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it would seem that if the association, with the exception of the Massachusetts corporation, were composed of persons, copartnerships or corporations which were not domiciled or located within the Commonwealth, the insurance by such corporation of its property in Massachusetts with such association could not be regulated by the laws of this Commonwealth. In Allgeyer v. Louisiana, 165 U. S. 578, 591, the court, in holding that the State of Louisiana could not constitutionally prohibit the making of contracts by its citizens with corporations not permitted to do business in the State of Louisiana, where such contracts were made beyond the limits of that State, said:—

In the privilege of pursuing an ordinary calling or trade and of acquiring, holding and selling property must be embraced the right to make all proper contracts in relation thereto, and although it may be conceded that this right to contract in relation to persons or property or to do business within the jurisdiction of the State may be regulated and sometimes prohibited when the contracts or business conflict with the policy of the State as contained in its statutes, yet the power does not and cannot extend to prohibiting a citizen from making contracts of the nature involved in this case outside of the limits and jurisdiction of the State, and which are also to be performed outside of such jurisdiction; nor can the State legally prohibit its citizens from doing such an act as writing this letter of notification, even though the property which is the subject of the insurance may at the time when such insurance attaches be within the limits of the State.

It must, I think, be equally true that a person resident in Massachusetts and engaged in other business therein may beyond the limits of the Commonwealth execute a contract to insure a person domiciled in another State, and that persons may go from Massachusetts into other jurisdictions with the purpose either of insuring or of being insured, and may execute with citizens of other States such contracts as they desire to make. It can hardly be that, if persons so minded meet in another jurisdiction and assume toward each other the relations of insurer and insured under a contract made and to be performed in such jurisdiction, doing no act in connection therewith in this Commonwealth, they may, upon their return.

To the Governor. 1909

April 26.

thereto, be held to be conducting in Massachusetts the business of insurance. If all the acts with relation to the creation of such a contract are in fact accomplished in another jurisdiction, the mere residence of the parties in Massachusetts would not confer upon this Commonwealth any jurisdiction to regulate either the form of the contract or the performance of its obligations. And if a single contract is beyond the jurisdiction of the Commonwealth when made under such circumstances, a series of contracts so made is equally beyond such jurisdiction, and the making of such contracts would not constitute the business of insurance within the Commonwealth solely by reason of the fact that the contracting parties were resident therein.

Upon the assumption already made, therefore, that all the contracts of insurance referred to are in fact made in the State of New York, and that no act in connection therewith is done within this Commonwealth, I am of the opinion that the corporation in question is not engaged in the business of insurance within the Commonwealth, and that such business conducted in the State of New York cannot be regulated or controlled by the laws of this Commonwealth.


The Governor and Council may make investigations for the purpose of ascertaining whether or not money appropriated by the Legislature for the several departments and institutions which, or the expenditures of which, are by law subject to their supervision, is being expended in a proper manner; but they may not constitutionally prevent the expenditure of money so appropriated for the purposes for which it was appropriated.

The committee on ways and means of the Legislature may at any time ask the advice of the Governor and Council in regard to a proposed appropriation, but is not required so to do.

Replying to Your Excellency's letter, in which you say, "It has been intimated that under the Constitution of the Commonwealth the Governor and Council has authority to investigate the expenditures in any department and to familiarize

itself as much as it sees fit with any of the expenditures of the Commonwealth," and ask whether or not this is so, and also whether the ways and means committee of the Legislature may ask the advice of the Council in regard to any proposed appropriations for expenditures.

As to the duties of the Council, the Constitution of Massachusetts, part second, chapter II, section III, article I, provides:

There shall be a council for advising the governor in the executive part of the government . .; and the governor, with the said councillors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.

Article V of said section provides:

The resolutions and advice of the council shall be recorded in a register, and signed by the members present; and this record may be called for at any time by either house of the legislature; .

Under chapter II, section I, article XI, of the Constitution it is provided:

No moneys shall be issued out of the treasury of this commonwealth, and disposed of (except such sums as may be appropriated for the redemption of bills of credit or treasurer's notes, or for the payment of interest arising thereon) but by warrant under the hand of the governor for the time being, with the advice and consent of the council, for 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.

R. L., c. 6, § 28, provides as follows:

Except as hereinafter provided, no money shall be paid from the treasury without a warrant from the governor drawn in accordance with an appropriation in some act or resolve of the same or of the preceding year after the demand or account to be paid has been certified by the auditor; but the principal and interest on all public debts shall be paid when due without any warrant, and the governor may, without an appropriation,

draw his warrant for the payment of his own salary and the salaries of the justices of the supreme judicial court, for the payments required to be made from the income of the school fund, and for repayments required by section sixty-eight of chapter fourteen. No certificate shall be required from the auditor for payment of the pay rolls of the members of the council and general court.

The articles of the Constitution and the statutes above quoted are the only general laws defining the duties of the Governor and Council in reference to expenditures. The Legislature frequently by an act or resolve provides that payments shall be made only upon approval of the Governor and Council, and in such cases statutes should be carefully examined in order to ascertain what are the prerequisites to the exercise of the authority of the Governor, with the advice and consent of the Council, to draw a warrant on the treasury. Whenever it appears that by such act or resolve the Legislature has either referred a claim or demand to any other officer or board or the Auditor of Accounts to be examined and audited, or has indicated an intention that money appropriated shall be paid upon the warrant of the Governor, with the advice and consent of the Council, then the general law above quoted will be so far modified. See Opinion of the Justices, 13 Allen, 594.

As Your Excellency knows, appropriations are made by the Legislature after hearings before the ways and means committee or otherwise as in the judgment of the Legislature seems best. The Governor and Council have no right to withhold an appropriation by refusing to draw a warrant therefor merely because such appropriation is thought by them to be unwise. The time for the Governor to object to an appropriation is when the act or resolve comes before him for signature after it has been enacted by the Legislature. That power is always open to him, and should be exercised when in his judgment an expenditure is thought by him to be unwise or unwarranted.

I quote, as to the duty of the Auditor of Accounts in reference to expenditures, section 15 of chapter 6 of the Revised Laws, which is as follows:

He shall examine all accounts and demands against the commonwealth, excepting those for the salaries of the governor and of the justices of the supreme judicial court, those due on account of the principal or interest of a public debt, or of the pay rolls of the executive council, the senate or the house of representatives. He may require affidavits that articles have been furnished, services rendered and expenses incurred, as claimed. Such affidavit for any state institution may be made by the disbursing officer thereof. The auditor shall in all cases make a certificate specifying the amount due and allowed on each demand, the name of the person to whom such amount is payable, the law authorizing the same and the head of expenditure to which it is chargeable. If the general court, by express statute, authorizes a board or public officer to approve demands against the commonwealth, and an appropriation therefor has been made, the auditor shall, when such demands have been properly approved, promptly audit and certify such an amount, not exceeding the appropriation for that purpose, as he may deem correct; and if it appears to him that there are improper charges in said accounts, he shall report the same to the governor and council, with a separate certificate therefor. He shall retain in his office copies of all such certificates and transmit the originals to the governor, who, with the advice and consent of the council, may issue his warrant to the treasurer and receiver general for the amount therein specified as due.

Also section 19 of said chapter, which is as follows:

All original bills and vouchers on which money has been or may be paid from the treasury upon the certificate of the auditor or the warrant of the governor shall be kept in the auditor's department; and all boards, commissions or public officers authorized to make contracts under which money may be payable from the treasury shall file with the auditor certified copies thereof.

The Governor and Council may at any time examine such bills and vouchers in the Auditor's department, and thus familiarize themselves with the expenditures of the Commonwealth as much as they wish. They may take such measures as they see fit to ascertain that the money appropriated for the various institutions in the Commonwealth is being expended in the manner intended by the Legislature, and may make such personal investigation at the institutions themselves as may be necessary to make sure that this is being done; but they have

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