impressed into the service by the engineers, and received their injuries while performing the duties of firemen.

The chapter in question provides, in § 2, that the fund shall be used "for the relief of firemen." It provides further, in § 4, that members of incorporated protective departments shall be eligible for benefits as well as "any person doing fire duty at the request, or upon the order of the authorities of any town having no organized fire department."

It is obvious that the word "firemen" in the second section does not mean any person who is engaged in extinguishing a fire. Otherwise, there would have been no occasion for the language above quoted in the fourth section, which includes, in addition to "firemen," persons doing fire duty where there is no organized fire department. It follows that the meaning of the word "firemen" must be sought in the statutes.

Pub. Sts., c. 35, §§ 28-39, inclusive, authorize the selectmen of a town to establish a fire department, and provide for the method of creating the same. Section 31 limits the number of men to be employed on the several engines, hose carriages, and hook and ladder carriages, as well as in each fire company. These companies, by § 32, may organize, elect officers, establish rules and regulations, and annex penalties for the breach of the same. They may also have certain exemptions from other public duties, such as jury duty (Pub. Sts., c. 170, § 2). These rights and privileges are doubtless conferred in consideration of the fact that they have volunteered to hold themselves in readiness at all times, seasonable or unseasonable, to perform what may often be a hazardous and difficult task.

I see no reason to doubt that the purpose of the statute establishing the firemen's relief fund was further to recognize their services by compensating them for injuries received in the performance of their duty. It was the intent of the Legislature to encourage men to enlist in organized fire departments by holding out the inducement of compensation.

It is otherwise with one who is impressed into service, upon a single occasion, and who has not chosen to connect himself regularly with the fire department. It seems to have been the pur

pose of the Legislature, carefully to exclude such persons and to extend the relief provided by the statute only to regular members of the fire department, where there is a fire department; the only exception being in favor of persons doing fire duty in towns where there is no such organized fire department. I am led to the conclusion, therefore, that however meritorious the services of the persons in question may have been, they are not entitled to relief from the fund in charge of your Board.

BOARD OF HARBOR AND LAND COMMISSIONERS

CANAL APPROVAL OF PLANS.

CAPE COD

The charter of the Cape Cod canal, St. 1899, c. 448, § 4, imposes upon the Board of Harbor and Land Commissioners the duty of determining in what manner the canal shall be constructed, including all questions relating to locks, tidegates and other such structures.

Board of

Land Com

1901

The charter of the Cape Cod canal, St. 1899, c. 448, provides To the in § 4 that the corporation shall file with your Board "a plan of Harbor and the proposed location, and a plan of the proposed construction missioners. thereof." It is the duty of the Board thereupon to hear the par- February 11. ties, require such modification, if any, as it may desire, and to approve the plans as filed or as modified.

Section 6 provides that the joint Board of Harbor and Land Commissioners and the Railroad Commissioners shall "determine at what point or points the railroad of the Old Colony Railroad Company shall cross said canal by a drawbridge or bridges, or by a tunnel or tunnels constructed under said canal." The section further provides that the canal company shall construct its canal "with such structures and appliances for its protection and use as said joint board may order, together with such bridge or bridges, tunnel or tunnels, ferries and changes of highways, under the supervision of said joint board, as shall be in accordance with plans approved by them and in conformity with such orders as they may make."

The precise question submitted by your letter of February 5 is as follows: "Should this Board, under § 4, approve a plan of

construction which did not include a lock, or locks, or gates, would it be in the power of the joint Board, under § 6, to order such structures to be built?"

I very much doubt whether your Board has the right to my opinion upon the question submitted. It is rather for the joint Board, if a situation shall arise before that Board which will make it material. But it may not be amiss for me to submit my views as to the duty of your Board under § 4, above quoted. It imposes, in my opinion, upon your Board the duty of determining in what manner the canal shall be constructed. This includes all questions relating to locks, tide-gates and other such structures. You are to have in view the use of the canal for purposes of navigation, and to determine what method of construction I will be the safest and most convenient in view of all the facts and probabilities, including the probable rate of tide in the canal, and how far its current may make navigation dangerous if unrestrained by structures intended to prevent such movement.

You have no means of knowing, of course, whether the joint Board will order the crossing in question to be effected by a tunnel or a bridge, but I assume that it is not unreasonable for you to anticipate that bridges, either for the railroad or for highways, will be necessary. In all events, the question of such probability is before you, and it is your duty to order the construction of the canal in such manner as will provide for all these circumstances and probabilities. The determination, therefore, of the question of locks and gates is confided to the discretion of your Board.

The obvious purpose of § 6 is to submit to the joint Board all questions concerning the crossing of the canal by the railroad company. These questions are submitted to the joint Board rather than to your Board, for the reason that they involve on the one hand the considerations affecting railroad transportation, and those affecting navigation on the other.

The precise question whether the joint Board will have jurisdiction to order the construction of locks, in case you shall have approved plans which do not call for such structures, is one which does not concern, in my judgment, your duty under § 4, and which may well be determined when, if ever, it arises.

SAVINGS BANKS

AUTHORIZED INVESTMENTS

GUARANTY.

An agreement to purchase first mortgage bonds for their face value at the time and place of the maturity of such bonds is not equivalent to a guaranty, as required by St. 1894, c. 317, § 21.

Board of Com.

Savings

1901

February 12.

Among the investments by savings banks in this Common- To the wealth authorized by St. 1894, c. 317, § 21, are the first mort- missioners of gage bonds of certain railroad companies, "guaranteed" by Banks. certain other railroad companies (paragraph b, third clause). What professes to be the guaranty of a bond by a railroad company coming within the description of the act is, in terms, an agreement to purchase the bond at its face value at the time and place of the maturity of the bond. The question submitted by your Board is whether this agreement is equivalent to a guaranty.

I have already advised your Board (1 Op. Atty.-Gen. 149) that any agreement which is equivalent in law to a guaranty is within the spirit of the statute. I am unable, however, to interpret the agreement in question as equivalent to a guaranty. The essence of the agreement is time and place, whereas a guaranty is not so limited. If the holder of the bond fails to present it for purchase on the day and at the place named in the agreement, the promisor is thereafterwards discharged. It would be otherwise as to a guaranty.

CAPE COD CANAL HARBOR AND LAND COMMISSIONERS - LOCKS - JURISDICTION OF JOINT BOARD.

Under the provisions of the charter of the Boston, Cape Cod and New York Canal Company (St. 1899, c. 448), the jurisdiction of questions of location and construction is confided to the Board of Harbor and Land Commissioners; the joint Board of Harbor and Land Commissioners and Railroad Commissioners, therefore, has no jurisdiction over the question of locks, except in the matter of the crossing of the canal by the Old Colony Railroad Company, as provided in § 6.

Board of

Your letter of March 14 states that the plans of the Boston, To the Cape Cod and New York Canal Company have been approved Railroad Com by the Board of Harbor and Land Commissioners, in accordance

missioners.

1901 April 6.

with the provisions of the charter of the company (St. 1899, c. 448, § 4), and are now before the joint Board of Harbor and Land Commissioners and the Railroad Commissioners for action by the Board under the provisions of § 6 of the same statute. Your letter further states that the Board of Harbor and Land Commissioners approved the plans "without having determined the necessity of locks," and requires the opinion of the AttorneyGeneral upon the question whether, in view of that fact, the joint Board has jurisdiction of the question of locks.

The jurisdiction of the joint Board is, in my judgment, in no way dependent upon the action of the Board of Harbor and Land Commissioners. The charter in separate sections (4 and 6) clearly points out the duties devolving upon each Board, and the authority and responsibility of each Board are to be found in those provisions. Yours is not a board of appellate but rather of original jurisdiction.

In a letter to the Board of Harbor and Land Commissioners dated February 11, 1901 (2 Op. Atty.-Gen. 255), I pointed out what appeared to me to be the duties of that Board in these words: "You are to have in view the use of the canal for purposes of navigation, and to determine what method of construction will be the safest and most convenient in view of all the facts and probabilities, including the probable rate of tide in the canal, and how far its current may make navigation dangerous if unrestrained by structures intended to prevent such movement."

To these views, after the re-examination made necessary by the request of your Board for an opinion, I still adhere. The scheme of the statute, although not always expressed in the clearest terms, appears to me to be as follows: the company chartered must, within four months, file with the Harbor and Land Commissioners a plan of the proposed location, and "a plan of the proposed construction thereof." I see no reason to doubt that the word "construction" necessarily includes and was intended by the Legislature to include all things appertaining to the construction of the canal, including the question of locks, which, I take it, is one of the most important questions touching the construction of a canal.