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In my opinion the question is to be answered in the negative. At the time when the town meeting was held, on March 4, 1912, I assume that the town had no existing authority to refund the debt in question. It is at least clear that the vote of the town on that date was not effective to authorize the refunding of the debt under any other legislation than that of 1912.

The vote passed at the meeting of March 4, 1912, was an attempt to anticipate authority which the town had not yet acquired. At the time when the town thus purported to authorize the exercise of authority which it expected the Legislature to confer upon it the town did not know definitely that any such authority would be conferred upon it or what the measure or form of the authority conferred would be if conferred. It was possible that the Legislature might grant the authority in the terms asked by representatives of the town, or withhold it completely, or grant it with such qualifications and conditions that the act when passed would not be acceptable to the town.

Upon these facts the town cannot be considered to have accepted by valid action a grant of authority which had not in fact been offered to it at the time of the vote and the form and terms of which it could not foretell.

Furthermore, the vote itself is too indefinite in its provisions to be effective. Since the act of March 28, 1912, had not been passed when the vote was taken, and since there was no certainty as to what the final form of the act might be, it is not permissible to read into the vote of March 4, 1912, the provisions of the act which was passed on March 28, 1912.

Considering the vote by itself, therefore, and apart from the statute, as it must be considered, the vote appears to be entirely lacking in any provisions as to the rate of interest, the amount of the proportionate payments, and the terms of the bonds or notes to be issued. Such a vote, without a statute to be read into it or construed with it, is inadequate to authorize the officials of the town to take the necessary steps for the issuing of the notes in question.

There is no provision in St. 1912, c. 343, that the town treas

urer or other officials of the town may issue the notes without further vote of the town. Where the Legislature intends to authorize such action by the town treasurer without further vote of the town, it expresses that intention. St. 1912, c. 458, is entitled, "An Act to authorize the town of Essex to refund certain indebtedness," and section 3 of that statute provides as follows:

The treasurer of the town of Essex, with the approval of the selectmen, is hereby authorized, without further vote of the town, to incur indebtedness under the provisions of this act for which said town shall be liable, and to issue notes of the town therefor in accordance with law.

If chapter 343 of the Acts of 1912 contained such a provision quite a different situation would be presented.

Upon the present state of facts, therefore, I have to advise you that in my opinion you should not certify the series of notes which has been presented to you for certification.



Under the provisions of St. 1905, c. 330, § 3, that the records of hospitals supported in whole or in part by contributions from the Commonwealth or from any municipality, and incorporated hospitals offering treatment to patients free of charge or conducted as public charities, "shall not be open to public inspection until they are produced in court by the person having the custody of the same," the superintendent or other officer in charge of such institution is not required or permitted to furnish any person with a copy of any part of such record.

tees of the


I have received your letter stating that you have received To the Trusa request from an attorney representing a patient who was Worcester State formerly under the care of the Worcester State Hospital, that November 22. you furnish a detailed record of the history of the patient's case, and asking my opinion upon the questions, first, whether you are compelled by law to furnish a copy of the records to the person requesting it; and second, whether, if not compelled to furnish such copy, it is lawful for you to furnish it if you deem it best.

To the Chief of the District Police.

1912 November 22.

The answers to both questions are found in the provisions of St. 1905, c. 330. The amended provisions are as follows:

SECTION 1. Hospitals supported in whole or in part by contributions from the Commonwealth or from any municipality, incorporated hospitals offering treatment to patients free of charge, and incorporated hospitals conducted as public charities, shall keep records of the cases under their care and the history of the same in books kept for that purpose.

SECTION 2 [as amended by St. 1908, c. 269]. Such records, and similar records kept prior to April twenty-fifth, nineteen hundred and five, shall be in the custody of the person in charge of the hospital, and shall be admissible as evidence in the courts of the Commonwealth as to all matters therein contained.

SECTION 3. Section seventeen of chapter thirty-five of the Revised Laws shall not apply to such records, and they shall not be open to public inspection until they are produced in court by the person having the custody of the same.

You are, therefore, not only not compelled to furnish a copy of the records, but by statutory provision the furnishing of such copy is expressly prohibited, and the usual provision of law that every person having the custody of public records shall at reasonable times permit inspection of those records and furnish copies thereof on payment of reasonable fees, is made inapplicable to the records of patients in a State insane hospital.


An arrangement or contract entered into by a foreign corporation dealing in ponies, with certain merchants and managers of theatres within the Commonwealth, by which each such merchant or manager contracting with the pony company issues to every customer for each 25 cents received 25 votes, which may be cast by the bearer in favor of any contestant in a contest in which the person receiving the highest number of votes is entitled to a pony and outfit from such company, involves no element of chance, and therefore does not constitute a lottery within the meaning of the several sections of R. L., c. 214, which prohibit lotteries within the Commonwealth.

You have requested my opinion as to whether the operation of a certain arrangement entered into by various managers of theatres and other buildings licensed by your department is subject to the provisions of the laws of this Commonwealth

prohibiting setting up, promoting, permitting, advertising, or in any manner participating or assisting in the operation of a lottery.

The arrangement in question is substantially as follows: a pony company of Ohio makes contracts with various theatre owners and merchants by the terms of which a voting contest is carried on in connection with the management of the theatre or business for the purpose of advertising the ponies of the Ohio company. Each theatre owner or merchant contracting with the pony company issues to every customer for each 25 cents received, either for admission tickets or for merchandise, 25 votes. These votes so received may be cast by the bearer in favor of any contestant, and the contestant securing the highest number of votes receives a pony and outfit from the Ohio company. In case of a tie the value of the pony and outfit is divided among those having an equal number of votes.

Without assuming to refer to all the provisions of Massachusetts law aimed at the prevention of the operation of lotteries, most of which provisions are embodied in chapter 214 of the Revised Laws, the following section may be cited as fairly illustrating the policy of the law upon the subject:

SECTION 7. Whoever sets up or promotes a lottery for money, or by way of lottery disposes of any property of value, or under the pretext of a sale, gift or delivery of other property or of any right, privilege or thing whatever disposes of or offers or attempts to dispose of any property, with intent to make the disposal thereof dependent upon or connected with chance by lot, dice, numbers, game, hazard or other gambling device, .whereby such chance or device is made an additional inducement to the disposal or sale of said property, and whoever aids either by printing or writing, or is in any way concerned, in the setting up, managing or drawing of such lottery, or in such disposal or offer or attempt to dispose of property by such chance or device, shall for each offence be punished by a fine of not more than two thousand dollars or by imprisonment for not more than one year.

"Lottery" is defined in the Century Dictionary as follows:

1. Distribution of anything by lot; allotment; also, the drawing of lots; determination by chance or fate; random choice; matter of chance;

as, the lottery of life. 2. A scheme for raising money by selling chances to share in a distribution of prizes; more specifically, a scheme for the distribution of prizes by chance among persons purchasing tickets, the correspondingly numbered slips or lots, representing prizes or blanks, being drawn from a wheel on a day previously announced in connection with the scheme of intended prizes. 3. The lot or portion falling to one's share; a chance allotment or prize.

In all these definitions chance is the essential element. If the element of chance is absent the things which are necessary to constitute a lottery are not present.

An analysis of the plan submitted as that operated under the contract between the pony company and the theatre managers and merchants fails to reveal any element of chance. Everything is determined by a definite and invariable rule in advance, except the question as to who shall receive the votes which are cast, and that question is in no way determined by chance. Tickets of admission and articles of merchandise are for sale to everybody. Everybody who pays 25 cents, or any multiple thereof, either for tickets or merchandise receives a certain fixed number of votes for each 25 cents paid. Each person having received his votes is free to cast them for whomsoever he chooses, and his own choice is determined absolutely and solely by his own preference, which is expressed at his own volition. Whether his personal choice proves to be the winner of the contest depends not at all upon chance but merely upon whether a sufficient number of other voters have exercised their will in the same manner and given effect to the same preference, and that question is determined not by lot or by hazard but by the ordinary processes of arithmetic.

In my opinion, therefore, the arrangement in question is not a lottery and is not within the scope of the description of the kindred evils for the suppression of which provision is made by chapter 214 of the Revised Laws, and its amend


While no similar arrangement appears to have been under the consideration of the courts of this Commonwealth, a discussion of a case very similar in its facts is to be found in the

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