Dividends paid by way of rental to stockholders of a leased street railway company shall be deemed to have been earned and paid by said company within the meaning of this clause, provided that said company shall have annually earned, and properly paid in dividends in cash, without impairment of assets or capital stock, an amount equal to at least five per cent upon all its outstanding capital stock in each of the five fiscal years next preceding the date of the lease thereof.

If two or more street railway companies have been consolidated by purchase or otherwise during the five years prior to said certification, the payment severally from the earnings of each year of dividends equivalent in the aggregate to a dividend of five per cent on the aggregate capital stocks of the several companies during the years preceding such consolidation shall be sufficient for the purpose of this act.

Your letter states that a street railway company has paid dividends of 2 per cent. for the year ending Sept. 30, 1905, 5 per cent. for the year ending Sept. 30, 1906, 5 per cent. for the year ending Sept. 30, 1907, 5 per cent. for the year ending Sept. 30, 1908, 5 per cent. for the year ending Sept. 30, 1909, and 2 per cent. on common stock and 3 per cent. on preferred stock for the nine months ending on June 30, 1910.

Your inquiry is as follows:

Assuming that said company appears, from returns made by it to the Board of Railroad Commissioners, to have annually earned and properly paid said dividends without impairment of assets or capital stock, is it lawful for the Board to certify and transmit to the Bank Commissioner the said company as a street railway company entitled to have its bonds a legal investment for savings banks?

Upon the facts submitted, I am of opinion that the company to which you refer is within the requirements of section 2 of chapter 502 of the Statutes of 1909, and that the Board may properly certify and transmit to the Bank Commissioner the name of such company as a street railway company entitled to have its bonds a legal investment for savings banks, in accordance with the provisions of law already cited. The apparent purpose of such section is to provide that, while the period of nine months ending on June 30, 1910, and covered by the return which is provided for, is to be counted as one year in

determining whether or not a street railway company may be certified in accordance with the provisions of St. 1908, c. 590, § 68, sub-division fifth, the requirement with respect to dividends is not to be applied to such period of nine months; or, in other words, if the requirement with respect to dividends has been complied with by a street railway company in four years, included within a period of five consecutive years, of which one shall consist of the nine months ending on June 30, 1910, such company shall be included in the list to be certified and transmitted by the Board of Railroad Commissioners. It has been suggested that, so construed, the provision is applicable only to companies which have already completed a period of five years during which dividends have been earned and paid equal to at least 5 per cent. upon all their outstanding stock; and that so much of the section as provides that

any street railway company which shall have earned and paid in dividends in cash an amount equal to five per cent upon all its outstanding capital stock in each of the five preceding years, with the exception of said nine months period, shall be included in the list to be certified

requires all companies which have not already paid the necessary dividends for five years to pay such dividends for five full years during a period of five years and nine months, which also includes the nine months ending on June 30, 1910. I am unable to appreciate the distinction so created, however, and am of opinion that the language quoted is to be taken in connection with the earlier provision, that such nine-months period is to be construed, for the purpose of St. 1908, c. 590, § 68, sub-division fifth, as one year during which street railway companies are not required to earn and pay in cash a 5 per cent. dividend, and is merely declarative of the authority of the Board to certify and transmit a list of the companies which comply with the provisions of the section.

To the Director of the Bureau of Statistics. 1910

December 22.

St. 1910, c. 616, § 1, providing that each note issued by a town shall state "the date when it shall become due for payment," and R. L., c. 27, § 6, providing that loans in anticipation of taxes shall "be payable within one year after the date of their incurrence," do not prohibit the issue by the town of a note payable on demand.

A town note may not, under the provisions of St. 1910, c. 616, § 1, be made payable to the town treasurer.

I have your letters of the 15th inst., in which you make certain inquiries in regard to town notes.

You inquire whether a town may legally issue a note payable on demand, and especially if it may issue a note payable on demand to obtain money in anticipation of taxes. This inquiry is made in view of the fact that St. 1910, c. 616, § 1, provides that each note shall state "the date when it will become due for payment," and of the fact that R. L., c. 27, § 6, requires that loans in anticipation of taxes shall "be payable within one year after the date of their incurrence." In reply to this inquiry, I advise you that, in my opinion, a town may legally issue a note payable on demand to obtain money in anticipation of taxes. Such a note is due at once for purposes of suit by the holder against the maker, and the statute of limitations begins to run at once. See Fenno v. Gay, 146 Mass. 118. The maker may make payment at once, without demand by the holder. See Stover v. Hamilton, 21 Gratt. (Va.) 273. A statement that such note is due "on demand" is, therefore, in compliance with the statutory requirement that it state "the date when it will become due for payment." For the same reason, such a note is in compliance with the statutory requirement that a loan in anticipation of taxes must "be payable within one year after the date of their [its] incurrence."

You also inquire whether a town note may be made payable to the town treasurer, or to the town treasurer or order. This inquiry is made in view of the fact that St. 1910, c. 616, § 1, requires that a town note shall state "the date of issue," and that "a record of every note so issued shall be kept by the

treasurer of the town," and that, if the Director of the Bureau of Statistics "finds that the note appears to have been duly issued," etc., he shall so certify. In reply to this inquiry I advise you that, in my opinion, a town note may not be made payable to the town treasurer, or to the town treasurer or order. Such a note is in effect payable to the town; in other words, the maker and the payee named in the body of the instrument are the same. Consequently, it is not issued until indorsement by the treasurer. See Little v. Rogers, 1 Met. 105; Moses v. Lawrence County Bank, 149 U. S. 298, 302; R. L., c. 73, § 207. "The date of issue" of such note is, therefore, the date of indorsement. No record of the issuing of the note, and no certification thereof, in accordance with the requirements of the statute, can be made until after such indorsement. The record and the certification cannot properly be made after indorsement, since in the form for the note prescribed by you under statutory authority it is contemplated that the note shall be complete upon its face.

OPINIONS

OF

JAMES M. SWIFT, ATTORNEY-GENERAL.

To the

Adjutant General. 1911

January 19.

ICAL PARTIES AND MEETINGS FOR THE DISCUSSION OF
PUBLIC QUESTIONS.

Under the provision of St. 1908, c. 604, § 140, that "armories . . . shall not be
used except by the organized militia for such military purpose or purposes
incidental thereto as may be designated by the commander-in-chief: provided,
however, that the commander-in-chief, upon terms and conditions to be
prescribed by him and upon an application approved by the military custodian
of an armory may allow the temporary use of such armory for public
purposes," an armory may be used for rallies of political parties or meetings
for the discussion of questions of public policy which are of interest or benefit
to the community at large.

...

In your communication of January 16 you state that you are directed by His Excellency the Governor to request a written opinion from the Attorney-General upon the question whether or not State armories may be used for rallies of political parties and for meetings for the discussion of questions of public policy.

St. 1908, c. 604, § 140, is as follows:

Armories provided for the militia shall not be used except by the organized militia for such military purpose or purposes incidental thereto as may be designated by the commander-in-chief: provided, however, that the commander-in-chief, upon terms and conditions to be prescribed by him and upon an application approved by the military custodian of an armory provided in any city or town for the militia, may allow the temporary use of such armory for public purposes. The compensation fixed by the commander-in-chief for every such temporary use shall be paid to the treasurer and receiver general within ten days after the occupation of