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visions of section 42 above referred to. Upon the other hand, however, I am of opinion that a local board of health has no greater powers with respect to investigating generally the state of health of the pupils in a school than such board would have with respect to any other individual; and that, in the absence of any reasonable ground to believe that contagious disease as a cause of sickness exists in any school, such board of health, or its agents, would have no authority to enter upon the premises for the purpose of making an examination of the physical condition of the pupils in attendance at such school.
Your communication further inquires whether State inspectors of health, acting under their general powers as defined in St. 1907, c. 537, § 3, which provides that each State inspector of health “shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district,” have authority to enter schoolhouses and hospitals for the purpose of obtaining such information. The State inspectors of health are appointed under the provisions of St. 1907, c. 537, which provides in section 3 that:
Every state inspector of health shall inform himself respecting the sanitary condition of his district and concerning all influences dangerous to the public health or threatening to affect the same; he shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district, shall disseminate knowledge as to the best methods of preventing the spread of such diseases, and shall take such steps as, after consultation with the state board of health and the local state authorities, shall be deemed advisable for their eradication; he shall inform himself concerning the health of all minors employed in factories within his district, and, whenever he may deem it advisable or necessary, he shall call the ill health or physical unfitness of any minor to the attention of his or her parents or employers and of the state board of health.
You do not, in this question, state the character of the information of which the health inspector is assumed to be in search. If such inspector desires to enter a school or hospital for the purpose of making a physical examination of individual pupils or patients, I am of opinion that the statute above quoted would not authorize him so to do. He has, however, the same right to enter a hospital or school that is possessed by any other individual in search of information, independent of statute. If the statute above quoted confers upon such inspector any right of entry into hospitals or schools, such right or authority must be found in the first clause of section 3, and must be for the purpose of enabling the inspector to inform himself concerning the sanitary conditions of his district, which conceivably might include the sanitary condition or method of construction of either a hospital or a school, and such other information of like nature as might be deemed necessary or important. Upon the other hand, if the information which he seeks is to be gained by an examination of persons or of records of cases in the custody of a hospital or school, or other similar information, I am of opinion that the statute does not contemplate the acquisition thereof as a matter of right, and does not confer authority upon the inspector to enter either a hospital or a school for any such purpose.
Very truly yours,
DANA MALONE, Attorney-General.
Boston & Maine Railroad – Extension of Line - Consolidation
with other Corporations — Liability to Forfeiture of Charter. The ownership and control of the Portsmouth Street Railway and the
purchase of the Eastern Railroad Company, both corporations of the State of New Hampshire, by the Boston & Maine Railroad, were duly authorized by the Legislature of this Commonwealth, and such acquisition and control do not render the charter of the Boston & Maine Railroad liable to forfeiture under the provision of St. 1906, C. 463, part II., Ø 47, that “if a railroad corporation owning a railroad in this commonwealth and consolidated with a corporation owning a railroad in another state ... without authority of the general court, ... extends its line of railroad, or consolidates with any other corporation, the charter and franchise of such corporation
shall be subject to forfeiture.” The acquisition and control of the Concord Street Railway and the ex
tension of its line from Concord to Manchester, by the Concord & Montreal Railroad Company, was an acquisition and extension of a New Hampshire corporation of its own line, under proper authority from the State of New Hampshire, and such acquisition and extension do not render liable to forfeiture under the provision of law above cited the charter of the Boston & Maine Railroad, which operates the Concord & Montreal Railroad under a lease authorized by the Legislature of this Commonwealth.
FEB. 16, 1909. Hon. ALLEN T. TREADWAY, President of the Senate. SIR: – On January 26 an order of the tenor following was
: adopted by the Honorable Senate: -
Ordered, That the Attorney-General be requested to inform the Senate whether in his opinion the Boston & Maine Railroad Company, or any other railroad corporation owning a railroad in the Commonwealth and consolidated with a railroad in another State, has subjected itself to the forfeiture of its charter and franchise by reason of the provision of the general railroad and railway law contained in chapter four hundred and ninety-three of the statutes of nineteen hundred and six which forbids such a corporation to extend its line of railroad without the authority of the General Court, or by reason of any other provision of section forty-seven of part two of said chapter.
I have the honor to acknowledge the receipt of the foregoing order, and to reply thereto as follows:
I assume that the Honorable Senate, by reference to “chapter four hundred and ninety-three of the statutes of nineteen hundred and six,” intended to designate chapter 463 of the Acts of said year,
which is entitled “ An Act relative to railroad corporations and street railway companies,” and to require my opinion upon the effect of section 47 of part II. of said chapter with reference to the present status of the Boston & Maine Railroad and of any other railroad corporation owning a railroad within the Commonwealth and consolidated with a railroad in another State.
The section referred to, St. 1906, c. 463, part II., $ 47, provides that:
If a railroad corporation owning a railroad in this commonwealth and consolidated with a corporation owning a railroad in another state increases its capital stock, or the capital stock of such consolidated corporation, except as authorized by this act, without authority of the general court, or without such authority extends its line of railroad, or consolidates with any other corporation, or makes a stock dividend, the charter and franchise of such corporation shall be subject to forfeiture.
No evidence was transmitted to me by the Honorable Senate, or is officially before me, with respect to any specific act or acts of the Boston & Maine Railroad, or of any other consolidated corporation operating a railroad within the Commonwealth, except the New York, New Haven & Hartford Railroad Company, upon the legal status of which, with respect to certain provisions of the section above quoted, I have already expressed an opinion, which is before the Honorable Senate in my annual report; and
I am aware of no provision of law which would require or even authorize the Attorney-General officially to ascertain or determine the facts material and necessary to a consideration of the present inquiry, in order to perform intelligently the duty imposed upon him by the provisions of R. L., c. 7, § 7, to “give his opinion upon questions of law submitted to him by the governor and council or by either branch of the general court.”
I am informed, however, that, although the question in the form submitted involves an investigation of fact with respect to the history of the several consolidated railroad corporations which operate railroads within the Commonwealth, which it is beyond the power of the Attorney-General to make, the Honorable Senate had particularly in view certain definite and specific acts of the Boston & Maine Railroad, upon the legality of which, with respect to the provisions of the statute above quoted, my opinion is desired, viz., the acquisition or control of the Concord Street Railway and the extension of its road to Manchester, the ownership and control of the Portsmouth Street Railway and the purchase of the Eastern Railroad Company.
With respect to these transactions the material facts are matters of record, and are before me. The Concord Street Railway is directly owned and operated by the Concord & Montreal Railroad Company, a corporation of the State of New Hampshire, which has extended the line of such street railway to the city of Manchester. Both the original purchase and the subsequent extension were effected under and by virtue of the provisions of the general laws of the State of New Hampshire, which permit a railroad corporation to construct and operate its lines by electricity in or upon the public highways. The sections above referred to are as follows (St. 1895, c. 27, SS 22 and 23):
SECTION 22. Every railroad corporation established under the laws of this state, and operating railroads therein with steam for a motive power, are hereby authorized to operate their railroads, or any part thereof, by electricity; and for the purpose of making the necessary changes from steam to electricity as motive power, every such railroad corporation may, with the consent of the railroad commissioners, and subject to the provisions of sections seventeen and eighteen of this act, issue such an additional amount of capital stock as may be necessary to defray the expenses of making such change in motive power and equipment.
SECTION 23. If any existing steam railroad shall build extensions, branches, or additions to its lines, to be operated by electricity as the motive power, such steam railroad shall have the same right to build and operate such extensions, branches, and additions in the public highways, and be subject to all the duties, liabilities, and restrictions as to that part of said extensions, branches, and additions operated by electricity in public highways, as by the provisions of this act are conferred and imposed upon street railways in their use of public highways.
See St. (N. H.) 1903, c. 102.
The connection of the Boston & Maine Railroad with these transactions arises from the fact that it operates the Concord & Montreal Railroad Company under a lease dated June 29, 1895, and duly authorized by the Legislatures of Massachusetts and of New Hampshire, in New Hampshire by chapter 5 of the Acts of the year 1889, and in Massachusetts by St. 1893, c. 263. See St. (N. H.) 1893, c. 100; St. (N. H.) 1889, c. 146.
It appears, therefore, that the acquisition of a street railway line in Concord and the extension of such line from Concord to Manchester by the Concord & Montreal Railroad Company was an acquisition and extension by a New Hampshire corporation of its own line, duly authorized thereto by the laws of that State.
The Portsmouth Street Railway Company was constructed and is operated as a part of the Dover & Portsmouth Railroad Company, under authority of chapter 27 of the Acts of the year 1895, of New Hampshire, the general law of the State of New Hampshire, which, as before stated, permits the operation by steam roads of extensions, branches or additions to its lines operated by electricity in the public highways (see sections 22 and 23 of chapter 102 of the statutes of New Hampshire for the year 1903); and such street railway formed a part of the line of the Dover & Portsmouth Railroad Company on Jan. 1, 1900, when such company was acquired by purchase by the Boston & Maine Railroad. This acquisition was effected under the express authority of the State of New Hampshire, given in St. 1889, c. 5, $ 10, which authorized the purchase of the road, franchises and property of the Eastern Railroad Company, the Eastern Railroad in New Hampshire, the Portsmouth, Great Falls & Conway Railroad, the Portsmouth & Dover Railroad, and certain other railroads therein named. The Massachusetts authority for the purchase of the Portsmouth & Dover Railroad appears to have been conferred by St. 1891, c. 308, which in section 1 provided that: