sense of the law and in view of the distinction thereby established." 1 Op. Atty.-Gen. 72, 73. The line of distinction between offices and employments is clearly not the same as that between positions in the official service and in the labor service, under civil service rules. Many positions in the official service are not offices within the meaning of the word as used in section 9 of chapter 19 of the Revised Laws. In my view of the law I am sustained by an opinion of my predecessor, from which I have quoted above, in which he stated that in his opinion a clerk to the board of overseers of the poor of the city of Lawrence, holding a position which called merely for clerical service and assistance to the chief clerk, was not an "elective officer" within the meaning of the civil service law as it then stood. St. 1884, c. 320, § 15. The principles which I have stated are equally applicable to the position of night janitor of the city hall of Salem. The ordinary duties of a night janitor are not such as to constitute him an "officer", within the meaning of section 9 of chapter 19 of the Revised Laws. CONSTITUTIONAL LAW - PUBLIC FUNDS APPROPRIATION > PUBLIC PURPOSE MONEY NOT DIRECTLY RAISED BY To the Senate April 14. Since the relief of persons who have suffered loss by fire, or by other great and general calamity, is not a public purpose which will justify the expenditure of public funds, an appropriation of public money for such purpose is unconstitutional, and it is immaterial that the money sought to be so appropriated was not directly raised by taxation, but was received from the sale and rental of lands belonging to the Commonwealth. I have the honor to acknowledge the receipt of a communication from the Senate committee on rules, requesting my opinion as to the constitutionality of the enclosed bill accompanying the petition of William M. Robinson for legislation for the relief of the sufferers by the recent fire in Chelsea." The bill submitted with such communication is in the form of a resolve, and is as follows: Resolved, That there may be expended for the relief of sufferers from the recent fire in the city of Chelsea a sum not exceeding one hundred thousand dollars, the same to be taken from the Commonwealth's flats improvement fund, created by chapter two hundred and thirty-seven of the acts of the year eighteen hundred and seventy-eight, and to be expended under the direction of the governor. It has long been established in this Commonwealth that money raised by taxation may be expended only for a public purpose. Lowell v. Oliver, 8 Allen, 247, 253; Mead v. Acton, 139 Mass. 341, 344; Kingman et al., Petitioners, 153 Mass. 566; Opinion of the Justices, 155 Mass. 598, 601; Opinion of the Justices, 186 Mass. 603, 605; Opinion of the Justices, 190 Mass. 611, 613. And it is equally well settled that the relief of persons who have suffered loss by fire or by other great and general calamity is not in a legal sense a public purpose. So, in the case of Lowell v. Boston, 111 Mass. 454, at page 472, in considering the constitutionality of St. 1872, c. 364, an act authorizing the city of Boston to issue bonds and lend the proceeds on mortgage to the owners of land, the buildings upon which were burned by the great fire of 1872, the court, through Mr. Justice Wells, said: As a judicial question the case is not changed by the magnitude of the calamity which has created the emergency, nor by the greatness of the emergency or the extent and importance of the interests to be promoted. These are considerations affecting only the propriety and expediency of the expenditure as a legislative question. If the expenditure is, in its nature, such as will justify taxation under any state of circumstances, it belongs to the Legislature exclusively to determine whether it shall be authorized in the particular case; and however slight the emergency, or limited or unimportant the interests to be promoted thereby, the court has no authority to revise the legislative action. On the other hand, if its nature is such as not to justify taxation in any and all cases in which the Legislature might see fit to give authority therefor, no stress of circumstances affecting the expediency, importance or general desirableness of the measure, and no concurrence of legislative and municipal action, or preponderance of popular favor in any particular case, will supply the element necessary to bring it within the scope of legislative power. The proposed resolve does not, upon its face, disclose or indicate an expenditure of the sum appropriated thereby for any exclusively public purpose, and I conceive, therefore, that the precise inquiry upon which your committee seeks my opinion is the question whether or not the fact that the proposed appropriation is to be made from a specific fund created from moneys received from the sale or use of the Commonwealth's lands (see St. 1878, c. 237) is sufficient to distinguish the present case in principle from those already cited, so as to permit an appropriation of public moneys for purposes not strictly public. Upon this question I am constrained to advise your committee that in my opinion it is immaterial that the proposed resolve contemplates an expenditure of money which was not raised directly by taxation, but which was received from the sale and rental of lands belonging to the Commonwealth. It must, I think, be obvious that money so received is an asset of the Commonwealth and is public money available for public purposes, and that its employment for other than public purposes must necessarily require sums to replace it which can be raised only by taxation. Upon this point my opinion is confirmed by the language of the highest court of the Commonwealth in considering St. 1904, c. 458, an act which provided for the payment of bounties to certain veterans of the civil war (Opinion of the Justices, 186 Mass. 603, 605), which was as follows: Section 6 authorizes an issue of bonds of the Commonwealth to provide for the payments to be made under the act, and authorizes an appropriation of money to pay the bonds, out of the sums that shall be received from the United States government for expenses incurred by the Commonwealth in connection with the civil war. Under St. 1903, c. 471, these sums are to be paid into the treasury of the Commonwealth for the reduction of the public debt, and the effect of the statute before us is to take from the treasury, for the payment of these bounties, money which ultimately can be replaced only by taxation. We are therefore brought to the question whether it is in the power of the Legislature to tax the people of the Commonwealth to provide money for this purpose. Moreover, the question seems also to have been decided in Lowell v. Boston, above cited, where, on page 461, the court say: The incidental advantage to the public or to the State, which results from the promotion of private interests and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. Since the resolve under consideration provides for the expenditure of money from the public treasury for purposes not necessarily public, which can be ultimately replaced only by taxation, I am unable to distinguish between the present case and those cases which have been discussed; and I must, therefore, advise the honorable Senate committee on rules that in my opinion the resolve as submitted to me is not in conformity with the Constitution of the Commonwealth. CORPORATION FOREIGN CORPORATION LAWS OF DISTRICT St. 1903, c. 437, § 56, which defines a foreign corporation to be any corporation organized "under laws other than those of the commonwealth for the purposes for which domestic corporations may be organized under the provisions of section seven" of such chapter, extends to and includes a corporation chartered under the general laws of the District of Columbia. You request my opinion upon the following question: To the Commissioner of Corporations. 1908 Is the fact that a corporation is organized under the general laws of the District of Columbia a reason sufficient to excuse said corporation from April 28. filing its annual certificate of condition and paying the excise tax as required of foreign corporations by chapter 437 of the Acts of 1903? I am of opinion that your question should be answered in the negative. A corporation chartered by Congress legislating directly for the District of Columbia is a foreign corporation within the meaning of St. 1903, c. 437, § 56, which defines the term "foreign corporation" as including every corporation chartered "under laws other than those of the commonwealth for purposes for which domestic corporations may be organized under the provisions of section seven." See Daly v. National Life Insurance Co., 64 Ind. 1; Layden v. Knights of Pythias, 128 N. C. 546. The regulation of such a corporation is not an interference with interstate commerce, nor is it an interference with the carrying on of governmental functions. To the Civil Service CIVIL SERVICE COMMISSION-CERTIFICATION OF PAY ROLLS Members of the police force of the city of Boston are not persons “in the service or employment of the city of Boston," within the meaning of St. 1908, c. 210, providing in substance that the Civil Service Commission shall certify all pay rolls, bills and accounts for salary or compensation of persons in the service or employment of such city. You ask my opinion as to whether the Police Commissioner and members of the police force of the city of Boston are persons "in the service or employment of the city of Boston," within the meaning of chapter 210 of the Acts of 1908, in substance providing for the certification by the Civil Service Commission of all pay rolls, bills and accounts for salary of persons in the service of the city of Boston. I am of opinion that they are not. St. 1906, c. 291, § 8, provides that: All expenses for the maintenance of buildings, the pay of the police, clerks, stenographers and other employees, and all incidental expenses incurred in the performance of the duties of said commissioner or in the administration of said police, shall be paid by the city of Boston upon the requisition of said police commissioner. The Legislature has established a special public officer, appointed by the Governor, independent of any control or direction on the part of the city of Boston, as the head of the police department of such city. The city has no control over him or the police officers. That statute requires the payment of the bills upon the requisition of the Police Commissioner. Under these circumstances, I am of opinion that chapter 210 of the Acts of 1908 does not apply. See Mahoney v. Boston, 171 Mass. 427. |