Acts of 1893, c. 407, § 4, provides that:

In furtherance of the powers herein granted, said board may employ a suitable police force, make rules and regulations for the government and use of the public reservations under their care, and for breaches thereof affix penalties not exceeding twenty dollars for one offence, to be imposed by any court of competent jurisdiction, and in general may do all acts needful for the proper execution of the powers and duties granted to and imposed upon said board by the terms of this act.

Acts of 1897, c. 121, § 3, provides that:

The police appointed or employed by said commission, . . . shall have within the metropolitan parks district all the powers of police officers and constables of cities and towns of this Commonwealth, except the power of serving and executing civil process.

Acts of 1900, c. 340, § 1, provides that:

The metropolitan park commission may from time to time make rules and regulations to govern the public use of the Charles river, the Neponset river, and the Mystic river, within the metropolitan parks district, and of the ponds and other waters along which it holds abutting lands for public open spaces in said district, and for breaches thereof may affix penalties not exceeding twenty dollars for one offence, to be imposed by any court of competent jurisdiction; and in general may do all acts needful for the proper execution of the powers and duties granted to and imposed upon said board by this act.

By this section the Legislature has delegated to the commission authority to regulate the public use of the entire Charles River as far as it flows within the metropolitan parks district, unless the words "along which it holds abutting lands," etc., qualify all the rivers and waters mentioned, and not. merely "the ponds and other waters" immediately preceding those words. Such a construction, however, seems to me an impossible one.

If, then, the Commonwealth itself had the power to regulate this use of the river, it has delegated that power to the Board of Park Commissioners. Such a delegation is constitutional. In Brodbine v. Revere, 182 Mass. 598, at p. 603, the court

says:

We are of opinion that the authority given to the Board of Metropolitan Park Commissioners to make rules and regulations in regard to parks and ways, with a provision that breaches of these rules shall be punishable like breaches of the peace, is not a delegation of legislative power which is unconstitutional.

The question, therefore, is whether the Commonwealth had authority to regulate the public use of the Charles River. In Massachusetts it has been repeatedly held that the public has the right to navigate and fish for pleasure, or as a business, over tidal waters, and that it has the right to navigate and to have fish freely pass in rivers above tide water, if navigable in fact. Drake v. Curtis, 1 Cush. 395, 413.

In Commonwealth v. Alger, 7 Cush. 53, the court says (p. 98):

In addition to these [private rights] are two acknowledged public rights, which are regarded as such, to be preserved and maintained for general and common use, although every portion of the soil over which the rivers flow is the private property of the riparian owners. These are: 1. The right of passage with boats, rafts and other vessels adapted to the use of such waters; 2. The right of the public to have these rivers kept open and free for the migratory fish. . . . Both of these rights are recognized as public rights in the case of Commonwealth v. Chapin, 5 Pick. 199.

In Blood v. Nashua & Lowell Railroad, 2 Gray, 137, 139, it is said:

But there is another right in rivers and water courses, for navigation, boating and rafting. The rule of the common law is that waters are not navigable unless within reach of the ebb and flow of the tide. But it has often been held here that the public have a right to the use of the large rivers, and, indeed, of all rivers and water courses, suitable for boats and rafts, and in that sense they are deemed navigable, though above the ebb and flow of the tide. In these, there is a right of way for boats and rafts.

It is also well settled that the Commonwealth may make rules and regulations governing these public uses. Commonwealth v. Vincent, 108 Mass. 441, 447.

The power of the Legislature of the Commonwealth over the public rights of navigation and fishing in any waters within its boundaries is unrestricted, provided it does not interfere with the power to regulate commerce, conferred upon the general government by the Constitution of the United States. Cooley v. Philadelphia Board of Wardens, 12 How. 299. . . . In those waters, whether within or beyond the ebb and flow of the tide, which are not navigable from the sea for any useful purpose, there can be no restriction upon its authority to regulate the public right of fishing, or to make any grants of exclusive rights which do not impair other private rights already vested.

The private rights of riparian owners are not now under discussion and could not be affected by any action of the Park Commission. See Proprietors of Mills v. Commonwealth, 164 Mass. 227, at p. 229.

From the foregoing statutes and cases I think it is clear that. the commission has authority to enact and enforce reasonable rules and regulations governing the public use of the Charles River at any point within the metropolitan parks district, regardless of the ownership of the soil beneath the river, and above and below the dam at Watertown. Such regulations as are made for the use of that part of the river below the dam may be limited, however, by the power of Congress to regulate commerce, and should, furthermore, be made in the light of the authority of the Board of Harbor and Land Commissioners, as provided in R. L., c. 96, § 8:

Said board shall have general care and supervision of the harbors and tide waters within the Commonwealth, of the flats and lands flowed thereby, of the waters and banks of the Connecticut river within the commonwealth and of all structures therein, in order to prevent and remove unauthorized encroachments and causes of every kind which may injure said river or interfere with the navigation of such harbors, injure their channels or cause a reduction of their tide waters, and to protect and develop the rights and property of the commonwealth in such flats and lands; and it may make surveys, examinations and observations necessary therefor.

As, in my opinion, the first question should be answered in the affirmative, an answer to the second question becomes un

necessary.

To the Board of Harbor and Land Commissioners. 1906 February 26.

A fish trap cannot be lawfully maintained in tide water without a license, as required by R. L., c. 91, § 116, from the selectmen of the town, or mayor and board of aldermen of the city, within which such fish trap is located.

The recent inquiry of the Board of Harbor and Land Commissioners, referring to this department the following communication from the selectmen of Provincetown

TOWN OF PROVINCETOWN, OFFICE OF SELECTMEN, Jan. 22, 1906.

Harbor and Land Commissioners of Massachusetts.

GENTLEMEN: Do you consider the selectmen of this town have any jurisdiction over a fishing trap that is constructed the same as a fish weir, only it has no poles? Anchors and rocks are used to keep it in place. As we read the Revised Laws it looks to us as though a fish trap requires a license the same as a fish weir. We would like your opinion on it, and will abide by your decision.

Very truly yours,

GEO. ALLEN,

HERMAN S. Cook,

C. AUSTIN Cook, Selectmen of Provincetown.

and requesting an opinion as to whether the Board should consider an unlicensed fish trap a nuisance in tide water, came duly to hand.

R. L., c. 91, § 116, provides that:

The mayor and aldermen of a city and the selectmen of a town lying upon tide water, except cities and towns bordering on Buzzard's bay, may in writing authorize any person to construct weirs, pound nets or fish traps in said waters within the limits of such city or town for a term not exceeding five years, if such weirs, pound nets or fish traps do not obstruct navigation or encroach on the rights of other persons.

This statute in express terms applies to fish traps as well as to weirs. If the "fishing trap," as the selectmen in their letter assume, is a fish trap, it cannot be lawfully maintained without

a license from the selectmen of the town within which it is located.

R. L., c. 91, § 118, provides that whoever maintains such a fish trap, without a license, shall forfeit ten dollars for each day he maintains such fish trap, and may be indicted therefor and enjoined therefrom.

INSURANCE FOREIGN INSURANCE COMPANY TAX UPON
PREMIUMS RECIPROCAL LEGISLATION.

A tax or excise assessed to a New York life insurance company upon all premiums charged or received upon contracts made by it in this Commonwealth, at a rate equal to the highest rate imposed during the preceding year by the State of New York upon Massachusetts life insurance companies doing business in New York, in accordance with the provisions of R. L., c. 14, § 28, is properly imposed upon such a company since chapter 118 of the laws of 1901 of the State of New York went into effect; and the tax or excise so assessed need not be reduced either because the New York statute has been held in that State not to be applicable to the receipt of premiums upon contracts entered into by a domestic company prior to the passage of the act, or because a New York insurance company doing business in this Commonwealth may be assessed upon a class of receipts which are possibly not assessed to Massachusetts companies doing business in New York, especially since the going into effect of chapter 94 of the Acts of 1905 of the State of New York.

Commissioner.

Under date of Jan. 11, 1906, you asked an opinion of my To the Tax predecessor, Hon. Herbert Parker, upon certain questions relat-1906 ing to the taxation of life insurance companies. You say:

Life insurance companies, both foreign and domestic, are taxed in Massachusetts, under the provisions of section 24, chapter 14 of the Revised Laws, upon the net value of all policies in force on the preceding thirty-first day of December, issued or assumed by such company and held by residents of the Commonwealth. They may also be taxed under the reciprocal provision of section 28 of chapter 14.

R. L., c. 14, § 24, provides that a domestic or foreign company or association which is engaged in the business of life insurance within this Commonwealth,

shall annually pay an excise tax of one-quarter of one per cent upon the net value of all policies in force on the preceding thirty-first day of December, issued or assumed by such company and held by residents of the commonwealth, as determined by the tax commissioner.

March 7.