the Attorney-General while there is an adequate remedy in the hands of the local authorities, nor unless the invasion of the public right is of a substantial character and is clearly established and there is no other adequate and sufficient remedy. In this case there are other remedies besides that in the hands of the local authorities, by indictment, or action for trespass, or perhaps under Pub. Sts., c. 186, § 17, though doubtless none of these are so efficient as a proceeding by the Attorney-General if maintainable. If all these rules should not be strictly applied to this case, they at least make it uncertain whether, in the present position of the matter and in view of the attitude of the board of aldermen, any proceeding in court can be maintained or will even enable the court to reach and determine the question of the validity of the permits or any other important question. If the local authorities appeared to be wilfully disregarding the public interests, or consenting to a serious violation of the public right which clearly ought not to be permitted, the court would doubtless be more willing to interfere, but the circumstances do not appear to present such a case. It is contended by a competing company that the Brookline company can lawfully enter those parts of the city covered by the contract only under St. 1885, c. 314, § 10, after a public hearing before the board of aldermen, with a right of appeal to your Board on the part of any other company aggrieved by the decision; and that I ought to interfere, as otherwise competing companies will be deprived of this right. It may be possible to so construe this section, but you evidently do not so construe it, as your report is not put upon this ground, and it clearly is not necessary; and a construction is not to be favored which requires the intervention of the law officer of the Commonwealth solely or principally for the protection of the private interests of a business corporation. LEGACY TAX ACT. The Treasurer of the Commonwealth has no power to determine nor duty to advise in advance upon the question whether a particular legacy is subject to a legacy tax, or as to the amount of a tax, or when it becomes payable, or any other similar question. Treasurer. 1893 June 19. It is clear that under the legacy tax act (St. 1891, c. 425), To the the Treasurer of the Commonwealth has neither the power to determine nor the duty to advise in advance in any case as to whether a particular legacy is taxable, or for how much it is taxable, or when the tax shall be paid, or any other such question. The statute makes it the duty of executors, administrators and trustees to ascertain, or cause to be ascertained, the amount of all taxes due the Commonwealth, and to pay them within a prescribed period, and makes it the duty of the court to find that all such taxes have been paid before allowing settlement of the accounts. The probate court is the only place in which such questions can be determined, and is undoubtedly the only place in which the Legislature intended to have them determined. There is no reason to believe that the Legislature intended to cast this duty or any part of it upon the Treasurer of the Commonwealth, and much less upon the county treasurers, to whom in any case the tax may be paid. I think it is clearly the duty of the several probate courts to take care of the interests of the Commonwealth in respect of this tax, in the settlement of the accounts of executors, administrators and trustees, as it is their duty to take care of the interests of all parties concerned, whether represented before the court by council or not; and I presume there is no doubt or difference of opinion upon this among the judges of probate. The provisions of the statute which require notice to the Treasurer of all taxable cases, by a copy of the inventory or otherwise, and which give him power to proceed for administration, to have a special appraisal made in certain cases, and other like provisions, are intended to give and do give him a sufficient standing in court to work out the rights of the Commonwealth in all cases; but they neither authorize nor require him to deal with these cases out of court. I think, therefore, that you are warranted in saying, and to avoid difficulty will be obliged to say, in substance, in reply to all such inquiries, that you cannot undertake to answer or advise upon them, but that you claim in each case the maximum amount which may be due the Commonwealth under any construction of the statute; and that executors, administrators and trustees must proceed upon this assumption, and must deduct and pay such amount unless and until the court determines otherwise. To the June 26. FIREARMS. Muskets or rifles are "firearms "in the sense of St. 1893, c. 367, § 124, though defective or disabled for firing. I have your request for my opinion whether under St. 1893, c. 367, § 124, a percussion muzzle-loading Springfield or other musket or rifle, the nipple of which is removed or plugged, or a breech-loading rifle of any pattern, of which the firing mechanism is removed, is to be considered a firearm in the sense of that section. Nobody would In my opinion there can be but one answer to this question. It is plain that a firearm is none the less a firearm because it may be temporarily disabled for effective use. doubt or dispute that in the common understanding such arms as you describe are firearms, notwithstanding their temporary defects. It is clear also that the reasons of the legislation. against the organization or parade of unauthorized bodies with firearms are not met or avoided by the circumstances stated in your inquiry. Such firearms as you describe must, therefore, be taken to be within both the language and the intent of the statute. To the Governor and 1893 June 26. A sum of money appropriated to Joseph Tilton may be paid to Josiah H. Tilton if he is in fact the person for whom the appropriation is intended, and is identified as such by the description of him in the resolve. I have your request for my opinion whether under Res. 1893, c. 36, the payment therein directed to be made to Joseph Tilton can lawfully be made to Josiah H. Tilton, for whom it was in fact intended. I understand that Josiah H. Tilton is in fact the only survivor of the men who attempted to rescue the crew of the "Aquatic;" that the name Joseph Tilton was inserted in the resolve with the intent to describe the sole survivor, and in the belief that his name was Joseph Tilton; and that there is in fact no such person as Joseph Tilton having any connection with the matter. Under these circumstances I think the recipient of the payment is sufficiently identified by being described in the resolve as the survivor of the men who attempted the rescue; and that, in view of this and the other facts, the mistake in the name may be disregarded, and the payment made to Josiah H. Tilton. A private freight railroad track owned and operated by a copartnership is not a railroad within the meaning of St. 1888, c. 365, so as to authorize payment by the Commonwealth of a stenographer's bill for taking evidence at an inquest on a death by accident on such road. 1893 June 27. In reply to your inquiry arising under St. 1888, c. 365, Tother. I have to say that in my opinion this statute cannot be construed to require payment by the Commonwealth of a bill for reporting the evidence at an inquest upon the death of an employee killed by accident upon a private freight railroad track owned and operated by a copartnership. Very likely the Legislature would have included such cases if they had been thought of; but the purpose of the statute evidently is to put these bills upon the same footing as the expenses of the Board of Railroad Commissioners, and to require payment of them by the Commonwealth only so far as they can be assessed upon and collected of the railroad corporations. No part of the expenses of the commissioners has ever been assessed upon or collected of the individual owners of private freight railroad tracks, and under the existing statutes I do not think they can be; and the case appears to be the same as to these bills incurred under the act of 1888. To the Secretary. 1893 September 6. CAUCUSES. Caucuses for the nomination of town officers and delegates to conventions how called. I reply as below to your inquiries under date of August 29 as to the holding of caucuses: First. In any town in which ballots for town officers are provided at the expense of the town, under St. 1893, c. 417, § 293, a caucus for the nomination of any town officers who are required to be elected by ballot must be called and held under the provisions of §§ 71-74; but a caucus for the nomination of any officer not required to be elected by ballot need not be so called and held. In any town in which ballots for town officers are not provided at the expense of the town, as above, a caucus for the nomination of any town officer need not be so called and held. Second. A caucus for nominating delegates to a convention cannot be called and held otherwise than under and according to the provisions of §§ 71-74. The prohibition at the end of § 71 appears to be general, and to apply to the selection of all delegates to all conventions. OBSTRUCTION OF STREETS, HIGHWAYS, ELECTRIC WIRES, SURVEYORS OF To the Gas and 1893 September 6. It was not the intention of the Legislature that the Attorney-General should go into court against the unauthorized erection of electric lighting wires in violation of St. 1887, c. 382, § 3, as amended by St. 1892, c. 274, under any and all circumstances, in any part of the Commonwealth, but that, as a rule, he should act in such cases only under circumstances involving a substantial violation of the public right and interest which the local authorities are unable or unwilling to prevent. So far as I can judge from the statement of facts accompanying your report of a violation, by Alonzo W. Perry of Boston, of St. 1887, c. 382, § 3, as amended by St. 1892, c. 274, the case is such as to come within the intimation given you in my communication of June 16, 1893, that as a rule the AttorneyGeneral ought not to be required to go into court solely or principally for the prevention of business competition; and it may also be a case in which it is within the power of the local * See p. 84, ante. |