and classification. In reply to your inquiry as to the effect upon the legal obligations of a police officer to the commission, and upon the authority of the commission over him, resulting from the signing of the agreement quoted upon entering the service of the commission, my opinion is that the signing of the agreement has little if any effect upon the legal obligations of the officer to the commission, and no legal effect upon the authority of the commission over him. Even if the agreement was made by the officer for what can actually be proved to be a good consideration, it is hard to see any practical value to the commission in the technical civil right thus acquired in addition to the greater rights which it already possessed under its general authority, and it is clear that it does not affect the authority of the commission over the officer. By signing such an agreement the officer cannot, in my opinion, be held to have waived any rights under the civil service law. The civil service law applicable to the case is to be regarded as a general law, and an agreement to waive the provisions of a general law of this nature is generally held to be invalid as opposed to public policy. See Washington National Bank v. Williams, 188 Mass. 103. The only practical value of the signing of such an agreement is that evidence is furnished that the officer, at the time of entering the service of the commission, knew of the rules established by it, which evidence might become material in any hearing upon the case. INSURANCE - OFFICER OR DIRECTOR OF INSURANCE COMPANY INVESTMENT OF FUNDS. By R. L., c. 118, § 25, relating to domestic insurance companies, it is provided that "no officer of the company, and no member of a committee thereof, charged with the duty of investing its funds, shall borrow the same or be directly or indirectly liable for, or on account of, loans thereof to others;" and a director of such an insurance company who is also a member of the finance committee thereof violates such provision by renewing a mortgage loan or by giving a new loan to trustees of a real estate trust of which such director was both a trustee and a shareholder, the legal title to the trust estate being in the trustees and the equitable title thereto in such persons as are for the time being shareholders. Insurance 1908 You ask my opinion whether a director of a domestic insur- To the ance company, who was also a member of the finance committee Commissioner. and "charged with the duty of investing its funds," has violated June 3. the provisions of R. L., c. 118, § 25, by (a) renewing a mortgage loan to certain trustees of a real estate trust of which the director was both a trustee and a shareholder; and (b) making a new loan to another real estate trust of which the director was also a trustee and a shareholder. The dates of these occurrences are subsequent to the Revised Laws, but prior to the going into effect of St. 1907, c. 576, and consequently the question is one to be determined by the language of the Revised Laws. This section provides in part that: No officer of the company and no member of a committee thereof charged with the duty of investing its funds shall borrow the same or be directly or indirectly liable for or on account of loans thereof to others; nor shall any director or other officer take or receive to his own use any fee, brokerage, commission, gift or other consideration for or on account of a loan made by or on behalf of such company. Copies of the declarations of trust have been submitted to me. In each declaration of trust the following provision appears:-. The trustees shall have no power to bind the shareholders personally. In every written contract they may make, reference shall be made to this declaration of trust. The person or corporation contracting with the trustees shall look to the funds and property of the trust for the payment under such contract, or for the payment of any debt, mortgage, judgment or decree, or of any money that may otherwise become due or payable by reason of the failure on the part of said trustees to perform such contract in whole or in part, and neither the trustees nor the shareholders, present or future, shall be personally liable therefor; and each declaration of trust provides that the term "shareholder" shall mean holder of record of a receipt or a certificate from the trustees thereunder. It is clear, I think, that the whole legal title to the trust estate is in the trustees, and that the whole equitable title is continuously in such persons as are for the time being shareholders under the declaration of trust. See Howe v. Morse, 174 Mass. 491, 503. Copies of the mortgage notes have also been submitted to me, from which it appears that the trustees under the declarations of trust, to which reference was therein expressly made, did "as trustees thereunder, but not individually, promise to pay" the amount of the mortgage to the insurance company. As was pointed out in the case of Bowditch v. New England Life Insurance Co., 141 Mass. 292, 295, referred to in your letter to me, the statute under discussion is designed to forbid officers, who are charged with the duty of investing the funds of the corporation, borrowing of themselves, and thus to prevent the risk of the funds being invested by them, under the promptings of self-interest, upon insufficient security. In other words, the purpose is to protect the corporation and the policy holders from the dishonesty or self-interest of the officers. It is intended as a shield to the corporation. Adopting this exposition of the purpose of the statute, I am of opinion that the director mentioned by you, charged with the duty of investing the funds of a domestic insurance company, has violated the provisions above quoted, inasmuch as he, as trustee, and while an owner of shares in the trust, has borrowed money of the corporation, and thus created a debt for which the property of the trust is liable to be taken on execution. Although the director is not apparently directly or indirectly personally liable for or on account of the loan, yet, as owner of both the legal title and a portion of the equitable title of the property which is directly liable, I conceive that he is brought within the rule laid down in the case above cited, because the loan might be made "under the promptings of self-interest, upon insufficient security." Subsequent to the doing of the acts referred to by you, the law was changed by St. 1907, c. 576, § 26, which now provides in part that: All investments and deposits of the funds of the company shall be made in its corporate name, and no director or other officer thereof, and no member of a committee having any authority in the investment or disposition of its funds, shall accept, or be the beneficiary of, either directly or remotely, any fee, brokerage, commission, gift or other consideration for or on account of any loan, deposit, purchase, sale, payment or exchange made by or in behalf of such company, or be pecuniarily interested in any such purchase, sale or loan, either as borrower, principal, co-principal, agent or beneficiary except that if a policy holder he shall be entitled to all the benefits accruing under the terms of his contract. In my opinion, the acts of the director above set forth would be clearly in violation of the law as it stands to-day. To the June 16. STATE HIGHWAY-DEFECT OR WANT OF REPAIR - LIABILITY By the provision of R. L., c. 47, § 13, that "the commonwealth shall be liable for injuries sustained by persons while traveling on state highways in the manner and subject to the limitations, conditions and restrictions provided in sections eighteen, twenty and twenty-one of chapter fifty-one, except that notice of the injury shall be given to a member of the commission or to its secretary," no liability is imposed upon the Commonwealth for damages to the person or property of a traveler upon a State highway other than for damages caused by reason of a defect or a want of repair or of a sufficient railing in or upon such highway. To constitute such defect or want of repair there must be something in the condition of the highway, either by reason of defective construction or want of repair or in the nature of an obstruction, which is dangerous to the safety of the person or property of the traveler; and where the property of such traveler upon a State highway is damaged by splashes of liquid asphalt used in connection with the construction or repair of such highway, the statute above cited affords no remedy. The Massachusetts Highway Commission has referred to me for such action as I may deem proper certain claims for damage to the wearing apparel and vehicles of travelers upon State highways, occasioned by preparations used in the repair and maintenance of such highways. Of these claims, the case presented in the communication from one Leon Samuels appears to be typical. The facts as stated by the claimant are: — It appears that while going through a certain portion of the road which was under repair, a part which was tarred over had proper signs thereon, denoting that it was not open for travel; another part, however, which was completely covered with dirt and gravel, had no such signs, thereby indicating that it was open for travel. In crossing said supposedly completed part in her automobile, she [the wife of the claimant] was splashed with tar which apparently had not hardened into condition to make the road fit for traffic, and as a result her automobile coat, Panama hat, pair of gloves and chiffon veil were completely ruined, and occasioned a loss of $100. Other claims are made by H. C. Poore and G. F. Saumsiegle, respectively, for damages occasioned by liquid asphalt used in surfacing a State highway. In both of these cases the report of the division engineer states that proper signs and warnings were displayed, calling attention to the condition of the road at the time. |