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clerical assistance, the expense for which is expressly limited. In other words, I think the true intent of the resolve, considering all its provisions, is that the expenditures authorized to be made are limited to the sum of one thousand dollars; and I am confirmed in this view by the use of the phrase “ The committee may expend in the performance of its duties such sum for clerk hire,” etc., to be paid out of the treasury of the Commonwealth.
I would add further that I think the provision that “the committee may employ such assistance as may be necessary must be held to relate to that assistance incidental to the mere administrative detail of the work of the committee itself.
The duties of the committee are in some respects analogous' to those of a court. They are charged with the duty of making an inquiry by conducting hearings ; they are to form and report such opinions as their own judgment may approve or suggest, or may be developed from the hearing of testimony; and I think it quite clear that no court would seek to have its responsible judgment instructed by opinions for which it would make payment.
It may be that the committee might be aided in the prosecution of their work by reports made and opinions rendered to them by persons of peculiar knowledge of the subject under investigation ; but I think that the Legislature expected that such opinions would be presented in the form of testimony of persons interested in the inquiry, and that thus the committee would have the benefit of such opinions, and the opportunity of passing upon their value before reaching their conclusions. Very truly yours,
HERBERT PARKER, Attorney-General.
Civil Service - Police Officer of the City of Cambridge - Pro
motion. The city of Cambridge is not exempted by its charter (St. 1891, C. 364, as
amended by St. 1896, c. 173, and St. 1902, c. 357) from the operation of the civil service law and rules, and promotion made thereunder in the police department of such city must be accomplished subject to the established regulations of the Civil Service Commission.
Ост. 1, 1903. Hon. CHARLES H. PORTER, Chairman, Civil Service Commission. DEAR SIR:- In your letter received September 8 you state that
8 the Hon. John H. H. McNamee, mayor of Cambridge, in the course of making certain changes in the police force of that city has promoted a policeman from the grade of patrolman to that of sergeant, without notifying your Board ; and you request my opinion whether promotions in the police force of Cambridge are governed by the civil service rules.
The civil service law is to be found in chapter 19 of the Revised Laws, and in your rules. Section 7 of the law provides that the Civil Service Commission shall include in their rules provisions for promotions, if practicable, on a basis of ascertained merit in the examinations and seniority of service. Section 9 provides that such rules shall apply to members of the police and fire departments of cities; and by Rule VII. your Board classified the members of the police force in Class 3 (c) of Schedule B “the regular and reserve forces of, and all persons doing permanent police duty in and for and paid by, any city of the Commonwealth, except the city of Boston.”
Section 19 of the law provides :
The name and residence of every person, except laborers, appointed to, promoted or employed in a position coming within the rules governing the civil service, the designation of such position and the rejection or discharge of every such person, shall forthwith be reported to the commissioners by the officer making such appointment, promotion, rejection or discharge, or providing such employment.
Under this law your Board made the following rules :
RULE XXXVI. Every officer having the power of appointment to any position in the first division shall, within ten days, give notice in writing to the commissioners of the name and place of residence of any person appointed and employed in such position, of the rejection of any such person during or after promotion, and of the transfer, promotion, resignation or removal, discharge or death, of any person serving under him, with the dates thereof.
RULE XL., Cl. 3. Promotions in Class 3 of Schedule B shall, so far as practicable, be by successive grades and by competitive or non-competitive examination, as the commissioners may determine: provided, however, that no special, supernumerary, substitute, reserve or temporary police officer, under whatever designation (unless a permanent reserve force in any city is established by act of the legislature), shall be promoted to the regular or permanent force, or assigned to permanent duty, except after competition with all applicants for said force.
Whether promotion of the patrolman in question, by competitive or non-competitive examination, was practicable or not, was a question of fact determinable not by the mayor, but by your commission alone. But aside from this issue, upon which it may
well be contended that the Honorable Mayor has ignored the law, he was certainly, in my opinion, required to notify your commission
of the promotion, however made, unless the city of Cambridge is exempt by its charter from the application of the civil service law and rules.
The provisions in the Cambridge .charter (St. 1891, c. 364, as amended by St. 1896, c. 173, and St. 1902, c. 357) which may apply to the situation are the following:
SECTION 8. He [the mayor] shall at all times have the control and direction of the police force.
Section 10. The mayor, after due hearing, may, with the approval of a majority of the board of aldermen, remove ...
any member of the police force.
SECTION 28. The board of aldermen shall, from time to time, fix the number and compensation of the members of the police force, and establish general regulations for its government.
The control of the police force to be exercised by the mayor, as contemplated by the provisions of the city charter, must be, in my opinion, confined in its application to the police force as created and existing under the limitations of the general laws. Such control must be, I think, an administrative and not a creative authority. A like construction must also, in my opinion, be put upon section 28 of the city charter above referred to. That act cannot, I think, be construed as conferring upon the board of aldermen any power, to the exclusion of the authority of your commission, by virtue of which the appointment or qualification of an officer is to be determined. The function of the board of aldermen in this respect, as declared by the charter, is, in my opinion, also an administrative one. I find, therefore, in these provisions of the charter, above cited, nothing which is inconsistent with the application of the civil service law to the police force of Cambridge. Power to make general regulations for the government of officials is not inconsistent with the specific power given to the commission to apply their tests to the persons who are to become members of the police force, or, if practicable, to those who are to be promoted therein. In other words, the qualification of membership of the police force of the city of Cambridge is subject to the established regulation of your commission.
I therefore conclude, and have the honor to advise you, that upon the facts stated, the Hon. John H. McNamee, mayor of Cambridge, has failed to comply with a distinct and obligatory requirement of law. Very truly yours,
HERBERT PARKER, Attorney-General.
Co-operative Bank - Loan - Security - Second Mortgage. The purpose of R. L., c. 114, § 14, providing that every loan made by a
co-operative savings bank shall be secured by a mortgage of real estate situated within the Commonwealth, and unencumbered by any mortgage or lien “ other than such as may be held by the bank making the loan,” was to secure the result that property mortgaged to a co-operative savings bank should not be subjected to any liens or mortgages other than those held by the bank itself; and such statute does not forbid a second mortgage upon property upon which the same bank holds a first mortgage, provided that such property is not thereby encumbered to an amount exceeding its real value.
Ост. 15, 1903. Hon. WARREN E. LOCKE, Chairman, Board of Savings Banks Commissioners.
DEAR SIR :— Your letter of October 10 requires my opinion upon the legality of a transaction which you state to be as follows: “ A party takes out 25 shares in a co-operative bank, pledging the same and securing a loan on mortgage of real estate for $5,000, after which another party takes out 4 shares in the same bank, and gives a second mortgage on the same property for $200, pledging the 4 shares for the same. Separate notes are given for the respective amounts.”
The only question affecting the legality of the transaction as above described is whether the provision in R. L., c. 114, § 14, that every loan shall be secured by a mortgage of real estate situated in the Commonwealth and unencumbered by any mortgage or lien “other than such as may be held by the bank making the loan," is to be construed as requiring that the only mortgage existing upon the real estate so designated shall be that which secures the particular loan in question, or as permitting several independent loans by the same bank to be secured by independent mortgages upon such real estate.
I am of opinion that it was the intent of the statute to permit different mortgages upon the same real estate as security for different loans, provided that the directors are satisfied that the property is not subjected to mortgages exceeding in amount its real value as ascertained by them.
In St. 1877, c. 224, § 8, it was provided that loans by co-operative savings banks should be secured by a mortgage upon real estate. By St. 1881, c. 271, § 1, this act was amended so as to require that the mortgage should be a first mortgage ; and this provision was substantially re-enacted in P. S., c. 117, $ 13. The provision was enacted in its present form in St. 1894, c. 342. The evident intention of these statutes was to secure the result
that property mortgaged to co-operative savings banks should not be encumbered by any liens or mortgages other than those held by the bank itself. Very truly yours,
HERBERT PARKER, Attorney-General.
Danvers Insane Hospital - Trustees Water Supply - Contract
with Town New Building. Under a contract in force between the Commonwealth and the town of
Danvers, by which it is agreed that the Commonwealth may take, free of charge, water from the water supply of the town for the use of the Danvers Insane Hospital, " and of all buildings that at any time may be owned by the State on the grounds; and also for use on the grounds themselves, as now laid out, for any purpose,” the Commonwealth may, without payment, take water from the town supply for use in and for a building upon land acquired subsequent to the making of such contract, but not for any independent use upon the grounds so acquired.
Oct. 22, 1903. Trustees of the Danvers Insane Hospital. GENTLEMEN : – You desire my opinion upon the following
question : under a duly authorized contract, which is in force between the town of Danvers and the Commonwealth of Massachusetts, the Commonwealth is entitled to use the town water for the Danvers Insane Hospital free of charge, and, at its own expense, for pipes to take water for such purpose directly from the town pipes.
It appears that the trustees are erecting a new hospital building upon land which they have recently purchased adjoining the land which the Commonwealth owned for the hospital at the time when the contract was executed. The question is, whether the Commonwealth has the right, under the above-mentioned contract, to use the town water for its new building free of charge.
The material provision of the contract is as follows:
The town of Danvers shall
perpetually keep a constant and ample supply of water in the reservoir, and permit the State to take therefrom, in any manner and at any time, all the water which the State through any of its authorized agents may desire or deem proper for the use of the hospital, and of all buildings that at any time may be owned by the State on the grounds; and also for use on the grounds themselves, as now laid out, for any purposes whatever. The State may at any time, at its own expense for pipes, take water for any purposes before named directly from the pipes to be laid by the town.