The treasurer of a city or town shall pay to the treasurer of the commonwealth one-fourth of all moneys received by him for licenses, within one month after he receives the same.

Club licenses were first authorized by St. 1887, c. 206. St. 1897, c. 233, § 1, provides as follows:

All treasurers of cities and towns in this Commonwealth shall, within thirty days after the receipt of moneys for liquor licenses granted by their several cities and towns, make a return of amounts so received to the treasurer of the Commonwealth, and at the same time shall pay to him twenty-five per cent. of the amount so received, in accordance with the provisions of section fourteen of chapter one hundred of the Public Statutes.

This last act was never amended or changed, but when the commissioners compiled the Revised Laws they substituted therefor section 45 of chapter 100. You will note that the act of 1897 provided for money received from liquor licenses, but R. L., c. 100, § 45, changed the phraseology so that it should read, "money received for licenses for the sale of intoxicating liquors."

It is plain that under the provisions of the act of 1897, 25 per cent of the money received from club licenses was payable into the treasury of the Commonwealth, as well as money received for other liquor licenses. No reason was given by the commissioners in revising the laws for the change in the wording, and thus there appears to have been no intention on their part to change the law; neither is there anything to indicate that the Legislature intended any change. An interpretation of the present statute as excluding club licenses is, under the circumstances, not to be favored, and, accordingly, I advise you that one-fourth of the fees received from club licenses should be paid to the Treasurer and Receiver-General.

Very truly yours,

HENRY C. ATTWILL, Attorney-General.

Retirement Supervisor of Loan Agencies Removal Refund Pension.

Under the provisions of the statutes governing the retirement system for the employees of the Commonwealth, where a person was appointed Supervisor of Loan Agencies on Jan. 1, 1912, and at the expiration of his three-year term of office failed to receive reappointment but

was removed, and thereafter, in accordance with his request, his deposits as a member of the Retirement Association remained in the annuity fund for a period of two years, the only course open to him after that is to accept a refund of his payments.

Any member of the association who ceases to be an employee after he has acquired voluntary retirement rights is not entitled to a refund of his payments. The only course open to him upon leaving the service is to exercise his retirement rights and to accept a pension.

Board of Retirement.

APRIL 18, 1918.

GENTLEMEN: I acknowledge your request for my opinion with reference to certain questions which have arisen as to the interpretation of the statutes governing the retirement system for the employees of the Commonwealth (St. 1911, c. 532, as amended).

You refer to the case of a person who was appointed Supervisor of Loan Agencies on Jan. 1, 1912, and who, at the expiration of his three-year term of office as provided by the statutes, failed to receive reappointment but was removed. You state that, in accordance with his request, his deposits as a member of the Retirement Association remained in the annuity fund for a period of two years, and that at the expiration of that period he refused to accept a refund and filed a request for retirement, which the Board refused to grant.

For the purpose of dealing with your inquiry, I assume, without attempting to pass upon the matter, that the retirement system is intended to include public officers appointed by the Governor, with the consent of the Council, for definite terms. The section of the retirement act relating to refunds is as follows [section 6 (2)]:

A. Refunds. (a) Should a member of the association cease to be an employee of the commonwealth for any cause other than death, or to enter the service of the public schools as defined by paragraph (5) of section one of chapter eight hundred and thirty-two of the acts of the year nineteen hundred and thirteen, before becoming entitled to a pension, there shall be refunded to him all the money paid in by him under section five, (2) A, with such interest as shall have been earned thereon.

In my opinion, the phrase "before becoming entitled to a pension" must be interpreted as meaning before having become entitled to retire as a matter of right. It thus restricts refunds to persons who have not yet acquired voluntary retirement rights.

The member to whom you refer had not been “in the continuous service of the commonwealth for a period of fifteen years immediately preceding," and therefore, though over sixty years of age, he was not entitled to retire under section 3 (4). He does not come within section 3 (5). As he had reached the age of fifty-five years when the retirement system was established, his only rights arose under the following provision of section 6 (2) C: ·

Any employee who had already reached the age of fifty-five years on the date when the retirement system was established, and also became a member of the association may be retired under the provisions of the preceding paragraph [intending to refer to paragraph (2) C (b) of section 6] without having completed the otherwise required service period of fifteen years.

It is plain that under this provision the person to whom you refer at no time was entitled to retire as a matter of right, but could be retired only by action of your Board under its discretionary power. The only effect, however, of this lastmentioned provision is in certain cases to establish an exception to the retirement privileges granted by section 3 (4). Those privileges are conditioned upon having been in the "continuous service of the commonwealth for a period of fifteen years immediately preceding" retirement. The exception is merely that an employee who had reached the age of fifty-five years when the retirement system was established could be retired "without having completed the otherwise required service period of fifteen years." If so retired by action of your Board, he received the benefits of section 6 (2) C (b), but the only exception was that he need not complete the required service period. There is no exception to the requirement of "continuous service." His service must be of such a character as regards continuity that if the fifteen-year period were completed he would come within section 3 (4). Thus, his service must be continuous, though not extended over the full period required of younger men.

It is provided, however, by section 1 (f), which was added to the retirement act by St. 1914, c. 568, that "the words 'continuous service' mean uninterrupted employment, with these exceptions: a lay-off on account of illness or reduction of force, and a leave of absence, suspension or dismissal followed by reinstatement within two years." It follows from this pro

vision that in case of suspension or dismissal an employee does not absolutely lose his rights until the expiration of the twoyear period within which he may be reinstated and regain his rights. When that period has expired, however, such an employee has no further right to complete his period of continuous service.

It follows, in my opinion, that after the service of the person in question had been terminated by removal, your Board had no power under the act to retire him until and unless he was reinstated in the service of the Commonwealth within two years from his removal. When that period expired without such reinstatement, the continuity of service was broken, and he had no rights under section 6 (2) C (b), even in the discretion of your Board. Therefore, the only course now open to him is to accept a refund of his payments.

Answering your remaining questions, it is my opinion that any member of the association who ceases to be an employee after he has acquired voluntary retirement rights is not entitled to a refund of his payments. In my judgment, he has become "entitled to a pension," within the meaning of section 6 (2) A, and thus no refund to him is authorized. The only course open to him upon leaving the service is to exercise his retirement rights and to accept a pension.

Under article XLVII of the Amendments to the Constitution of the Commonwealth, although the General Court may in the first instance determine what rates are reasonable for the distribution of necessaries, its determination is subject to review by the courts.

The power given to the General Court by this article of amendment can be exercised only when a time of war, public exigency, emergency or distress actually exists, but during these times the General Court may determine when this power is to be exercised.

Cities and towns have no power to exercise the public functions declared in article XLVII of the Amendments to the Constitution of this Commonwealth except as provided by the General Court.

House Bill No. 1400, authorizing cities and towns to exercise the powers enumerated in article XLVII of the Amendments to the Constitution

of the Commonwealth, is construed as not affecting powers of officials of the United States or of officials acting directly for the Commonwealth.

APRIL 18, 1918.

LELAND POWERS, Esq., Chairman, House Committee on Bills in the Third Reading.

DEAR SIR: I acknowledge your communication requesting my opinion on certain questions relative to House Bill No. 1400, hereinafter referred to. The questions relate to article XLVII of the Amendments to the Constitution, which is as follows:

The maintenance and distribution at reasonable rates, during time of war, public exigency, emergency or distress, of a sufficient supply of food and other common necessaries of life and the providing of shelter, are public functions, and the commonwealth and the cities and towns therein may take and may provide the same for their inhabitants in such manner as the general court shall determine.

The first clause of the amendment is a declaration that, during time of war, public exigency, emergency or distress, the maintenance and distribution at reasonable rates of a sufficient supply of food and other common necessaries of life and the providing of shelter are public functions. The purpose of the amendment is to authorize the raising of funds by taxation, in time of war or other public emergency, for the purpose of securing at reasonable rates a supply of food and other common necessaries of life for the inhabitants of the Commonwealth. Justification for the use of this power of taxation is a public exigency, emergency or distress which creates a situation in which the inhabitants may not be able to obtain the necessaries of life at reasonable rates. Thus, where a public exigency or emergency arises of such a character that a sufficient supply of food or other common necessaries of life or of shelter cannot be or is not supplied at reasonable rates by private effort, or such as to create reasonable grounds for the belief that such supplies cannot or will not be furnished at reasonable rates by such effort, the exercise of the power is justified. The amendment, in my opinion, does not authorize the engaging in business at a profit, nor, on the other hand, does it justify a distribution of the necessaries of life at a loss, unless required to carry out the object of the amendment.

It is to be borne in mind that the power of the Legislature