Rights, Art. XVII. It does not follow from this, however, that the military force is to be taken wholly out of the control of its proper officers. They are to direct its movements in the execution of the orders given by the civil officers, and to manage the details in which a specific service or duty is to be performed. But the service or duty must be first prescribed and designated by the civil authority. It would therefore seem that the sheriff or other local officer should use sound discretion, good judgment and honesty of purpose in determining as a matter of fact whether or not the local police were able to cope with a situation such as is referred to in the present inquiry. Acting with these considerations in mind, such officer has the right to issue the precept provided for in said section 142 of chapter 604 of the Acts of 1908. The reference in said inquiry to "the State police" I assume to mean the District Police, provided for by chapter 108 of the Revised Laws, and amendments thereof and additions thereto. Section 7 of said chapter provides as follows: The district police shall have and exercise throughout the commonwealth all the powers of constables, except the service of civil process, and of police officers and watchmen. The governor may at any time command their services in suppressing riots and in preserving the peace; but, except as aforesaid, a member of the inspection department shall not be required to perform any other duties than such as pertain to an inspector of factories and public buildings or to an inspector of steam boilers. Whether or not the District Police shall be employed in a case such as is inquired of is a matter of policy and discretion to be determined by the exercise of the judgment of the person upon whom the duty falls to so determine, under the circumstances of each particular case. No specific rule or formula can be definitely given beyond the use of the best judgment possible under the circumstances at the time. CONSTITUTIONAL LAW PROPRIATION PUBLIC PURPOSE HOMES FOR MECHAN- A proposed bill authorizing the commission established by St. 1911, c. 607, to Committee on Means. 1912 March 28. On behalf of the Committee on Ways and Means you have To the House submitted for my consideration a draft of a bill entitled "An Ways and Act to extend and define the duties of the Homestead Commission," accompanying the special report of the Homestead Commission, House Document No. 441, and have orally brought to my attention certain inquiries with reference to the constitutionality of the provisions of said bill, with the request that I advise your committee thereon. With reference to that part of section 3 which provides as follows: The treasurer and receiver-general is authorized to loan the commission from time to time such sums as it may certify to him in writing to be necessary to carry out the purposes of this act, except for the expenses incurred under section five, from the funds deposited by the savings banks in the treasury of the commonwealth under the provisions of section fiftysix of chapter five hundred and ninety of the acts of the year nineteen hundred and eight, and subject to the restrictions of said act I am of the opinion that there is no constitutional objection. Said money in the hands of the Treasurer is public money available for public purposes, according to law. If the purpose for which it is to be expended in this case is a lawful, public purpose it may be deemed available, as provided in said section. As to section 1 of said bill, which provides as follows: The commission established by chapter six hundred and seven of the acts of nineteen hundred and eleven shall be authorized to purchase in the name of the Massachusetts Homestead Commission a tract or tracts 1 See Opinion of the Justices, 211 Mass. 624. of land for the purpose of providing homes for mechanics, laborers, or other wage-earners, and shall have authority to sub-divide, improve, build upon, lease, rent, sell, re-purchase, manage, and care for said tract or tracts and the buildings constructed thereon, in accordance with such terms and conditions as may be determined upon by the commission, due consideration being given to the proper laying out of streets, parks, garden areas, and buildings for recreation or other public purposes; and the commission shall make such regulations, restrictions, and reservations in contracts, leases, deeds, and otherwise as may be necessary for the protection of said tract or tracts from any objectionable use. Each person holding property under the jurisdiction of the commission shall be the owner of at least five shares of stock as hereinafter provided for, before being permitted to occupy or acquire title to any of said real estate; provided, however, that the commission in exceptional cases may temporarily waive the aforesaid requirement as to ownership of stock prior to occupancy different principles have to be considered. In the first place, the purpose stated in said section is "providing homes for mechanics, laborers or other wage-earners." This limits the benefits of said act to certain definite classes, thereby taxing the public in general for a certain favored class, without disclosing any substantial reason for such class legislation. If this objection should be cured by an amendment which included any citizen instead of members of these particular classes, there remains the further and more fundamental question as to whether the expenditure provided for in this proposed act is an expenditure for public purposes. The principle governing such consideration was long ago stated by the Supreme Court of this Commonwealth, in Lowell v. Boston, 111 Mass. 454 (see, also, Loan Association v. Topeka, 20 Wall. 655; ante, p. 305). Among other things it was therein pointed out, at page 461: It is the essential character of the direct object of the expenditure which must determine its validity as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Applying the principle of that case to the bill under consideration, it appears that the direct object of the expenditure of the public money herein provided for is the purchase of land and the erection of homes for laborers, mechanics and wageearners. The public benefit alleged is the improvement of the health and morals of the community. It appears, however, that this alleged public benefit is so remote and incidental that it cannot outweigh the real character of the direct object of the expenditure, which appears to be fundamentally for private rather than public purposes. While I am of the opinion that under the limitation of the decisions as they now stand these provisions are unconstitutional, it is impossible for me to say how far our Supreme Judicial Court might go in approving legislation purporting to be enacted for the public welfare and for the betterment of health and morals, it being in each case largely a question of degree. There is at least grave doubt as to the constitutionality of said section 1. TOWN NOTE PAYABLE "DURING THE YEAR 1912" DATE OF PAYMENT. A note of a town payable "within the year 1912" is in effect a note payable at a future date certain, or earlier at the option of the maker, and therefore does not comply with the requirement of St. 1910, c. 616, § 1, that a town note shall state "the date when it will become due for payment." the Director of the Bureau 1912 of Statistics. You have requested my opinion as to whether you may To the "properly certify a note of a town made payable 'within year 1912,' under the provisions of chapter 616, Acts of 1910, section 1 of which provides that the note shall state 'the date when it will become due for payment." " A note payable "within the year 1912" is, in effect, a note payable at a future date certain, or earlier at the option of the maker, and so is not payable at any fixed or determinable future time. Mahoney v. Fitzpatrick, 133 Mass. 151; Stults v. Silva, 119 Mass. 137; Way v. Smith, 111 Mass. 523. And see Richards v. Barlow, 140 Mass. 218. It does not comply, therefore, with the requirement of St. 1910, c. 616, § 1, that a town note shall state "the date when it will become due for payment," and you should not certify it. April 3. LICENSE ENGINEER STEAM BOILER - OWNER ERS. OR USER To the Chief of the District Police. 1912 April 8. The provision of R. L., c. 102, § 8, as amended by St. 1907, c. 373, § 1 and St. 1911, c. 562, § 1, that "the owner or user of a steam boiler or engine. . . shall not operate or cause to be operated a steam boiler or engine for a period of more than one week, unless the person in charge of and operating it is duly licensed," allows such owner or user, in the exercise of good faith and in an unavoidable emergency, a period of one week within which to procure a person licensed in accordance with the requirements of law; and by the use of such period, the owner or user is not thereafter forever prohibited from availing himself under like conditions of such allowance. The provision of R. L., c. 102, § 80, as amended by St. 1911, c. 562, § 2, that "to work with a licensed person there may be employed not more than one unlicensed person, who, in the presence and under the personal direction of the licensed person, may operate the appurtenances of a boiler or engine," does not require that coal shovelers, whose sole duty consists in putting coal under the boiler, should be licensed, since coal shovelers, or other persons performing the duties of mere laborers in handling coal used in the operation of a boiler or boilers, are not operating any appurtenances thereof. Under date of April 6 you have written me with reference to sections 78, 79 and 80 of chapter 102 of the Revised Laws, as amended by chapter 373 of the Acts of 1907 and by chapter 562 of the Acts of 1911, requesting my opinion upon the following matters: First, the last clause of section 78 reads as follows: The owner or user of a steam boiler or engine, other than boilers or engines above excepted, shall not operate or cause to be operated a steam boiler or engine for a period of more than one week, unless the person in charge of and operating it is duly licensed. Is it to be understood that the owner or user of a steam boiler or engine, who from necessity has employed a person not duly licensed for a period of one week, is forever after prohibited from such provision of section 78 in connection with the use of the same boiler or boilers; or could he be permitted, after a reasonable period of time, to again take advantage of this provision? Second, the last clause of section 80 reads as follows: provided, however, that to work with a licensed person there may be employed not more than one unlicensed person who, in the presence and under the personal direction of the licensed person, may operate the appurtenances of a boiler or engine. |