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opinion of the court in Quatsoe v. Eggleston, 42 Ore. 315, in which the court held that since "the award of the pianos which are proposed to be given away as an inducement is not made by chance or lot, but by the affirmative and conscious act and will of the holders of tickets obtained with goods purchased at the defendant's store," the scheme did not constitute a lottery.

INSURANCE STEAM BOILERS INSPECTION BY INSURANCE
COMPANIES

CERTIFICATE.

Under the provisions of St. 1907, c. 465, § 17, as amended by St. 1912, c. 531, § 7, that "insurance companies engaged in the business of inspecting and insuring steam boilers shall, after each internal and external inspection, if the boiler and its appendages conform to the rules formulated by the Board of Boiler Rules, and if they deem the boiler to be in safe working condition otherwise, issue a certificate of inspection .," it is the duty of an insurance company making such inspection to issue a certificate upon each inspection without regard to the purpose for which such inspection is made.

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1912

You have requested my opinion as to the construction to be To the Chief given to St. 1907, c. 465, § 17, as amended by St. 1912, c. 531, District Police. § 7, with reference to the inspection of steam boilers by in- December 1. surance companies engaged in the business of inspecting and insuring steam boilers within this Commonwealth. The statute in its amended form provides as follows:

Insurance companies engaged in the business of inspecting and insuring steam boilers shall, after each internal and external inspection, if the boiler and its appendages conform to the rules formulated by the board of boiler rules, and if they deem the boiler to be in safe working condition otherwise, issue a certificate of inspection stating the maximum pressure at which the boiler may be operated. This maximum pressure shall be determined under the rules established by the board of boiler rules.

It appears that certain companies duly authorized to insure steam boilers in this Commonwealth from time to time inspect boilers upon which the owners desire to place insurance, or inspect such boilers for the information of the owner or pro

spective purchaser, and that these companies contend that they are not required by the law to issue certificates after inspections for such purposes.

Your question is whether the insurance companies authorized to engage in the business of insuring and inspecting boilers in this Commonwealth are required by the statute to issue a certificate of inspection after an inspection for such purposes as those above mentioned.

The statute prescribes that after each internal and external inspection, if the boiler and its appendages conform to the rules, and if it is deemed to be in safe working condition otherwise, a certificate of inspection shall be issued. The provision is not that after every annual inspection, or that after every regular inspection, or that after every inspection which the insurance company chooses to designate as an inspection made in accordance with the requirements of law a certificate shall be issued. No exception is made by the terms of the statute. An inspection is an inspection, whatever its object, and so far as appears from the statute one internal and external inspection does not differ from another. The statute does not fix any time for making inspections. It merely provides that inspections shall be made at intervals of not more than one year. It is, therefore, not open to the insurance companies to designate one of several inspections as the inspection required by law, and to refuse to issue a certificate upon any other inspection. It is not open to the insurance companies to make distinctions between inspections which the statute itself does not make.

From the comprehensive language used in the statute it would seem to have been the intent of the Legislature that the latest inspection should be the one upon which the certificate in force is based, and to have the certified condition of the boiler kept up to date as closely as possible. That such was the intent of the Legislature is also indicated by the provisions of section 10 of chapter 465 of the Acts of 1907, which prescribe that every insurance company shall forward to the chief inspector of boilers, within fourteen days after each internal

and external inspection, reports of all boilers so inspected by it. That is in effect a requirement that the chief inspector of boilers shall have the benefit of all information up to date which the insurance companies have acquired in the transaction of their business.

In my opinion, therefore, the interpretation given to the statute by you is correct, and the insurance companies are required to issue a certificate after every inspection, whatever may have been the object of or reason for the inspection.

1908 August 28.

OPINIONS UPON APPLICATIONS FOR LEAVE TO FILE
INFORMATIONS IN THE NAME OF THE
ATTORNEY-GENERAL.

ATTORNEY-GENERAL ex rel. v. VISITORS OF THE THEOLOGICAL
INSTITUTION IN PHILLIPS ACADEMY IN ANDOVER.

Attorney-General - Public Charitable Trust Trust Fund -
Mandamus.

Under the provisions of R. L., c. 7, § 6, which makes it the duty of the AttorneyGeneral to enforce the due application of funds given or appropriated to public charities within the Commonwealth, and to prevent breaches of trust in the administration thereof, the Attorney-General will not sanction, by the use of his name upon a petition for a writ of mandamus, the expenditure of trust funds for the purpose of deciding a purely technical question, when in his opinion no public advantage will be served thereby.

This is an application to the Attorney-General by Rev. William E. Wolcott, D.D., and Mr. William Shaw, to sign an information praying that a writ of mandamus issue to the visitors of the Theological Institution in Phillips Academy in Andover, commanding them to hold a meeting at which the said trustees shall be duly summoned to appear, and to determine thereat whether, in the removal and affiliation of Andover Theological Seminary with Harvard University and in the terms and conditions of said affiliation and in the general plan of such removal and affiliation, said trustees are not acting contrary to the statutes of the foundation and in violation of the terms of their trust.

Section 6 of chapter 7 of the Revised Laws provides that:

He [the attorney-general] shall enforce the due application of funds given or appropriated to public charities within the commonwealth, prevent breaches of trust in the administration thereof . . .

On March 12, 1908, the trustees of Andover Theological Seminary (eleven of the trustees being recorded for the affiliation, and one failing to vote, there being twelve members of the board) voted to remove from Andover to Cambridge, and also, by official vote and mutual agreement made with the authorities of Harvard University, they affected an affiliation of the two institutions. The terms of affiliation provide in part that the organization of the seminary shall be maintained without change, all its trusts being executed as at present.

The trustees are given express authority to remove the seminary by the statutes of the founders (1778):

Whereas, in the course of human events, the period may arrive, when the prosperity of this Institution may be promoted by removing it from the place where it is founded; if it shall hereafter be judged, upon mature and impartial consideration of all circumstances, by two-thirds of the Trustees, that for good and substantial reasons, which at this time do not exist, the true design herein expressed will be better served, by removing the Seminary to some other place, it shall be in their power to remove it accordingly; provided that if this event shall ever take place, there shall be fairly and truly entered on the Clerk's records, all the reasons whereon the determination was grounded, and the same shall be subscribed by the members who effected the determination; but unless the good of mankind shall manifestly require it, this Seminary shall never be removed from the South Parish in the Town of Andover.

Article XX. of the associate statutes defines the powers and duties of the board of visitors, as follows:

The powers and duties of the Board of Visitors, thus constituted and organized, shall be as follows, namely:

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1. To visit the Foundation once in every year, and at other times, when regularly called thereto;

2. to inquire into the state of this our Fund and the management of this Foundation, with respect both to Professors and Students;

3. to determine, interpret, and explain the Statutes of this Foundation in all cases, brought before them in their judicial capacity;

4. to redress grievances, both with respect to Professors and Students; 5. to hear appeals from decisions of the Board of Trustees and to remedy upon complaint, duly exhibited in behalf of the said Professors and Students;

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