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I am further of opinion that the term “private way,” as used in the act submitted to me, upon established rules of construction, whatever be the intent of the Legislature, now entertained, will be held to be a private way as defined by existing statutory law ; that is, a way established and dedicated through the exercise of the right of eminent domain by some tribunal of competent jurisdiction. I hold, therefore, that the act, in its present form, does not by its terms authorize the taking of private property or the invasion of private rights, and does not authorize the location of poles and wires upon private lands as such, but only within the limits of the statutory private way. I venture to suggest that the use of the words in the draft of the act, "owners of such private ways," is inartificial and ambiguous. A private way contemplated and defined by our statutes is not strictly private property, but, in a sense, belongs to the public, and is an easement dedicated by a constitutional adjudication to a quasi-public use. Very truly yours,
HERBERT PARKER, Attorney-General.
Chief of Cattle Bureau - Orders or Regulations - Approval —
Publication - Governor and Council. R. L., C. 90, § 4, as amended by St. 1902, c. 116, § 3, which in part provides
that no orders or regulations made by the Chief of the Cattle Bureau shall take effect until approved by the Governor and Council, and that such orders or regulations shall be published in the manner therein prescribed, requires that the method of publication shall be prescribed by such orders or regulations, and shall be subject to the approval of the Governor and Council.
APRIL 29, 1903. To His Excellency John L. BATEs, Governor.
SIR: I beg to report that I have considered the communication to Your Excellency from the Chief of the Cattle Bureau, with regard to the publication of the rules and regulations made by authority of R. L., C. 90, § 4, as amended by St. 1902, c. 116, $ 3.
R. L., c. 90, $ 4, provides as follows:
The board may from time to time make orders and regulations relative to the prevention, suppression and extirpation of contagious diseases of domestic animals, and relative to the inspection, examination, quarantine, care and treatment or destruction of such animals which are affected with, or have been exposed to, such diseases, and all orders and regulations made by the board shall be entered on its records and a copy thereof shall be sent to each inspector in the city or town to which the orders or regulations apply, and be published by him in such manner as the orders or regulations may prescribe.
St. 1902, c. 116, amended this provision by transferring the powers and duties of the Board of Cattle Commissioners to a Chief of the Cattle Bureau of the State Board of Agriculture, and further provided that no orders or regulations made by him, under authority of R. L., c. 90, SS 4 and 7, should take effect until approved by the Governor and Council.
The Chief of the Cattle Bureau inquires of Your Excellency whether or not the method of publication should be defined in the rules and regulations which are approved by the Governor and Council, under the provisions of the act above referred to.
I am of opinion that R. L., c. 90, § 4, clearly requires that the method of publication of the rules and regulations provided for therein should be prescribed by such rules and regulations and subject to the approval of the Governor and Council. I am, with great respect, Very truly yours,
HERBERT PARKER, Attorney-General.
Street Railways — Boston Elevated Railway Company - Location
Metropolitan Park Commissioners Tax — Contract Constitutional Law. By St. 1897, c. 500, § 10, providing in part that during a period of twenty-five
years from the date of the passage thereof no taxes or excises, not then actually imposed upon street railways, should be assessed upon the Boston Elevated Railway Company except as defined in such statute, a contract was created between the Boston Elevated Railway Company and the Commonwealth; and St. 1900, c. 413, § 2, authorizing the Board of Metropolitan Park Commissioners to grant to street railways locations over roadways, boulevards, parks and reservations subject to its control, “ upon such terms, conditions and obligations and for such compensation as the public interests and a due regard for the rights of the Commonwealth may require,” in so far as it relates to com
pensation for grants of location, is not applicable to such company. The ultimate disposition of money received for taxes from the Boston
Elevated Railway Company under the provisions of St. 1897, c. 500, $ 10, forms no part of the contract created thereby, and may be changed or modified in such manner as the Legislature may deem proper. Such proportion of the taxes received from the Boston Elevated Railway Company as is based upon the mileage owned or controlled by such corporation within metropolitan park reservations may therefore be credited, under the provisions of St. 1900, c. 413, § 5, to the sinking fund created to meet the expenses of establishing and maintaining such reservations.
APRIL 30, 1903. Hon. WILLIAM B. DE LAS Casas, Chairman, Metropolitan Park Commission.
DEAR SIR : - Your letter of April 14 requests my opinion upon certain questions which arise in connection with a proposed grant
of location to the Boston Elevated Railway Company, and relate to the effect of St. 1900, c. 413, an act authorizing the Metropolitan Park Commission to grant street railway locations, upon St. 1897, c. 500, which defines and determines the rights and duties of the Boston Elevated Railway Company and the West End Street Railway Company.
You state that you desire to know the effect of section 5 of St. 1900, c. 413, upon section 10 of St. 1897, c. 500; and particularly whether any portion of the taxes and compensation to be paid under said section 10 by said railways to the Treasurer of the Commonwealth will, under said section 5 of chapter 413 of St. 1900, be credited to the sinking fund of the loan under which the boulevard or park in which the location was granted by this Board was provided, or will all be distributed to the cities and towns within which the track is located ; and, in either event, whether this commission has the right to require of the railway company additional compensation.”
St. 1897, c. 500, an act to promote rapid transit in the city of Boston and vicinity, establishes in section 10 a toll or fare which may be charged by the railways above referred to 6 wbich shall not exceed the sum of five cents for a single continuous passage in the same general direction upon the roads owned, leased or operated by it;" and further provides that this sum shall not be reduced by the Legislature during a period of twenty-five years from and after the passage of the statute.
The remainder of the section is as follows:
During said period of twenty-five years no taxes or excises not at present in fact imposed upon street railways shall be imposed in respect of the lines owned, leased or operated by said corporation, other than such as may have been in fact imposed upon the lines hereafter leased or operated by it at the date of such operating contract or of such lease or agreement hereafter made therefor nor any other burden, duty or obligation which is not at the same time imposed by general law on all street railway companies: provided, however, that said corporation shall be annually assessed and shall pay taxes now or hereafter imposed by general law in the same manner as though it were a street railway company, and shall, in addition, as compensation for the privileges herein granted, and for the use and occupation of the public streets, squares and places, by the lines of elevated and surface railroad owned, leased and operated by it, pay to the Commonwealth, on or before the last day of November in each year, during said period of twenty-five years, an annual sum, the amount of which shall, in each year ending the last day of September, be determined by the amount of the annual dividend paid in that year by said corporation, in the following manner:- If the annual dividend paid is six per cent. or less, or if no dividend is paid, the sum payable that year shall be a sum equal to seven eighths of one per cent. of the gross earnings of all the lines of elevated or surface railroads owned, leased or operated by said corporation; if said dividend exceeds six per cent. then a sum equal to the excess of the dividends over six per cent. in addition to said seven eighths of one per cent. of said gross earnings. The above sum shall be paid into the treasury of the Commonwealth and distributed among the different cities and towns in proportion to the mileage of elevated and surface main track, reckoned as single track, which is owned, leased or operated by said corporation and located therein.
St. 1900, c. 413, provides in section 1 that the Board of Metropolitan Park Commissioners shall have authority to grant locations as therein provided to street railways within the roads, boulevards, parks and reservations in its care and control. Section 2 provides that, after due notice and hearing, “if in the opinion of the board public convenience and necessity so require,” it may grant such location or any part thereof upon such terms, conditions and obligations and for such compensation as the public interests and a due regard for the rights of the Commonwealth may require. Section 5 is as follows:
The share of the tax paid by any street railway company operating hereunder, into the treasury of the Commonwealth, which would under other provisions of law be apportioned to the city or town within which its tracks laid hereunder are situated, shall be apportioned to the Commonwealth and credited by the treasurer to the sinking fund of the loan to which the expenditure for the road, boulevard, park or reservation in which the tracks are located was charged.
St. 1897, c. 500, is a special act, limiting and defining the duties, rights and privileges of particular corporations ; and the regulations and conditions thereby made applicable to such corporations would under the ordinary rules of statutory construction, remain unaffected by a later general enactment upon the same subject. Section 10, moreover, which fixes a minimum toll or fare which for a period of twenty-five years may not be altered or reduced by the Legislature, and provides the method of taxation of the corporations which are within its terms, also establishes the manner and rate of compensation to be paid by the Boston Elevated Railway Company for the use and occupancy of the public streets, squares and places over which its tracks may be laid; and in the matter of such compensation, as well as in respect of the amount of the fare which may be charged and the method of taxation to be adopted, constitutes a contract which may not be altered or impaired by subsequent legislation. See Attorney-Generals Report, 1901, p. 14.
Such compensation is to be paid annually to the Commonwealth during a period of twenty-five years, and is to be determined in each year by the annual dividend for that year. If such dividend does not exceed six per cent., the sum paid to the Commonwealth as compensation for the use of public streets and ways is to be equal to seven-eighths of one per cent. of the gross earnings of all the lines of elevated or surface railroads owned, leased or operated by the Boston Elevated Railway Company. If it exceeds six per cent., an additional sum is to be paid, equal to the excess of such dividend over six per cent. The money so received is to be paid into the treasury of the Commonwealth, and thereafter distributed among the different cities and towns in proportion to the mileage of elevated and surface main track which is owned, leased and operated by such corporation in each city or town.
I am of opinion that it was the purpose of the Legislature by these provisions to establish a rate of compensation for the use of public streets, ways and squares by the Boston Elevated Railway Company, which, for a period of twenty-five years, should be payment in full for such use and occupation ; and that the method and rate of compensation so established forms an important element in the contract between the Commonwealth and the railroad company, which cannot constitutionally be altered or amended for the purpose or with the effect of subjecting such corporation to the burden of any additional payment on account of the use and occupation of public streets or ways. That such would be the effect of applying the provisions of St. 1900, c. 413, § 2, to the corporation in question cannot be doubted. The sum annually due to the Commonwealth as compensation for such use and occupancy is based upon the gross earnings of all the lines owned or controlled by it; and if, upon the granting of the right to lay tracks over land within the jurisdiction of the Metropolitan Park Commission, a further charge should be imposed therefor, it would result that the corporation would pay in compensation for such privilege not only the proportionate part of the amount annually due the Commonwealth under the provisions of St. 1897, c. 500, $ 10, based upon the gross earnings of that particular line of track, but also the compensation fixed and determined by the commission under the provisions of St. 1900, c. 413, § 2,- an additional charge, not contemplated or provided for in the original contract. It follows, therefore, that the Metropolitan Park Commission is not authorized to require of the Boston Elevated Railway Company, under the provisions of St. 1900, c. 413, § 2, any additional compensation for the right to occupy roads, boulevards, parks and reservations under its care and control.