As there is no riot in progress, upon the assumption in your inquiry, the situation is not within the scope of this section. In answer to the specific inquiry, therefore, I am of the opinion that unless a riot or other breach of the peace actually exists, or there is immediate, impending danger thereof, the sheriff has no power to call citizens from their own pursuits to act as patrolmen or to do police duty; that is, to perform the ordinary duties that are performed by police patrolmen of the city of Lawrence. On the other hand, if there is imminent, impending danger of a riot or other breach of the peace the sheriff has the power and the duty to call such aid as a man of ordinary prudence, firmness and activity in his situation would think necessary to quell the disturbance. In case of threatened riot our statutes provide a method in which he may proceed, namely, to call upon the organized militia by precept issued to its commander, under St. 1908, c. 604, § 142, which provides as follows: In case of a tumult, riot, mob, or a body of men acting together by force, to violate or resist the laws of the commonwealth, or when such tumult, riot or mob is threatened, and the fact appears to the commanderin-chief, to the sheriff of the county, to the mayor of the city or the selectmen of the town, the commander-in-chief may issue his order, or such sheriff, mayor or selectmen may issue a precept, directed to any commander of a brigade, regiment, battalion, corps of cadets or company, within their jurisdiction, directing him to order his command, or a part thereof, to appear at a time and place therein specified, to aid the civil authority in suppressing such violence and supporting the laws; which precept shall be in substance as follows: COMMONWEALTH OF MASSACHUSETTS. To [insert the officer's title] A.B., commanding [insert his command]. Whereas, it appears to [the sheriff, mayor or the selectmen] of the [county, city or town] of that [here state one or more of the causes above mentioned] in our of and that military force is necessary to aid the civil authority in suppressing the same: Now, therefore, we command you that you cause [your command, or such part thereof as may be desired], armed and equipped with ammunition and with proper officers, to parade at on then and there to obey such orders as may be given according to law. Hereof fail not at your peril, and have you there this precept with your doings returned thereon. This precept shall be signed by such sheriff, mayor or selectmen, and may be varied to suit the circumstances of the case; and a copy of the same shall be immediately forwarded to the commander-in-chief. From this section the power of the sheriff and that of the mayor appear to be the same. While this means may not be the exclusive means to be employed under such circumstances, nevertheless, in case of emergency it would be proper under this authority for the sheriff to call upon the militia to aid him in the execution of the duties of his office. It would appear, therefore, that the militia might be called upon by the sheriff rather than to be relieved by him by means of other persons summoned to take the place of the militia. This action would largely be left to the discretion and judgment of the sheriff, under the circumstances as they might appear. CONSTITUTIONAL LAW POLICE POWER-REGULATION PRIVATE BUSINESS SALE OF THEATRE TICKETS. OF The right of the Legislature under the police power to regulate the conduct of a private business in respect to public safety or morals does not extend to the regulation of the sale of tickets of admission to theatres and other places of amusement; and a proposed bill requiring that such tickets shall have the price printed thereon and that it shall be unlawful to sell or offer for sale any such ticket for an amount in excess of the printed sum, if passed, would be unconstitutional and void. Committee on 1912 February 15. On behalf of the Committee on the Judiciary you have re- To the House quested my opinion upon the constitutionality of House Bill the Judiciary. No. 967. This bill in substance provides that every ticket for admission to a theatre, opera house, concert hall or other place of public exhibition or amusement shall have printed upon its face the price thereof; that no greater sum shall be asked or received therefor; and that it shall be unlawful for any person, firm or corporation to sell or offer for sale any such ticket for a sum in excess of that printed thereon. Statutes of this character have been considered by the courts of California (Ex parte Quarg, 149 Cal. 79) and of Illinois (People v. Steele, 231 Ill. 340), and have been held unconsti tutional for the reason that the business of conducting a theatre or other place of amusement is a private business, and while such business may be regulated by the Legislature in respect to public morals or safety, under the police power, the right of regulation cannot be extended to the sale of tickets of admission to places of amusement. Thus, in Ex parte Quarg, above cited the court said, at page 81: The police power is broad in its scope, but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect or preserve the public health, morals or safety, or the general welfare. The prohibition of an act which the court can clearly see has no tendency to affect, injure or endanger the public in any of these particulars, and which is entirely innocent in character, is an act beyond the pale of this limitation, and it is therefore not a legitimate exercise of police power. The sale of a theatre ticket at an advance upon the original purchase price, or the business of reselling such tickets at a profit, is no more immoral, or injurious to public welfare or convenience, than is the sale of any ordinary article of merchandise at a profit. I have no doubt that the principles so declared are applicable to the question now before me, and I am therefore of opinion that, if passed, House Bill No. 967 would be unconstitutional and void. To the Chief of the District Police. 1912 February 15. MASSACHUSETTS DISTRICT POLICE CHIEF BOILER INSPEC- St. 1906, c. 521, entitled "An Act to provide for the appointment of a chief inspector of the boiler inspection department of the District Police," which provides in section 1, in part, that "said chief inspector shall have supervision over the members of said boiler inspection department in order to secure the uniform enforcement throughout the commonwealth of all acts relative to the inspection of boilers and the examination of engineers and firemen," does not create an independent department, and the action of such chief inspector is under the jurisdiction and subject to the orders of the Chief of the District Police. Under section 1 of chapter 521 of the Acts of 1906, an act to provide for the appointment of a chief inspector of the boiler inspection department of the District Police, providing, in part, as follows: "Said chief inspector shall have supervision over the members of said boiler inspection department in order to secure the uniform enforcement throughout the commonwealth of all acts relative to the inspection of boilers and the examination of engineers and firemen," you have made the following request for my opinion: To what extent has the chief of the District Police authority over said chief inspector and members of this branch of the inspection department of the District Police? That is to say: First. Has the chief inspector authority to detail any or all of the boiler inspectors for duty in any district of the Commonwealth without obtaining permission from the Chief of the District Police? Second. Has the chief inspector the authority to order such inspectors, or any of them, from their districts to any other part of the Commonwealth without obtaining permission from the Chief of the District Police? Third. — How far does the authority of the Chief of the District Police extend over the duties, discipline and general conduct of the chief inspector and inspectors of boilers? You also further inquire as to whether "there exists a department known as the 'boiler inspection department' ". In my opinion there is no provision of law which establishes as a superior, independent department outside of the authority of the Chief of the District Police a "boiler inspection department." By section 1 of chapter 108 of the Revised Laws the District Police force is divided into two departments, to wit: the inspection department and the detective department. The boiler inspectors are appointed from the inspection department of the District Police. In my opinion the action of the chief inspector of the boiler inspection department, so called, is under the jurisdiction and subject to the orders of a superior, the Chief of the District Police. Answering your questions specifically: The first should be answered in the negative, that is, the details made by the chief inspector would be subject to the approval or disapproval of the Chief of the District Police. As to the second, the same answer should be made. As to the third, I am of the opinion that the authority of the Chief of the District Police is the same over the chief boiler inspector as it is over the heads of the other divisions of the department, that is, that he is the superior officer over all. COMMONWEALTH EMPLOYEE VETERAN CONSENT. RETIREMENT To the Chief of the District Police. 1912 February 16. St. 1907, c. 458, § 1, providing that, with the consent of the Governor, a veteran of the civil war in the service of the Commonwealth, if incapacitated for active duty, may be retired at one-half the rate of compensation paid to him when in active service, was designed not only to provide a pension for the person so retired, but also to relieve the public service of persons unable to perform the duties required of them, and if incapacitated for duty a veteran may be so retired without his consent and upon the request and recommendation of the head of the department in which he is employed. By a communication dated February 12 you have requested my opinion upon the question whether, under the provisions of St. 1907, c. 458, § 1, you are authorized to request and recommend the retirement of any veteran employed in the department who in your opinion is incapacitated to such a degree as to render his retirement necessary for the good of the service, irrespective of his desire to so retire. The statute to which you have referred is as follows: A veteran of the civil war in the service of the commonwealth, if incapacitated for active duty, shall be retired from active service, with the consent of the governor, at one half the rate of compensation paid to him when in active service, to be paid out of the treasury of the commonwealth: provided, that no veteran shall be entitled to be retired under the provisions of this act unless he shall have been in the service of the commonwealth at least ten years. But if, in the opinion of the governor and council, any veteran of the civil war in said service is incapacitated to such a degree as to render his retirement necessary for the good of the service, he may so be retired at any time. A veteran retired under the provisions of this act, whose term of service was for a fixed number of years, shall be entitled to the benefits of the act without reappointment. This statute is applicable to cases where a veteran of the civil war in the service of the Commonwealth is incapacitated |