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properly approved, promptly audit and certify such an amount, not exceeding the appropriation for that purpose, as he may deem correct; and if it appears to him that there are improper charges in said accounts, he shall report the same to the governor and council, with a separate certificate therefor. He shall retain in his office copies of all such certificates and transmit the originals to the governor, who, with the advice and consent of the council, may issue his warrant to the treasurer and receiver general for the amount therein specified as due.
Also section 19 of said chapter, which is as follows:
All original bills and vouchers on which money has been or may be paid from the treasury upon the certificate of the auditor or the warrant of the governor shall be kept in the auditor's department; and all boards, commissions or public officers authorized to make contracts under which money may be payable from the treasury shall file with the auditor certified copies thereof.
The Governor and Council may at any time examine such bills and vouchers in the Auditor's department, and thus familiarize themselves with the expenditures of the Commonwealth as much as they wish. They may take such measures -as they see fit to ascertain that the money appropriated for the various institutions in the Commonwealth is being expended in the manner intended by the Legislature, and may make such personal investigation at the institutions themselves as may be necessary to make sure that this is being done; but they have no right to say that the money appropriated by the Legislature shall not be expended in the way authorized by it. There are various departments under the immediate supervision of the Governor, and in such departments it is his duty to see that the money appropriated is properly expended therein. There are other departments in which it is the duty of the head of such departments to see that the money appropriated is properly expended, and for which the Governor is not responsible, and in which he has no authority except so far as may be necessary to see that the warrants are drawn in accordance with the appropriations authorized by the Legislature. Should the Governor and Council be of opinion that the finances of any institution are not being properly and economically expended, the remedy would be by removal of the trustees or other officers over whom they have authority, in accordance with the statutes in such case made and provided. To this extent, under the Constitution and law of the Commonwealth the Governor and Council have authority to investigate the expenditures of any department, and to familiarize themselves as much as they see fit with any of the expenditures of the Commonwealth.
Replying further, the ways and means committee of the Legislature, or any legislator, has a perfect right to request the advice of the Governor and Council in regard to any proposed appropriation for expenditures, or the advice of any other person; but that committee is not obliged to do so, and it may act upon the advice or not, as it sees fit.
Very truly yours,
Dana MALONE, Attorney-General.
Inspection of Buildings - Inspector of Factories and Public
Buildings — Plans — Establishment — Accommodations for
Ten or More Employees above Second Story.
provides that “ no building more than two stories in height which is
Gen. J. H. WHITNEY, Chief, Massachusetts District Police.
DEAR SIR:- Your communication of April 2 requires my opinion upon the following question :
Is the person who erects or constructs a building, or an architect or other person who draws plans or specifications or superintends the erection or construction of a building having ten or more rooms above the second floor and which are designed to be used for business offices, and in no one of said offices are ten or more persons to be employed, required to deposit the plans and specifications of said building with the inspector of factories and public buildings of the district in which the building is to be erected ?
Your inquiry appears to relate to R. L., c. 104, $ 22, which provides that:
No building which is designed to be used, in whole or in part, as a public building, public or private institution, school house, church, theatre, public hall, place of assemblage or place of public resort, and no building more than two stories in height which is designed to be used above the second story, in whole or in part, as a factory, work-shop or mercantile or other establishment and has accommodations for ten or more employees above said story, and no building more than two stories in height designed to be used above the second story, in whole or in part, as a hotel, family hotel, apartment house, boarding house, lodging house or tenement house, and has ten or more rooms above said story, shall be erected until a copy of the plans thereof has been deposited with the inspector of factories and public buildings for the district in which it is to be erected by the person causing its erection, or by the architect thereof....
The interpretation to be given to the above section with respect to the present inquiry must depend upon the meaning of the word “establishment,” since it is clear that the building to which you refer is not designed for use either as a factory or as a workshop. The word “establishment” in this connection is defined as:
An organized household or business concern and everything connected with it, as servants, employees, etc.; an institution, whether public or private: as, a large establishment in the country; a large iron or clothing establishment; a hydropathic or water-cure establishment.
The word “establishment” therefore imports a single business organization of some extent, and several offices in which are conducted distinct occupations may not be joined together to create an establishment within the meaning of the statute. The section above quoted includes only such an establishment or business, carried on in any building, as may have accommodations for ten or more employees above the second story. This language, in my opinion, must be taken to refer to a single establishment, and not to a number of offices which are independently occupied and in none of which are ten persons employed, although in the aggregate there may be ten or more employees.
Confining myself to the precise form of the question submitted, therefore, and without attempting to otherwise limit or define the meaning of the words “ mercantile or other establishment," I am of opinion that the question submitted should be answered in the negative.
Very truly yours,
DANA MALONE, Attorney-General.
Boston Railroad Holding Company -- Acquisition of Stock,
Bonds, and Other Evidences of Indebtedness of the Boston
& Maine Railroad - Restraint of Trade — Anti-Trust Act. The proposed bill (now St. 1909, c. 519) incorporating the Boston Rail
road Holding Company, which authorized such company to acquire the stock, bonds and other evidences of indebtedness of the Boston & Maine Railroad, and permitted any railroad corporation existing under the laws of the Commonwealth at the date of the passage of such bill to guarantee the principal of and the dividends and interest upon the capital stock, bonds, notes and other evidences of indebtedness of the Boston Railroad Holding Company, and to acquire and hold such stock, bonds, notes and other evidences of indebtedness, is not in conflict with the provisions of the so-called Anti-Trust Act, the Federal Statute of July 2, 1890 (26 Stat. 209), which provides in section 1 that “ every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared illegal."
MAY 27, 1909.
ROGER WOLCOTT, Esq., Clerk of the Committee on Railroads.
DEAR SIR: The committee on railroads has submitted to me for my opinion the following question:
The committee on railroads is considering the so-called holding company bill submitted to it by you. The question has been raised as to whether, if the New Haven Railroad were to control, directly or indirectly, this company, it would be a violation of the so-called Sherman Anti-Trust Act or of any other federal statute, or whether the holding company could then be made a party to the federal suit now pending against the New Haven Railroad.
I assume that the inquiry of the committee is directed to any action upon the part of the New York, New Haven & Hartford Railroad Company which may be authorized by the provisions of section 4 of the proposed bill, which, so far as material, are as follows:
Any railroad corporation incorporated at the date of the passage of this act under the laws of this commonwealth may guarantee the principal of and the dividends and interest upon the capital stock, bonds, notes and other evidences of indebtedness of said Boston railroad holding company, and may acquire and hold said stock, bonds, notes and other evidences of indebtedness: provided, however, that the shares of stock of said Boston railroad holding company shall not be sold or transferable until said stock has been guaranteed as hereinbefore provided. Any railroad corporation acquiring said stock as hereinbefore provided shall not thereafter sell the same without the express authority of the legislature.
The so-called Sherman Anti-Trust Act, the statute of July 2, 1890 (26 Stat. 209), which is, so far as I am aware, the only federal statute material in the premises, is entitled “ An Act to protect trade and commerce against unlawful restraints and monopolies," and provides in section 1 that:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.
It provides in section 2 that:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor.
These provisions of law have been the subject of numerous decisions by the Supreme Court of the United States: United States v. E. C. Knight Co., 156 U. S. 1; United States v. TransMissouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505; Hopkins v. United States, 171 U. S. 578; Anderson v. United States, 171 U. S. 604; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Montague & Co. v. Lowry, 193 U. S. 38; Northern Securities Co. v. United States, 193 U. S. 197; Swift & Co. v. United States, 196 U. S. 375; Loewe v. Lawlor, 208 U. S. 274; Shawnee Com