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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 what would seem to be a wholly unwarranted privilege or preference to certain liquors not attaching to others; and to permit certain persons, without any of the restrictions provided by the license laws, to keep and sell intoxicating liquors in conflict with the entire spirit of our law, and in unrestrained competition with those persons who have, in obedience to the requirements of our legislation, subjected themselves to serious liabilities and to large expenditures to secure and avail themselves of a license to engage in the liquor trade.
Were the section of the Revised Laws above quoted to be repealed, all protection heretofore attaching to liquors in the original package of importation, but within this State for use, distribution, storage or sale, would be withdrawn; and after such repeal, all intoxicating liquors and those engaged in commerce therein would be subject to uniform and consistent provisions of law.
The present condition of our statutes would seem to indicate either that public opinion or the legislation of our Commonwealth has not kept pace with that of the federal Congress, and that Massachusetts has not availed herself of an opportunity that the federal government long since offered to her. I am, with great respect, Very truly yours,
HERBERT PARKER, Attorney-General.
Volunteer Militia Rifle Ranges — Use by United States Troops
- Adjutant-General. The Adjutant-General has no authority either to grant or to refuse permis
sion to United States troops to use the rifle ranges furnished under the provisions of R. L., c. 16, $ 105, for the use of the volunteer militia, by the several cities and towns.
JUNE 1, 1903. Brig.-Gen. SAMUEL DALTON, Adjutant-General.
Dear Sir :— The only provision relating to rifle ranges for the use of the volunteer militia is R. L., c. 16, § 105, which in part provides that " it shall be the duty of the mayor and aldermen and selectmen to provide for each regiment, battalion, corps of cadets, or portion of the volunteer militia, within the limits of their respective cities and towns, suitable places for parade, drill and target practice.” Provision is elsewhere made in R. L., c. 16, for the control and management of armories by the Adjutant-General ($ 111), and for their use and occupation ($ 116), as well as for the maintenance of suitable places for drill ($ 113); but there is no specific enactment regulating the use and occupation of the rifle ranges which section 105 requires cities and towns to furnish.
Under the provision above referred to, therefore, I am of opinion that it is the duty of cities and towns to establish and maintain, for the use of the local militia, suitable places for target practice; but that the use thereof by such militia need not necessarily be exclusive of all other use of such rifle range by the city or town within the limits of which it is situated. If reasonable opportunity for target practice is afforded to the volunteer militia, the statutory obligation of such city or town is fulfilled, and the duty of the Adjutant-General in the premises must be confined to securing such result.
It follows, therefore, that the Adjutant-General has no authority either to grant or to refuse permission to United States troops to use the rifle range now established in the city of Lyon, if such use does not in any respect interfere with or restrict the use of such rifle range by the volunteer militia. I am of opinion, however, that if permission be given for the use of such rifle range by United States troops, it should be by specific action of the city government of Lynn, the terms of such use and its limitations being definitely and exactly set forth, distinctly subordinating such use to the requirements and needs of the militia of this Commonwealth, and providing a summary right of revocation of the permission so accorded. Very truly yours,
HERBERT PARKER, Attorney-General.
Foreign Corporations - Interstate Commerce. Foreign corporations, operating steamship lines between Boston and ports
in other States or in foreign countries, which do no transportation business wholly within the Commonwealth, and no other business therein except such as is incidental to their foreign business, are engaged in the business of interstate and foreign commerce, the regulation of which is vested exclusively in the Congress of the United States, and are not subject to the provisions of R. L., c. 126, $$ 4 and 6, requiring foreign corporations having a usual place of business within the Commonwealth to appoint the Commissioner of Corporations their attorney for the service of legal process, and to file in the office of such commissioner certain sworn statements concerning their capital stock.
JUNE 5, 1903. Hon. WILLIAM D. T. TREFRY, Commissioner of Corporations.
DEAR SIR :- In your letter of May 21 you ask my opinion upon the question whether certain foreign corporations, operating steamship lines between Boston and ports in other States and countries, which do no transportation business from point to point within the Commonwealth, or any local business, except such as is strictly incident to their foreign business, are subject to sections 4 and 6 of chapter 126 of the Revised Laws. That statute provides that every foreign corporation, except foreign insurance companies, which has a usual place of business in this Commonwealth, shall, before transacting business in this Commonwealth, appoint the Commissioner of Corporations its attorney for the service upon it of legal process, and shall file in his office certain sworn statements concerning its capital stock.
The sole business of the companies in question is interstate and foreign commerce. The power of government to regulate it in the manner of the statute is vested exclusively in Congress, and, whether Congress has done all that is proper in that regard or not, the State has no jurisdiction to attach such conditions to the right of transacting it. Statutes requiring the filing of sworn statements and the appointment of a local attorney are not included within those eminently local regulations made in the fair exercise of the police power of the State, which, in the absence of federal regulations over the same subject, are free from constitutional objections. It is, therefore, beyond the power of a State to make these requirements of such foreign companies. See Crutcher v. Kentucky, 141 U. S. 47; Robbins v. Shelby County, 120 U. S. 489; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727.
In the first case, in which the court held invalid a statute providing that the agent of a foreign express company should not carry on business within this State without first obtaining a license, and satisfying the State Auditor that the company was possessed of a certain amount of capital, Bradley J., by way of illustration, said: “Would any one pretend that a State Legislature could prohibit a foreign corporation - an English or a French transportation company, for example — from coming into its borders and landing goods and passengers at its wharves, and soliciting goods and passengers for a return voyage, without first obtaining a license from some State officer, and filing a sworn statement as to the amount of its capital stock paid in? And why not? Evidently because the matter is not within the province of State legislation, but within that of national legislation. And the same thing is exactly true with regard to interstate commerce as it is with regard to foreign commerce."
It is to be presumed that the Legislature of Massachusetts, when it enacted the provisions of R. L., c. 126, $$ 4-6, knowing that it had no power to impose conditions upon foreign commerce, did not intend, in its use of the phrase “ doing business in this Commonwealth," to include the business of transporting passengers