show that it was intended to supersede a special act in order to hold it to be such a repeal.

Here the two statutes are irreconcilable; they cannot be read together; they cover the same subject-matter; and it therefore appears to be the legislative will to repeal the prior general law so far as Marlborough is concerned, it having been done with full knowledge on the part of the Legislature of the provisions of the statute of 1886.

This being the legislative will, I feel it my duty to rule, what I believe to be the law, that the provision in the charter of the city of Marlborough must govern, and that if it is desired to change to conform to the general law, legislation should be asked for.

Informations in the nature of quo warranto, under the rule established by my predecessors, are signed by the Attorney-General only when the construction of a law affecting the Commonwealth generally is involved, or when the Commonwealth, as such, is for any reason interested in the determination of the question; but when the question is purely local, and one in which the Commonwealth is in no way interested, the reason for signing does not exist. In this case the question is a local one, involving the construction of the city charter of Marlborough alone; and I am unable to find such a case, presenting questions as to the construction of any law affecting the Commonwealth generally, as requires the Attorney-General to grant the use of his name to an information in the nature of quo warranto.

For both of the reasons above named the application is therefore refused.

William M. Brigham, for the petitioner.

James W. McDonald, city solicitor, for the respondent.

MEMORANDUM.

CHAPTER 86 OF THE RESOLVES OF 1908.

Flowage of Land in this Commonwealth by Erection of Dam in Connecticut - Proceedings at Law Suits between the States.

The Attorney-General has no authority to prosecute claims for the benefit of private individuals except in the single instance of the unascertained individuals who may benefit by a public charitable trust. The lawful erection of a dam in the State of Connecticut by a Connecticut corporation, which results in the flowage of certain lands and highways within the Commonwealth at certain times and seasons, does not cause damage of such serious magnitude as would justify the Commonwealth in bringing legal proceedings in courts of the United States.

By resolve of the Legislature approved May 1, 1908, it was provided that:

The attorney-general is hereby authorized and directed to inquire and determine to what extent, if any, the sovereignty of the commonwealth has been violated by the Berkshire Power Company, a Connecticut corporation, which, by the erection and maintenance of a dam across the Housatonic river in the state of Connecticut, some distance southerly of the line between said state and the town of Sheffield in this commonwealth, is alleged to have overflowed lands and highway in said town, causing great hindrance to public travel and menacing the public health. And the attorney-general is authorized to institute such proceedings in the premises in courts outside of this commonwealth as he may deem expedient, in the name and at the expense of the commonwealth.

This resolve is to be construed as calling the attention of the Attorney-General to the situation which exists with reference to the construction by the Berkshire Power Company, a Connecticut corporation, of a dam across the Housatonic River in the State of Connecticut, and the consequent flowing of adjacent lands in the town of Sheffield, in the Com

monwealth of Massachusetts, which is stated to have caused great hindrance to public travel and has menaced the public health. From so much of the resolve as authorizes the Attorney-General to institute proceedings in courts outside the Commonwealth, it may further be inferred that it was the desire of the Legislature that, should conditions warrant it, an appropriate proceeding should be brought in the courts of the United States or in the courts of Connecticut for the purpose of abating the alleged nuisance.

In accordance with the desire of the Legislature as expressed in this resolve, I have made a careful investigation of the question presented therein, and have twice visited the locality where the effect of the dam referred to is manifested, once in the company of a competent engineer.

The facts in the case are, briefly stated, that the Berkshire Power Company, a corporation organized under the laws of Connecticut for the purpose, among others, of owning, constructing and operating power plants of various kinds for generating electricity, has constructed a dam across the Housatonic River at North Canaan, Conn., the height of such dam being about 6 feet, exclusive of flash boards. It is said that, taking into consideration all the circumstances, the difference between the water above and below the dam is approximately 8 feet. It further appears that the country above the dam is, comparatively speaking, flat, and that the raising of the water, even to the extent specified, results in the flowing of a considerable area of riparian land, including to some extent two or three of the highways of the town of Sheffield.

No detailed estimate of the damage to the highways has been presented to me. The flowed area is not permanently below the level of high-water mark, except as to a very small area, and the only effect of such flowing, of which I am advised, is to place water upon such highways and land at certain times and seasons, especially during what are called the spring freshets, and to render a certain area of the land in the village of Sheffield swampy. The dam of the Berkshire Power Company was erected under express authority of the State of Con

necticut in Special Acts of Connecticut, 1905, chapter 374, an act which provides for the payment of damages to any persón whose property is injured by the erection or maintenance of such dam.

Attempts have been made to settle the damages so occasioned to Massachusetts land owners, but in some cases these have failed, and there has been considerable litigation in the federal courts. It was there attempted to obtain an injunction against the company, but it was finally held that the complainant was estopped from claiming this form of relief, for the reason that he had participated in negotiations for a settlement. See Griffith v. Berkshire Power Co., and Hughes v. Berkshire Power Co., 158 Fed. 219. The court did, however, intimate that in the same proceeding the complainants might have their damages assessed. See also Andrus v. Berkshire Power Co., 145 Fed. 47, 147 Fed. 76, and 203 U. S. 596. It is clear, moreover, that owners of property in Massachusetts who are damaged have a remedy under the Connecticut statute, should they go into Connecticut to enforce it. Brickett v. Haverhill Aqueduct Co., 142 Mass. 394.

In any event, however, the Attorney-General has no authority to prosecute claims for the benefit of private individuals, except in the single instance of the unascertained individuals who may benefit by a public charitable trust; and there his power and duty in the premises rest upon the benefit which accrues to the public generally by the proper administration of a charitable trust, rather than upon any benefit which may accrue to the individuals whom, because they are unascertainable, he represents. Even if the State should make the claims of those individuals who have been damaged in their property rights its own, and should attempt to pursue such claims in the courts of the United States, where alone they may be so pursued, it would be unavailing. See New Hampshire v. Louisiana, 108 U. S. 76. If, therefore, any action upon the part of the Attorney-General is required in the premises, it must be upon the ground that the public health, convenience and safety are affected to such a degree as to constitute a

public nuisance, or that the rights of the Commonwealth of Massachusetts, as a sovereign State, have been invaded, to such an extent as to justify an appeal to the Supreme Court of the United States for redress. It may be assumed that if the Commonwealth were dealing with a private individual or corporation within the limits of its jurisdiction, the flowing of the highways would constitute a public nuisance to the extent that such individual or corporation might be indicted and prosecuted therefor, if there were no reasonably proper ground for such flowage. It does not follow, however, that because an obstruction of the highway might be made the subject of a criminal indictment, it is therefore, and for that reason alone, a proper ground for action by the Attorney-General.

But it may be assumed that if an individual or corporation within the jurisdiction of the Commonwealth had committed the acts complained of, such acts, if unauthorized, would justify interference by appropriate proceedings upon the part of the Attorney-General in the interests of the general public who use the highways. The precise question to be determined is, therefore, whether or not such acts constitute a sufficient ground for a proceeding by the Commonwealth, by its chief law officer, in the Supreme Court of the United States, to vindicate its sovereignty or to protect the lives or property of its inhabitants from the acts of a citizen of another State, for such an action can be brought in no inferior court. Article III., section 2 of the Constitution of the United States provides that the judicial power of the United States shall extend to "controversies between two or more states," and controversies "between a state and citizens of another state;" and by the same article and section it is also provided that in cases "in which a state shall be a party, the supreme court shall have original jurisdiction." See New Hampshire v. Louisiana, 108 U. S. 76, 86. Any action upon the facts here presented would undoubtedly be an action by a State against the inhabitants of another State, within the meaning of the Constitution, and would therefore have to be brought in the Supreme Court of the United States. That such an action will lie, has long been