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By the first of the above sections the mayor or aldermen of a city or the selectmen of a town are authorized to grant licenses, under certain conditions, first, to grow and dig oysters at all seasons of the year; and, second, to plant oyster shells for the purpose of catching oyster seed upon and in any waters, flats and creeks within the limits of such city or town at any place where no natural oyster bed is found. Section 105 provides that the shore line of such licensed premises shall be the line of mean low water for the planting and growing of oysters, and, with the consent in writing of the riparian owner, the line of high water for the planting of oyster shells.
The effect of this provision is to limit the right of the selectmen to grant licenses for the digging and growing of oysters to flats below low-water mark, and to distinguish such licenses from those which, with the consent of the riparian owner, permit the placing of oyster shells upon the flats between high and mean low water mark. The apparent purpose of this distinction is to permit the licensee to place oyster shells upon the land of the riparian proprietor between high and low water mark, in order to catch the oyster seed or spat,” which are brought by the currents into contact with and adhere to such shells. The shells so placed, and to which the growing oysters are attached, may then be removed to other beds below mean low-watermark, with the result of improving the size and quality of the oysters.
The digging of oysters, however, might constitute a serious interference with private rights; and for this reason, as well as for the reason that growing oysters must be constantly covered by water, the further cultivation and the harvesting of oysters so planted must be carried on below low-water mark.
I am therefore of opinion that the statute above quoted limits the authority of your board to the granting of licenses for the placing of shells upon flats between high and low water mark, and then only with the written consent of the riparian owner, and that all further cultivation and digging of oysters must be conducted below mean low-water mark.
Your letter contains the further question, whether a “ lease for the cultivation of oysters below mean low-water mark may be granted with a shore bound without the number of feet being specified on the shore.”
I am of opinion that the requirement of the statute that the licenses shall describe by metes and bounds the waters, flats and creeks so appropriated, does not require the shore line specified in feet, if reference is otherwise made to metes and bounds which are
readily ascertainable. As a matter of practice, however, it would seem preferable that, wherever it is possible, the license should specify the distance in feet. Very truly yours,
HERBERT PARKER, Attorney-General.
Extradition - Attorney-General - Expediency - Governor
Good Faith of Affidavit of Complaining Witness. The duty of the Attorney-General to advice the Executive upon questions
of expediency in matters of extradition, as required by R. L., c. 217, § 12, can only arise in cases of demands made upon the Governor for the surrender of persons held in custody or under recognizance in this
Commonwealth to answer for crime, or by virtue of any civil process. In the case of an application for the issuance of a demand for extradition
upon another State, the Executive of this Commonwealth is not to be controlled by the allegations contained in such application, and should satisfy himself upon the truth of every material fact alleged therein. He may inquire, therefore, if there be doubt in his mind, as to the good faith of the affidavit of the principal complaining witness, required by the rules for the practice of interstate rendition, in cases of fraud, false pretences or embezzlement, and setting forth that the sole purpose for which extradition is sought is the punishment of the accused, and that such witness does not intend to use the prosecution for any private purpose.
MAY 25, 1903. To His Excellency John L. BATES, Governor.
SIR:— I have the honor to report that I have examined the application of the district-attorney for Suffolk County for a requisition upon the Governor of the State of New York for the extradition of Moody Merrill, charged by indictment with the crime of embezzlement and larceny, together with the papers accompanying such application, and have heard the parties appearing in remonstrance to the issuance by Your Excellency of the requisition sought to be obtained.
R. L., c. 217, § 12, by virtue of which the papers in this case are now before me, is as follows :
Upon such demand or application, the attorney-general or a district attorney shall, if the governor so requires, forthwith investigate the grounds thereof, and report to the governor all the material facts which may come to his knowledge, with an abstract of the evidence in the case; and, in case of a person demanded, whether he is held in custody or is under recognizance to answer for a crime against the laws of this commonwealth or of the United States, or by force of any civil process, with an opinion as to the legality or expediency of complying therewith.
Under this section the duty and authority of the AttorneyGeneral in the premises must, in my opinion, be limited to making an investigation into the grounds of the application, and reporting to Your Excellency such material facts as may be brought to his knowledge, together with an abstract of the evidence in the case ; and his power to advise Your Excellency upon the expediency of granting such application must be strictly confined to cases of demands made upon Your Excellency for the extradition of persons held in custody or under recognizance in this Commonwealth to answer for crime, or by virtue of any civil process. Upon this construction of the statute, and in accordance with its provisions, I have the honor to submit for Your Excellency's consideration the following report.
With regard to the papers submitted to me and accompanying the application of the district attorney for Suffolk County, I have to advice Your Excellency that, in my opinion, the provisions of the United States statute regulating the matter of extradition (Rev. St. of U.S., c. 5278) and of the Massachusetts statute upon the same subject (R. L., c. 217, § 11) have been in all respects complied with. The papers, as at first laid before me, were not technically in proper form, in that they did not tain the afi vit of the principal complaining witness, setting forth that the application is made in good faith, and that such witness does not expect to and will not use the prosecution for the collection of a debt or for any purpose, as required by the rules for the practice of interstate rendition which are applicable to requisitions issued by Your Excellency; this omission was, however, subsequently remedied by the filing of the affidavit as required, and the papers, as they now appear, are in accordance with the requirements of law and of the rules above mentioned, and therefore in legal and proper form.
I am of the opinion that the Executive may well hold that every presumption of fact should attach to the allegations made by the district attorney, when that officer himself applies for the extradition. This presumption may, in cases, be rebutted by evidence; but none such has been submitted to me, and I am of opinion that the presumption holds in favor of this application. But, beyond the application of the district attorney, and necessary for its support, is the required affidavit of good faith by the party complaining, upon whose allegations the prosecution rests. Such affidavit, in form sufficient, accompanies the papers. Since its presentation is itself a condition precedent to the issuance of the Executive demand upon a foreign State, which demand is, in effect, a pledge of the good faith of the demanding State, it follows that the Executive should satisfy himself that the affidavit is in fact true, for, if false, it may well be treated in the Executive discretion as a nullity.
The Executive has the right to require, therefore, if there be doubt in his mind, that the truth of the affidavit be established to his satisfaction. Evidence by the remonstrants was offered as tending to disprove the allegations of the affidavit, but, as offered and presented before me, it was not, in my opinion, sufficient to support the remonstrants' contention; and, in the absence of other and more conclusive evidence, I am constrained to advise Your Excellency that the papers are in proper form, and that there appears to be no reason why the application of the district attorney for Suffolk County may not be granted. I am, with great respect, Very truly yours,
HERBERT PARKER, Attorney-General.
Intoxicating Liquors — Importation and Sale - Original
Package. The Legislature, since the enactment of 26 U. S. Sts. at Large, 313, pro
viding that “all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory . . . shall, upon arriving in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory," has authority to repeal R. L., c. 100, $ 33, which permits the sale of intoxicating liquors in the original casks or packages of importation, and to enact laws subjecting the possession, use or sale of such liquors within the limits of the Commonwealth, to all the restrictions and penalties imposed upon the possession, use or sale of other intoxicating liquors therein.
JUNE 1, 1903. To His Excellency John L. BATES, Governor.
SIR:-Your Excellency requires my opinion upon the present status of the statutory law of this Commonwealth with relation to the keeping for sale or sale of intoxicating liquors in the original packages of importation from another State.
Section 33 of chapter 100 of the Revised Laws has been in force in substantially its present form for many years.
Its existing provisions are as follows:
Importers of liquor of foreign production which is imported under authority of the laws of the United States may own, possess, keep or sell such liquor in the original casks or packages in which it was imported and in quantities not less than those in which the laws of the United States require such liquor to be imported, and, when sold, it shall be as pure and unadulterated as when imported.
The original enactment was doubtless for the purpose of giving recognition in our law to the requirement of the federal constitution with relation to commerce between the States ; and until Congress should have suspended the exclusive control of interstate merchandise, the States had no authority, by police regulation or otherwise, to restrict or interfere with free importation and exportation between the States. Until the enactment of the socalled Wilson bill (26 U. S. Sts. at Large, 313), in 1890, this restraint upon State legislation continued in force; but by that bill it was provided “ that all fermented, distilled or other intoxicating liquors or liquids transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise."
Congress thereby delegated authority to the several States to make such police regulations as they might deem necessary with regard to intoxicating liquors transported therein to be there used, consumed, sold or stored. Since the enactment of this federal statute, it has therefore been competent for the Legislature to remove the protection theretofore offered to intoxicating liquors in the original packages of importation, and to subject said liquors kept here for use, sale or storage to the penalties and restrictions applicable to all other intoxicating liquors.
I assume that the General Court has not been called upon to exercise the authority now and since 1890 vested in it; at all events, no legislation in this State has followed the changed conditions due to the enactment of the Wilson bill It is evident that the controlling reason for the immunity of liquors in the original packages no longer exists, and the Honorable Senate and House of Representatives may well consider the expediency of eliminating from our statutes a law which now appears to have little reason and no necessity for its justification.
Aside from the questions of public welfare as affected by the sale of intoxicating liquors, it is obvious that the operation of the provisions of section 33 of chapter 100 of the Revised Laws is to give