and assessing damages therefor, superintending the administration and distribution of the estates of insolvent debtors, and many others which might be named, the exercise and control of which may be vested by the Legislature at its discretion, unless restrained by specific constitutional provisions, either in judges appointed by the Governor and holding during good behavior, or in commissioners or other officers appointed or elected in such manner and holding for such terms as the Legislature may prescribe. (New London Northern R.R. v. Boston & Albany R.R., 102 Mass. 386, 387.)

As the whole subject of the crossing of highways by railroads can from time to time be regulated by the Legislature, the Legislature can, even after a final decree has been rendered, make other provisions, and require the crossings to be constructed in a manner different from that established by the decree. The Legislature can amend the statutes under which this proceeding has been commenced, and if the amended act is made applicable to the pending proceeding and is valid, the court in rendering a final decree must proceed in accordance with the statutes as amended. (In re Northampton, 158 Mass. 299, 302.)

If it is to be treated as special legislation prescribing new rules and additional provisions for making a public improvement in substitution for those under which the court and commissioners have been acting, it was within the power of the Legislature to enact it. (Providence Steamboat Co. v. Fall River, 183 Mass. 535, 540.)

Thus the Legislature has full jurisdiction of grade crossing matters, except that it may not direct what order or finding shall be made by the court or a commission. But the Legislature may make an order or finding which the court or a commission could have made in a matter pending, and may direct the court to proceed as though the court or commission had made the order or finding. This is a fine distinction, as was pointed out in the dissenting opinions in the above quoted cases. Nevertheless, it is apparently law.

A statute setting the time for the report of the commission may be construed as an amendment to, or as a substitute for part of, section 36 of Part I. of chapter 463 of the Acts of 1906, and as such may be supported under the principles laid down in the above quoted cases.

It is therefore my opinion that the resolve in question would be constitutional.

Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

No liability attaches to a city or town for damages caused by defects or negligence in or around public school property while said property is used strictly for municipal purposes.

Committee on Education.

APRIL 6, 1914.

GENTLEMEN: You have requested my opinion on the legality, advisability and value of adding to section 1 of House Bill No. 803 the following clause: "such use shall not be construed to impose any additional liability on the city or town," so that this section would read:

For the purpose of promoting the usefulness of the public school property the school committee of any city or town may conduct such educational and recreation activities in or upon school property under its control, and shall allow the use thereof by individuals and associations, subject to such regulations as the school committee shall establish, for such educational, recreation, social, civic, philanthropic and similar purposes as the committee may deem to be for the interest of the community, provided that such use shall not interfere or be inconsistent with the use of the premises for school purposes. Such use shall not be construed to impose any additional liability on the city or town.

A city or town is not answerable in damages for the acts or neglect of its public officers in the discharge of their official functions, nor for injuries to individuals caused by defects or negligence in or around a schoolhouse or yard, because the maintenance of schools is a public function. 28 Cyc. 1308.

In a case where the plaintiff fell and was seriously injured by reason of an unsafe staircase in a schoolhouse, the defendant was held not liable, for the reason last stated. Hill v. Boston, 122 Mass. 344.

Similar decisions are to be found in Sullivan v. Boston, 126 Mass. 540, and Bigelow v. Randolph, 14 Gray, 541.

But where a city or town lets for hire a building erected for municipal purposes, it is liable for an injury caused by a defect or want of repair in the building, or for the negligence of its agents or servants in the maintenance of the building. 28 Cyc. 1308.

So in the case of Little v. Holyoke, 177 Mass. 114, the city was held liable in an action for personal injuries caused by the plaintiff falling down a flight of stairs in a hall of the de

fendant city. The city occasionally let the hall for public gatherings, and on the evening in question the hall was let for the purposes of an entertainment to be given by the lessee.

Of similar import is the case of Worden v. New Bedford, 131 Mass. 23.

The proposed legislation apparently contemplates the letting of public school property for hire, subject to such regulations as the school committee shall establish, for such educational, recreation, social, civic, philanthropic and similar purposes as the committee may deem to be for the interest of the community; and the question arises, can a city or town acting under the provisions of this act be exempted from liability for an injury caused by a defect or want of repair in the building or other property let, or by act or neglect of its servants and agents? To state the question another way, can the Legislature exempt cities and towns from liability for injuries incurred during the use of school buildings for some purposes?

The Constitution of Massachusetts guarantees a certain remedy for all injuries or wrongs. Declaration of Rights, Art. XI. Statutes in conflict with this article necessarily are void. Hunt v. Lucas, 99 Mass. 404.

No question of vested rights is involved. We have not here the question as to whether vested rights of action may be interfered with, but rather, whether rights of action may be prevented from accruing. Article XI. of the Constitution, above cited, is merely an assertion of the old common-law rule that for every wrong there must be a remedy. As I have already stated, one of the exceptions to this rule is that a municipality is not liable for injuries caused by a municipal use of municipal property. For the Legislature to exempt municipalities further would be in conflict with Article XI. of the Declaration of Rights. To exempt municipalities and not exempt private concerns doing the same business of renting halls would be an unconstitutional discrimination.

Is the contemplated use strictly a municipal use? If so, exemption from liability by statute is unnecessary. If not

a municipal use, exemption is impossible.

It is respectfully suggested that the bill be so phrased as to make it clearly appear that the use of school property permitted by it shall be municipal. The addition of the proposed clause may tend to support this construction.

Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

Labor Construction of Public Works.

Under St. 1909, c. 514, § 21, the phrase "construction of public works" refers to actual building operations and not to the work of preparing material.

ROBERT N. TURNER, Esq., Commissioner of Labor.

APRIL 8, 1914.

DEAR SIR: You have requested my opinion on the following question:

A general contractor, engaged in the construction of a public building for one of the cities of the Commonwealth, has made a contract for the special preparation of a portion of the material to be used in the construction of the said building with a subcontractor from outside the Commonwealth, who was the lowest bidder. The work on the said material in adapting it for use in the building is being done outside the Commonwealth, and by persons not citizens of Massachusetts. The general contractor knew at the time the contract was made that the work was to be done in this way and by such persons. Moreover, the contract with the subcontractor contains no provision that in the employment of mechanics or laborers preference shall be given to citizens of Massachusetts or citizens of the United States.

Will you kindly advise whether or not in your opinion the above facts constitute a violation of the Acts of 1909, chapter 514, section 21?

Section 21 of chapter 514 of the Acts of 1909 reads as follows:

In the employment of mechanics and laborers in the construction of public works by the commonwealth, or by a county, city or town, or by persons contracting therewith, preference shall be given to citizens of the commonwealth, and, if they cannot be obtained in sufficient numbers, then to citizens of the United States; and every contract for such works shall contain a provision to this effect. Any contractor who knowingly and wilfully violates the provisions of this section shall be punished by a fine of not more than one hundred dollars for each offence.

The question hinges on the meaning of the words "construction of public works." This phrase was interpreted by Attorney-General Dana Malone, in 1906, to include only the actual building operations. III. Op. Atty.-Gen. 9. The literal meaning of the word "construction" is "putting together."

An early precedent is found in 1 Kings VI., VII., in which it is stated that King Solomon's Temple "was built of stone made ready at the quarry; and there was neither hammer nor

axe nor any tool of iron heard in the house, while it was in building."

Your very letter of inquiry refers to the contractor as engaged in the construction of the building, and to the subcontractor as engaged in the preparation of material to be used in the construction.

I am of opinion that the words "construction of public works" were used by the Legislature with the intention that they be narrowly construed, and that the facts as stated in your letter do not constitute a violation of the statute.

Traveling expenses incurred on strictly official business, but no other expenses, may be allowed the Commissioners on Fisheries and Game.

Hon. FRANK H. POPE, Auditor of the Commonwealth.

APRIL 9, 1914.

DEAR SIR: In your letter requesting an opinion from this department as to whether certain bills for expenses presented for allowance by members of the Commission on Fisheries and Game should be allowed, you state that “in the case of one of the members making regular trips from his home by way of Highland station to Boston he seeks to charge the State for fares between his home and his Boston office, where he transacts private business, on the days on which he performs any business for the State;" that "another contention of the Commission is that as their duties are not all performed in the office in the State House, they are entitled to traveling expenses from their homes to Boston on days when the State's business requires them to visit any place in Boston outside of the office in the State House;" and further, that certain members of the Commission on Fisheries and Game "visit the State House almost daily, and contend that should there be business of the commission requiring them to visit any other place in Boston than the office in the State House, they should be allowed expenses for traveling from their homes, and also for their midday meal on those days."

In many instances special provision has been made for the payment of traveling and other expenses necessarily incurred