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Railroad Company has been leased to the New York, New Haven & Hartford Railroad Company by authority of the general law (1894); and numerous other statutes have been enacted authorizing consolidations or leases of railroads within the Commonwealth. See St. 1894, c. 53; St. 1898, cc. 194, 399; St. 1900, c. 424 (and see St. 1906, c. 463, part I, § 67; St. 1907, c. 585). In no one of these instances has the authority of the Commonwealth or the legality of the action of any railroad thereunder been questioned by the federal authorities. I cannot believe that it was beyond the power of the Commonwealth to enact the legislation by which these consolidations were effected, or that the federal courts would entertain bills in equity to enjoin their further continuance, or sustain criminal suits against the officers who operate the lines of railroad which they include; and in this respect I am unable to distinguish between a consolidation and any other form of combination or control. So long as a combination is created by State authority, it seems to me immaterial by what means it is effected, whether by a holding company, a lease or a consolidation.

Notwithstanding any doubt which may be created by the language of the decision in the Northern Securities case, I am therefore constrained to conclude that there is still vested in the several States, under the police power, authority to regulate and control domestic railroad corporations, notwithstanding that such corporations are instrumentalities of and are engaged in interstate commerce and in competing therefor, including the power to authorize their consolidation or the control of one by another through a lease or the ownership of stock; and I am further of opinion that it is within the authority of the Commonwealth to pass the proposed act now before the committee. and that action thereunder by the New York, New Haven & Hartford Railroad Company or by any other railroad corporation chartered by the Commonwealth of Massachusetts would not constitute a violation of the Anti-Trust Act. If the law were otherwise it would, in my judgment, create inextricable confusion in every State in the Union, and, in the words of Mr.

Justice Holmes, a former chief justice of the highest court of the Commonwealth, in his dissenting opinion in the Northern Securities case, would "disintegrate society so far as it could into individual atoms."

Whether or not the holding company contemplated by the proposed statute might properly be made a party to the suit brought under the Anti-Trust act in the federal court, and now pending, against the New York, New Haven & Hartford Railroad Company, is a question which must depend upon the ultimate decision in that suit, and I cannot with propriety attempt to foretell what that decision may be. I may, however, suggest that the allegation which concerns the ownership or control of the stock of the Boston & Maine Railroad by the New York, New Haven & Hartford Railroad Company is but one among several grounds for federal action, and is not essential to the maintenance of the suit; and that such allegation is based upon a state of facts which, as I am advised, does not now exist, and which may be distinguished from the state of facts which would exist if action were taken by the New York, New Haven & Hartford Railroad Company under the proposed statute now before the committee.

REGISTER OF DEEDS DUTY TO RECORD INSTRUMENT IN
FOREIGN LANGUAGE.

A register of deeds is not by law required to receive and record an instrument in a foreign language, whether or not such instrument is accompanied by a translation.

missioner of

1909

In reply to your inquiry as to "whether or not a register of To the Comdeeds within this Commonwealth is obliged under its laws to Public Records. receive and record any instrument in a foreign language, even June 24. if the said instrument be accompanied by a translation," I advise you that in my opinion a register of deeds is not obliged to receive and record any instrument in a foreign language, even though such instrument be accompanied by a translation.

The purpose of recording an instrument in the registry of

To the
Massachusetts
Highway
Commission.
1909
July 12.

deeds is to give notice of the contents thereof. It follows that the record must be such that a person examining it with a reasonable degree of care and intelligence may obtain actual notice of the facts recorded. Persons making such examinations cannot, in my opinion, reasonably be required to be familiar with languages other than English, which is the language used in the conduct of the affairs of the Commonwealth and in ordinary business transactions. Since the record must be in English, and since it must be an accurate copy of the instrument recorded, the instrument must be in English. The record of a translation of an instrument would not be in compliance with the statutes requiring the recording of such instrument. Even if both an original instrument in a foreign language and a translation of it were recorded, a person examining the record would have no assurance that the translation was accurate.

STATE

HIGHWAY-OPENING

CITY OR TOWN WATER

WORKS SERVICE PIPES.

The water commissioners of a town are not authorized, without the permission of the Massachusetts Highway Commission, as required by R. L., c. 47, § 11. to open a State highway for the purpose of laying service pipes therein, under an act providing that, in the construction and maintenance of suitable water works for the use of such town, they may "lay and maintain aqueducts, conduits, pipes and other works under and over public and other ways" in such town.

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In your letter of July 2 you state that the water commissioners of the town of Plainville recently opened a State highway in that town for the purpose of laying service pipes, and that the opening so effected was without permission from the Massachusetts Highway Commission.

Such action is expressly forbidden by the provisions of R. L., c. 47, § 11, that:

No opening shall be made in any such highway nor shall any structure be placed thereon except in accordance with a permit from the commission, which shall exercise complete and permanent control over such highways.

It appears, however, that the water commissioners of the town of Plainville make the claim that they are not required to secure a permit from the Massachusetts Highway Commission in accordance with the provision above quoted, for the reason that chapter 404 of the Acts of 1908, entitled "An Act to authorize the town of Plainville to supply itself and its inhabitants with water," provides in section 2 that the town, for the purpose of constructing and maintaining complete and effective water works, "may construct wells and reservoirs and establish pumping works, and may construct, lay and maintain aqueducts, conduits, pipes and other works under and over any land, water courses, railroads, railways and public or other ways, and along such ways in the town of Plainville, in such manner as not unnecessarily to obstruct the same; and for the purpose of constructing, laying, maintaining, operating and repairing such conduits, pipes and other works, and for all proper purposes of this act, said town may dig up or raise and embank any such lands, highways or other ways in such manner as to cause the least hindrance to public travel on such ways."

I am of opinion that the water commissioners of the town of Plainville may not rely upon the provisions of the latter statute to justify their action in opening a State highway within that town; and that in digging up a State highway, unless authorized so to do, such statute cannot serve as justification in the premises.

To the Board of Appeal.

1909 August 11.

TAXATION EXCISE TAX ON EXPRESS BUSINESS ON ANY RAIL-
ROAD, RAILWAY, STEAMBOAT OR VESSEL IN THE COMMON-
WEALTH COMPUTATION · GROSS EARNINGS WITHIN THE
STATE VALUE OF CAPITAL, BONDS AND UNFUNDED
DEBT DEDUCTIONS-STOCKS, SECURITIES

AND REAL ESTATE OUTSIDE COMMONWEALTH NOT USED IN EXPRESS BUSINESS.

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In St. 1907, c. 586, as amended by St. 908, c. 194, and St. 1908, c. 615, imposing an excise tax upon all persons, companies, partnerships or associations doing an express business upon any railroad, railway, steamboat or vessel in the Commonwealth, and providing, in section 5, that such tax shall be "upon the fair cash value of such proportion of his or its capital, bonds and unfunded debt... as the gross earnings of the said person, company, partnership or association within the state, bear to his or its total gross earnings," the words,

gross earnings . . . within the state" include earnings within the State from interstate business, and such earnings should be considered in determining the amount of such tax.

In determining the amount "of the capital, bonds and unfunded debt" of a person, company, partnership or association doing an express business on any railroad, railway, steamboat or vessel within the Commonwealth for the purpose of computing the excise tax provided for under the statutes above cited, property consisting of stocks, securities and real estate outside the Commonwealth and not used in the express business should be deducted from the total value of the capital, bonds and unfunded debt.

The Board of Appeal, constituted under R. L., c. 14, § 65, has requested my opinion upon certain questions relative to the computation of the tax upon the Adams Express Company and the American Express Company imposed by St. 1907, c. 586, as amended by St. 1908, c. 194, and St. 1908, c. 615.

This statute in section 5 requires the Tax Commissioner to levy an excise tax upon every person, company, partnership or association doing an express business on any railroad, railway, steamboat or vessel in the Commonwealth,

upon the fair cash value of such proportion of his or its capital, bonds and unfunded debt . . ., after deducting therefrom the value of the real estate, machinery, merchandise and other property belonging to the person, company, partnership or association, within the commonwealth and subject to taxation in the various cities and towns thereof, together with the value of securities owned by him or it and not liable to local taxation, as the gross earnings of the said person, company, partnership or association within the state, bear to his or its total gross earnings.

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