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Under a fire insurance policy in the Mas-
sachusetts standard form required by R. L.,
c. 118, § 60, where the damaged property is
mortgaged and the insurance is payable to the
mortgagee, the Insurance Commissioner should
not, on the application of the mortgagor, ap-
point a third referee unless the mortgagee joins
in the request for such appointment.

A referee chosen by the mortgagor, without
the concurrence of the mortgagee, is not duly
chosen, and the Insurance Commissioner should
not act upon his request for the appointment of
a third referee.

R. L., c. 118, § 60, providing that, upon ap-
pointment of a third referee, the Insurance
Commissioner "shall send written notification
thereof to the parties," requires such commis-
sioner to notify not only the insurance company
and the mortgagor, but also the mortgagee, or
the two referees as the representatives of such
parties.

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INTOXICATING LIQUORS—Continued.
extent and in the same manner as though such
liquids or liquors had been produced in such
state or territory," has authority to repeal R.
L., c. 100, § 33, which permits the sale of
intoxicating liquors in the original casks or
packages of importation, and to enact laws sub-
jecting the possession, use or sale of such liquors
within the limits of the Commonwealth, to all
the restrictions and penalties imposed upon the
possession, use or sale of other intoxicating
liquors therein.

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- Vested Rights - Obligation of
Contract

See CONSTITUTIONAL LAW. 6.
ISLANDS-In Great Ponds - Title
See GREAT PONDS. 4.

LABOR-Hours of Nine-hour Law
Preference of Citizens-Weekly
Payments

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. 307

175

The word "preference," as used in St. 1895,
c. 488, § 31, requires the employment of citizens
only when they can be employed upon as ad-
vantageous terms as aliens.

Where laborers are regularly employed by
contractors upon public works for more than
nine hours per day, payment being per hour for
the time during which they actually work, it is
not a violation of St. 1899, c. 508, § 7.

Even where the laborers are told that they
can only be employed upon their agreement to

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4.

Person committed to Workhouse
Commitment

548
The word "commitment," as used in R. L.,
c. 30, § 21, providing that " every person who
has been committed to a workhouse shall, if
able to work, be kept diligently employed in
labor during the term of his commitment," is
to be broadly interpreted, and such provision is
applicable not only to persons committed to a
workhouse by a court, but also to persons placed
therein subject to the care and oversight of
overseers of the poor, and without a technical
commitment.

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Policy House of Representatives 125
The Boston & Albany Railroad Company, in-
corporated under the laws of both New York
and Massachusetts is, so far as the restrictions,
duties and obligations imposed upon the Boston
& Worcester Railroad Company and the West-
ern Railroad Company, its constituent domestic
corporations, by their charters, are concerned,
within and subject to the jurisdiction of the
Commonwealth as though it were incorporated
wholly under the laws of Massachusetts.

The jurisdiction of the State to regulate rates
of traffic is limited to such traffic as begins and
ends within its borders.

The charters of the Boston & Worcester
Railroad Company and the Western Railroad
Company contained a contract whereby the
Commonwealth agreed that it would not exer-
cise its power of regulating rates of traffic so as
to reduce the profits below ten per cent. per
annum. The obligation of this contract sub-
sists, notwithstanding the provision of Pub.
Sts., c. 112, § 180, that traffic rates shall at all
times be subject to alteration by the Legisla-
tures, unless the corporation has waived its
right under its original charters.

By accepting the benefit of legislation giving
it additional privileges during the existence of
general laws inconsistent with its original
charters, the corporation has subjected itself to
all the provisions of such general laws. The
Commonwealth, therefore, has the right to
regulate the rates on the Boston & Albany
Railroad, although dividends are thereby re-
duced below eight per cent. per annum.

The Legislature may reserve this right to the
Commonwealth, while ratifying the proposed
lease of the Boston & Albany Railroad to the
New York Central & Hudson River Railroad
Company.

The Commonwealth may acquire the prop-
erty of the Boston & Albany Railroad either
by eminent domain or by purchase. The com-
pensation in the first case would be the fair net
cash value of the property taken, which would
include only the property necessary to the
carrying on of the railroad business; in case of
purchase, the Commonwealth must pay such
sum as would reimburse to the road the cost
of making the railroad," with a net profit
thereon of ten per cent. a year.

If the Commonwealth assents to the proposed
lease, it does not expressly or by implication
waive or surrender any rights reserved to it
under existing laws.

LEASE Continued.

The sum of $5,500,000, the proceeds of prop-
erty belonging to the lessor sold by it to the
lessee, should be deducted from the damages in
case of taking, and from the price to be paid in
case of purchase.

Questions of public policy are peculiarly
within the province of the Legislature, and the
Attorney-General is not authorized to express
an opinion upon them.

The bonds acquired by the Boston & Albany
Railroad under the terms of the lease and agree-
ment, when ratified by the Commonwealth, will
become the absolute property of the corpora-
tion; and the interest of the bonds may be
divided among the stockholders, or the bonds
may be sold and the proceeds divided.

The lessee under the proposed lease has no
authority to assign its lease or to underlet the
lines of the Boston & Albany Railroad or any
of the branches acquired by the lease. Such
lease, though it may be annulled by the joint
action of the contracting parties, cannot be
modified, changed or amended by them without
the consent of the Commonwealth.

But quære, as to the remedy of the Common-
wealth if the lessee should assign the lease.

Such obligations as are now incumbent upon
the Boston & Albany Railroad under the Public
Statutes will continue in full force under the
proposed lease. The duty of complying with
the provisions of St. 1893, c. 131, will fall upon
the lessee, and not upon the lessor.

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The consent of the Commonwealth to such
lease is in the proposed statute, conditioned not
upon the performance by the lessee of the obli-
gations imposed, but upon the obedience of the
lessee to a decree of the Supreme Judicial Court
requiring such performance, which could be
made only upon a finding that the lessee had
assumed the duty for the neglect of which com-
plaint is brought. No such duty having been
assumed by the lessee, by agreement or other-
wise, under this bill, the court would be with-
out authority to decree its performance, and
consequently the Legislature could not revoke
its consent.

If the lessee, a foreign corporation, by the

LEASE-Continued.

consent of the Commonwealth enters upon the
exercise of a franchise within the jurisdiction
of the Commonwealth, it subjects itself to all
such general laws as the Legislature may con-
stitutionally enact regulating the conduct of
such franchise.

With regard to independent enactments, in-
volving special burdens, the Legislature may
impose conditions which accomplish the desired
result if a contract for their performance is en-
tered into by the lessee, either expressly or by
implication.

If the lessee elects, under the conditional
consent of the Commonwealth, to become bound
under the lease, it also becomes bound by impli-
cation to perform the conditions upon which
such consent is given.

A regulation by the Commonwealth of rates
of freight from points without to points in and
through the State is unconstitutional and void.

A private person, however, may make con-
tracts with a railroad corporation, with refer-
ence to freight, that are not in violation of any
act of Congress; and it would seem that the
Commonwealth as a party would have the same
right that a private individual would have to
make a contract relating to interstate freight
rates, subject to the regulations of Congress
upon the subject.

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A provision in the proposed statute to ratify
the lease of the Boston & Albany Railroad
Company, stipulating that the consent of the
Commonwealth is not to take effect until the
conditions imposed by the Commonwealth are
accepted by the lessee by a corporate vote, is the
most effectual way to insure the performance of
the conditions by the lessee, and to reserve the
right of revocation by the Commonwealth upon
the failure of such performance.

The lease itself cannot be cancelled, amended
or modified by the parties without the further
consent of the Commonwealth.

The lessee, being a foreign corporation, is
subject to the paramount authority of the State
granting its charter, and its financial affairs
cannot be made subject to direct legislation by
this Commonwealth.

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2.

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Veto Power of Executive - Passage
of Bill or Resolve over Veto-
Two-thirds of Branch originating
Measure Constitutional Law 513
The Constitution of Massachusetts, Part II.,
chapter I., article II., by providing that, where
the veto power of the Executive is exercised,
the bill or resolve, with his objection thereto
in writing, shall be returned to that branch of
the Legislature in which such bill or resolve
originated, two-thirds of which branch may
upon reconsideration agree to pass the same,
and if approved in the other branch by two-
thirds of the members present it shall have the
force of a law, -imposes upon that branch of
the Legislature in which a particular act orig-
inates a different relation to and responsibility
for such act from that attaching to the other
branch, and requires that "two-thirds of the
said Senate or House of Representatives,"
whichever may have originated the measure,
should be two-thirds of the full membership
thereof, and not merely two-thirds of the mem-
bers present, as in the case of the remaining
branch.

It follows that St. 1904, c. 458, which origi-
nated in the House of Representatives, and
which was therein passed over the veto of the
Executive by a two-thirds vote of the members
then present, but not by a two-thirds vote of
its entire membership, was not passed over
such veto in accordance with the provision of
the Constitution (Part II., chapter I., article
II.), and is null and void.

The Treasurer has no authority, therefore, to
issue the bonds authorized and required by the
terms of such statute.

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in Large Boiler Plant
Men employed in simply putting coal under
the boilers in a large boiler plant, subject to
the orders and directions of a licensed fireman,
whose duty it is to take care of the water for
the boilers and direct the men in their work,
are not required, by St. 1899, c. 368, to have
licenses.

2.

To construct Pier - West's Beach
Corporation Board of Harbor
and Land Commissioners - Ultra
Vires Act

. 193
The Board of Harbor and Land Commission-
ers may grant to the West's Beach Corporation
a license to construct a pier on and over its
beach into tide water, for the purpose of in-
creasing the landing facilities for boats.

Whether the construction of such wharf, as
proposed by the corporation, would be ultra
vires, is not a question within the scope of the
duties of the Board.

There would seem to be no reason, however,
why the corporation may not, if licensed by the
Board, construct such wharf, its object being
merely to facilitate the members of the corpo-
ration in their lawful occupation of the beach.
3.

Engineers and Firemen - Citizen-

ship of Applicant.

477

An applicant for a license under the provi-
sions of R. L., c. 102, § 81, to act as engineer or
fireman, is entitled to be examined, and, if
found competent, to receive his license, not-
withstanding the fact that he is not a citizen of
this Commonwealth, and that his residence
therein appears to be only temporary.

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Under the provisions of St. 1903, c. 473, § 1,
the Massachusetts Highway Commission has
no discretion, if the application is in proper
form, to refuse to register an automobile upon
the ground that it is of improper construction,
or that it is one which should not be allowed to
be operated on the highway.

An automobile the registration of which has
been suspended or revoked may not be regis-
tered again while owned by him by whom it
was owned when such registration was revoked
or suspended, so long as such revocation or sus-
pension remains in force; but upon a bona fide
sale of such machine, and the surrender of the
certificate of registration, the new owner is en-
titled to a new certificate of registration, even
though the period of suspension has not expired.

Authority over Public Shade Trees -

Tree Wardens

See PUBLIC SHADE TREES.

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244

-

285

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2.

The trustees of the Massachusetts Agricul-
tural College may establish such rates of tuition
and remit them in such cases as they deem to
be for the interests of the college.

2.

Funds derived from Proceeds of Sale
of Public Lands - Payment of In-
terest by Commonwealth

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359

The obligation imposed upon the Common-
wealth by St. 1863, c. 166, accepting the provi-
sions of the United States statute of June 2,
1862 (12 U. S. St., c. 130), to pay to the Massa-
chusetts Agricultural College interest upon the

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The Commissioners of Prisons have no au-
thority to make rules and regulations respecting
the release of prisoners from the Massachusetts
Reformatory.

By St. 1884, c. 255, § 33, the question of
whether a prisoner should be released is left to
the discretion of the Board upon the facts in each

case.

MASSACHUSETTS SCHOOL FUND . 8
See SCHOOL FUND.

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