are exempt from taxation under Pub. Sts., c. 11, § 4, now R. L., c. 12, § 4. The court said (p. 553): —

When a mortgage is made to a trustee for bondholders, the mortgage interest is taxable to the trustee who represents them, as it would have been to the bondholders themselves if the mortgage had been made to them directly. In the present instance the trustees have paid the tax on the whole value of the land, which is equal to the amount of the bonds outstanding. The tax on the bonds must be abated.

The effect of this decision is to apply the exemption in all cases of mortgage debts, whether notes or bonds, and irrespective of any intervening trust. There is nothing in the case, however, to indicate that the exemption is to be extended to the excess of a loan above the assessed value of the mortgaged real estate. As the policy of the Commonwealth has been and still is to tax all indebtedness, and as the exemption was created wholly to protect certain property from double taxation, and with an exception from the exemption in clear and unequivocal terms, I am of opinion that the bonds of the New England Cotton Yarn Company are taxable to the holders thereof with respect to the excess of the amount outstanding above the assessed value of the real estate subject to the mortgage.

The only cases besides the Knight case of interest upon this point are those of Firemen's Fire Insurance Co. v. Commonwealth, 137 Mass. 80, and Worcester v. Boston, 179 Mass. 41. In the first case it was held that a corporation owning mortgages secured by real estate was entitled, under Pub. Sts., c. 12, §§ 14 to 16, and Pub. Sts., c. 13, §§ 39 and 40, to have the amount of the mortgages held by it deducted from the aggregate value of its shares in determining the amount of its franchise tax. This decision goes upon the ground that a mortgagee's interest is "real estate subject to local taxation," within the meaning of the franchise tax statute.

In the second case it is said (p. 49) that:

The provisions of Pub. Sts., c. 11, §§ 14, 15, 16, are rarely regarded, and the result intended by them has been practically reached by a failure on the part of the assessors to assess to the mortgagee, either as real or personal property, the sum represented by the mortgage.

Also, in Abbott v. Frost, 185 Mass. 398, 399, it is said that:

Such assessments are permitted by our laws relating to taxation, and have been held to be in strict accordance with their provisions.

These decisions seem to me to indicate conclusively that the words "taxable as real estate" are not limited, in their application to the interests of mortgagees, to interests actually taxed to the mortgagees in a given year, but include all such interests as might be assessed to them under section 16. The case of Knight v. Boston does not definitely decide this point, as the tax there had been assessed to and paid by the trustees; but to hold otherwise would be to permit the exemption to rest upon the caprice of individual assessors as to whether they preferred to assess the property to the mortgagor or to the mortgagee. I do not think the language should be construed to have such an effect. Consequently, I am of opinion that only the excess of the bonds over the value of the real estate is taxable, but that this is taxable irrespective of the party to whom the mortgagee's interest is actually assessed.

To the

Massachusetts

Highway
Commission.

1906

March 11.

AUTOMOBILES CITIES AND TOWNS SPECIAL REGULATIONS
STATUTORY CONSTRUCTION.

A regulation adopted by the selectmen of a town, fixing the speed limit for automobiles and motor cycles throughout such town "in fire district, eight miles per hour; outside, fifteen miles per hour," is a special regulation within the meaning of St. 1905, c. 366, the statute in force at the time of its adoption, although the limit so fixed coincides with the extreme limit established by such statute, and is unaffected by the enactment of St. 1906, c. 412, § 1, which established a rate of twelve miles in the thickly settled or business part of a city or town, and a rate of twenty miles outside thereof, as the extreme limit of speed.

You state that the Massachusetts Highway Commission requests my opinion upon the following facts:

In 1905 the selectmen of Lenox, acting under the authority of St. 1905, c. 366, passed certain regulations excluding automobiles and motor cycles from specified roads within the town of Lenox, and regulated the speed thereof throughout such town as follows:

Speed limits: In fire district, eight miles per hour; outside, fifteen miles per hour.

No protest having been made, as provided for in said chapter, the Massachusetts Highway Commission caused to be posted on the roads from which motor vehicles were excluded by local regulation the signs required by the statute, but did nothing in the matter of posting the ways where the regulation specified that the speed limit should be fifteen miles per hour, or the roads within the fire district where the speed limit was set at eight miles per hour, for the reason that the limitation imposed was identical with that fixed as an extreme limit by St. 1903, c. 473, § 8.

St. 1906, c. 412, § 1, established a rate of twelve miles for the thickly settled or business part of a city or town, and a rate of twenty miles outside such thickly settled or business portion, as the extreme limit of speed.

Your letter then proceeds as follows:

The commissioners are doubtful as to what their duty now is. They are uncertain as to whether the Acts of 1906 nullify what the selectmen in 1905 thought was a special regulation, or whether the fifteen-mile speed mentioned in the regulation, which then agreed with the State law, now becomes a special regulation, under the Acts of 1905, chapter 366.

St. 1905, c. 366, § 1, which so far as quoted is substantially the same as St. 1906, c. 412, § 9, provides that:

The city council of a city or the board of aldermen of a city having no common council, and the selectmen of a town, may make special regulations as to the speed of automobiles and motor cycles and as to the use of such vehicles on particular roads or ways, including their complete exclusion therefrom. . . . Such special regulations shall be posted conspicuously by or under the direction of the Massachusetts highway commission on sign boards at such points as the board may deem neces

sary...

The question submitted must be determined by the definition to be given to the term "special regulation," as used in the provisions of St. 1905, c. 366:

Such special regulation shall be posted conspicuously by or under the direction of the Massachusetts highway commission on sign boards at such points as the board may deem necessary.

I am of opinion that this phrase is to be construed to include all regulations made by any city or town in pursuance of the authority conferred by that statute or by any of its amendments. The general regulation is the speed limit established by the statute of the Commonwealth; the special regulation is that established by any city or town under authority of the statute; and in my judgment it is immaterial whether this regulation coincides with the extreme limit established by statute or not. It is, therefore, the duty of the State Highway Commission to post such regulations as are made by cities or towns in accordance with the provisions of the statute directing that in cases where no protest is made it shall be the duty of the commission to post the regulation in question conspicuously on sign boards at such points as the Board may deem necessary. It follows that it was the duty of the commission to post these regulations when first passed; and that duty remains unaffected by the provisions of St. 1906, c. 412, which amended the former act by striking out the words "fifteen days," in the nineteenth line, and inserting in place thereof the words "sixty days," but did not otherwise alter the provisions of law.

I am unable to appreciate the force of the suggestion that by the amending act (St. 1906, c. 412, § 9), which made no change in St. 1905, c. 366, § 1, further than substituting the word "sixty" for the word "fifteen" in the nineteenth line of such section, all by-laws or ordinances relating to or regulating the use of automobiles in force upon June 24, 1906, were rendered null and void.

An amendatory statute is in general to be read into and construed as a part of the act amended, and the repetition of provisions contained in the earlier act serves only to continue them as parts of the original enactment. See United Hebrew Association v. Benshimol, 130 Mass. 325; McLaughlin v. Newark, 57 N. J. L. 298.

In the present case it is inconceivable that the Legislature, by an amendment which involves merely the alteration of a single word, should have intended thus indirectly and by implication to give a new and more comprehensive meaning to the word "now" as used in that provision, which is merely a repetition of law already existing, - that "no ordinance, by-law or regulation now in force in any city or town. . . shall hereafter have any force or effect," or to accomplish so comprehensive a result as the repeal of all municipal ordinances or regulations upon the subject of automobiles which existed at the date when such amendment became operative.

Your communication contains a further reference to the regulation adopted by the town of Harwich, upon which you submitted an inquiry on Oct. 25, 1906, and which I have duly considered, relative to the authority of a city or town to establish a speed limit applicable to the several divisions of the town, as, for instance, the thickly settled portion of the town and the part without the thickly settled portion. Assuming that in the present case the term "fire district" substantially coincides with the "thickly settled portion of the town," I am of opinion that such regulation is clearly within the authority of the town; and in any event it may be doubted how far there is jurisdiction in the Massachusetts Highway Commission to pass upon the legality or sufficiency of such regulations as adopted by the several cities and towns. In cases where no protest is made or hearing granted, their duty would seem to be simply to cause such rules and regulations to be conspicuously posted at the proper points.

Upon an investigation or hearing of charges preferred against a State official or board by the Governor and the Executive Council, such official or board may not employ counsel at the expense of the Commonwealth.

I have the honor to acknowledge your communication of To the

March 7, which is as follows:

Governor. 1906 March 14.