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The second question submitted deals with the disposition of the taxes paid by the Boston Elevated Railway Company, under the provisions of St. 1897, c. 500, $ 10, to the Treasurer of the Commonwealth. By this section it is provided that the taxes paid by such corporation into the treasury of the Commonwealth shall be distributed among the different cities and towns in proportion to the mileage of track owned, leased or operated by it within the limits of each city or town. St. 1900, c. 413, § 5, provides that, where locations are granted in boulevards, parkways or open places controlled by the Metropolitan Park Commission, that proportion of the tax which would be ultimately paid to the city or town in which such parkways, boulevards or open places are located, if they re not under the control of the Commonwealth, shall be apportioned to the Commonwealth, and credited by the Treasurer to the sinking fund of the loan created to meet the expenses of that particular work.
I am of opinion that the ultimate disposition of money received for taxes 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, without constituting a violation of the contractual relation subsisting between the Commonwealth and the Boston Elevated Railway Company; since the corporation can have no further interest in such money after payment to the Commonwealth, and no additional burden or obligation is imposed upon it by crediting a portion of the amount so paid to the sinking fund of a metropolitan park loan, instead of distributing such portion to the various cities and towns through which its tracks extend. The provision of St. 1900, c. 413, § 5, that 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 be credited to the sinking fund of the loan created to meet the expenses of establishing and maintaining such reservations, is therefore applicable to the sums received as taxes from such corporation under the provisions of St. 1897, c. 500, $ 10. Very truly yours,
HERBERT PARKER, Attorney-General.
Flats — Planting and Cultivation of Oysters — Licenses — City or
Town Authorities Boundaries. Under R. L., C. 91, $$ 104 and 105, the authority of the mayor and board of
aldermen in cities, and of the selectmen in towns, to grant licenses for the planting and cultivation of oysters upon flats between high and low water mark, is limited to licenses for the placing of shells upon such flats, upon written consent of the owner thereof; and all other operations connected with the cultivation or digging of oysters must
be carried on below mean low-water mark. R. L., C. 91, $ 105, does not require that the licenses granted thereunder
shall specify the shore line in feet, if reference may be otherwise made to metes and bounds which are readily ascertainable.
MAY 7, 1903. D. F. WILEY, Esq., Chairman, Board of Selectmen, Wellfleet, Mass.
DEAR SIR: – I have your letter of March 28, requesting my opinion upon the construction of R. L., c. 91, $$ 104 and 105, relative to the granting of licenses for the growing and digging of oysters.
The selectmen of towns are local officers, and as such are not entitled to the opinion of the Attorney-General ; but, inasmuch as the question is one of general importance, and, in a measure, involves rights of the public and of the Commonwealth, I have deemed it expedient to submit for your guidance my views upon the subject.
R. L., c. 91, § 104, is as follows:
The mayor and aldermen of a city or selectmen of a town may, by writing under their hands, grant a license for a term not exceeding ten years to any inhabitant thereof to plant, grow and dig oysters at all times of the year, or to plant oyster shells for the purpose of catching oyster seed, upon and in any waters, flats and creeks therein, at any place where there is no natural oyster bed; not, however, impairing the private rights of any person, nor materially obstructing any navigable waters.
Section 105 provides that:
Such license shall describe by metes and bounds the waters, flats and creeks so appropriated and shall be recorded by the city or town clerk before it shall have any force, and the licensee shall pay to the mayor and aldermen or selectmen, for their use, two dollars, and to the clerk fifty cents. The shore line of such licensed premises shall be the line of mean low water for the planting and growing of oysters, and the line of high water for the planting of oyster shells, but the provisions of this section shall not authorize the placing of such shells upon the land of a riparian owner between high and low water mark without his written consent.
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 tbat 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-water mark, 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 Afidavit 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 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 contain the affidavit 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,