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together with the right to enter and remove the same at any time within three years," included trees suitable for timber as well as trees suitable only for fuel, the court saying (page 273):
True, the word "wood" is often used to designate fuel. But when so used it means fuel wholly, or, at least, partially, prepared for the fire. The term "standing wood" cannot be so used. It can apply only to trees. And when there is nothing in the context, or in any other part of the deed, to indicate that it is used in a more limited sense, we think it must be held to include all the trees, trees suitable for timber as well as those fit only for firewood.
And see Shiffer v. Broadhead, 126 Penn. St. 260; Haskell v. Ayers, 35 Mich. 89; Wilson v. State, 17 Tex. App. 393; O'Hanlan v. Denvir, 81 Cal. 60; Donworth v. Sawyer, 94 Me. 242. In this Commonwealth standing wood and timber are mentioned occasionally in the statutes. See R. L., c. 134, § 11; c. 208, § 7; St. 1869, c. 249. And more frequently in the decisions of the court. See White v. Foster, 102 Mass. 375; Drake v. Wells, 11 Allen, 141; Fletcher v. Livingston, 153 Mass. 388; Worthen v. Garno, 182 Mass. 243. But the term "standing wood and timber" has not received, either in the statutes or in the opinions of the court, a fixed or technical definition of universal, or even of general, application.
The eighth inquiry of the Honorable House of Representatives is so phrased as to leave me in some doubt as to the exact question upon which my opinion is desired. Limiting my reply to the precise terms of said inquiry, however, I have to advise the Honorable House of Representatives that the proposed amendment, which would confer upon the General Court full power and authority to prescribe for wild or forest lands "such methods of taxation as will develop and conserve the forest resources of the Commonwealth," would doubtless authorize the enactment of laws to provide that wild or forest lands should be taxed without reference to the element of value contributed by the growth thereon, and that the tax upon the value of such growth might be reduced or altogether omitted in the determination of the tax to be assessed upon said lands.
To the State
1912 May 13.
GYPSY AND BROWN-TAIL MOTHS-STATE FORESTER - WORK
Under the provisions of St. 1905, c. 381, § 3, as amended by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, providing that the superintendent for the suppression of the gypsy and brown-tail moth, among other things, "may act in cooperation with any person, persons, corporation or corporations, including other states, the United States or foreign governments," and "may devise, use and require all other lawful means of suppressing or preventing said hoths," the State Forester, who succeeds to the powers of the superintendent for the suppression of the gypsy and brown-tail moth under the provisions of St. 1909, c. 263, when actually engaged in the work of destroying such moths in a given locality may co-operate with adjacent landowners, who are carrying on work upon their own premises in conjunction with the public work, by furnishing them at cost supplies to be actually used in such work, or may authorize the local superintendent to furnish such supplies as his agent.
Your letter of May 2 submits for my consideration an inquiry as to whether, under the provisions of St. 1905, c. 381, § 3, you are authorized to permit local superintendents to sell supplies to property owners at cost, said supplies to be used only for the purpose of suppressing the gypsy and brown-tail moths on their own property. You state that with the approval of the Governor you have already established a supply store from which various articles used in the work of destroying the gypsy and brown-tail moths are furnished at cost prices to such cities and towns as are by law entitled to reimbursement from the Commonwealth.
The section of the statute to which you refer, as amended by St. 1906, c. 268, § 1, and St. 1908, c. 591, § 1, is as follows:
The said superintendent shall act for the commonwealth in suppressing said moths as public nuisances, in accordance with the provisions of this act. For this purpose he shall establish an office and keep a record of his doings and of his receipts and expenditures, and may, subject to the approval of the governor, make rules and regulations governing all operations by cities, towns or individuals under this act. He may employ such clerks, assistants and agents, including expert advisers and inspectors, as he may deem necessary and as shall be approved by the governor. He may make contracts on behalf of the commonwealth; may act in co-opera
tion with any person, persons, corporation or corporations, including other states, the United States or foreign governments; may conduct investigations and accumulate and distribute information concerning said moths; may devise, use and require all other lawful means of suppressing or preventing said moths; may lease real estate when he deems it necessary, and, with the approval of the board in charge, may use any real or personal property of the commonwealth; may at all times enter upon the land of the commonwealth or of a municipality, corporation, or other owner or owners, and may use all reasonable means in carrying out the purposes of this act; and, in the undertakings aforesaid, may, in accordance with the provisions of this act, expend the funds appropriated or donated therefor; but no expenditure shall be made or liability incurred in excess of such appropriations and donations. The clerks, assistants and agents employed by said superintendent may at all times, in carrying out the purposes of this act, enter upon the land of the commonwealth or of a municipality, corporation or other owner or owners.
By St. 1909, c. 263, the powers of the superintendent for the destruction of gypsy and brown-tail moths were transferred to the State Forester.
The section quoted vests the State Forester with broad powers, and since, by St. 1905, c. 381, § 1, the pupæ, nests, eggs and caterpillars of the gypsy and brown-tail moths, as well as the moths themselves, are declared to be public nuisances, I see no reason to doubt that, when actually engaged in the work of destroying such moths in any stage of their development in a given locality, you may co-operate with adjacent owners who are carrying on, or may desire to carry on, private work upon their own premises in conjunction with the public work by furnishing them at cost supplies to be actually used in such work, or may authorize a local superintendent to furnish them as your agent.
Upon the other hand, I am of opinion that nothing in the section should be construed to authorize the indiscriminate sale of such supplies to private individuals upon the mere assumption that they are to be used in connection with work upon the premises of such individuals, and that the proper and safe rule to follow in the premises, if such supplies are to be so furnished, is to require them to be used upon work which is closely
To the Senate.
connected with some public work of the same character, and which may be subject to the general supervision of the State Forester or his agents.
CONSTITUTIONAL LAW APPROPRIATION OF MONEY RAISED BY
A proposed act providing, in substance, for the taking by eminent domain, at the assessed valuation thereof, of tracts of wet lands for the purpose of reclamation, which, after such taking and reclamation, are to be cultivated for two years by the State Board of Agriculture and then sold at a price not less than the cost of such land plus the cost of reclamation, one-half of any sums received in excess of such total cost to be awarded to the original owner or owners of the land sold, and appropriating therefor the sum of $10,000, might be held to contemplate the accomplishment of a public purpose which would warrant the exercise of the power of eminent domain and the appropriation of money raised by taxation, if, as matter of fact, the development and distribution for occupation of the land affected gave relief to a considerable and thickly settled agricultural region, and affected beneficially the community as a whole, throughout such region, as well as individuals who acquired the land itself.
So much of such proposed act as provides that one-half of any sum received by the Commonwealth upon disposing of reclaimed land, in excess of the cost of the land plus the cost of reclamation, shall be awarded to the original owner or owners thereof authorizes a payment which is in the nature of a gratuity, and would therefore be unconstitutional.
By an order dated April 25, 1912, the Honorable Senate has required my opinion upon the following questions of law:
1. If the bill entitled "An Act to provide for protecting the public health and promoting the general welfare by the reclamation of wet lands," now pending in the Senate (printed as House No. 7, and amended by the Senate), should be enacted, would its provisions be constitutional?
2. Would it be constitutional to provide for the expenditure of $10,000 from the treasury of the Commonwealth for the taking and improving of wet lands by the State Board of Health and by the Board of Agriculture, and for the exemption from taxation of such lands so long as the title thereto remains in the Commonwealth?
3. Is it possible that section 2, and especially the provisions of lines 6 and 7 of said section, providing that the rule of damages shall be the assessed valuation, would be unconstitutional?
4. Is it possible that section 6, and especially the provisions of line 5 of said section, providing that the Commonwealth may take, own and operate deposits of marl and peat, would be unconstitutional?
The proposed act is entitled "An Act to provide for protecting the public health and promoting the general welfare by the reclamation of wet lands," and is as follows:
SECTION 1. The sum of ten thousand dollars is hereby appropriated, to be paid out of the treasury of the commonwealth from the ordinary revenue of the current year, to constitute a fund called the Wet Lands Reclamation Fund, the same to be expended under the direction of the state boards of health and agriculture, in the manner and for the purpose hereinafter specified.
SECTION 2. The said board of health, with the approval of the governor and council, may take for the purposes of this act any tract or tracts of wet lands of two or more adjacent owners, except salt marshes, together with such dry land, if any, as may be necessary for access thereto, by eminent domain, at the assessed valuation of said lands.
Any person aggrieved by a taking as aforesaid may have his damage assessed in the manner provided by law in respect to the taking of land for public parks.
Title to lands so taken shall pass to the commonwealth, and they shall be exempt from taxation until sold as hereinafter provided.
SECTION 3. The said board, acting through such agent or agents as it shall appoint, shall proceed to drain and reclaim such lands, and for that purpose may purchase such machinery and equipments and execute such contracts, as the governor and council may approve, employing so far as may be practicable the labor of prisoners under regulations and conditions. prescribed by the prison commissioners.
SECTION 4. When said lands, or any convenient part thereof, shall have been drained and reclaimed, the board of agriculture shall cause the same to be cultivated for not less than two successive seasons, in such a manner as, in the opinion of the board, shall best demonstrate the value thereof for agricultural uses.
SECTION 5. The said board of agriculture shall thereafter, at such time or times as it shall deem expedient, offer such lands for sale, in whole or in part, at a price not less than the cost of the land plus the cost of reclaiming the same.
One half of any sums received in excess of such total cost, shall be awarded to the original owner or owners of the land sold, and the other half of such excess shall be turned in to the treasury of the commonwealth until the original appropriation shall have been refunded. The remaining proceeds of such sales shall be returned to the reclamation fund, to be used for the reclamation of successive tracts in the manner hereinbefore provided.
SECTION 6. The town boards, acting jointly, may, in their discretion, reserve from sale any tracts containing marl, peat, or other deposits of