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.
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.
- 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
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
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Funds derived from Proceeds of Sale of Public Lands - Payment of In- terest by Commonwealth
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
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
MASSACHUSETTS SCHOOL FUND . 8 See SCHOOL FUND.
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