court officers included within the act, which are not affected by population. In my opinion this provision remains unchanged by the enactment of St. 1905, c. 339, and it must follow, therefore, that the treasurer of the county of Franklin was not authorized to readjust the salaries of the officers of the district courts upon any basis of population. CONSTITUTIONAL LAW GOVERNOR PETITION FOR PARDON EXECUTIVE COUNCIL. The Governor may, in his discretion, refuse to refer to the Executive Council a petition for pardon or a petition for commutation of the death penalty. Governor. 1906 January 31. I have the honor to acknowledge the receipt of your favor To the of the 24th, in which you ask whether the Governor, in his discretion, has the constitutional right to refuse to refer a petition for pardon to the honorable Council, in case he deems it should not be granted, and also whether he has a right to refuse to refer a petition for the commutation of the death penalty, in case he believes such commutation should not be granted; and I beg leave to say that the Constitution of Massachusetts, part the second, chapter II., section I., article VIII., provides:— The power of pardoning offences . . . shall be in the governor, by and with the advice of council. The power to commute is an incident of the power to pardon; it is pardoning upon condition of the convict's voluntary submission to a lesser punishment. The two questions may, therefore, be answered together, as they are both governed by the language in the Constitution above quoted. Power to pardon under that provision lies solely with the Governor, by and with the advice of the Council. I am of opinion that the Governor may refuse to refer to the Council a petition for pardon or a petition for commutation of the death penalty. By the Constitution of Massachusetts, part the second, chapter II., section I., article IV.: — The governor shall have authority, from time to time, at his discretion, to assemble and call together the councillors of this commonwealth for the time being; and the governor with the said councillors, or five of them at least, shall, and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, agreeably to the constitution and the laws of the land. If he desires their advice he may call them together and take it. If he does not desire their advice, he is not obliged to take it unless he proposes to act upon it after he has taken it. A former Attorney-General has ruled that the Governor may refuse to pardon a convict although the pardon is recommended by the Council, and said: The Council has no pardoning power. The Governor, it is true, cannot exercise the power of pardon vested in him excepting by the advice of the Council. But he cannot be directed by that body to exercise the power; for, if he could be, the power would be in the Council and not in him, and he would be a ministerial officer only to execute the power so vested in that body. The power to pardon necessarily imports the right to refuse pardon. (1 Op. Atty.-Gen. 199.) INTOXICATING LIQUORS INNHOLDER "OPEN" OR "PUBLIC To the Senate. 1906 February 8. An "open" or "public bar" is a bar or counter kept and maintained principally if not exclusively for the sale of intoxicating liquors under any one of the first three classes of licenses enumerated in R. L., c. 100, § 18, to be drunk at such bar or counter when furnished, such bar or counter being open to the public so that all persons not excepted by the provisions of R. L., c. 100, § 17, cl. 4, may have access thereto, and may obtain liquor for immediate consumption. An innholder who maintains an inn or hotel may, under the laws of this Commonwealth, have upon his premises a bar which is not within the above definition an "open" or "public bar." I have the honor to acknowledge the receipt of an order adopted by the honorable Senate on the sixth day of February, 1906, requiring the opinion of the Attorney-General upon the following: Ordered, That the Senate request of the Attorney-General his opinion on the following question: Under the laws now in force, can a hotel in the Commonwealth legally have a bar which is not a public or open bar? R. L., c. 100, § 18, establishes five classes of licenses which are material to the present question. These are as follows: First class. To sell liquors of any kind, to be drunk on the premises. Second class. To sell malt liquors, cider and light wines containing not more than fifteen per cent of alcohol, to be drunk on the premises. Third class. To sell malt liquors and cider, to be drunk on the premises. Fourth class. To sell liquors of any kind, not to be drunk on the premises. Fifth class. To sell malt liquors, cider and light wines containing not more than fifteen per cent of alcohol, not to be drunk on the premises. Section 17, cl. 7, of the same chapter, prescribes conditions which shall be attached to licenses issued by authority of chapter 100. These conditions establish that each license of the first three classes shall be issued only to persons holding licenses either as innholders or as common victuallers, but from the language of the second paragraph of clause 7, which deals with the first five classes, it may fairly be assumed that the statute contemplates that an innkeeper may also hold a license either of the fourth or fifth class from the following language; “but an innkeeper shall not upon such holiday sell, give away or deliver intoxicating liquor in his inn under a fourth or fifth class license." If an innkeeper holds a license under either the fourth or fifth classes, he would be authorized to sell liquors not to be drunk on the premises, but he would necessarily have a place where such liquors were kept, stored and sold. A bar is defined by the Century Encyclopedia and Dictionary as "that portion of a tavern, inn, coffee-house or the like, where liquor, etc., are set out. A counter over which articles are served in such an establishment." Such a place for the keeping or selling of liquors not to be drunk on the premises would not, in my opinion, constitute a public bar, although it is clearly within the definition of a bar. That a distinction existed between the word "bar" and the term "public bar" is, I think, shown by the provision which formerly existed in Pub. Sts., c. 100, § 9, cl. 5, which provided that: Each license of the first, second and third classes [identical with the first three classes enumerated in R. L., c. 100, § 18] shall be subject to the further condition that the licensee shall not keep a public bar and shall hold a license as an innholder or common victualler. Under this statute, the court, in Commonwealth v. Rogers, 135 Mass. 536, at p. 539, defined the term "public bar" as follows: It was doubtless the purpose of the Legislature, in requiring that a license to sell liquors, to be drunk on the premises, shall be subject to the "condition that the licensee shall not keep a public bar, and shall hold a license as an innholder or common victualler," to discourage to some extent the sale of liquor to be drunk on the premises, except in connection with meals or lunches. Pub. Sts., c. 100, § 9, cl. 5. This consideration is entitled to some weight in determining the meaning of the term "public bar" as used in the statute. It would certainly be difficult, and probably impossible, to define with absolute precision the meaning of the term "public bar," so as to include everything that would, and exclude everything that would not, constitute such a bar, though under any given state of facts it might not be difficult to determine whether or not they constituted such a bar. Such a bar must obviously be something at which liquors are sold, to be drunk on the premises; and it is equally obvious that everything at which liquors are so sold is not necessarily such a bar; for the purpose of the license is to authorize such sales, unless made in a certain manner. In a somewhat general way, a public bar may be defined as a counter, table, shelf or other similar device, designed and used for the purpose of facilitating the sale and delivery of liquors there kept to any one who may apply for them, to be then and there drunk, not in connection with meals, lunches or food. A lunch counter, designed and used for furnishing lunches, would not be such a bar merely because sales of liquor only are sometimes made there. It would seem that in this opinion the court goes even further in distinguishing between a bar and a public bar, in stating that "a lunch counter, designed and used for furnishing lunches, would not be such a bar [public bar] merely because sales of liquor only are sometimes made there." It would follow, therefore, that an innholder holding a license of the first class might, in connection with a restaurant, maintain a bar or counter at which food was furnished, and over which liquors were sold, generally in connection with food, but sometimes without food, and would not be maintaining a public bar, though he might well be held to be maintaining a bar. The distinction seems to be whether or not the principal business conducted at a bar or counter is the sale of liquors without food, or whether the sale of liquors is merely incidental to the business of furnishing food. Commonwealth v. Everson, 140 Mass. 292; Commonwealth v. Rogers, 135 Mass. 536. The term "open bar" has never been defined by our courts, but I am of opinion that it is synonymous with the term "public bar," and that a public bar may, for the purposes of this inquiry, be defined as a bar or counter kept or maintained principally, if not exclusively, for the sale of liquors under any one of the first three classes of licenses enumerated in R. L., c. 100, § 18, to be drunk at such bar or counter when furnished, such bar or counter being open to the public so that all persons not coming within the exceptions enumerated in section 17, clause 4, might have access thereto, and might obtain, for the purposes of immediate consumption, such liquor as they desire. I am also of opinion that an innholder who maintains a hotel or inn may, under the laws of this Commonwealth, have a bar upon his premises which is not, within the above definition, a public bar. The words "construction of public works," as used in R. L., c. 20, § 27, providing in part that all contracts made by the county commissioners for the construction of public works, if exceeding $800 in amount, shall be made in writing and after posting and publication of notice as therein prescribed, do not require that notice of proposals for the employment of architects to prepare plans shall be posted and published. Controller I beg to acknowledge the receipt of your request of January To the 18, asking my opinion as to whether the employment of archi- of County tects to prepare plans for the construction of public works is included within the provisions of section 27 of chapter 20 of Accounts. 1906 February 9. |