able notice to the town liable for his support, to the end that the town may take such measures for the support of the pauper as it deems proper, including his removal from the almshouse, if it so desires.

In my opinion, however, it has no application to the case of an insane person, who, having been duly committed to an insane hospital by proper proceedings therefor, and being a lawful inmate of such insane hospital, is transferred by the State Board of Charity to the insane ward of the almshouse. He does not thereby become the less a ward of the State, and notice would be of no benefit to the town, for it could take no measures for his removal or support outside the almshouse. The insane person is transferred to the insane ward of the almshouse, not as a pauper, but because the public interest requires such a transfer. St. 1888, c. 69. Notwithstanding such removal, he is still in the class of insane persons rather than that of paupers, and the laws applicable to insane persons still regulate his status in the insane ward of the almshouse.

The same considerations dispose of the second objection of the town. Pub. Sts., c. 83, § 3, relied upon by the town, provides that "No person who actually supports himself and his family shall be deemed to be a pauper by reason of the commitment of his wife, child, or other relative to a lunatic hospital or other institution of charity, reform, or correction by order of a court or magistrate, and of his inability to maintain such wife, child, or relative therein; but nothing herein contained shall be construed to release him from liability for such maintenance."

Quigley's son is still in a ward of an insane hospital, and is detained there as an insane person, not as a pauper.

To the Board of Savings Banks Commissioners.

1900

The election of the officers of a corporation is a corporate function, which cannot be delegated without express statutory authority.

The statutes do not contain such authority, but, on the contrary, by clear intend

ment require that such officers shall be elected by the members of the corporation; and a by-law which delegates to the board of directors of a cooperative bank the election or selection of the secretary, treasurer or other officers of the bank is therefore illegal.

An attorney is not an officer of the corporation, and cannot be made one by the by-laws.

Your letter of October 13 requires the opinion of the AttorneyGeneral upon the question whether "it is legal for the shareNovember 10. holders of a co-operative bank to incorporate in its by-laws one that delegates to its board of directors the selection or election of a secretary, treasurer or other officer of the bank."

The election of officers is a corporate function, and one that cannot be delegated, except by express statutory authority. I find no such authority. On the contrary, the statutes by clear indication require that the officers of a corporation shall be elected by the members of the corporation.

Pub. Sts., c. 117, § 6, provides that "The number, title, duties, and compensation of the officers of the corporation, their terms of office, the time of their election, as well as the qualifications of electors, and the time of each periodical meeting of the officers and members, shall be determined by the by-laws; but no member shall be entitled to more than one vote at any election. All officers shall continue in office until their successors are duly elected, and no corporation shall expire from neglect on its part to elect officers at the time prescribed by the by-laws."

There is nothing in this section which can be construed to authorize the delegation by the corporation to its directors of the corporate duty of electing its officers. On the contrary, the last sentence appears to recognize that they are to be elected by the corporation, in providing that "no corporation shall expire from neglect on its part to elect officers."

Moreover, Pub. Sts., c. 105, § 1, extends the provisions of that chapter to all corporations organized under the laws of the Com

monwealth, excepting so far as they are inconsistent with special provisions. Section 4 of that chapter provides that “every corporation, where no other provision is specially made, may

elect, in such manner as it may determine, all necessary officers." Section 5 contains further provisions relating to the manner of calling and conducting meetings of the corporation, the number of members that shall constitute a quorum, the number of shares that shall entitle members to votes, and other like provisions. relating to corporate action. This section plainly contemplates that officers of a corporation shall be elected by the corporation itself.

Whether those who are called officers of the corporation are in fact such, or are merely agents, may be a more difficult question, but as to the so-called officers, referred to in your inquiry, there is no difficulty. The secretary and treasurer are expressly recognized by the statutes as corporate officers, for it is provided in St. 1885, c. 121, § 1, that these offices may be held by one and the same person. See also St. 1898, c. 247, § 1. The secretary and treasurer are, therefore, clearly officers of the corporation.

On the other hand, an attorney is not necessarily an officer of the corporation, and is not made such an officer by providing in the by-laws that he shall be.

In general, it may be said that the officers of a corporation are such officers as are necessary to the carrying on of its corporate existence. This definition does not include an attorney.

A student at an institution of learning in this Commonwealth may, if he is of age, and free to choose, become a citizen of the town in which such institution is located.

Governor. 1900 November 27.

Replying to your inquiry with reference to the right of a student To the in the Massachusetts Agricultural College to become a citizen of Massachusetts, I have to say as follows:

Citizenship is a question of fact, to be determined upon all the circumstances, including, as an important factor, the intention of the person in question. Ordinarily, a student at an institution

of learning does not by mere attendance at such institution become a citizen of the town in which the institution is located; but if he is of age, and free to choose, there is nothing to prevent him from becoming such a citizen. The necessary steps are such as any person coming from another jurisdiction is required to take in order to acquire domicile in this State.

To the Board

of Harbor and Land Commissioners.

1900

A statute which gives to a town the exclusive and unlimited right to use the waters of a great pond as a source of water supply does not further diminish the rights of the public in such pond.

The public is, therefore, still interested in the pond, and, since the purpose of requiring the approval of the Board of Harbor and Land Commissioners for structures upon and changes in great ponds is the protection of public rights therein, it follows that the town must submit to the Board, for its approval, plans contemplating work of that nature.

Your letter of August 3 states that the town of Lincoln desires to make certain changes in the arrangement of its pumping staNovember 27. tion on the shores of Sandy Pond in Lincoln, and to straighten and otherwise improve the shore line; and requires the opinion of the Attorney-General whether the approval of your Board is necessary therefor.

By St. 1888, c. 318, great ponds were put under the control of the Harbor and Land Commissioners; and it was provided in § 2 that "except as authorized by the general court and provided in this act, no structure shall hereafter be built or extended, or piles driven, or land filled, or other obstruction or encroachment made, in, over or upon the waters of any great pond."

Section 3 further provides as follows: "All persons that are or may be authorized by the general court to build or extend any structure or to do any other work aforesaid, and who have not begun the same, shall, before beginning it, give written notice and submit plans of the work they intend to do to the board of harbor and land commissioners; and the provisions of section eight of chapter nineteen of the Public Statutes shall apply to all such works and to the plans therefor, and to the approval thereof by said board."

The statute under which the town of Lincoln is authorized to erect structures upon and make changes in the shore of Sandy Pond was enacted in 1872, many years before the statute above quoted giving jurisdiction to your Board over great ponds; but it is to be observed that the provisions of § 3 of the great pond act, above quoted, include not only structures to be hereafter authorized by the General Court, but also those which had been authorized by some provision of the Legislature before the enactment of the statute. This is clearly within the power of the Legislature. The statute of 1872, in giving to the town the power to take land and water rights for a public use, did not give it an absolute right the exercise of which the Legislature could not afterwards supervise. Nor is the statute of 1872 a contract with the town. The statute of 1888, therefore, does not take any property right from the town or impair the obligation of a contract. The town of Lincoln must, therefore, submit its plans to your Board for approval, unless there is some provision of the statute which exempts it therefrom.

This act of 1872, c. 188, relating to Sandy Pond, provides, in § 2, as follows: "Said town, for the purposes aforesaid, may take and hold the waters of Sandy pond, so called, in the town of Lincoln, and the waters which flow into and from the same, and may also take and hold, by purchase or otherwise, all necessary lands for raising, flowing, holding, diverting, conducting, purifying and preserving such waters, . . and may erect thereon proper dams, reservoirs, buildings, fixtures and other structures, and make excavations and embankments, and procure and run machinery therefor."

This section gives to the town the exclusive and unlimited right to use the waters of Sandy Pond for the purposes of a water supply, but it does not otherwise take away the rights of the public in the pond. It still remains a public pond, open to the public for all purposes for which it may lawfully use the great ponds of the Commonwealth, subject only to the right of the town to draw off the water for the purposes of a water supply. Rockport v. Webster, 174 Mass. 385.

The public, therefore, is still interested in the pond; and the purpose of requiring the approval of your Board for structures.