under its present authority, may add to the business of fire insurance the business of marine insurance in this Commonwealth.

The jurisdiction of the Commissioners of State Aid as a board of appeal is limited to "invalid pensioners " under St. 1889, c. 301, § 7, but under §§ 7 and 8 they may inquire into all questions on which legality of any payment of State aid may depend. Whether a woman whose husband has not been heard from for many years is "widowed" in the sense of the statute is a question of fact which the commissioners may determine on evidence.

Auditor. 1892

I have your request for my opinion upon the question now To the before the Commissioners of State Aid, upon appeal from an adverse decision of the municipal authorities of Salem, whether April 14. the mother of a deceased soldier, whose husband, the father of the soldier, went to California about forty years ago and has never been heard from since that time or about that time and is supposed to be dead, can be regarded as a "widowed mother" in the sense of St. 1889, c. 301, § 1, so as to be entitled to aid thereunder.

I am of opinion that the commissioners have no jurisdiction of the appeal, and that for this reason the question is not at present before them for determination. By § 7 of the act the powers of the commissioners as a board of appeal seem to be limited to the case of "invalid pensioners," who under the act are a class by themselves, to which class the present applicant does not belong.

But under §§ 7 and 8 the commissioners have power to investigate all payments of State aid to claimants of any class, as preliminary to their allowance by the Auditor; and if the authorities of Salem should see fit to allow and pay the aid in this case, it would then be within the power of the commissioners, upon the certificate of such payment, to inquire into its legality, and to determine any question upon which its legality may depend, including the question whether the applicant is a "widowed mother," in the sense of the act. This is a question of fact, to be determined upon such evidence as may be had; and

in determining it various circumstances are material to be con-
sidered, such as the circumstances under which the husband
disappeared or was last heard of, the distance and facilities of
communication with the place where he was last known to be,
his age and state of health, the length of time since he was last
heard from, and any other material circumstances. The oath of
the applicant, or the absence of such oath, is not conclusive
proof either that the man is or is not dead.
The board may
also consider the legal presumption that a man is dead if absent
and unheard of by his nearest friends or relatives for more than
seven years. And if upon all the evidence they are reasonably
satisfied that the missing man is in fact dead, they are at liberty
to regard the applicant as a "widowed mother," in the sense of
the statute, and to allow the payment.

To the Governor. 1892

May 3.

An act authorizing the reimbursement by the Commonwealth of the expenses incurred by certain towns in the maintenance of insane paupers is constitutional.

I acknowledge the receipt of your request for my opinion upon the constitutionality and other features of House Bill No. 334, entitled "An Act authorizing the reimbursement of expenses incurred by certain towns in the maintenance of the insane." * I regret that I am obliged to answer it in the midst of a capital trial, which necessarily engrosses my time, but upon such examination as I am able to make I see no reason to seriously doubt the constitutionality of the bill.

As to the other questions raised, it is clear that, under the bill, the Governor and Council must determine whether a town is entitled to reimbursement; in order to which they must first find that the taxable valuation of the town is less than $500,000, and that the town is lawfully charged with the maintenance of the person in question, by reason of his having a legal settlement in the town. As the bill stands, the Governor

* Enacted as St. 1892, c. 243.

and Council must also determine whether the reimbursement shall be in whole or in part. The act contemplates the reimbursement without any further legislation, and it provides no other tribunal for determining this question. In this particular, and also upon the question of what discretion, if any, is vested in the Governor and Council as to ordering the reimbursement in any case, the bill might be made clearer by amendment. As it stands it must, I think, be construed as I have stated above.

The expenses of the Rapid Transit Commission established under St. 1891, c. 365, reasonably incidental to the completion of its final report, may be allowed even though incurred after the time prescribed for the filing of such report by Res. 1891, c. 107. But no other expenses incurred after such time can be allowed.

Auditor.

I have your request for my opinion upon the question To the whether you can allow for payment any expenses of the Rapid 1892 Transit Commission, established by St. 1891, c. 365, incurred May 11. after the first Wednesday in April, 1892, the date to which the time for the final report of the commission was extended by Res. 1891, c. 107.

The act and resolve need not be construed as absolutely putting an end to all authority of the commission on the first Wednesday in April, 1892. If the commission had been for any reason unable to complete and present its final report within that time, there would be, I presume, no doubt of its duty or authority to complete and present it as soon thereafter as might be, and the Legislature would undoubtedly have received it when so completed and presented. In that case, the expenses of the commission might reasonably be allowed and paid, to the completion and presentation of its report. On the other hand, the act and resolve are not to be construed to continue the commission in office, with authority to incur expenses, for an indefinite time. The general rule is, that when a board is charged with a single specific duty, its official character and functions end with the performance of the duty. This rule may properly be

applied to the present case. I understand that the official report of the commission was completed and presented within the prescribed time, but that an additional or supplemental report of the engineer has been completed and presented within the past few days, and since the first Wednesday in April. I am not informed whether this supplemental report can be considered as part of the report of the commission, or as necessarily incidental to the completeness or completion of that report. If, as incidental to the completion and presentation of the final report of the commission within the prescribed time, or even beyond that time, the commission has necessarily or reasonably incurred expenses since the first Wednesday of April, such expenses may, in my opinion, be certified for payment; but only such as are reasonably necessary to the completion and presentation of the final report of the commission within the limited time or as soon thereafter as possible. Beyond this

limit the commission has, in my opinion, no authority to incur expenses to be charged upon the treasury.

To the
Treasurer.
1892
May 11.

Under St. 1891, c. 425, the Treasurer of the Commonwealth has no legal authority to consent to the omission by an executor to file an inventory of the entire estate.

I have your request to be advised whether you have legal authority to consent in advance to the omission by an executor to file an inventory of an entire estate of which a part is taxable under St. 1891, c. 425. I advised you, under date of February 18, 1892, that the law requires an inventory of the entire estate to be filed. The statute gives the Treasurer no express power or discretion to dispense with this requirement; on the contrary, it expressly requires him to prosecute for the penalty upon neglect or refusal to comply with it. In my opinion you have no legal authority to dispense with it, and your consent to the omission, or even a promise of immunity for it, would be of no legal effect to bind your successors, or to bar a prosecution for the penalty.

Whether the Commonwealth should assert or defend its title or that of its grantees in the Province lands in Provincetown is a question of legislative policy, and until further action by the Legislature the State agent has no duty to assert or defend such titles.

the

1892

I acknowledge the receipt of the order in council of April 27, Tovernor and referring to me the communication of David Ryder, agent of Council. the Province lands, in Provincetown, and requesting that I May 12. advise with him as to his duty.

The duties of the agent are prescribed by St. 1869, c. 218, but these are so plain that they cannot be misunderstood; and I presume that what Mr. Ryder wishes to know is whether he has any duty in respect of the title of the Commonwealth, or its grantees, in the Province lands, or in relation to the defence of such title when drawn in question. In my opinion he has no such duty. The writ of entry to which he refers has been tried and disposed of, if I am correctly informed, and it is now too late to intervene in that case, if there were any occasion to intervene. I am informed also that the tenant in that action does not intend to prosecute his exceptions; and I know of no reason to suppose that the Commonwealth has any right to take the defence of the action out of his hands, or to interfere with his conduct of it.

The Province lands in Provincetown have been the subject of legislation from the earliest times. The title to them is understood to be still in the Commonwealth, and they are expressly excepted from Pub. Sts., c. 196, § 11, relating to the limitation of real actions by or against the Commonwealth. See also Gen. Sts., c. 154, § 12; St. 1854, c. 261; St. 1838, c. 151; Provincial Sts. 1714, c. 7, § 2; Provincial Sts. 1727, c. 11; Provincial Sts. 1779, c. 18; Provincial Sts. 1740, c. 15; Acts and Resolves, Massachusetts, Provincial, vol. 3, pp. 219, 220; St. 1786, c. 12; St. 1806, c. 21; St. 1807, c. 79; St. 1811, c. 92; St. 1826, c. 80; St. 1833, c. 143; St. 1835, c. 125; St. 1838, c. 151; St. 1853, c. 306; St. 1864, c. 77. The question what, if anything, should be done toward