state board of charity or the state board of insanity, together with the certificate of a physician qualified as provided in section thirty-two, that such temporary care is necessary by reason of mental disease." Section 32 provides that the physician who makes the certificate thereunder shall make oath that he possesses certain qualifications set forth in the statute. It follows, therefore, that in preparing a certificate under section 44 the physician must set forth under oath the same qualifications as those required under section 32. (2) "What is the meaning of 'natural guardian' in this connection? May it be construed as referring to the person who is most interested or is concerned in the reception of a mental patient for temporary care under the provisions of said section?" When applied to a minor, the term "natural guardian" includes the father, and, upon the death of the father, the mother, at least until she remarries. See Worcester v. Marchant, 14 Pick. 510. It was doubtless intended that it should have the same signification when applied to an insane person under the provisions of section 44 above referred to. CLERKS OF COURT MONEY PAID INTO COURT-INTEREST. A clerk of the courts may not appropriate to his own use interest upon money which under a rule of court or under a statute has been paid into court for the benefit of the prevailing party in a suit brought to determine the right to the possession of such money, and such interest is to be added to the principal sum so deposited. You have requested my opinion as to whether a clerk of the courts may properly appropriate to his own use the interest upon money which has been paid into court, and which, under the rules of the court, has been deposited by the clerk in his name in a bank or trust company. I understand your question to have reference not to the money to which R. L., c. 21, § 22, applies, but to money which, under the rules of the court or under a statute, has been paid into court for the benefit of the party who prevails in the suit brought to determine the right to the possession of the money. In my opinion, a clerk of courts may not properly appropriate the interest upon such deposits to his own use. There is no statute and no rule of court which would authorize or justify such appropriation. The duties of the clerk of courts with reference to such deposits are fixed by the rules of both the Supreme Judicial Court and the Superior Court. Common Law Rule XI. of the Supreme Judicial Court provides that: In all cases in which money is paid into court, the money shall be considered in the custody of the clerk, who shall receive it, and pay it to the party entitled thereto, on request. And if such party is not ready to receive the same of the clerk as soon as paid, the clerk shall deposit it in some bank, and not draw it, except for the purpose of paying it over to the party entitled thereto; and in such case the money shall be deemed to be at the risk of the person entitled thereto, from the time of the deposit to the time when the same is drawn for. And in all such cases the clerk shall be entitled to a fee of one dollar, together with a commission of one per cent on sums not exceeding five hundred dollars, and one half of one per cent on any amount beyond that sum, as a compensation for receiving and paying out the money, to be paid by the party paying the money into court. Common Law Rule XXVI. of the Superior Court provides as follows: In cases in which money is paid into court, the money shall be in the custody of the clerk, whose duty it shall be to receive it, and to pay it to the party entitled thereto, on request. If such party is not ready to receive the same of the clerk as soon as paid, it shall be the duty of the clerk to deposit it in some bank in his name as clerk and not to draw it, except for the purpose of paying it over to the party entitled thereto unless otherwise specially ordered by the court; and in such case the money shall be deemed to be at the risk of the person entitled thereto, from the time of such deposit to the time when the same shall be so drawn. The statutes and the rules of court, therefore, make the receiving and depositing of money paid into court part of the official duties of the clerk of courts. The rule of the Supreme Judicial Court provides for a special compensation for the performance of this particular duty. The rule of the Superior Court does not provide for special compensation. In the ab sence of provision for special compensation, full force must be given to R. L., c. 165, § 37, which provides as follows: The annual salaries of clerks shall be in full compensation for all services rendered by them in the civil or criminal courts, to the county commissioners, in making any returns required by law or in the performance of any other official duty except for such clerical assistance as may be allowed under the provisions of the following section. The statutes, therefore, make it clear that a clerk of courts is not entitled to the interest in question. You have also asked my opinion as to who is entitled to the interest, if the clerk of courts is not entitled to it. That is a question which is not strictly within your province to decide, since it is a question of private rights, which properly should be raised by the persons interested in the fund, and should be presented by them to the court for determination. Without assuming to pass upon the question with reference to the rights of the parties in any particular case, however, it may be of assistance to you in the performance of your duties if I state that, in my opinion, a clerk of courts is to be considered as holding the deposit of money paid into court as trustee of the person who is finally determined to be entitled to it, and that as fast as interest accumulates it becomes impressed with the same trust and belongs to the same beneficiary as the principal. To the State Board FEES STATE BOARD OF HEALTH FOOD AND DRUG INSPEC- TORS AND ALLOWANCES FOR TRAVEL. Food and drug inspectors appointed by the State Board of Health are employees of the Commonwealth within the meaning of R. L., c. 204, § 47, as amended by St. 1910, c. 311, providing in part that "any employee receiving regular compensation from the commonwealth shall not be entitled to a witness fee before any court or trial justice . . . in a cause in which the commonwealth is a party," and are not entitled to witness fees for attendance at court or allowances for travel in any cause in which the Commonwealth is a party. You have requested my opinion upon the questions whether or not, under the provisions of St. 1910, c. 311, food and drug inspectors of the State Board of Health are forbidden to receive the witness fees provided for by R. L., c. 204, § 21, for attendance at the various courts; and whether, if they are forbidden to receive the prescribed amount of 50 cents per day for attendance before a trial justice, or police, district or municipal court, they may properly receive 5 cents per mile for travel out and home, as provided by said section 21. R. L., c. 204, § 47, as amended by St. 1910, c. 311, provides as follows: A district police officer or an officer of the commonwealth whose salary is fixed by law, or any employee of the commonwealth receiving regular compensation from the commonwealth shall not be entitled to a witness fee before any court or trial justice of this commonwealth in a cause in which the commonwealth is a party. An officer whose compensation is derived solely from fees shall not be entitled to receive more than one fee as a witness for a day's attendance on court under one or more summonses in behalf of the commonwealth, and the said fee shall be apportioned by the clerk among the cases in which he is so summoned. The food and drug inspectors of the State Board of Health are paid a regular compensation, fixed by the State Board of Health, and they devote all their time to the performance of their duties as inspectors. Although appointed by the Board, and although their salaries are fixed in amount by the Board, they are none the less the employees of the Commonwealth, receiving their compensation from the Commonwealth. They are, therefore, by the provisions of St. 1910, c. 311, not entitled to witness fees for attendance at court in a cause in which the Commonwealth is a party. The allowance of 5 cents a mile for mileage, as provided in section 21, is a part of the fees of the witness, and the receiving of it is therefore forbidden by the same statute. That it was not the intention of the Legislature that any distinction should be made as to the receiving of the fee for attendance and the receiving of the allowance for mileage, is evidenced by the enactment of section 48 of said chapter 204, which provides for the reimbursement of the officers of the Commonwealth who are forbidden by section 47 to receive fees, to the extent of the amount by which their necessary expenses have been increased by attendance at court. To the Committee on Taxation. 1910 May 3. CONSTITUTIONAL LAW-TAXATION - UNIFORM RATE UPON A proposed act designed to tax personal estate at a uniform rate throughout the The committee on taxation desires my opinion upon the constitutionality of a proposed act which shall tax personal estate at a uniform rate throughout the Commonwealth, such uniform rate being the average of the annual rates for the preceding three years. The last decision on the subject of proportional taxation is contained in the Opinion of the Justices, 195 Mass. 607, which deals with the question of the constitutionality of a uniform tax of three mills upon certain classes of intangible personal property, and the opinion was expressed that such tax would be unconstitutional. The proposed tax differs, first in applying to all personal property; and second, in imposing a tax at a rate not fixed by statute, but obtained by finding the average of three annual rates throughout the Commonwealth, and consequently, a rate which approximates the local rate, although it may differ materially from such rate. In my judgment, the principals stated in the Opinion of the Justices are as applicable to a tax upon all personal property as upon the classes referred to in the opinion; and I believe that the method of finding the rate according to the proposed act does not differentiate it from the act considered by the justices. The effect of the act is to subject personal estate to taxation at a rate different from the rate applicable to real estate, in most instances. This, in itself, is objectionable under the cases cited in the opinion, where the proposition is clearly stated that the requirement that taxes be proportional forbids the imposition of a tax upon one class of property at a different rate from that which is applied to other classes. Another objection is that the rate imposed by this act does not bear a relation to the amount |