That the Attorney-General be requested to inform the General Court whether, in his opinion, the General Court has authority under the Constitution of the Commonwealth to authorize cities and towns to establish fire insurance departments and to act as insurers against fire of all insurable property situated within their limits; and especially to inform the General Court whether, in his opinion, the provisions of House Bill No. 386, now pending, being "An Act to authorize cities to insure property against loss by fire," would, if enacted, be constitutional.

I am clearly of opinion that I must advise the Honorable Senate and House of Representatives that the General Court has no authority under the Constitution of the Commonwealth to authorize cities and towns to establish fire insurance departments, and to act as insurers against fire of all insurable property situate within their limits. My answer to the first inquiry must therefore be in the negative.

Upon the further inquiry of the Honorable Senate and House of Representatives above stated, I am as clearly of opinion that, were the bill cited to become enacted, it would be, in my opinion, inoperative and void, because unconstitutional. The questions presented appear to me to fall plainly within the field of adjudication and opinion of the Supreme Judicial Court of this Commonwealth, so that I do not deem it necessary at great length to set forth the reasons for holding the opinions which I submit, nor to support them by a multitude of citations of established judicial authority. I call the attention of the Legislature to the recent opinion of the justices of the Supreme Judicial Court, transmitted to the House of Representatives in reply to its order of Jan. 14, 1903. The reasoning of that opinion and the grounds upon which it is based conclusively fix the limitations upon legislation within such fields as are opened by the inquiries and the proposed bill transmitted to me for examination.

Very truly yours,

HERBERT PARKER, Attorney-General.

Railroads Foreign Corporation - Purchase of Stock of Domestic Street Railway Company.

A railroad incorporated under the laws of another State, carrying on business as a railroad within the Commonwealth, and authorized by its charter to invest in the stock of street railways wherever situated, even to the extent of a controlling interest therein, is not prohibited by the laws of this Commonwealth from acquiring the securities and assuming the ownership of domestic street railway corporations.

A railroad holding a charter from a foreign State, permitting the acquisition of stock in street railway companies, and also incorporated

under the laws of this Commonwealth, would not have authority, in the absence of special legislative permission, to purchase the stock of street railway companies incorporated in this Commonwealth, such purchase, in the case of domestic corporations, being forbidden by R. L., c. 111, §77.

APRIL 6, 1903.

Hon. JOHN P. MUNROE, Chairman, Committee on Railroads and Street

Railways.

DEAR SIR: The committee on railroads and street railways requests my opinion upon the following question :

"First. Has any railroad incorporated in another state, and doing business as such railroad within this State, which has a right under the charter of the foreign State to invest in the securities of street railways wherever existing, the right under the laws of this Commonwealth, to invest in the securities and assume ownership of street railways incorporated in this Commonwealth?"

I assume that the foreign charter referred to is broad enough in terms to give the foreign railroad corporation power to purchase or subscribe for stock of our domestic street railways, even to the extent of a controlling ownership therein.

The right of foreign corporations in general to own stock in Massachusetts street railway companies is recognized by R. L., c. 126, § 11

If a foreign corporation which owns or controls a majority of the capital stock of a domestic street railway, gas light or electric light corporation issues stock, bonds or other evidences of indebtedness based upon or secured by the property, franchise or stock of such domestic corporation, unless such issue is authorized by the law of this commonwealth, the supreme judicial court shall have jurisdiction in equity in its discretion to dissolve such domestic corporation. If it appears to the attorney-general that such issue has been made, he shall institute proceedings for such dissolution and for the proper disposition of the assets of such corporation. The provisions of this section shall not affect the right of foreign corporations, their officers or agents, to issue stocks and bonds in fulfilment of contracts existing on the fourteenth day of July in the year eighteen hundred and ninety-four.

There is no provision of our law forbidding such ownership by a foreign railroad corporation. But I do not consider under what circumstances such control might lead to a violation of the Sherman act (26 U. S. Sts. at Large, 209), such inquiry not being germane to the question addressed to me.

The committee further requests my opinion upon a second question :

"Would such railroad, so incorporated and also incorporated in this Commonwealth, have such authority to purchase the securities

of such street railways, unless specially authorized by the Legislature of this State?"

A domestic railroad corporation, without express legislative authority, has no power to acquire the stock of street railways. Such acquisition is, indeed, expressly prohibited to a domestic railroad corporation by R. L., c. 111, § 77:

No railroad corporation, unless authorized by the general court or by the provisions of the following five sections, shall directly or indirectly subscribe for, take or hold the stock or bonds of or guarantee the bonds or dividends of any other corporation; and the amount of the bonds of one or more other corporations subscribed for and held by a railroad corporation, or guaranteed by it conformably to special authority of the general court or the authority given in said sections, with the amount of its own bonds issued in conformity with sections sixty-three and sixty-four, shall not exceed at any time the amount of its capital stock actually paid in cash.

This second inquiry presents the question whether a railroad corporation, existing by the concurrent legislative authority of this State and of another, may buy stock in our domestic street railway companies, such purchase being authorized by the foreign State, but prohibited as to domestic railroad corporations by our law. The general law concerning such railroad corporations contains no provisions applicable to or conclusive upon the question submitted. R. L., c. 111, § 4:

A railroad corporation, chartered by the concurrent legislation of this and other states shall, as regards any portion of its road lying within this commonwealth, be entitled to all the benefits and be subject to all the liabilities of the railroad corporations of this commonwealth

This statute appears to be applicable rather to the physical locations, the operation and administration of the railroad within our jurisdiction, and does not appear to take into consideration and control those acts which are ultra vires of a Massachusetts

railroad and intra vires of a foreign company. I doubt whether any general answer can be made to the question addressed to me that will be conclusive upon any specific case, for there may be special legislation enacted by our General Court as to certain railroad corporations which would authorize such purchase as is the subject of your inquiry; and an exhaustive examination of all such special legislation would have to be made, to ascertain what might be the rights or authorities of any designated railroad company. I may say, however, that assuming no such permission has been granted by such special law, I hold to the opinion that our

courts would decide that such railroad corporation has no lawful authority to purchase the stock of other corporations, but I do not know that this question has yet been specifically decided. I may suggest that, if it should be decided that the railroad corporation, created, for instance, by concurrent legislative action of Massachusetts and Connecticut, has a right to buy stock given by the laws of Connecticut but withheld by the laws of Massachusetts, the Legislature would, in my opinion, have power to revoke the Massachusetts charter, if it deemed that such action by the railroad company was sufficiently injurious to the public interest to warrant such action.

Very truly yours,

HERBERT PARKER, Attorney-General.

Telephone and Electric Light Companies-Lovations for Poles and Wires· "Private Way". Eminent Domain Constitutional Law-Compensatión.

Assuming that the term "private way" in a proposed act entitled "An Act to authorize the granting to telephone and electric light companies locations for poles and wires upon private ways," is used in its technical sense, as referring to ways laid out under the provisions of R. L., c. 48, § 65, such way is in fact a public way; and the Legislature may authorize the grant of locations for poles and wires upon or along private ways, without provision for compensation for damages occasioned thereby.

If, on the other hand, the term is used as referring to ways or lands held by private individuals, a statute assuming to authorize the location of poles and wires thereon, without provision for the recovery of damages by the owners, is unconstitutional.

APRIL 9, 1903.

Hon. ARCHIE N. FROST, Chairman of Committee on Mercantile Affairs. DEAR SIR: The committee on mercantile affairs has submitted to me a draft of an act entitled "An Act to authorize the granting to telephone and electric light companies locations for poles and wires upon private ways," and the committee requests my opinion upon the question whether any of the provisions of said act are. within constitutional prohibitions.

I assume that the term "private way" is used in this act in its technical sense; that is, meaning a way laid out under the provisions of R. L., c. 48, § 65, and sections following. Such a way, although it be laid out for the use of a particular person or persons, upon whom the whole or any part of the damages may be assessed, is, nevertheless, a public way, because it exists through the adjudication of a public tribunal, and not through private contractual

For the

obligations, expressed or implied, between citizens. establishment of such private ways as the statute contemplates there must have been an adjudication and a taking by competent authority, for which taking due compensation must have been provided, and the easements or rights thus created are not limited as to their use or enjoyment to individuals or particular persons, for the ways have become branches and parts of public thoroughfares.

I am of opinion, therefore, that a statute authorizing the proper authorities to grant locations for telephone or telegraph poles upon or along private ways is not open to constitutional objection, and it may be urged that the provisions of R. L., c. 122, § 1, now give such authority. It may therefore be doubted whether any new legislation is required to meet the apparent purpose of the proposed act.

If, however, the term "private way" in the act referred to means a way over private land, in which the public has no interest, the way and the land over which it passes both being private property (and I am informed that the proposed legislation is directed to such state of facts), the absence of any provision for compensation to the owners of such property seriously endangers its validity, on constitutional grounds.

There can be no question that the Legislature may grant the power to exercise the right of eminent domain to telephone and telegraph companies, or to agents who may exercise it in behalf of such companies; and I am of opinion that the Legislature may delegate this power to the mayor and aldermen of cities or to the selectmen of towns, to be exercised in the taking of land for such uses, provided always constitutional requirements are complied with. The act before me, however, contains no express provision for the recovery of damages, and merely applies, or seeks to apply, by reference, the statute regulating the granting of locations along the highways to the takings contemplated by it. The provision for damages contained in R. L., c. 122, to which reference is made in section 3 thereof, relates to owners of lands abutting upon a public way, and contemplates resulting damages occasioned by the erection and maintenance of poles, rather than for the taking of land or the creation of any new right impairing private property interests.

The provisions of the Revised Laws, above cited, in my opinion are not sufficient (for they do not extend, nor are they applicable, to the case of taking property by eminent domain) to secure constitutional rights to persons whose property is taken by the proposed act. I am, therefore, of opinion that reference to the above provisions of the Revised Laws does not bring the proposed act within constitutional limitations.