such permit and make such orders relative thereto as it may deem necessary for the protection of the public health."

The questions which you submit are not in terms limited to the specific facts above stated, which appear from the papers accompanying your communication, but I assume that they were framed with those facts in view, to determine the duty of your board in the premises.

It is well established that the appropriation of the waters, or any part thereof, of a great pond by a town for purposes of water supply under legislative authority, does not take away the rights of the public in such pond "excepting so far as they are necessarily lost in the exercise of a right conferred upon the town to use the waters of the pond as a source of water supply." 2 Op. Atty.-Gen. 239, 240; Rockport v. Webster, 174 Mass. 385. It follows, therefore, that unless the public use of a great pond for boating or fishing is so far inconsistent with its use as a source of water supply as to be necessarily lost in the exercise of the right acquired by a town, such town would have no right to absolutely prohibit boating or fishing.

Under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, § 1, it is to be observed that the State Board of Health is vested with authority to make rules and regulations "to prevent the pollution and to secure the sanitary protection" of all waters which are used as sources of water supply, and, acting under this provision, may require that persons who desire to exercise the public right of boating or fishing shall secure permits either from the Board itself or from the local board to whom the authority to issue such permits has been delegated, or may forbid the exercise of such public rights altogether. See Sprague v. Minon, 195 Mass. 581.

Replying specifically to your first inquiry, therefore, I am of opinion that a city or town is authorized to prohibit the public right of fishing or boating upon a great pond used as a source of water supply only in cases where such prohibition is necessarily involved in the use of such great pond as a source of water supply.

Your second inquiry calls for my opinion upon the powers of the State Board of Health acting under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, § 1, already cited.

Under these provisions of law the Board may make rules and regulations to protect sources of water supply, and may prohibit the exercise of the public rights of boating and fishing in or upon such sources of water supply, except to such persons as may receive a permit therefor. The authority to issue such permits may be delegated, among others, to selectmen in towns and to boards of health, water boards or water commissioners in cities and towns, to be exercised under the direction of the State Board of Health. Where complaint is made in any case with respect to the granting or withholding of such permit by the Board to whom the issuance thereof has been delegated, the Board shall investigate the matter and make such orders relative thereto as may be deemed necessary for the protection of the public health. If, upon due investigation, the Board in any case determines that a permit withheld by the local authorities may be issued without endangering the purity of the sources of water supply, they may make such order in the premises as they deem necessary for the protection of the public health, and such order may doubtless require the issuance of the permit. In such a case, therefore, the State Board of Health may issue or cause to be issued a permit to boat and fish, notwithstanding that the properly delegated authorities of a city or town have previously refused to do so, provided that such issuance is not inconsistent with the proper protection of the public health.

To the Trustees of the

Under the provisions of St. 1911, c. 566, § 3, that the trustees of the Massachusetts Training Schools "succeed to the trusts, right, powers and duties" of the trustees of the Lyman and Industrial Schools, and of R. L., c. 86, § 1, that the board of trustees of the Lyman and Industrial Schools should be "a corporation for the purpose of taking, holding and investing in trust for the commonwealth any grant, devise, gift or bequest made for the use of any institution of which they are trustees," the trustees of the Massachusetts Training Schools may purchase, from the accumulated income from the Lyman Fund and Lyman Trust Fund, so called, land for the use of the Lyman School.

The title to the land so purchased should be taken in the name of the trustees, in trust for the Commonwealth.

Without express or implied authority from the Legislature, title to land cannot be taken in the name of the Commonwealth by any public officer or board.

In behalf of the trustees of the Massachusetts Training Massachusetts Schools you have requested my opinion upon certain questions hereinafter quoted.

Training

Schools.

1911

October 18.

Your first question is as follows:

Have the trustees of the Massachusetts Training Schools (see Acts 1911, c. 566), the successors to the trustees of the Lyman School (as provided in R. L., c. 86), the right to purchase land for the use of the Lyman School from the accumulated income from the Lyman Fund and Lyman Trust Fund, so called?

In replying to this inquiry I assume that the language of the gift of the Lyman Fund and the Lyman Trust Fund, so called, is broad enough to authorize the proposed expenditure of accumulated income, and that the only point upon which you desire my advice is as to the statutory authority of the trustees. As to the statutory authority of the trustees, my opinion is that they have the right to purchase land for the use of the Lyman School from the accumulated income of these funds. I base this opinion upon the statutory provision (St. 1911, c. 566, § 3) that the trustees of the Massachusetts Training Schools "succeed to the trusts, rights, powers and duties" of the trustees of the Lyman and Industrial Schools; and upon the

statutory provision (R. L., c. 86, § 1) that the board of trustees of the Lyman and Industrial Schools was "a corporation for the purpose of taking, holding and investing in trust for the commonwealth any grant, devise, gift or bequest made for the use of any institution of which they are trustees." If the trustees of the Massachusetts Training Schools have the right to expend the accumulated income in question for the use of the Lyman School, and if they have the right to receive grants of land, it follows that they may expend such accumulated income in the purchase of land.

Your second question is as follows:

-

If they have this right, how should the title be taken, whether in the name of the trustees, or directly in the name of the Commonwealth?

In my opinion title should be taken in the name of the trustees, in trust for the Commonwealth.

Your third question is as follows:

Can the Commonwealth take title without legislative sanction, it being in the nature of a gift to the Commonwealth, if purchased by income from accumulated funds, and without appropriation therefor?

Title to land cannot be taken in the name of the Commonwealth by any board or officer who has not express or implied authority from the Legislature to do so. As I have advised you in answer to your first inquiry, I am of opinion that there is statutory authority for the trustees of the Massachusetts Training Schools to take title in the name of the trustees, in trust for the Commonwealth, to land purchased with accumulated income of trust funds.

To the Bank
Commissioner.
1911
November 3.

TRUST COMPANY-SAVINGS DEPARTMENT BOARD OF IN-
VESTMENT MEMBER AS ENDORSER ON NOTE FOR MONEY
LOANED BY CORPORATION.

Under the provisions of St. 1908, c. 520, § 2, that all loans or investments of deposits in the savings department of a trust company "shall be made in accordance with statutes governing the investment of deposits in savings banks," and of St. 1908, c. 590, § 44, that no member of a board of investment of a savings bank shall borrow or use any portion of the funds of such bank or "be surety for loans to others or, directly or indirectly. . . be an obligor for money borrowed of the corporation," a member of the board of investment of a trust company cannot legally be an endorser upon a personal note for money loaned by such company to any person.

You have requested my opinion "as to whether a member of the board of investment of a trust company can be an endorser on a personal note for money loaned by said trust company to a borrower without violating the provisions of section 2 of chapter 520, Acts of 1908, as restricted by section 44 of chapter 590, Acts of 1908."

Section 1 of chapter 520 of Statutes of 1908 is as follows:

Every trust company soliciting or receiving deposits (a) which may be withdrawn only on presentation of the pass-book or other similar form of receipt which permits successive deposits or withdrawals to be entered thereon; or (b) which at the option of the trust company may be withdrawn only at the expiration of a stated period after notice of intention to withdraw has been given; or (c) in any other way which might lead the public to believe that such deposits are received or invested under the same conditions or in the same manner as deposits in savings banks; shall have a savings department in which all business relating to such deposits shall be transacted.

Section 2 provides that

All such deposits shall be special deposits and shall be placed in said savings department, and all loans or investments thereof shall be made in accordance with the statutes governing the investment of deposits in savings banks. The duties of the board of investment relative to the investment of such deposits shall be performed by a board or committee appointed by the board of directors of such corporation.