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additional attendance will be of advantage to the pupil himself. If the papil himself elects to continue his studies beyond the regular and fixed course of study at the school which he attends, by taking a “post-graduate " course, so called, the question is one of more difficulty. If it be assumed that by post-graduate course is meant a course of study additional to and following upon the usual and regular course given at such high school, and including studies which are not required to be taught in high schools or schools of corresponding grade, I am of opinion that the town in which such pupil resides, and in which no high school is maintained, may not be charged with the expense so incurred, since the course of study chosen is not one which the town is obliged by law to furnish. If, on the other and, the additional course includes only such studies as are by law required to be maintained in high schools, and is chosen by the pupil for the purpose of securing admission to a State normal school, technical school or college, and for the reason that the regular course of study maintained at such school is not sufficient in and of itself to secure the desired result, the expense incurred for such additional attendance constitutes in my opinion a proper charge against the town in which such pupil has his residence. Very truly yours,

HERBERT PARKER, Attorney-General.

Metropolitan Park Commission Police Jurisdiction Parks

Local Police Right of Entry. The authority of the Metropolitan Park Commission with regard to police

regulation of public open spaces does not differ from that exercised by such commission over parkways and boulevards; and the entrance thereon of local police authorities, as such, must be limited to the pursuit and apprehension of persons who have violated some statute, ordinance or regulation within their jurisdiction, and have sought refuge upon land controlled by such commission.

AUG. 21, 1903. John WOODBURY, Esq., Secretary, Metropolitan Park Commission.

DEAR SIR:— You inquire in your communication of August 13 as to the extent of the authority of the police appointed by a city or town within the limits of land taken for public open spaces under St. 1893, c. 407, the act by which your commission was created and established.

The legislation relating to this question was cited and elaborately discussed in an opinion addressed to the Metropolitan Park Commission under date of Aug. 7, 1902, in which I advised the commission that the authority of the local police to enter upon roadways. and boulevards exclusively controlled by the Metropolitan Park Commission is confined to the pursuit and apprehension of persons who have committed a breach of any statute, ordinance or regulation within the limits of an adjacent city or town, and have taken refuge upon such roadways or boulevards; and that they have no authority to enter upon roadways or boulevards subject to the jurisdiction of the commission for the general purpose of maintaining the public peace and order thereon.

The only ground for believing that a distinction may be made between the authority which the commission may exercise over public open spaces acquired under the provisions of St. 1893, C. 407, to which your present inquiry is directed, and the authority of the commission over roadways and boulevards, as defined in the opinion above referred to, is found in the language of St. 1894, c. 288, § 3, which is in part as follows:

In furtherance of the powers herein granted, said board may appoint clerks, police and such other employees as it may from time to time find necessary for the purposes of this act, remove the same at pleasure, and make rules and regulations for the government and use of the roadways or boulevards under its care, breaches whereof shall be breaches of the peace, punishable as such in any court having jurisdiction of the same; and in addition said board shall have the same rights and powers over and in regard to the roadways or boulevards taken and constructed hereunder as are or may be vested in them in regard to other open spaces by said chapter four hundred and seven and acts in amendment thereof and in addition thereto, and shall also have such rights and powers in regard to the same as, in general, counties, cities and towns have over public ways under their control.

The concluding provision of the above-quoted statute, by which the commission is given all the rights and powers with regard to parkways and boulevards that the local authorities have over public ways subject to their control, does indeed confer upon the commission rights and powers over such ways which are not included in the authority granted to the commission in dealing with public open spaces or reservations; but I am of opinion that the rights and powers so conferred are to be construed as relating rather to the granting and use of street railway and other franchises and like matters, which are peculiar to the control and use of public ways, than to matters of police jurisdiction over such ways.

It follows, therefore, that the authority of the Metropolitan Park Commission with regard to police regulation of public open spaces does not differ from that which they have over parkways and boulevards, as defined in the opinion of last year, already referred to; and that the entrance of the local police authorities, as such, in the discharge of their duties, upon such open spaces must be solely for the purpose of pursuing and apprehending persons who have violated some statute, ordinance or regulation within their jurisdiction, and have sought refuge upon lands controlled by your commission. Very truly yours,

HERBERT PARKER, Attorney-General.



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Commonwealth - Actions by Agents or Representatives - Entry

Fee. In all cases where proceedings are instituted by persons appearing and

acting as duly authorized agents or representatives of, and for the establishment or protection of any right or interest in the Commonwealth, the Commonwealth is the plaintiff in such action, within the meaning of R. L., C. 204, § 6, par. 10, and no entry fee is chargeable therefor.

SEPT. 17, 1903. John NOBLE, Esq., Clerk Supreme Judicial Court, Suffolk County.

DEAR SIR: – Your letter under date of Sept. 15, 1903, in relation to the payment of entry fees by the Commonwealth, is before me. I appreciate the importance of the question in its relation to your duties as clerk, and realize that, upon your request, I ought to advise you by formal opinion of the reasons for holding that the entry fees in the cases under consideration are not chargeable against the Commonwealth.

It is provided by R. L ,c. 204, $ 6, par. 10, that “in civil actions in which the Commonwealth or a county is the plaintiff, no entry fee shall be paid."

No question, I take it, can arise where the Commonwealth is in name as well as in fact the plaintiff or petitioner. The only field of question I assume to be where the party plaintiff is a commission or officer of the Commonwealth, suing as such. Obviously, where commissioners or officers have been created by law and intrusted with the care and enforcement of particular and specific rights of the Commonwealth, action must be taken exclusively by such officer or commission for and in behalf of the Commonwealth ; and in order to show such authority to sue, such officer or commission must be named with the specification of his representative capacity. A proceeding for relief, remedy, redress or restraint for and in behalf of the Commonwealth, and brought in the name of those agents to whom the subject matter of the proceeding has been expressly delegated by law, must, in my opinion, be taken to be, under the provisions of the section of the statute above referred to, a civil action, in wbich the Commonwealth is the plain

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tiff. The agent, except in his purely representative capacity, has no interest in or concern with the proceeding or its results ; he is only the instrument by which the Commonwealth acts.

These conclusions, I think, must follow upon a consideration of the provisions of the statute unaided by judicial instruction. I believe, however, that the conclusion is positively sustained and confirmed by the opinion of the court in Dewey v. Garvey, 130 Mass. 86, it being there held that a State lunatic hospital, with relation to a contract, is to be taken to be “the substitute or representative of the Commonwealth itself, and the party in interest must necessarily be the Commonwealth.”

The case of Flagg v. Bradford, 181 Mass. 315, is even more decisive, to my mind. There the action was in contract against Edward S. Bradford, as Treasurer and Receiver-General of the Commonwealth. The court holds (p. 316) that the action is in substance and effect an action against the Commonwealth, “ and, although nominally against the defendant, it seems to us plain that the action is really against the Commonwealth."

I am, therefore, of opinion that in all cases where proceedings are instituted by persons appearing and acting solely as representatives or agents, with due authority, for the Commonwealth, and asserting or affirming a right or interest of the Commonwealth, no entry fee is properly chargeable in any of our courts. Very truly yours,

HERBERT PARKER, Attorney-General.

Appropriation Special Committee Expenses Expert Advice.

- The committee appointed by the Governor under the provisions of Res.

1903, c. 86, to investigate and report upon the legislation needed to authorize the making of public improvements under a more extensive exercise of the right of eminent domain than is now permitted by the constitution and laws of the Commonwealth, is not authorized to incur expense for expert advice, to be paid for outside the appropriation for “clerk hire, printing and postage,” made by such resolve.


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To His Excellency John L. BATES, Governor.

SEPT. 18, 1903. – Your Excellency transmits to me a letter from Mr. Leslie C. Wead, under date of September 10, which I return herewith, referring to the provisions of chapter 86 of the Resolves of 1903, and inquiring whether the committee, of which he is one, appointed under that resolve, has authority to employ expert advice to be paid for outside of the one thousand dollar allowance for clerical assistance.

The resolve is as follows:

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Resolved, That the governor, with the advice and consent of the council, be authorized and requested to appoint, not later than the thirtieth day of June in the year nineteen hundred and three, a committee to consist of three or more suitable persons, one of whom he shall designate as chairman, to investigate and report upon the legislation needed to enable the general court, by special acts, subject to other provisions of the constitution, to authorize any city, town or state commission to take in fee, to purchase, or otherwise to acquire for public purposes and in connection with any given public work, all or any part of the land within certain defined limits, and after appropriating for such public work so much of the land so taken as is needed therefor to sell or lease the remainder. The committee may employ such assistance as may be necessary, shall give a hearing to all persons desiring to be heard upon the subject, and shall make a report of their doings, with such recommendations as they may deem proper, to the next general court. The committee may expend in the performance of its duties such sum for clerk hire, printing and postage, not exceeding one thousand dollars, as the governor and council may determine, to be paid out of the treasury of the Commonwealth. The powers of the committee shall terminate on the making of their report, and they shall annex to their report the draft of a bill in accordance with such recommendations, if any, as they

may make.

I am of the opinion that the true construction of the resolve does not permit such employment as is contemplated by the inquiry. No expenditure by the committee can be permitted except such as is expressly authorized by the terms of the act, or arises by necessary implication therefrom, and no expenditure can be authorized by implication unless such be necessary to insure the declared purpose of the act.

I do not think that under this rule of construction the expenditure would be authorized, for I am of the opinion that the Legislature contemplated the appointment upon the committee of gentlemen who had peculiar knowledge of the conditions and issues with which they were to deal, and intended to rely upon their judgment and opinion rather than upon advice of others which, for a compensation, they might secure; and Your Excellency has appointed gentlemen of such character, experience and sagacity as to make their opinions of the bighest value.

The use of the phrase “may employ such assistance as may be necessary” might possibly suggest an authority for the employment of some forms of necessary assistance; but that which is suggested by the inquiry of Mr. Wead does not appear to me to fall within the range of the assistance contemplated. I rather incline to the opinion that the phrase "may employ such assistance as may be necessary” is to be taken in connection with the later provision for


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