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March 31, 1904. He was arraigned June 16, 1904, and pleaded not guilty. James H. Vahey, Esq., and Charles H. Innes, Esq., were assigned by the court as counsel for the defendant. Trial, conducted for the Commonwealth by the Attorney-General, with District Attorney George A. Sanderson and Assistant District Attorney Hugh Bancroft, was entered upon Jan. 2, 1905.
ANTONIO CARACCIOLO, indicted in Hampden County, December, 1904, for the murder of Giuseppe La Rosa, at Springfield, Nov. 13, 1904. The defendant has not yet been arraigned. This case is in charge of District Attorney John F. Noxon.
HENRY F. BOLLES, indicted in Norfolk County, December, 1904, for the murder of Annie M. Bolles and Joseph McMurray, at Brookline, Oct. 17, 1904. He was arraigned Dec. 22, 1904, and pleaded not guilty. Thomas E. Grover, Esq., and Frederick G. Katzmann, Esq., were assigned by the court as counsel for the defendant. No further action has been taken. The case is in charge of District Attorney Asa P. French.
The pressure of business upon the several courts of the Commonwealth is constantly increasing, and some further steps in the direction of relief are much to be desired. The law now provides (Revised Laws, chapter 158, section 10) that upon attaining the age of seventy a justice of either the Supreme Judicial Court or the Superior Court may resign, thereafter receiving during the remainder of his life an amount equal to three-fourths of the salary received by him at the time of his resignation. A similar provision is applicable to justices of such courts whose retirement is caused by disability.
I suggest for your consideration whether it may not be advisable to so amend existing statutes as to make available the services of a justice so retired, with his consent and upon request of the chief justice of the court from which he has retired, for specific causes and for such periods as his health and inclination may permit.
By Revised Laws, chapter 156, section 5, the Supreme Judicial Court is given original and concurrent jurisdiction with the Superior Court of actions of contract and replevin in which the damages demanded or the property claimed exceed in actions brought in the county of Suffolk $4,000, and in actions brought in other counties $1,000.
The tendency of recent legislation has been in the direction of making the Supreme Judicial Court a tribunal of appellate jurisdiction, and in accordance with this policy I recommend that such court be relieved of the burden of the trial of cases of contract and replevin by the repeal of the section above referred to. The number of cases brought under this section has become a serious inconvenience to the court, and there appears to be no good reason why this section should be longer retained.
IMPRISONMENT IN BASTARDY CASES.
Under Revised Laws, chapter 82, regulating the prosecution of bastardy complaints, the defendant, after examination in the inferior court and in default of bail, may be committed to prison to await further proceedings in the Superior Court. The complainant, however, is under no duty to continue the prosecution of her complaint in that court, and the defendant, if without competent legal advice and without means, is subjected to the hardship of an indefinite imprisonment, there being no officer now authorized to take steps for his relief or to call the attention of the court to his unfortunate condition so that he may be discharged.
It has been called to my attention that under these circumstances cases of genuine hardship have arisen, and I recommend that legislation be enacted making it the duty of district attorneys, probation officers or other proper authorities, upon notification from jailers or heads of penal institutions that the confinement of a defendant in bastardy proceedings has been unreasonably prolonged, to report the fact of such confinement to the Superior Court, which, after suitable investigation, may order the discharge of the person so confined.
Under the law as it now stands no party to grade crossing proceedings is responsible for the payment of compensation of commissioners in the first instance. The expenses incurred by commissioners are audited and paid in the same manner as are the expenses of the parties, but the statute is silent as to their compensation. The result is that in many cases payment of their compensation is delayed much longer than it ought to be. Commissioners deserve to have their compensation paid within a reasonable time after they have performed their duties. I therefore recommend that legislation be enacted requiring the petitioner in such proceedings to pay all the bills of the commissioners for compensation and expenses, after they have been approved by all the parties thereto, or, in case they are not so approved, then allowed by a justice of the Superior Court; the petitioner to have the amounts so paid allowed as of right by the Auditor and paid by the parties in the same manner as the other expenses of abolishing grade crossings are paid.
I further recommend that grade crossing commissioners be authorized to take for sloping an easement or qualified interest in land adjoining land taken by them for highway or railroad purposes. As the law now stands whatever land is condemned by a commission is condemned for all the purposes of a railroad location or of a street location, as the case may be, even though a considerable portion of it may be used only for slopes. It is desirable, both from the point of view of the person whose land is taken and that of the parties to the grade crossing proceedings, that commissioners have authority to take land adjoining land taken for a street or railroad location for sloping purposes only. The owner would then have the right to use his land up to the side line of the street or railroad location, provided he did not undermine the foundations thereof; and the parties to the proceedings would not be required to pay for land taken for slopes as though it were taken for all the purposes of a street or railroad location.
COLLATERAL LEGACY AND SUCCESSION TAX.
Section 16 of chapter 15 of the Revised Laws provides that upon application of the Treasurer and Receiver-General, or of any party interested in the succession, the probate court shall appoint three disinterested persons, who, being first sworn, shall appraise the property in question for the purposes of the tax at its true market value and make return thereof to the court, which, after acceptance thereby, shall be final. The section further provides that the fees of said appraisers, as determined by the judge of said court, shall be paid by the treasurer and receiver-general.”
Under this section numerous petitions for reappraisal have been brought by parties interested, in many cases for the purpose of accomplishing very slight changes in the value of the property to be appraised, with the result that it often happens that the fees of the appraisers exceed the amount of the tax upon the alleged over-valuation. In most of such cases it seems at least probable that were it not for the fact that the entire expense of the proceeding falls upon the Commonwealth, no reappraisal would be sought, and in order that such petitions may be confined to meritorious instances where there is some real and substantial hardship by reason of an excessive valuation of the property, I suggest that in petitions brought under this section the fees of the appraisers be made chargeable to the party seeking the reappraisal.
I also suggest that as the reappraisal is ordinarily of a formal character and involves no considerable labor, the expenses be still further reduced by the enactment of a statute authorizing the probate court, in its discretion, to appoint a single appraiser instead of the three appraisers now required by law.
THE LAND COURT.
By the terms of statute 1904, chapter 448, the jurisdiction. of the Court of Land Registration was enlarged and its name changed to the "Land Court." This tribunal now has jurisdiction over writs of entry, petitions to require actions to try title to real estate, petitions to determine the validity
of encumbrances and petitions to discharge mortgages, and this jurisdiction is made original and exclusive.
Doubt has arisen as to the construction of the statute of 1904 with relation to the jurisdiction of cases pending in the Superior Court at the time of its enactment. I therefore recommend such amendatory legislation as shall distinctly provide that jurisdiction as to all cases pending when the new act became operative shall be retained by the courts in which they were so pending.
OFFICE OF THE ATTORNEY-GENERAL.
The increasing volume of business transacted by the office of the Attorney-General and the increased amount of expenses occasioned thereby have necessitated increased expenditures from time to time, and the provision of Revised Laws, chapter 6, section 35, limiting the amount which officers expending money in behalf of the Commonwealth may have advanced from the treasury to the sum of $150 at any one time, has in some instances caused serious inconvenience in the administration of the department. There are already many exceptions to the restriction imposed by the section above quoted, and I recommend that it be further amended to permit the Attorney-General to have advanced to him the sum of $500 at any one time in place of the amount now prescribed by law.
On the first day of September, 1904, Mr. Ralph A. Stewart, after more than three years of faithful and efficient service as Assistant Attorney-General, resigned that position to enter upon private practice. His performance of the duties devolving upon him was always characterized by conspicuous ability, and his constant and conscientious devotion to the welfare of the Commonwealth merits the highest commendation. No appointment has as yet been made to fill the vacancy created by the resignation of Mr. Stewart.
Annexed to this report are the principal opinions prepared during the current year.