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The Boston and Maine Railroad is hereby authorized to acquire by purchase, the road, franchises and property of any railroad corporation whose road is now operated by it under lease, contract or through ownership of stock, and whether said road belongs to a corporation organized under the laws of this Commonwealth or organized under the laws of the state of Maine, the state of New Hampshire, or the state of Vermont.
Prior to the passage of this statute the relation of the Boston & Maine Railroad to the Portsmouth & Dover Railroad Company had been that of lessor to lessee. It therefore appears that the street railway in question forms a part of a railroad corporation whose property, rights and franchises are owned by the Boston & Maine Railroad; that prior to such ownership such extensions as may have been made of the lines of the Portsmouth Street Railway were extensions of the line of the Portsmouth & Dover Railroad Company; and that subsequent to such ownership there have been, as I am informed, no extensions thereof.
The acquisition of the Eastern Railroad Company, as has been stated, was authorized in New Hampshire by St. 1889, c. 5, which in section 10 authorized the Boston & Maine Railroad to acquire by purchase the road, franchises and property of the Eastern Railroad Company, and thereafter to acquire by purchase the roads, franchises and property of the Eastern Railroad of New Hampshire, the Portsmouth, Great Falls & Conway Railroad, and certain other railroads therein specified. In section 12 the Boston & Maine Railroad was further authorized “to acquire by purchase the road, franchises and property of any railroad corporation incorporated under the laws of either the state of Massachusetts, Vermont or Maine whose road is now leased to or operated by said Boston & Maine Railroad ... a general provision identical with that contained in the Massachusetts statute of 1891, chapter 308, which has already been quoted. In Massachusetts a like permission was granted to the Boston & Maine Railroad by St. 1888, c. 250, which in section 1 provided for the acquisition of the Eastern Railroad Company, with authority subsequently to acquire by purchase the road, franchises and property of the Eastern Railroad Company of New Hampshire and of the Portsmouth, Great Falls & Conway Railroad (see St. 1890, c. 195). In accordance with the authority conferred by these statutes of Massachusetts and New Hampshire, respectively, the Boston & Maine Railroad acquired by purchase the road, franchises and property of the Eastern Railroad Com
pany on May 9, 1890, the Eastern Railroad in New Hampshire on June 15, 1899, and the Portsmouth, Great Falls & Conway Railroad on May 9, 1890.
From these facts it is clear that the Boston & Maine Railroad has not in the specific instances discussed consolidated with any other railroad within the State of New Hampshire, and has not within that State extended its own line contrary to the prohibition of St. 1906, C. 463, part II., $ 47. It must follow, therefore, that if by reason of any of these transactions the charter of the Boston & Maine Railroad has become liable to forfeiture under the provision of law already referred to, it has become liable thereto by reason of the extension of the line of the Concord & Montreal Railroad Company, a New Hampshire corporation leased by the Boston & Maine Railroad, from Concord to Manchester in the State of New Hampshire, — an extension which was duly authorized by the laws of New Hampshire. Upon this point I am constrained to say to the Honorable Senate that in my opinion the provisions of section 47 cannot be extended to include, even by implication, an extension of the lines of a New Hampshire corporation so authorized and effected. Even if the extension under consideration were of the lines of the Boston & Maine Railroad itself, the scope and purpose of the provision in section 47, with respect to extensions of the lines of railroads beyond the limits of the Commonwealth, would not be wholly free from doubt. In the case of Attorney-General ex rel v. New York, New Haven & Hartford R.R. Co., 198 Mass. 413, the court, in discussing a consolidated corporation similar to the Boston & Maine Railroad, and the mutual concessions by the several States by which it was created, said (page 422):
How far, by reason of the peculiar nature of the corporation, or by force of express provisions in the statutes, has Massachusetts given up its right of control of this corporation, or relieved it of the application of our general laws, and how far has it retained such control ? As creating a corporation to build and operate a railroad in two different States, and by the language quoted from St. 1844, c. 28, 2, the Legislature recognized the fact that the corporation might have certain franchises, rights, powers, privileges and property granted or acquired under the laws of only one of the two States. As to such rights and powers as pertain only to local matters, like the location of the railroad, the possession and management of real estate, the crossing of highways and other railroads, the State in which they were to be exercised would have exclusive jurisdiction. This fact is enough to show the reason for using the lan. guage relied on by the defendant. In regard to all such matters, the action of only one State would be appropriate and sufficient. How far this implied authority to grant powers and franchises without the co-operation of the sister State should be held to extend, it is unnecessary in this case to decide. Whether it should go so far as to include the acquisition of other railroads within the State where the power is granted, or the location and construction of new lines and extensions there, and an increase of the capital stock for such purposes, is a question upon which it is not necessary to express an opinion.
See 1 Op. Atty.-Gen., 118, 137.
It further appears that all issues of stock and bonds of the Boston & Maine Railroad have been made in conformity to the laws of the Commonwealth, and have been approved by the Board of Railroad Commissioners.
This being so, I have to advise the Honorable Senate that such facts as I now have before me do not disclose any acts of the Boston & Maine Railroad, or, with the exception hereinbefore stated, of any other consolidated corporation which operates a railroad within the Commonwealth, which would render liable to forfeiture the charters of such corporations under the provisions of section 47 of part II. of chapter 463 of the Acts of 1906.
Very truly yours,
DANA MALONE, Attorney-General.
Registration of Hunters - Citizen - Residence on Land used
exclusively for Agricultural Purposes. Under the provisions of St. 1908, c. 484, Ø 3, which exempts, from the re
quirement prescribed by the statute of a certificate of registration, citizens who are bona fide residents on land owned or leased by them, and on which they are actually domiciled, such land being used exclusively for agricultural purposes, a person who is resident in a city or town and not upon a farm, but who is the owner of a wood lot used for growing wood, is not exempt from registration. A farmer, however, who is actually resident upon land used exclusively for agricultural purposes, may hunt without registration in a wood lot which is a part of his farm.
FEB. 26, 1909. Hon. GEORGE W. FIELD, Chairman, Commissioners on Fisheries and
Game. DEAR SIR: – In a letter of present date you have requested my opinion upon the construction to be given to section 3 of chapter 484 of the Acts of 1908, requiring citizens of the United States resident in Massachusetts, who desire to hunt in Massachusetts, to be registered and to pay a registration fee. The section referred to is as follows:
Every citizen of the United States who is a bona fide resident of this state shall pay for such certificate a fee of one dollar: provided, however, that this act shall not apply to any such citizen who is a bona fide resident on land owned or leased by him and on which he is actually domiciled, which land is used exclusively for agricultural purposes, and not for club or shooting purposes.
Your inquiries, as I understand them, are: first, whether a person who lives in a city or town and not upon a farm, but is the owner of a wood lot used for growing wood, may hunt in that wood lot without registration; and, second, whether a person who does live upon a farm and carries on agriculture as a vocation, and is the owner of a wood lot used for growing wood, may hunt in that wood lot without registration.
In my opinion, the first question is to be answered in the negative. The clear intent of the proviso quoted is to exempt the farmer from restrictions upon his freedom to hunt within the limits of his own farm. The resident of a town or city who is not a farmer, but owns a wood lot, is not actually domiciled and resident on land used exclusively for agricultural purposes. He is therefore within neither the intent nor the terms of the statute, and is clearly not exempt from registration.
In reply to the second question, my opinion is that a farmer who is actually domiciled and resident upon land used exclusively for agricultural purposes may hunt without registration in a wood lot which is part of his farm. All the land embraced in the farm which he operates as a farm, whether it is tillage, pasture or woodland, is to be considered as land used for agricultural purposes. Such wood lot, while it need not be actually contiguous to the rest of the farm, must, in my opinion, be so nearly adjacent as to be considered as in fact a part of the farm upon which the farmer lives, and to be so used.
Very truly yours,
DANA MALONE, Attorney-General.
Pauper Law — Insane Person - Removal from the Common
wealth — Settlement.
The provision of R. L., C. 80, Ø 6, that “ a person who is absent from the
commonwealth for ten consecutive years shall lose his settlement,” is applicable to an insane person who was removed to an asylum in another State and there maintained for more than ten consecutive years.
MARCH 5, 1909.
OWEN COPP, M.D., Executive Officer, State Board of Insanity.
DEAR SIR: In a letter of recent date you have requested my opinion upon the question arising upon the following facts: a woman fifty years of age had an undoubted settlement in Massachusetts, when, in 1896, she was taken to Mount Hope Asylum in Baltimore, Md., where she has remained continuously since that time supported as a private patient. Her relatives now desire to have her returned to Massachusetts and committed to an insane hospital of this Commonwealth.
The question upon which you have asked my opinion is, whether the woman's settlement in Massachusetts has been lost under the provision of the last clause of R. L., C. 80, $ 6, that
A person who is absent from the commonwealth for ten consecutive years shall lose his settlement.
The clause of the statute quoted, which has been held to be prospective in operation, was enacted in 1898, and has, therefore, been in effect during more than ten years of the patient's absence.
In my opinion, the statute operates upon the settements of the sane and insane with the same effect, and whether a settlement has been lost under its provisions depends not upon the mental condition of the person in question, but solely upon her actual residence during the ten years under consideration.
The patient referred to has, therefore, in my opinion, lost the settlement which she had in Massachusetts in 1896.
Very truly yours,
DANA MALONE, Attorney-General.