of two-thirds of the legal voters an act to supply it with water, "a vote of the majority of the members of each branch of the city council" is sufficient to authorize the issue of bonds. By this statute it is recognized that in cases not within this exception a vote "of two thirds of all the members of each branch of the city council" or "of two thirds of the voters present and voting at a town meeting", as the case may be, is necessary. Cf. St. 1876, c. 19.

Very truly yours,

JAMES M. SWIFT, Attorney-General.

Attorney-General-Duties - Limit of Time - Constitutional Law-Referendum - Matter of Local Self-government.

The Senate has no authority to fix a limit of time within which the Attorney-General is to perform his duties or any of them.

A provision in a proposed bill that "this act shall be submitted to the qualified voters of the Commonwealth at the next State election, in answer to the question, 'Shall a law enacted by the General Court of the year 1911 relative to the development of the Port of Boston and authorizing the expenditure of $9,000,000 for that purpose, be accepted' . . ." does not fall within the exception permitting a referendum in matters of local self-government, and would, therefore, be unconstitutional.

HENRY D. COOLIDGE, Esq., Clerk of the Senate.

JULY 13, 1911.

SIR: I have the honor to transmit herewith my opinion in response to the following order to the Honorable Senate, dated July 12, 1911:

Ordered, That the Attorney-General be requested to furnish to the Senate forthwith his opinion on the following question: Whether the following pending amendment of the Senate Bill relative to the development of the port of Boston (printed as Senate, No. 570), referring the measure by referendum to the voters of the Commonwealth, is constitutional, to wit: striking out section 19 and inserting in place thereof the following new section: "Section 19. This act shall be submitted to the qualified voters of the commonwealth at the next state election in answer to the question 'Shall a law enacted by the general court of the year nineteen hundred and eleven relative to the development of the port of Boston and authorizing the expenditure of nine million dollars for that purpose be accepted?' If a majority of the voters voting thereon vote in the affirmative, this act shall thereupon take effect; otherwise it shall be null and void."

YES.

NO.

The form of the order compels me to respectfully remind the Honorable Senate that it has no authority to fix the limit of time within which the Attorney-General shall perform his duties or any of them. Therefore, so much of the order as requires my opinion forthwith I respectfully disregard. My desire, however, to assist the Honorable Senate in the performance of its duties, as well as the deference I owe that honorable body, has caused me to give attention to the question submitted as early as I could consistently with the other duties of my office.

In my opinion the proposed referendum as set forth in said order is unconstitutional within the principles now well established in this Commonwealth, as stated in the Opinion of the Justices, 160 Mass. 586, and in the decisions and discussions in the following cases: Brodbine v. Revere, 182 Mass. 598; Graham v. Roberts, 200 Mass. 152; and Wyeth v. Cambridge Board of Health, 200 Mass. 474; and in the opinion of my learned predecessor, Attorney-General Malone, to the committee on the judiciary, under date of April 3, 1907 (Attorney-General's Report, 1907, p. 14). While the proposed legislation in some respects may be said to be a statute of local concern, it appears that the expenses are to be borne by the State at large, and the referendum is directed to the voters of the State at large. Said referendum, therefore, does not come within the exception permitting a referendum in matters of local self-government, within the meaning of said decisions.

Very truly yours,

JAMES M. SWIFT, Attorney-General.

Attorney-General — Opinion — Statement of Facts - Monopolies-Public Policy - Legislature.

The Attorney-General is not required to express an opinion upon any case or to take any other action relative thereto upon the request of a State officer, board or commission unless sufficient facts are stated to enable him to come to a definite conclusion in the premises. The determination of the attitude of the Commonwealth toward monopolies is primarily a function of the Legislature, and does not fall within the scope of the duties of the Attorney-General.

His Excellency EUGENE N. Foss, Governor.

JULY 14, 1911.

SIR:To your letter of July 3, 1911, I have been giving as careful and earnest consideration as the contents thereof permit. In it you make the following statements:

Complaints are current that the prosperity of the shoe industry in this Commonwealth has been seriously impaired and is further threatened by the existence of a monopoly in shoe machinery.

It is represented that practically all the shoe machinery in use in Massachusetts is owned by a single corporation which, though organized under the laws of another State, has its principal office here. It is practically impossible for any shoe manufacturer to buy his machinery or any part of it. He can secure it only upon lease and upon terms arbitrarily fixed by this corporation, which is said to be without competition in the manufacture of shoe machinery. The company has since the date of its organization, by various methods, acquired or destroyed the business of every competitor. It accordingly now has a complete and absolute monopoly of the entire field. . .

Complaints are rife that the corporation has used its power to the disadvantage of our local industry. It has enforced oppressive terms and has discriminated against localities, and in a measure has discriminated against manufacturers here in favor of those located in other States. There is a well-founded current belief that the arbitrary restrictions imposed by this monopoly are responsible for the depression of the industry of which our manufacturers are beginning seriously to complain.

I call your attention to the fact that within the year last past, when its monopoly was threatened by competition, this corporation acquired the machines, the manufacturing plants and the patents of a prominent, independent shoe machinery manufacturer. If this transaction could have been prevented it would have afforded distinct relief and protection against the present situation of absolute monopoly and autocratic control. It is of importance now to determine whether the current belief as to its invalidity is justified, and if so, what remedy may be applied.

You then proceed as follows:

Assuming the facts to be as outlined above, I respectfully request your opinion upon the following points:

1. Is the existing law sufficient to enable you, as the chief law officer of the Commonwealth, successfully to accomplish the destruction of this monopoly, or the relief in any measure of the shoe industry of the Commonwealth from the power of this corporation absolutely to control and dominate our shoe manufacturers?

2. Was the acquisition by this corporation of the shoe machinery, the manufacturing plants and the letters patent of an independent manufacturer in September, 1910, in violation of any existing law of the Commonwealth?

3. If, in your opinion, the existing law is insufficient to give relief, what other or further legislation is in your opinion necessary or expedient to curb or break the power of this alleged monopoly?

From a legal standpoint, and as a basis for an opinion that will be of any value whatever, I am unable to find in your letter anything that permits or enables me to come to any conclusion. It contains no statement of facts or evidence such as is necessary as a basis for legal consideration or action.

However, the deference that I owe to the office of the Chief Executive of this Commonwealth has led me to consider said letter in a broad and general way as a request from you for (1) a statement as to existing law, and (2) a statement as to the necessity or expediency of further legislation concerning the subject of manufacturing monopoly in this Commonwealth. So far as I am able I advise you, therefore, along the lines of these inquiries.

As to Existing Law. There are now upon the books three statutes which bear upon the subject of monopolies.1 These are R. L., c. 56, § 1; St. 1907, c. 469; and St. 1908, c. 454. There are also important common law principles, a consideration of which would be essential to any complete statement of the law of monopolies. Unless, however, it appears that no relief can be obtained under the statutes cited, it is unnecessary to consider whether relief could be obtained apart from these statutes.

R. L., c. 56, § 1, prohibits making "it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation or association," and imposes a penalty for the violation of the provisions of the section. There is no suggestion in your letter that these provisions have been violated by the corporation to which you refer.

St. 1907, c. 469, prohibits inserting in or making "it a condition or provision of any sale or lease of any tool, implement, appliance or machinery that the purchaser or lessee thereof shall not buy, lease or use machinery, tools, implements or appliances or material or merchandise of any person, firm, corporation or association other than such vendor, or lessor," and imposes a penalty for the violation of the provisions of the act.

If Your Excellency has any evidence or sources from which such evidence might be obtained of the violation of either of the foregoing statutes, I have to advise you that the same should be submitted to the district attorney for the district in which such violation was committed, since he has charge of the administration of the criminal law in that regard.

1 The effect of St. 1911, c. 503, is limited to procedure.

St. 1908, c. 454, is entitled "An Act relative to monopolies and discriminations in the sale of articles or commodities in common use." Its first and second sections are as follows:

SECTION 1. Every contract, agreement, arrangement or combination in violation of the common law in that thereby a monopoly in the manufacture, production or sale in this commonwealth of any article or commodity in common use is or may be created, established or maintained, or in that thereby competition in this state in the supply or price of any such article or commodity is or may be restrained or prevented, or in that thereby, for the purpose of creating, establishing or maintaining a monopoly within this state of the manufacture, production or sale of any such article or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restrained or prevented, is hereby declared to be against public policy, illegal and void.

SECTION 2. The attorney-general, or, by his direction, a district attorney, may bring an action in the name of the commonwealth against any person, trustee, director, manager, or other officer or agent of a corporation, or against a corporation, to restrain the doing in this commonwealth of any act herein forbidden or declared to be illegal, or any act in, toward or for the making or consummation of any contract, agreement, arrangement or combination herein prohibited, wherever the same may have been made. The superior court shall have jurisdiction to restrain and enjoin any act herein forbidden or declared to be illegal.

Obviously, this statute is of broad application. It is impossible for me, however, to advise you either as to the probable outcome of a proceeding brought thereunder against the corporation to which you refer, or as to the legality of the contract in question, without having a complete knowledge of the facts involved. I therefore respectfully suggest that you submit to me the facts and evidence upon which your conclusions are based, that I may institute proceedings under this statute if the facts. appear to justify such action. It is impossible for me to predicate any opinion or official action upon manifest hearsay or assumptions.

As to the Necessity or Expediency of Further Legislation. For the purpose of advising you as to the necessity or expediency of further legislation I have the same need of detailed information as to the facts as for the purpose of advising you as to the application of existing law. Furthermore, the determination of the Commonwealth's attitude toward monopoly is primarily