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who are to pay the extra rates. Its object will be defeated by the lapsing of members under the age of fifty-five. Obviously, the persistent members will be those whose rates are paid in part by others, while those who are expected to bear their brothers' burdens may not remain and "cheerfully pay," as the company suggests that they are doing at present. This method is therefore open to the same objections as the old-fashioned method of collecting a dollar all around when a member dies; it depends for success upon the constant support of young men.
I advise you that collection of rates from one class of members to pay the cost of insuring another class is not equivalent to the enforcement of rates not lower than those indicated as necessary by the National Fraternal Congress Mortality Tables.
The problem of adjusting the finances of an existing fraternal company so that it may have a reasonable chance of keeping out of the hands of a receiver, it having members of all ages, of whom the older ones cannot be expected to pay according to their attained ages, is, indeed, difficult. It is a problem which the Legislature has not attempted to solve for the companies now doing business in Massachusetts. But in this statute it has shown its determination that the problem be not increased in size by admitting to do business here foreign companies which are not on their own feet, whose members are not paying, each for himself, rates which are adequate to keep their insurance good according to the mortality rate assumed in the National Fraternal Congress Tables.
Very truly yours,
HERBERT PARKER, Attorney-General.
Statute-Construction of General and Particular of Fisheries in Swan Pond River.
St. 1895, c. 203, § 1, authorizing the selectmen of the town of Dennis to 'prescribe the times, places and manner of taking herring or alewives, perch, salmon, eels and trout in Swan Pond River" and certain tributaries thereof, does not vest in the selectmen of Dennis any power to make rules or regulations which are inconsistent with the general statutes relating to fisheries, whether or not such statutes were enacted after the passage of St. 1895, c. 203.
JULY 29, 1904. Hon. J. W. COLLINS, Chairman, Commissioners on Fisheries and Game DEAR SIR:— You desire my opinion upon the question whether St. 1895, c. 203, entitled "An Act to regulate the fisheries in Swan Pond River," and providing that the selectmen of the town of Dennis may prescribe the times, places and manner of taking herring or alewives, perch, salmon, eels and trout in Swan Pond
River, permits the selectmen to authorize the use of implements for taking such fish forbidden by the general laws.
St. 1904, c. 308, provides:
Whoever draws, sets, stretches or uses a drag net, set net, purse net, seine or trawl, or whoever sets or uses more than ten hooks for fishing, in any pond, or aids in so doing, shall be punished by a fine of not less than twenty nor more than fifty dollars. The provisions of this section shall not affect the rights of riparian proprietors of ponds mentioned in section twenty-three or the corporate rights of any fishing company.
St. 1895, c. 203, § 1, is as follows:
The selectmen of the town of Dennis, or a majority of them, shall annually, on or before the twentieth day of April in each year, prescribe the times, places and manner of taking herring or alewives, perch, salmon, eels and trout in Swan Pond river, at the mouth thereof or in the ponds and streams connected therewith, and they may appoint some suitable person or persons to take the same, and shall fix the compensation to be paid therefor; or may grant permits to suitable persons, being inhabitants of said town, to catch any of said fish in the said river or the ponds and streams connected therewith, and fix the compensation to be paid to said town for such permits, and shall determine the quantity of said fish which each family in said town shall receive from such catches, and establish the price therefor; and may sell, at auction or otherwise, the right of fishing in said river and its waters to one or more persons, for a term of not more than five years at one sale, upon such terms and conditions as the said town or said selectmen may direct: provided, that nothing in this section shall be construed to prevent any person, being an inhabitant of said town, from taking fish with natural or artificially baited hook and hand line, under such regulations as said selectmen may prescribe.
Section 4 provides the penalty for taking fish in the designated waters" at any time or place or in any manner other than may be allowed by said selectmen."
Section 5 provides that if any boat, vessel or craft is found with more fish on board than is allowed by the selectmen, “or if any person or persons with any such boat, vessel or craft, shall be detected in taking or in attempting to take any of said fish in any manner different from that prescribed by said selectmen or with seines, nets or with other instrument of a kind different from that established by said selectmen," the selectmen may seize the vessel in order that it may be attached and made answerable for the fines. The selectmen of Dennis allege that under this statute they are exempted from the operation of all general laws regulating fishing throughout the Commonwealth.
I am of opinion that chapter 203 of the Acts of 1895 did not vest in the selectmen of the town of Dennis any absolute or irrevocable authority with relation to the fisheries, nor authorize the making of rules and regulations in contravention of the general laws governing fisheries throughout the Commonwealth.
Under the present law it appears that the use of seines or nets in ponds is throughout the Commonwealth illegal and forbidden, and it cannot be that the selectmen of Dennis may, under any assumed authority of the act of 1895 above stated, authorize fishing in a manner prohibited by the Revised Laws in the waters of Swan Pond River, if such waters are in fact within the prohibition of that law. The special power given to the selectmen goes no further than to permit them to make such local rules and regulations as are not inconsistent with the general statutes, and the Legislature in enacting the special law did not intend to then or thenceforward divest itself of authority over the waters specified in the act; on the contrary, I am of opinion that it was contemplated that further legislation might be had without control or limitation by reason of the special act.
It would follow, in my opinion, that subsequent legislation applicable to the subject-matter would regulate, modify or control the provisions of the earlier statute, and the authority of the town thereafter could be executed only within and consistently with such general laws as should be from time to time in effect. The rights conferred by St. 1895, c. 203, are not abrogated in their entirety by the provisions of the Revised Laws, but the authority under the earlier act must be subject to the provisions of the general laws.
Very truly yours,
HERBERT PARKER, Attorney-General.
State Board of Publication—Statistics — Approval of Publication. Statistics, or figures, specifically required by law to be set forth and pub
lished in the reports of officers or heads of departments of the Commonwealth are not subject to the jurisdiction of the State Board of Publication as defined by St. 1904, c. 388, § 2, which provides that boards, commissions and heads of departments shall not incorporate any statistics into the documents relating to their several departments without first securing the approval of such Board.
SEPT. 21, 1904. WILLIAM N. DAVENPORT, Esq., Secretary, State Board of Publication. DEAR SIR:-' -The State Board of Publication in substance desires to know whether specific statistics required to be set forth and published in the reports of officials or departments of the Com
monwealth, under the provisions of general or special laws, are now within the supervisory jurisdiction of the State Board of Publication as defined by section 2 of chapter 388 of the Acts of 1904, which section is as follows :
Boards, commissions and heads of departments having charge of preparing and printing documents relating to their various departments shall not incorporate therein any statistics unless the same shall be approved by the state board of publication.
I am of opinion that this section must be restricted in its application to those statistics which are not specifically required by legislation to be embodied in the report under consideration. And I am further of opinion that where there is a specific statutory requirement for the publication in the report of any commission or official of particular statistics, such statistics must be published, and the duty of publication is imposed upon the official or commission by statute. In my judgment the statute of 1904 above referred to cannot and ought not to be so construed as by indirection to modify, alter or remove a specific official duty imposed by law upon any officer or servant of the Commonwealth.
It seems to me, therefore, perfectly clear that the jurisdiction of the Board of Publication does not extend so far as to authorize or permit that board to restrict or prohibit the publication of specific statistics required by pre-existing law. If the Board of Publication have any jurisdiction in such premises, it must be limited to an examination of such statistics, and to the determination whether or not they comply with the provisions of law relating thereto. The Board might, if it appeared that the statistics offered for publication exceeded the legal requirement, reduce them to the limit of such requirement, but it is indeed doubtful whether even this power is vested in the Board of Publication, since their authority in general is supervisory and clearly not intended to limit or control those publications which the law has otherwise specifically required.
Very truly yours,
HERBERT PARKER, Attorney-General.
Clerk of the Courts - Vacancy
Clerk of the Superior Court for the County of Suffolk.
The phrase "clerk of the courts" in R. L., c. 11, § 277, which provides
that in case of a vacancy in the office of clerk of the courts the Governor shall cause precepts to be issued for an election to fill such vacancy at the next annual State election for which precepts can be
seasonably issued, extends to and includes the office of clerk of the Superior Court for the county of Suffolk, and it is therefore the duty of the Governor, upon proper representation that a vacancy in such office exists, to issue his precept for an election to fill such vacancy at the next annual State election for which such precept may be seasonably issued.
SEPT. 27, 1904.
His Excellency JOHN L. BATES, Governor.
SIR: I have the honor to acknowledge Your Excellency's communication under date of Sept. 12, 1904, in which you advise me that you are informed that the Secretary of the Commonwealth has received official notification from the Superior Court for the county of Suffolk of the death of Clerk Joseph A. Willard, and that, in accordance with the statute, an appointment has been made by the judges to fill the vacancy. You further instruct me that "the question has arisen as to whether or not the appointment made by the judges under the statute is until such time as an election can be held to fill the vacancy under a precept issued by the Governor, or whether the appointee fills the vacancy for the unexpired term for which the late Mr. Willard was elected." Your Excellency further states that you have been requested to issue a precept for an election, and that you desire my opinion as to whether or not under the statute the duty so to do devolves upon you.
It is a fundamental principle that when a vacancy exists in a public office a person appointed to fill that vacancy will, in the absence of express or necessarily implied provisions to the contrary, hold such office during the unexpired term of the original incumbent. The person appointed to the vacancy in the office of clerk of the Superior Court, therefore, will continue in office until the qualification of his successor after the annual State election in 1906, unless the Legislature has otherwise provided. See R. L., c. 11, § 318:
At the annual state election in the year nineteen hundred and six, and in every fifth year thereafter, a clerk of the supreme judicial court for the county of Suffolk and two clerks of the superior court, one for civil and one for criminal business, shall be chosen by the voters in said county; and, by the voters in each of the other counties, a clerk of the courts who shall act as clerk of the supreme judicial court, of the superior court and of the county commissioners.
Since the adoption in 1855 of the Nineteenth Amendment of the Massachusetts Constitution, by virtue of a law enacted in 1856 (St. 1856, c. 173), clerks of the county courts who, prior to that act had been appointed by the justices, have been elected at the