the appellate court may result in establishing the innocence of the accused, in which case the license ought not to become void but to remain in force. It is my opinion that in the circumstances disclosed by your inquiry the license in question does not become void while an appeal is pending. Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

Chauffeurs employed as drivers of a police patrol, and receiving pay as such, are subject to the laws regulating the hours of labor of chauffeurs and not of police officers, even though they are special police officers by appointment and serve as such without pay.

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

FEB. 25, 1914.

DEAR SIR: I have your letter with inquiry from the chief of police in Newton in which he says:

I am employing two chauffeurs as drivers of the auto patrol, one of whom works from 8 A.M. to 6 P.M., the other from 6 P.M. to 8 A.M. the following morning. These men are citizen operators, but are appointed special police without pay and draw their salaries as chauffeurs.

Will you kindly inform me if the fact that they are police officers makes their employment of over eight hours a day legal, or am I violating the labor law?

The chief of police does not state whether the city of Newton has accepted the provisions of the eight-hour law, so called. I assume, however, that it has done so. As I understand the letter of the chief the two men mentioned are not employed as policemen but as chauffeurs, they draw no salary as police officers but are paid for the work they actually perform, and are classified on the pay roll as chauffeurs and not as police officers.

It is my opinion that the hours of labor of these men should be governed by the kind of service for which they are actually employed and paid, and the fact that they are special police officers without pay does not, in my opinion, affect the number of hours of labor that shall constitute for them a day's work.

Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

Board of Education - Transportation of Pupils - "Preceding Year" defined.

Where towns or cities under St. 1913, c. 396, are required to provide transportation for high school pupils attending school in other towns or cities, the statute is not to be construed as authorizing towns to provide board for such pupils.

Under St. 1913, c. 396, the words "the preceding year" refer to the fiscal school year as used in St. 1913, c. 356.

State Board of Education.

FEB. 25, 1914.

GENTLEMEN: You ask for an opinion upon questions that have arisen with regard to certain provisions of chapter 396 of the Acts of 1913, as follows:

1. In some instances, parents whose children are attending high schools in other towns or cities than that of their residence are asking school committees to make payment for the board of these children. Can such a claim be recognized as coming within the term "transportation" a's used in the act?

2. A statement is desired as to the meaning of the term "the preceding year" as found in lines 18 and 24 of this act. Does the year mean the fiscal year of the town?

In July, 1914, towns will send to the Board of Education statements of amounts paid for transportation, under this act, for the school year ending June 30, 1914; in such a case, is reimbursement to be based upon the payments from local taxation for schools for the town year closing before July 1, 1914, or for the town year closing before July 1, 1913?

Replying to your first question, I have to say that in view of the statutory rule that "words and phrases shall be construed according to the common and approved usage of the language," it is my opinion that a claim made by reason of payment for board of children cannot be recognized as coming within the term "transportation" as used in the statute above referred to.

You have also requested a construction of the phrase "the preceding year" in the same statute.

By another act of 1913, namely, chapter 356, the annual return by school committees to the State Commissioner of Education of the amount raised and expended by each town for school purposes, although made annually at the close of the school year, refers to the taxes of the last preceding fiscal year. The statute before me provides, in the case of the amount paid for out-of-town high school education, for a return

within thirty days of the expenditure. But as payment between towns is by custom always made at the close of the school year, the statutory requirement amounts to a requirement for annual returns at the close of each school year.

The statute before me does not provide for annual reimbursements, or for any form of returns, in the case of the amount paid for transportation. Nevertheless, I understand that, in conformity with the custom as to high school reimbursement, and in conformity with the statutory requirement as to all other returns, the State Commissioner of Education requires an annual return by school years at the close of each school year, and makes an annual reimbursement on the basis of such return.

Thus we have annually at the close of the school year two returns, one showing the amount paid for transportation during the last school year, the other showing the amount expended for the support of public schools during the last fiscal year. The most reasonable rule would appear to be to reimburse the towns on the basis of the two returns which are due together.

Considered in connection with the custom, it is my opinion that the words "the preceding year," in chapter 396 of the Acts of 1913, should be construed as referring to the same year as the words "the fiscal year last preceding the date of the certificate," in chapter 356.

Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

Constitutional Law — Cities and Towns

Ice.

A law enacted by the Legislature authorizing cities and towns to cut, store and sell ice from reservoirs and ponds owned or controlled by such cities and towns would be unconstitutional, and such cities and towns may not acquire or hold property for such purposes.

To the Honorable Senate and House of Representatives.

FEB. 26, 1914.

GENTLEMEN: You have required my opinion upon the following questions:

First. - Is it within the constitutional power of the General Court to enact a law conferring upon a city or town within the Commonwealth the power, acting by its water commissioners, to cut, store and

sell ice from reservoirs and ponds owned or controlled by such city or town in connection with its water supply?

Second.

-

Is it within the constitutional power of the General Court to enact a law conferring upon a city or town within the Commonwealth the power to cut ice in the reservoirs and ponds owned or controlled by such city or town, and to store the ice and to sell it at wholesale or retail, and to fix and collect rates to be paid therefor, and to acquire by lease or purchase and to hold property, lands and easements for said purposes?

Third.

Is it within the constitutional power of the General Court to enact a law conferring upon a city which owns and operates a system for supplying its inhabitants with water, acting by its water commissioners, the power to cut ice in the reservoirs, ponds and other sources of water supply owned and controlled by such city, and to store the ice so cut and to sell the same at prices fixed by the water commissioners?

The real question is: May a city be authorized by the Legislature to cut, store and sell ice from reservoirs, ponds and other sources of water supply owned or controlled by such city or town; in other words, may a city or town deal in ice cut and harvested from reservoirs or ponds which it owns or controls?

In recent years it has become more and more urgent to have the municipalities, under legislative sanction, construct, maintain and operate public utilities, and to regulate the operation and to control the rates of charges for commodities furnished or services rendered to the public. In England and in some of the European countries the scope of municipal operations has been greatly extended, and these operations are known under the name of "municipal trading." In the United States, however, the limitations and restrictions placed upon legislative authority by the written Constitutions of the respective States has formed an obstacle which has prevented the development of municipal trading to any degree that even attempts to approach the extent to which it has gone in England. (Dillon on Municipal Corporations.)

The test of constitutionality is whether the service proposed is a public service.

If such a business as is suggested by these questions is to be carried on it must be by money raised by taxation, and it is settled in this Commonwealth "that the Legislature can authorize a city or town to tax its inhabitants only for public purposes." Opinion of the Justices, 155 Mass. 598.

Great difficulty has been found in clearly defining a public purpose, and in the opinion last cited the learned justices said:

It is not easy to determine in every case whether a benefit conferred upon many individuals in a community can be called a public service within the meaning of the rule that taxes can be laid only for public purposes.

Again, the justices of the Supreme Court have said:

It is impossible to define with entire accuracy all the characteristics which distinguish a public service and a public use from services and uses that are private. (Opinion of the Justices, 150 Mass. at p. 595.)

The Legislature of 1892 requested the opinion of the justices of the Supreme Court as to whether the Legislature could constitutionally authorize a city or town to buy coal and wood in excess of its ordinary requirements for the purpose of selling such excess to its own citizens. Several questions of the same import were propounded to the justices. In response to these inquiries the justices said, in part, that the question

must be determined by considering whether the carrying on of such a business for the benefit of the inhabitants can be regarded as a public service. This inquiry underlies all the questions on which our opinion is required. If such a business is to be carried on, it must be with money raised by taxation. It is settled that the Legislature can authorize a city or town to tax its inhabitants only for public purposes. This is not only the law of this Commonwealth, but of the States generally and of the United States. (Opinion of the Justices, 155 Mass. 601.)

The Legislature of 1903 required the opinion of the justices upon various questions in regard to the purchase of coal and wood as fuel by a city or town, in excess of its ordinary requirements, for the purpose of selling such excess so purchased to its inhabitants or others (1) at cost, (2) at less than cost, or (3) at a profit. In a discussion of the principles involved the learned justices said:

There is nothing materially different between the proposed establishment of a governmental agency for the sale of fuel and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in com