as fixing the location of militia companies upon considerations other than those of the order of the Commander-in-Chief.

I am, therefore, of opinion that authority to take such action is not vested in the Commander-in-Chief.

Under the provisions of R. L., c. 217, § 11, requiring that, in the case of a demand upon the Executive of this Commonwealth for the surrender of a person charged with crime committed within the limits of the demanding State, such demand shall be accompanied by sworn evidence that the person charged is a fugitive from justice, an allegation in the petition of the principal complaining witness to the Executive issuing the demand, stating that the person sought to be extradited is a fugitive from justice, and sworn to before one signing himself, “J——— R—, pro clerk of the court of quarter sessions," such statement not being authenticated by the Executive, and there being no evidence that R- - was authorized to administer oaths, is not "sworn evidence," within the meaning of the statute, and the Governor may not lawfully comply with such demand.

His Excellency JOHN L. BATES, Governor.

FEB. 20, 1903.

SIR: I have the honor to report that, in the matter of the requisition of the Executive of the Commonwealth of Pennsylvania upon Your Excellency for the arrest and extradition of Thomas H. Cummings, an alleged fugitive from justice, charged in Pennsylvania with the crime of false pretences, counsel representing both the alleged fugitive and the agent of the State of Pennsylvania have been given full opportunity to be heard; and after such hearing, and after careful consideration of the papers accompanying the requisition, I am constrained to advise Your Excellency that you may not legally comply with the demand of the Governor of Pennsylvania.

Revised Statutes of the United States, § 5278, makes it the duty of the Executive of a State upon whom a demand is made for the extradition of an alleged fugitive from justice to surrender such fugitive, provided it appears that the papers accompanying the requisition contain (1) a demand of the Executive of the State from which the fugitive has fled; (2) a copy of an indictment found or an affidavit made before a magistrate, charging the fugitive with having committed the crime; and (3) the certification of such indictment or complaint by the Executive.

The constitutional provision for extradition, however, relates only to persons who are fugitives from justice; and the duty to surrender a person demanded does not arise unless it appears that he is, as a matter of fact, a fugitive from justice. Upon this point the decision in general rests with the Executive of the State upon which the demand is made, as a question of fact, to be decided upon such evidence as he may deem satisfactory. See Roberts v. Riley, 116 U. S. 80; Ex parte Reggel, 114 U. S. 642. No method of proof of this fact is prescribed either by the Constitution or by the Statutes of the United States; but in this Commonwealth the Legislature has provided that this material fact shall be established by sworn evidence that the person is a fugitive from justice (R. L., c. 217, § 11), and the Governor of this Commonwealth is not authorized to issue his warrant unless such evidence is submitted to him.

In the application of the Governor of Pennsylvania for the surrender of Thomas H. Cummings, the only allegation that the person demanded is, in fact, a fugitive from justice, is contained in the petition of one Florence S. Zimmerman to the Governor, asking that a requisition be issued. That petition sets forth that Thomas H. Cummings was in the county of Philadelphia and State of Pennsylvania at the time of the commission of the offence charged; that before arrest could be made he fled from the State of Pennsylvania; that he is now in the county of Suffolk in this Commonwealth, and is a fugitive from the justice of Pennsylvania. This statement purports to be sworn to before John L. Reiser, "Pro clerk of the Court of Quarter Sessions," and the seal of that court is annexed to the affidavit. There is no other evidence in the papers that said Cummings is in fact a fugitive from justice, except such inferences as may be drawn from the certification by the district attorney of Philadelphia County, which is substantially in accordance with the rules for interstate rendition. This certification is not sworn to, and allegations contained in it, so far as they may be construed to be allegations that Cummings is a fugitive from justice, are conclusions of law, and not sworn evidence of fact, as required by the laws of this Commonwealth.

There appears to be no evidence disclosed by the record that the person before whom Florence S. Zimmerman made oath to the truth of the statements contained in her petition was, by reason of any official position, authorized to administer oaths. A defect in setting forth the authority of the person before whom such oath is taken would ordinarily be cured by the certification of the Executive of the demanding State, which is generally comprehensive enough to include not only a copy of the indictment or com

plaint, as required by the United States Statute, but also the papers accompanying it. But in this instance it is only the copy of the indictment which the Governor of Pennsylvania certifies to be authentic and duly authenticated in accordance with the laws of Pennsylvania. This being so, and there being no evidence upon the record that John L. Reiser was authorized under the laws of Pennsylvania to administer oaths, I am of opinion that this paper is not sworn evidence, within the meaning of R. L., c. 217, § 11, and that, in the absence of such sworn evidence, Your Excellency cannot lawfully comply with the demand of the Executive of Pennsylvania for the extradition of the said Thomas H. Cummings.

I am, with great respect,

City or Town

Very truly yours,

HERBERT PARKER, Attorney-General.

Grant of Franchise for Use of Streets. -Compensation.

In the absence of specific Legislative authority therefor, a city or town has no power to demand compensation for the grant of a franchise for a special use or easement in the streets or ways of such city or town.

His Excellency JOHN L. BATES, Governor.

MARCH 4, 1903.

SIR: Your Excellency requires my opinion upon the question "whether or not towns have any rights in highways, for which they can charge for the use thereof; that is, whether or not they could give any one special rights, for compensation, in a highway." I conceive the purport of Your Excellency's inquiry to be whether a municipality has any right to demand and receive compensation for a franchise granted by such municipality for a special use or easement in the streets or ways of the same.

I am of opinion that no such right exists at common law, and can obtain, if at all, only where it has been specially delegated to a town or city by authority and grant of the Legislature. It is clear that public streets and ways, as such, belong to the whole public, represented by the Commonwealth. If local boards of aldermen or selectmen should assume to make grants of special rights to the use of such streets and ways, they could do so only as agents of the general public, since no such power could be delegated to them by the municipality, for the municipality would have neither jurisdiction nor authority in the premises.

Authority to impose restrictions or obligations upon corporations or individuals to which franchises in public ways were to be granted

must, as I have suggested, be conferred by special statutory authority. No such general authority now exists by virtue of which a municipality can make such grants for compensation to it, or impose specific local restrictions or obligations upon such use.

It has heretofore been held, in an opinion by one of my predecessors, dated May 25, 1900, that local municipal authorities "had no right to bargain and sell street railway franchises, nor to make terms with street railway companies which should accrue to the financial benefit of the cities and towns in which the locations were given. They could not make a binding contract either for a time limit of the franchise or for the payment of any revenue, directly or indirectly, to the Commonwealth or to a city or town." Attorney-General's Report, 1900, p. 58.

I do not cite judicial authority expressed in a series of opinions of courts of last appeal in support of the views I express, doubting whether Your Excellency will deem it necessary to examine them.

For the reasons I have briefly stated, I have the honor to advise Your Excellency that in my opinion your inquiry should be answered in the negative.

I am, with great respect,

Very truly yours,

HERBERT PARKER, Attorney-General.

Soldiers' Aid - Criminal or Wilful Misconduct of Veteran – Wife or Widow and Dependent Relatives.

R. L., c. 79, § 18, is not applicable to a soldier who, by reason of his own criminal or wilful misconduct, has become poor and wholly or partially unable to support himself; and, although such soldier may in other respects be eligible under the statute, neither he nor his family are entitled to the aid therein provided.

MARCH 13, 1903.

· CHARLES W. HASTINGS, Esq., Commissioner of State Aid and Pensions. DEAR SIR:— You ask my opinion upon the construction of the first eleven lines of R. L., c. 79, § 18, the specific questions being as follows:

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1. If a soldier debarred by criminal or wilful misconduct from the receipt of soldiers' relief is living with his family, which is otherwise eligible, will his unworthiness bar it also from relief in which he does not share?

2. If a soldier debarred as above is living away from his family, and not contributing to its support, will the family also be debarred?"

The first eleven lines of the section above referred to are as follows: :

If a person who served in the army or navy of the United States in the war of the rebellion and received an honorable discharge from all enlistments therein, and who has a legal settlement in a city or town in the commonwealth, becomes, from any cause except his own criminal or wilful misconduct, poor and entirely or partially unable to provide maintenance for himself, his wife and minor children under the age of sixteen years, or for a dependent father or mother; or if such person dies leaving a widow or such minor children or a dependent father or mother without proper means of support, he or they shall receive such support as may be necessary by the city or town in which they or either of them have a legal settlement.

It is clearly the intention of the section above quoted that the aid to be furnished to a person who has served in the army or navy of the United States in the war of the rebellion and has received an honorable discharge from all enlistments therein shall be conditioned upon his worthiness to receive it; and, if he has become poor and entirely or partially unable to provide for himself and his family by reason of his own criminal or wilful misconduct, he fails to bring himself within its terms, and is excluded from all the benefits conferred by it. The right of the family of a soldier or sailor in the war of the rebellion to receive aid under this section exists only when such soldier or sailor is in all respects eligible to receive such aid; and it must follow that where a person, otherwise eligible, is debarred by his own criminal or wilful misconduct from the relief provided, his family is also debarred from such relief, and this is true whether the person so debarred resides with his family or apart from it.

I am therefore of the opinion that both the questions submitted must be answered in the affirmative.

Very truly yours,

HERBERT PARKER, Attorney-General.

Constitutional Law - Legislature. Insurance- Cities and Towns as Insurers against Fire.

The Legislature may not constitutionally authorize cities and towns to establish fire insurance departments, and to act as insurers against fire of all insurable property within their limits. It follows, therefore, that House Bill No. 386, entitled "an act to authorize cities to insure property against loss by fire," would, if enacted, be unconstitutional and void.

MARCH 27, 1903.

Hon. JAMES J. MYERS, Speaker of the House of Representatives.

SIR:

-I have the honor to acknowledge receipt of copy of an order of the Legislature under date of March 23, 1903, of the tenor following: