five of this chapter, and may make complaints and serve legal processes issued under the provisions of this chapter. They shall have the oversight of children placed on probation under the provisions of section seven. A truant officer may apprehend and take to school, without a warrant, any truant or absentee found wandering about in the streets or public places thereof. (See also R. L., c. 44, § 1, and St. 1909, c. 514, §§ 62-65).

From a consideration of the provisions of law above cited, and of the earlier statutes upon the same subject (see St. 1873, c. 262; St. 1874, c. 233, § 2; St. 1894, c. 498, § 20, and St. 1898, c. 496, §§ 33 and 36), it appears that a truant officer is authorized to serve legal process in all cases relating to truancy, to arrest truants under certain circumstances without a warrant, and to enter into factories, workshops or mercantile establishments for the purpose of obtaining information with relation to the employment of minors. This, in my opinion, constitutes a truant officer a public officer within the definition laid down in Attorney-General v. Drohan, 169 Mass. 534, which is as follows:

Without attempting an exhaustive definition of what constitutes a public office, we think that it is one whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power, whether great or small, and in whose proper performance all citizens, irrespective of party, are interested, either as members of the entire body politic, or of some duly established division of it.

At common law a woman could not perform the duties of a public officer. Thus, in Robinson's Case, 131 Mass. 376, at page 378, the court, after discussing several offices, concludes:

And we are not aware of any public office, the duties of which must be discharged by the incumbent in person, that a woman was adjudged to be competent to hold, without express authority of statute, except that of overseer of the poor, a local office of an administrative character, in no way connected with judicial proceedings. (Page 379.)

In that case it was held that a woman could not, without statutory authority, be examined for admission as an attorney and counsellor of the Supreme Judicial Court.

There are numerous opinions of the justices relative to the incumbency by women of positions and offices in the public service. Thus, in 107 Mass. 604, the justices held that a woman could not constitutionally hold the office of justice of the peace. In 115 Mass. 602, the justices, in reply to the question, "Under the Constitution of this Commonwealth can a woman be a member of the school committee?" limiting themselves to the effect of the Constitution upon the capacity of a woman to hold such office, and without interpreting existing statutes, held that the question should be answered in the affirmative. It is to be observed, however, that, as in the case of attorneys at law (see St. 1882, c. 139), a special act was passed authorizing women to act as members of a school committee. See St. 1874, c. 389. the justices declared that

In 150 Mass., at pages 586, 591,

The clause of the Constitution which provides for the appointment of notaries public, interpreted with reference to the history and nature of the office and the long-continued and constant practice of the government here and the usage elsewhere, cannot be considered as authorizing the Governor, by and with the advice and consent of the Council, to appoint women to be notaries public.

In 165 Mass. 599, the justices rendered an opinion that an act providing for the appointment of women to be notaries public would be unconstitutional. In an Opinion of the Justices in 136 Mass. 578, it was held that under St. 1879, c. 291, § 2, authorizing the Governor, with the advice and consent of the Council, to appoint nine persons as a State Board of Health, Lunacy and Charity, he might appoint a woman as a member of such board, but this opinion was based upon what the justices declared to be the established policy of the Legislature, evidenced by numerous statutes, that women might serve upon such boards. See St. 1868, c. 153, § 1; St. 1870, c. 370, § 10; St. 1873, c. 166; St. 1877, c. 195, § 1.

The principle upon which these opinions are based constrains me to hold that in the present case, although the Constitution would not prevent a woman from holding the office of truant

officer, such office is a public office requiring the exercise of governmental functions; and that unless expressly authorized by statute the incumbent should not be a woman. This view is confirmed by a consideration of the following cases in which special legislation for that purpose was enacted: Overseers of the Poor, St. 1886, c. 150; Commissioners of Deeds and similar duties, St. 1883, c. 252; Assistant Probation Officers in the Municipal Court of the City of Boston, St. 1897, c. 266. See, further, St. 1907, c. 261.

The following provisions, among others, authorizing the appointment of women to public offices, are found in the Revised Laws:

C. 165, § 4, which provides that the assistant clerk for the county of Hampden may be a woman.

C. 25, § 62, which provides that an assistant town clerk may be a woman.

C. 20, § 19, which provides that in counties in which there is no assistant clerk of courts the county commissioners may appoint a clerk pro tempore, who may be a woman.

C. 76, § 24, which provides that there shall be a board of registration in dentistry, consisting of five persons, male or female.

C. 222, § 1, which provides that there shall be a board of prison commissioners, consisting of five persons, two of whom shall be women.

C. 22, § 8, which provides that registers of deeds may, subject to the approval of the Superior Court, appoint an assistant register of deeds, who may be a woman.

C. 164, § 17, which provides that the assistant registers of probate in the counties of Bristol, Hampden and Hampshire may be women.

C. 108, § 1, which provides that the inspection department of the district police shall consist of the chief of said force, thirty-three male and two female members.

I am therefore of opinion that, under existing statutes, a woman may not be appointed to or exercise the duties of the office of truant officer.

To the

State Board of Health. 1911 October 3.

Under the provisions of R. L., c. 75, §§ 112 and 113, as amended by St. 1907, c. 467, vesting in the State Board of Health the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution. . . as sources of water supply," and providing that it may regulate and control the exercise of the public rights of boating, fishing, skating or taking ice, and may delegate the power of granting or withholding permits to the local authorities, "and upon complaint of any person interested ... shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health," a city or town may prohibit the public right of boating or fishing upon a great pond used as a source of water supply only in cases where such prohibition is necessarily involved in the use of such great pond as a source of water supply, and where complaint is made with respect to the granting or withholding of a permit by the local authorities, if such board considers that the issuance of the permit so withheld would not endanger the purity of the source of water supply, it may make such order in the premises as it deems necessary for the protection of the public health, and may doubtless require the issuance of the permit.

In a letter dated September 30 you state that by vote of the State Board of Health you were authorized to submit certain questions for my determination. These questions are as follows:

Query 1. Can any town or city absolutely prevent fishing and boating upon a natural great pond, even though the town or city claims to own in fee the surrounding property of the great pond which has been taken for a water supply?

Query 2. Can the State Board of Health issue a permit to boat and fish on a great pond, when the properly delegated authorities of a town or city refuse to issue a permit to fish and boat to an individual on a great pond which has been taken for a water supply by a town or city?

The facts upon which your questions arise appear to be as follows: in 1909, the town of Concord, acting under authority of St. 1884, c. 201, § 2, took the water from a certain pond, which I assume to be a great pond, for the purposes of water supply, and thereafter petitioned the State Board of Health to make rules and regulations to prevent the pollution and to se

cure the sanitary protection of the waters of such pond, under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, § 1, which provides that

Said board may cause examinations of such waters to be made to ascertain their purity or fitness for domestic use or their liability to impair the interests of the public or of persons lawfully using them or to imperil the public health. It may make rules and regulations to prevent the pollution and to secure the sanitary protection, of all such waters as are used as sources of water supply. Said board may delegate the granting and withholding of any permit required by such rules or regulations to state boards and commissions and to selectmen in towns and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such selectmen, boards and commissions, subject to such recommendation and direction as shall be given from time to time by the state board of health; and upon complaint of any person interested said board shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health.

On April 7, 1910, the State Board of Health duly made certain rules and regulations, containing, among others, the regulation that

No person shall bathe in, and no person shall, unless permitted by a written permit of the board of water and sewer commissioners of the town of Concord, fish in, or send, drive or put any animal into, Nagog Pond, so called. . . . No person other than a member, officer, agent or employee of said board of water and sewer commissioners, or public officer whose duty may so require, shall, unless so permitted by a written. permit of said board, enter or go, in any boat, skiff, raft or other contrivance, in or upon the water of said Nagog Pond, nor shall enter or go upon, or drive any animal upon, the ice of said pond.

Acting under this authority the board of water and sewer commissioners of the town of Concord have refused to permit boating and fishing thereon, and one of the persons so refused has petitioned the board to act, under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, § 1, providing that upon complaint of any person interested the State Board of Health "shall investigate the granting or withholding of any