tain exceptions, shall not exceed in the whole the amount of a railroad's capital stock at the time actually paid in. From a memorandum furnished me of the capital stock issued and outstanding of the New York, New Haven & Hartford Railroad Company, the amount of bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof, issued prior to the issuance of the 6 per cent. debenture bonds about which you inquire, appears to be largely in excess of the capital stock actually paid in. It may be that some of these bonds come within the exceptions mentioned in section 66, but, unless this is so, the issue would not be duly authorized in this Commonwealth under the provisions of St. 1906, c. 463, part II., § 66, above quoted, as it would be in excess of the capital stock paid in. Consequently, the bonds so issued would not be legal investments for savings banks, because they would not be "issued according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h. In my opinion, it makes no difference for what purpose the proceeds of such issue are to be used, whether within or without the Commonwealth. See Attorney-General v. New York, New Haren & Hartford Railroad Co., 198 Mass. 413. Having received no information as to the amount of bonds falling within these exceptions in the case of the New York, New Haven & Hartford Railroad Company, I make no final decision with respect to the debentures under discussion, but merely advise you as to the principles of law to be applied in determining the cases presented to you after the facts have been fully ascertained. My attention has been called to chapter 590 of the Acts of 1908, relative to savings banks, and chapter 620 of the Acts of 1908, relative to railroad securities. Neither of these statutes however, affects the present question, the latter because it did not take effect until June 12, 1908, which was subsequent to the date of the issue of the debenture bonds under discussion, and the former because it provides (as does the section of the Revised Laws above quoted) that railroad securities, to be valid investments, must be bonds or notes issued "in accordance with the laws of this Commonwealth." See St. 1908, c. 590, part V., § 68, cl. 3, a. As a general principle, I would say that bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after their date, issued in excess of the capital stock of a railroad corporation, would not be issued in accordance with the laws of this Commonwealth, and consequently would not be legal investments for savings banks in Massachusetts, whether the proceeds of such issue are to be used within or without the Commonwealth. See Commonwealth v. Smith et als., 10 Allen, 448. To the Governor. 1908 October 19. MASTER IN CHANCERY REMOVAL FROM COUNTY VACANCY APPOINTMENT It is the duty of the Governor, under the provisions of R. L., c. 165, § 52, to appoint masters in chancery as vacancies occur, "so that the number thereof in the several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and not more than five in any other county;" and where a master in chancery appointed for the county of Middlesex removes therefrom with the intention of permanently residing elsewhere, a vacancy is created in the list of such officers for such county, which the Governor is authorized to fill by appointment. Through the executive secretary you inquire whether or not a master in chancery appointed under the provisions of R. L., c. 165, 52, for the county of Middlesex, and who thereafter removes from Middlesex County to Suffolk County, by such removal vacates the office held by him, so that the appointment by the Governor of an additional master in chancery to be credited to Middlesex County would be warranted. R. L., c. 165, § 52, is as follows: The governor, with the advice and consent of the council, shall, as vacancies occur, appoint masters in chancery so that the number thereof in the several counties shall be eleven in Suffolk, nine in Essex, seven in Middlesex, seven in Worcester and not more than five in any other county. They shall be sworn, and shall hold their offices for a term of five years, unless sooner removed by the governor and council. By St. 1904, c. 348, the number of masters in chancery for Middlesex County was increased to eleven. The obvious purpose of the statute above quoted was to preserve in the several counties named therein the designated number of masters in chancery, who should there perform the duties imposed upon them by statute, in order that the convenience of residents of such counties might be properly served, and that opportunity might be given to gain access to a master in chancery whenever necessity might arise. I am therefore of opinion that where a master in chancery appointed for Middlesex County removes therefrom and resides elsewhere, a vacancy is created in the list of masters in chancery for such county, and that the Governor is authorized to appoint a master in chancery to fill such vacancy. My opinion is not affected by the provisions of St. 1906, c. 187, which has conferred upon masters in chancery jurisdiction to act throughout the Commonwealth, and has provided that their commissions should be "issued for the Commonwealth," for the reason that the requirement of residents of the several counties as masters in chancery therein is equally strong, whether or not the jurisdiction of such officers extends throughout the Commonwealth. CORPORATION -FOREIGN CORPORATION USUAL PLACE OF A foreign corporation engaged in the business of operating mines beyond the limits missioner of 1908 You ask my opinion on the question as to whether the Bing- To the Comham Metal Mining Company, a corporation organized under Corporations. the laws of the State of Maine, is doing business within this October 26. Commonwealth so as to be subject to chapter 437 of the Acts of 1903, by reason of the following facts: 1. It is a foreign corporation, operating mines in the State of Utah, where all of its mining business is transacted. 2. It has rented an office in Boston, and owns office furniture therein. 3. The purpose of the Boston office is simply to have a place for meetings of its board of directors. 4. It also has an account with a Boston bank. You ask: "Upon this statement of facts, is it my duty to require the Bingham Metal Mining Company to file the usual papers under sections 58-60 of chapter 437 aforesaid?" The question is a close one, but I am inclined to the opinion that the corporation has such a usual place of business. The original statute imposing a tax on mining companies incorporated elsewhere and doing business outside the Commonwealth applied to a corporation "having an office or place of business within the Commonwealth for the direction of its affairs or transfer of shares." St. 1865, c. 283, § 8. Such corporations were required to semiannually make returns to the Tax Commissioner, and to pay to the Treasurer of the Commonwealth a tax of one-twentieth of one per cent. upon the par value of the capital stock. This provision appears in Pub. Sts., c. 13, § 43. By St. 1882, c. 106, a foreign corporation engaged in mining, "which shall for any period exceeding ten days establish, set up, have or keep principal or branch, subscription, treasury or transfer office or agency within this Commonwealth," was required to file a certificate setting forth the name of the corporation, etc., and to pay a tax. In R. L., c. 14, § 51, it was provided that a foreign corporation engaged outside the Commonwealth in mining, and having "a usual place of business in this commonwealth," should make a semiannual return to the Tax Commissioner, and pay a tax. The history of the statute seems to indicate that the corporations which were originally included in St. 1865, c. 283, § 8, were intended to be included within R. L., c. 14, § 51; that is, that the phrase "usual place of business" used in the Revised Laws is broad enough to include corporations which had within this Commonwealth offices used solely for directors' meetings or transfer offices. There is certainly no indication of any intent to change the law. The business corporation act, St. 1903, c. 437 (§ 95), expressly repeals R. L., c. 14, § 51. The provisions of this act, however, so far as they are the same as those of statutes existing at the time of its passage, are to be construed as a continuation of those statutes. The words "usual place of business" occur in section 58 of the later act, and are to be construed as they were to be construed under the earlier act. If, therefore, the Bingham Metal Mining Company was within the provisions of R. L. c. 14, § 51, it is also, in the absence of anything to indicate a contrary intention, within the provisions of St. 1903, c. 437, §§ 58-60. I think, therefore, that it is your duty to require the Bingham Metal Mining Company to file the usual papers under sections 58-60 of chapter 437 aforesaid. FISHERIES AND GAME PURSUIT OF WILD FOWL - LAUNCH OR The shooting of wild fowl from a launch or power boat, which has been used to Commissioners 1908 November 12. In a letter of recent date your Board requests my opinion To the as to whether it would be a violation of R. L., c. 92, § 11, as on Fisheries amended by St. 1906, c. 241, "if a resident of Gloucester and Game. should go out on Gloucester Bay in a steam launch, anchor it, set decoys, shoot out of the boat, and get the dead birds by means of a row boat." . So far as material, the statute above cited provides that "whoever pursues any wild fowl with or by the aid of a boat propelled by steam or naphtha, or of a boat or vessel propelled by any mechanical means other than sails, oars or paddles, . . . shall be punished by a fine of not exceeding twenty dollars for each offence." In my opinion, the act described would constitute a violation of this provision. |